June 24, 2022
June 22, 2022
Michael Clarke and Jennifer Emerson of our Tampa office obtained a reversal of summary judgments in favor of an emergency medical provider in Progressive Select Insurance Co. v. Emergency Physicians, Inc. d/b/a Emergency Resources Group a/a/o Archer, 5D21-967 (Fla. 5th DCA June 17, 2022) and Progressive American Insurance Co. v. Emergency Physicians, Inc. d/b/a Emergency Resources Group a/a/o Sanders, 5D21-968 (Fla. 5th DCA June 17, 2022). In the consolidated appeals, the Fifth District considered the issue of whether under Florida’s No-Fault law, when multiple bills are received by a PIP insurer on the same day from both emergency service and non-emergency service providers, without any evidence establishing a precise order of receipt, must the insurer apply the non-emergency provider’s bill to the deductible first, thereby prioritizing the full payment of the emergency provider’s bill? In both cases, Progressive processed the emergency provider’s bill first under the deductible, resulting in a limited payment to the provider in Archer, and no payment in Sanders. The Fifth District reversed holding that where the bills are received on the same day, sections 627.736(4)(c), 627.739(2), and its opinion in Mercury Ins. Co. of Florida v. Emergency Physicians of Central Fla., LLP, 182 So. 3d 661 (Fla. 5th DCA 2015), allow for the deductible to be applied to 100 percent of the bills submitted with no distinction between emergency and non-emergency providers. Accordingly, there is no legal basis to direct a No-Fault insurer to establish a “precise time of day” or the exact order of mailing, in applying the deductible.
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June 16, 2022
Sharon Degnan, of our Orlando office, obtained an affirmance of a summary judgment in a products liability case.
In Grieco v. Daiho Sangyo, Inc., et al., 4D20-2294, 4D20-2557 (Fla. 4th DCA June 15, 2022), the Fourth District Court of Appeal affirmed summary judgment in our client’s favor in a case brought by a plaintiff against a manufacturer, distributor and retailer of a compressed gas dusting spray product intended to clean computers and other electronics, which, when misused by being inhaled, produces a short-lived high. The plaintiff was injured when the driver-tortfeasor, who was addicted to inhaling this type of product, purchased a can from the retailer and, while driving home, got high at a red light and lost control of her vehicle, causing it to collide with the plaintiff. The plaintiff sued the retailer, the product manufacturer, and the distributor under strict liability and negligence theories based on design defect and failure to warn.
The Fourth District in a lengthy 18-page decision found that the plaintiff's claims failed on all theories. As it related to strict liability for an alleged design defect, the court held that product liability defendants are not strictly liable when a third party’s injury results from a consumer’s unintended and illegal use of a product.
The court also held that the strict liability duty to warn claims failed because the warning label on the product expressly stated that misuse through inhalation could be harmful or fatal, and that a bitterant was added to the product to discourage inhalant abuse. Even though the product label did not prevent the driver-tortfeasor from misusing the product, the court found that summary judgment was properly entered on the claim because it was sufficient to warn a reasonable consumer not to inhale it.
With regard to the common law negligence counts, the court wrote an in-depth analysis of foreseeability in the context of duty and proximate cause. It concluded that the causal link between the danger (being struck by a vehicle driving off the roadway) and the alleged misconduct (manufacturing and selling a household dust-removal product) was simply too attenuated and remote to support the existence of any duty to third parties arising from the product’s misuse. Moreover, the court determined that the plaintiff’s injuries were the result of the driver-tortfeasor’s reckless indifference to her own safety as well as the safety of others and not the conduct of the product liability defendants. Read more here.
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In Grieco v. Daiho Sangyo, Inc., et al., 4D20-2294, 4D20-2557 (Fla. 4th DCA June 15, 2022), the Fourth District Court of Appeal affirmed summary judgment in our client’s favor in a case brought by a plaintiff against a manufacturer, distributor and retailer of a compressed gas dusting spray product intended to clean computers and other electronics, which, when misused by being inhaled, produces a short-lived high. The plaintiff was injured when the driver-tortfeasor, who was addicted to inhaling this type of product, purchased a can from the retailer and, while driving home, got high at a red light and lost control of her vehicle, causing it to collide with the plaintiff. The plaintiff sued the retailer, the product manufacturer, and the distributor under strict liability and negligence theories based on design defect and failure to warn.
The Fourth District in a lengthy 18-page decision found that the plaintiff's claims failed on all theories. As it related to strict liability for an alleged design defect, the court held that product liability defendants are not strictly liable when a third party’s injury results from a consumer’s unintended and illegal use of a product.
The court also held that the strict liability duty to warn claims failed because the warning label on the product expressly stated that misuse through inhalation could be harmful or fatal, and that a bitterant was added to the product to discourage inhalant abuse. Even though the product label did not prevent the driver-tortfeasor from misusing the product, the court found that summary judgment was properly entered on the claim because it was sufficient to warn a reasonable consumer not to inhale it.
With regard to the common law negligence counts, the court wrote an in-depth analysis of foreseeability in the context of duty and proximate cause. It concluded that the causal link between the danger (being struck by a vehicle driving off the roadway) and the alleged misconduct (manufacturing and selling a household dust-removal product) was simply too attenuated and remote to support the existence of any duty to third parties arising from the product’s misuse. Moreover, the court determined that the plaintiff’s injuries were the result of the driver-tortfeasor’s reckless indifference to her own safety as well as the safety of others and not the conduct of the product liability defendants. Read more here.
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June 8, 2022
In PF Sunset View, LLC v. Atlantic Specialty Insurance Company, Case No. 21-11580 (11th Cir. June 2, 2022), the Eleventh Circuit reiterated that there is no coverage for losses incurred from COVID-19 related business interruptions. The plaintiffs, four franchisees of Planet Fitness gym locations in Florida, sought damages from their insurance company for business income loss and extra expenses incurred as the result of closure orders. Relying on its recent decision SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s of London, 32 F.4th 1347, 1350 (11th Cir. 2022), the Court held that the claims were properly denied because losses from the suspension of business operations and extra expenses incurred as a result of COVID-19 closure orders did not constitute tangible alterations to the insured property. Read more here.
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June 6, 2022
We are a proud sponsor of the 2022 Florida Institute Fraud Education Committee (FIFEC) Annual Conference taking place this week from June 8-10 in Orlando, Florida. We are also excited about our team being slated to present several topics! We hope to see you in their sessions, but if not, come by our photobooth and say hello! We look forward to seeing you! For more information, or to register please click here.
Day 1Wednesday, June 8, 2022
Time: 1:20 p.m. – 3:20 p.m.
Title: The Story of a Bartender, a Local Radio Celebrity and a Fraudulent Accident
Presenters: Jarred Dichek (KD), Narcy Fajardo-Sanchez (Progressive), Kelvin Gomez (MetLife/Farmers Insurance Company)
Description: This is an intermediate level course that will walk attendees through the investigation of a fraudulent accident where PIP, UM, and BI claims were made. The course will discuss the red flags that indicated possible fraud, what investigative tools a special investigator has at their disposal to determine if fraud is occurring, how to gather evidence that will be admissible at trial during the investigation, how to pursue a fraud claim in court and what elements are needed to be proved.
Day 2
Thursday, June 9, 2022
Time: 8:00 a.m. – 12:00 p.m.
Title: Florida 4 Hour Law and Ethics Update
Presenters: Michael Carney, Caryn Bellus, Gregory Prusak, Michael Walsh
Description: This course will discuss and update Florida adjusters on regulatory matters, Florida case law update and ethics.
Title: A Covid Year in Review for First Party Claims
Time: 10:10 a.m. – 12:00 p.m.
Presenters: Anthony Atala (KD), Erika Cordovi (KD), Barbara Fox (KD), Carl Nemeth, Jr., (Tower Hill Insurance Group), Jennifer Newell (FedNat Insurance Company)
Description: 2020 was the year of the unknown, and 2021 proved to be as challenging. However, that did not curve fraudulent first party claims in Florida. This course will highlight some of the trends seen in the last couple of years, such as Engineering Inspections, Weather Events in 2020, Senate Bill 76, Hot Litigation Topics, and Attorney Discipline, and how these same issues are affecting 2022 and beyond. The panelists include 2 SIU Managers discussing how their teams have been able to investigate these fraudulent claims.
Title: Investigating Mechanical Damage in Homeowner Wind Claims and How to Identify and Handle Fraudulent Claim Activity
Time: 4:10 p.m. – 6:00 p.m.
Presenters: Stefanie Capps (KD), Marc Leonard (Rimkus Consulting Group)
Description: This course will discuss forensic evaluation, possible human involvement and fraudulent conduct in homeowner’s insurance claims and strategies for investigation and handling.
Day 3
Friday, June 10, 2022
Time: 10:10 a.m. – 12:00 p.m.
Title: Combating Fraudulent and/or Excessive Attorneys’ Fee Demands
Presenters: Jarred Dichek (KD), Sara Engel (The Engel Firm), Allison Harke (Allison Clasby Harke P.A.)
Description: Learn how to evaluate attorney fee demands, how to effectively review time sheets and identify over-billing, fraudulent billing, and improper billing. Guests will learn how a fee hearing works, how to use attorney fee experts, and what case law and rules support denial of certain billing entries.
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June 3, 2022
In Frontier Development, LLC v. Endurance American Specialty Insurance Co., case number 21-13449 (11th Cir. Jun. 1, 2022), the Eleventh Circuit reaffirmed its holding that the presence of COVID-19 does not constitute “direct physical loss or damage” to property triggering coverage under an all risk property insurance policy. The plaintiff, a commercial landlord, sought damages for lost rental value caused by the closure and suspension of its tenants’ businesses during the pandemic, and alleged that the presence of COVID-19 damaged its property by preventing plaintiff from using the property, denying employees and customers access to the property, and rendering the property physically uninhabitable. Based on its opinion in SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, 32 F.4th 1347 (11th Cir. 2022), the court affirmed the dismissal of plaintiff’s complaint, holding that the complaint failed to plausibly allege damage to the property required to trigger coverage. The court noted that “direct physical loss or damage” requires “tangible alteration of the insured property,” and that an item or structure that merely needs to be cleaned has not suffered a “loss” which is both “direct” and “physical.”
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May 27, 2022
Effective July 1, 2022, the Florida Supreme Court has amended Rule 1.442, Fla. R. Civ. P., to exclude references to non-monetary conditions in proposals for settlement, except voluntary dismissal with prejudice and conditions allowed by statute.
The new rule is intended to align with §768.79, Fla. Stat., which “simply contemplates a comparison of monetary amounts, with subsections (2)(c)-(d) of that statute providing only that a settlement offer must “[s]tate its total amount” and '[s]tate with particularity the amount offered to settle a claim for punitive damages, if any.'" See full opinion here.
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The new rule is intended to align with §768.79, Fla. Stat., which “simply contemplates a comparison of monetary amounts, with subsections (2)(c)-(d) of that statute providing only that a settlement offer must “[s]tate its total amount” and '[s]tate with particularity the amount offered to settle a claim for punitive damages, if any.'" See full opinion here.
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May 26, 2022
The Florida Legislature has passed SB 2-D. Below are highlights from the bill which could change first party property litigation:
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1. Amendment to Section 489.147, Florida Statutes. This amendment requires that advertisements by contractors encouraging someone to contact a contractor to make an insurance claim for roof damage must contain a statement in at least 12 point font and at least half as large as the largest font size used in the communication that:?(1) the insured is responsible for their policy deductible, (2) it is punishable as a felony in the third degree to waive or offer a rebate for the policy deductible, and (3) insurance fraud is punishable as a felony in the third degree to intentionally file a claim with false, incomplete or misleading information.
2. Creates Section 624.1551, Florida Statutes. This Statute requires a policyholder first establish the insured carrier breached the insurance contract to prevail in a claim for extra contractual damages (a bad faith lawsuit).
3. Amendment to Section 627.428, Florida Statutes. This amendment prohibits transfer of a claim for attorney’s fees under a residential or commercial property insurance policy to anyone other than the named insured or named beneficiary.
4. Amendments to Section 627.701, Florida Statutes. These amendments permit the use of a separate deductible for roof losses provided that a premium credit is provided and the insured signs documents confirming they understand that accepting a separate roof deductible may result in high out of pocket costs. The roof deductible may not apply to a total loss of the structure, a hurricane, a loss resulting from a tree or other hazard falling on the roof and puncturing the roof deck, or when repair of less than 50 percent of the roof is needed.
5. Amendments to 627.70131, Florida Statutes, effective January 1, 2013. The significant change in this section requires an insurance company to provide an estimate of damages if requested by the insured. However, the amendment makes clear that an insurance company is not required to create an estimate for all claims.
6. Amendments to Section 627.70152, Florida Statutes (created by SB-76). The amendments allow for a Court to award an insurance carrier fees and costs when the claimant dismisses a case pursuant to the requirements of this Statute.
Additionally, the amendment creates a presumption that a lodestar attorney fee award is reasonable and sufficient. The presumption may be rebutted in rare and unusual circumstances where competent counsel could not be retained in a reasonable manner. This means that an attorney fee multiplier cannot be awarded without this showing.
7. Amendment to Section 627.7152, Florida Statutes (The AOB Statute). The most significant portion of this amendment allows for an award of attorney’s fees and costs to an assignee only under Section 57.105, Florida Statutes.
Additionally, the types of services covered by the Statute are broadened to include services for inspection of the property under an assignment agreement. This portion of the Statute appears to be in an effort to make clear that this Statute applies to “engineering inspections” which are the subject of significant litigation throughout the State.2. Creates Section 624.1551, Florida Statutes. This Statute requires a policyholder first establish the insured carrier breached the insurance contract to prevail in a claim for extra contractual damages (a bad faith lawsuit).
3. Amendment to Section 627.428, Florida Statutes. This amendment prohibits transfer of a claim for attorney’s fees under a residential or commercial property insurance policy to anyone other than the named insured or named beneficiary.
4. Amendments to Section 627.701, Florida Statutes. These amendments permit the use of a separate deductible for roof losses provided that a premium credit is provided and the insured signs documents confirming they understand that accepting a separate roof deductible may result in high out of pocket costs. The roof deductible may not apply to a total loss of the structure, a hurricane, a loss resulting from a tree or other hazard falling on the roof and puncturing the roof deck, or when repair of less than 50 percent of the roof is needed.
5. Amendments to 627.70131, Florida Statutes, effective January 1, 2013. The significant change in this section requires an insurance company to provide an estimate of damages if requested by the insured. However, the amendment makes clear that an insurance company is not required to create an estimate for all claims.
6. Amendments to Section 627.70152, Florida Statutes (created by SB-76). The amendments allow for a Court to award an insurance carrier fees and costs when the claimant dismisses a case pursuant to the requirements of this Statute.
Additionally, the amendment creates a presumption that a lodestar attorney fee award is reasonable and sufficient. The presumption may be rebutted in rare and unusual circumstances where competent counsel could not be retained in a reasonable manner. This means that an attorney fee multiplier cannot be awarded without this showing.
7. Amendment to Section 627.7152, Florida Statutes (The AOB Statute). The most significant portion of this amendment allows for an award of attorney’s fees and costs to an assignee only under Section 57.105, Florida Statutes.
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May 19, 2022
In Certain Underwriters at Lloyd's London v. Roniel Candelaria & Amelia Padura, 3D20-871, 2022 WL 1559917 (Fla. 3d DCA May 18, 2022), the Third District reversed a fee award in a first party property case. At an evidentiary hearing, Plaintiff’s fee expert “cut 7.5 percent” of the total hours claimed, but did not elaborate as to the basis for the reduction. Plaintiffs’ expert also opined that a 2.45 multiplier was appropriate based on the law firm being “one of the best” and that plaintiffs would have had a hard time getting a good lawyer to take the case without a multiplier. In contrast, defendant’s expert undertook a detailed, itemized evaluation of each of plaintiff’s time entries and concluded that the reasonable time was significantly less than that presented. Defendant’s expert also disagreed that a multiplier was appropriate because there was no evidence that other counsel in the community would not have taken the case. In awarding fees, the trial judge doubled the reduction suggested by plaintiff’s expert and applied a 1.8 multiplier. On appeal, the Third District rejected the trial court’s lodestar determination and held that “the trial court’s adoption of the insureds’ expert’s methodology of an arbitrary, ‘across-the-board’ reduction” was improper and not supported by competent substantial evidence. The Third District also rejected the trial court’s application of a contingency risk multiplier because it failed to consider each of the factors in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990), notably, the court failed to consider whether the attorney was able to mitigate the risk of nonpayment in any way. Read more here.
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May 13, 2022
In honor of Mental Health Awareness Month, and its great importance year round, the KD team will be invited to participate in various awareness activities throughout the month of May that aim to create positive habits that support mental health. From meditation to live trainings by licensed medical providers, the program will emphasize that mental health is an incredibly important part of our overall health.
We encourage everyone, to pause and take time to do things that help you live well and improve both your physical health and mental health. For helpful resources on mental health awareness, please visit: www.mhanational.org/ and www.nami.org/Get-Involved/Awareness-Events/Mental-Health-Awareness-Month
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We encourage everyone, to pause and take time to do things that help you live well and improve both your physical health and mental health. For helpful resources on mental health awareness, please visit: www.mhanational.org/ and www.nami.org/Get-Involved/Awareness-Events/Mental-Health-Awareness-Month
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May 13, 2022
In Commodore, Inc. d/b/a GreenStreet Café, Inc. v. Certain Underwriters at Lloyd's London, etc., et al., No. 3D21-0671 (Fla. 3d DCA May 11, 2022), the Third District Court of Appeal affirmed a dismissal of a petition for declaratory relief, holding that alleged economic losses due to the COVID-19 pandemic were not covered under a policy of insurance. The court reasoned that coverage for loss of business income was for the suspension of operations caused by direct physical loss of, or damage to, the insured property, and the loss of the intended use of an eat-in restaurant alone is not a direct physical loss. Rather, actual, physical, tangible alteration to the insured property is required for coverage to be triggered. Read more here.
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May 12, 2022
It is an honor to be a sponsor of the 17th Annual Claims Education Conference coordinated by the American Educational Institute, International Insurance Institute and Society of Claim Law Associates. We are also pleased to have a couple of team members participate! Ken Oliver and Jarred Dichek are slated to present “Social Media in the Evaluation of Insurance Claims” on May 13 at 8:30 a.m. The presentation will provide tips and real life examples for using social media to investigate claims, and it will also provide case law and pitfalls to avoid.
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May 5, 2022
Some of our KD family recently participated in the Juvenile Diabetes Research Foundation (JDRF) “One Walk” to fight type 1 diabetes (T1D), in Winter Park, Florida.
Harold Saul, of our Tampa office and Ken Oliver, of our Ft. Myers office, walked with “Jaxon’s Squad” in honor of Ken’s grandson, Jaxon, and helped raise over $2,000 for the cause. The money raised helps power more research, enable more advocacy and fund more support for the 1.6 million Americans living with T1D.
To read more about Jaxon’s story please click here, or to learn / donate to JDRF please click here.
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Harold Saul, of our Tampa office and Ken Oliver, of our Ft. Myers office, walked with “Jaxon’s Squad” in honor of Ken’s grandson, Jaxon, and helped raise over $2,000 for the cause. The money raised helps power more research, enable more advocacy and fund more support for the 1.6 million Americans living with T1D.
To read more about Jaxon’s story please click here, or to learn / donate to JDRF please click here.
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May 5, 2022
In Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, No. 21-10744 (11th Cir. Apr. 13, 2022), the Eleventh Circuit held that a dealership which provided a “loaner” vehicle to customers while their vehicle was in service was shielded from vicarious liability by the Graves Amendment, finding the dealership owned the vehicle, was engaged in the trade or business of renting or leasing motor vehicles, committed no negligence or criminal wrongdoing, and rented or leased the vehicle to the customers for consideration. Read more here.
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May 1, 2022
May 1-7 is National Hurricane Preparedness Week, and as many of us have experienced, storms can approach quickly leaving little to no time to adequately prepare. Experts indicate the 2022 hurricane season is expected to be above normal for activity, so we have included some tips and helpful links to help you prepare.
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Build an emergency kit
Know your zone so you know when to evacuate, if necessary
Plan your evacuation route
Take inventory of your personal property and review your insurance policies
Take steps to protect your home and business
Hurricane Safety Tips and Resources from the National Weather Service
If you are an insurance professional, remember to check your license status and ensure you have met all of your CE requirements, so your license is in good standing and is active. If you need credits, we welcome you to join our upcoming webinars announced here on LinkedIn and on our website. We are also happy to schedule a private complimentary webinar for you and your team. Contact us at info@kubickidraper.com.Know your zone so you know when to evacuate, if necessary
Plan your evacuation route
Take inventory of your personal property and review your insurance policies
Take steps to protect your home and business
Hurricane Safety Tips and Resources from the National Weather Service
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April 29, 2022
Florida Supreme Court holds that the admissibility of a Plaintiff's past medical expenses is limited to the discounted amounts paid by Medicare. Read full opinion here.
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April 25, 2022
Kubicki Draper is committed to fostering an environment of equal opportunity for success and believes diversity is not only a moral imperative, but is also sound business practice. We believe a diverse law firm is a stronger, more vibrant one.
Diversity month gives us another opportunity to recognize and highlight some programs and organizations that are important and that we wholeheartedly champion.
Miami-Dade Florida Association for Women Lawyers (MDFAWL) Scholarship Program
NAAIA Florida Scholarship Program
Miami Carol City Law Magnet Program
Miami-Dade Public School’s Black History Guided Lessons
The Holocaust Memorial Resource and Education Center of Florida
Visit our diversity page here.
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Diversity month gives us another opportunity to recognize and highlight some programs and organizations that are important and that we wholeheartedly champion.
Miami-Dade Florida Association for Women Lawyers (MDFAWL) Scholarship Program
NAAIA Florida Scholarship Program
Miami Carol City Law Magnet Program
Miami-Dade Public School’s Black History Guided Lessons
The Holocaust Memorial Resource and Education Center of Florida
Visit our diversity page here.
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April 21, 2022
We are so proud of Toni Turocy in our Orlando office and the amazing work she is doing as a board member of The Holocaust Memorial Resource and Education Center of Florida. In support of Toni and the organization, KD sponsored the White Rose Tribute Event honoring Dr. Rita Bornstein with the Tess Wise White Rose Award for her legacy of leadership. Toni attended the event with Greg Prusak also of our Orlando office, and Toni’s husband’s grandmother, Helen Greenspun, a local Holocaust survivor. For more information, please click here.
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April 19, 2022
In Shazam Auto Glass, LLC v. GEICO General Ins. Co., No. 2d21-383 (Fla. 2d DCA April 13, 2022), the Second DCA held that when a circuit court sitting in its appellate capacity denies a motion for appellate attorney’s fees, that order is reviewable by direct appeal rather than first-tier certiorari. In reaching its conclusion, the Second DCA found that such orders constitute an original decision that has not been subject to judicial review, thereby providing the Court with jurisdiction as a direct appeal under Florida Rule of Appellate Procedure 9.030(b)(1)(A). Read more here.
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April 7, 2022
In McNamara v. Government Employees Insurance Company, No. 20-13251 (11th Cir. April 5, 2022), the Eleventh Circuit declined to follow its previous, unpublished opinion in Cawthorn v. Auto-Owners Insurance Co., 791 F. App’x 60 (11th Cir. 2019), which held that an “excess judgment,” for the purposes of proving the causation element of a bad-faith-claim, can only arise from a trial and resulting verdict. In retreating from Cawthorn, the Eleventh Circuit held that an excess judgment may be demonstrated based on a consent judgment that memorializes a private settlement agreement between a third party and an insured. Read more here.
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