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Congratulations to these team members on their well-deserved promotion to Shareholder! We proudly recognize their hard work and dedication is a key ingredient to our success. 


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In Yuval Lugassy and Susan Lugassy v. United Property & Casualty Insurance Company, No. 4D21-2929 (4th DCA November 23, 2022), the Fourth DCA reversed a trial court order dismissing a first-party bad faith action arising from the insured homeowners’ water damage claim. Following the initial adjustment of the claim, the homeowners disputed the amount of loss and provided the insurer with two repair estimates.

The homeowners filed a civil remedy notice (“CRN”) which identified general damages as “more than $50,000.”  Following an appraisal award in the homeowner’s favor, they proceeded with a  bad faith action. The trial court dismissed the complaint, ruling that the CRN inadequately specified the cure amount. The Fourth DCA disagreed, holding that the CRN complied with the specificity requirements of §624.155(3)(b), Fla. Stat.

The Fourth DCA recognized that a CRN does not need to specify an exact amount necessary to cure alleged violations.  Rather, the CRN was specific enough to place the insurer  on notice of the cure terms, as “’common sense’” dictates that it could have cured the alleged violations by increasing its offer in accordance with the homeowners’ two estimates. To see full opinion visit: here. 
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Are you liable to a trespasser who was injured on your construction site? As always, it depends. First, you have to determine whether the individual was indeed trespassing. A trespasser “enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.”  Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972). Then, you analyze whether you breached the duty owed to a trespasser: “to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.”  Arp v. Waterway East Ass’n, Inc. et al., 217 So. 3d 117 (Fla. 4th DCA 2017) (quoting Nolan v. Roberts, 383 So. 2d 945, 946 (Fla. 4th DCA 1980)); see also Fla. Stat. § 768.075(3)(b). An act is willful when it is voluntary and intentional, and a voluntary act becomes willful “only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong.”  Black's Law Dictionary (11th ed. 2019). An act is wanton when it is “unreasonably or maliciously risking harm while being utterly indifferent to the consequences.”  Id. Please feel free to reach out to Kubicki Draper’s Construction Practice Group for a detailed case-specific analysis of your worksite injury liability claims.

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In re: Amendments to Florida Rule of Civil Procedure 1.530 & Florida Family Law Rule of Procedure 12.530, SC22-756, 2022 WL 3650789, (Fla. Aug. 25, 2022).

On August 25, 2022, the Florida Supreme Court amended the text of Rule 1.530(a) to require a motion for rehearing to preserve an appeal based on the sufficiency of the trial court’s findings in a final judgment. The new language, which is effective immediately, states: “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.” 1.530(a), Fla. R. Civ. P.
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Have you ever wondered what compels a person to become a lawyer? After all, the hours are long, the stakes can be high, and the stress is real. Maybe it’s the money, or perhaps the notoriety that may come with working a big case. To each, their own. For KD’s Equity Partner and Executive Board Member, Laurie Adams, it was a passion for solving problems and, as she puts it, “getting to the bottom of it all.”

Laurie grew up in the small town of Clarksburg, West Virginia, with her sister and was raised by a working-class single mom, who unfortunately endured several health problems while Laurie was a child. Laurie recalls feeling powerless back then, wanting to help her mom but not quite knowing how. She felt that her family members’ lives were controlled by large institutions, and she recognized that “you have to understand the fine print and the rules, otherwise bad things will happen.” This caused something to sort of click inside of her: if she could devour as much knowledge as possible and learn how the world works, then maybe she would find herself in a better position to resolve some of these big challenges she and her family faced. So, that’s exactly what she did. Through many years of night school, she absorbed as much information as she could, including reading multiple newspapers daily—which she still loves doing. She started applying this knowledge for herself and her family, and still does. In high school, she even fought a traffic ticket, with poster board and drawings in tow to prove her case.

In the 1980s, Laurie relocated to the Washington, D.C. area and earned her paralegal certification. She eventually made her way to Florida, first settling in the Miami area, which is when she began working at KD, starting off as a paralegal focusing on medical malpractice, a subject near and dear to her. The subject of healthcare generally would become that much more important to Laurie following the birth of her son, who as a child was diagnosed with Type 1 Diabetes. Laurie has become a strong advocate for her son and so many others with Type 1 Diabetes through the Juvenile Diabetes Research Foundation (“JDRF”), fighting to ensure everyone has access to the proper care and supplies and that people remain educated on this issue.

In her thirty years at KD, Laurie has “basically worked every job in the law firm with the exception of the mail room.” In addition to her medical malpractice paralegal responsibilities, she helped with accounts receivable and administrative items. She realized early on that as much as she enjoyed being a paralegal, it seemed she would enjoy being a lawyer even more, feeding into her mission of helping resolve problems. So, she enrolled full time in law school at the University of Miami, working at KD, and singing in a wedding band. After graduating with honors and passing the bar exam, Laurie jokes that she “pulled a George Costanza and just kept coming in each day,” eventually scoring her a promotion from paralegal to attorney.

In the mid-1990s, Gene Kubicki, the founder of KD, approached Laurie and asked her if she would consider relocating from Miami to the firm’s West Palm Beach office. He told her, “Those boys could use some help up there.” She agreed and was the only female attorney at the West Palm Beach office at that time. This was at a time when staff counsel had not been widely established, so the number of cases that went to trial was high. In fact, she tried her first case within just a few months after being admitted to the bar. This was certainly difficult, but absolutely invaluable. She learned so much about how to be a good trial lawyer by observing her peers in their trials, aiming to never miss one since it was such an effective way to learn.

Nearly thirteen years ago, Gene Kubicki retired from the firm, naming four attorneys to the Executive Board to replace him, including Laurie. At that time, the firm had approximately fifty attorneys; since then, it has grown to around two hundred. Laurie’s role on the Board includes overseeing the legal training of the firm’s attorneys, which aligns perfectly with her background and her lifelong passion for learning in order to become an effective problem solver.

Over the years, Laurie’s practice has extended well beyond medical malpractice and now includes complex personal injury claims, bad faith litigation, and insurance coverage disputes. Her goal is generally to resolve claims pre-suit if at all possible, noting it’s often better and more cost-effective for all parties involved when pre-suit settlement agreements can be reached.

In the limited spare time she has, Laurie enjoys gardening, hanging out with family and friends, jet skiing, and traveling, particularly to areas where she can learn about history, food, and music of the area. Over her thirty years as part of the KD family, Laurie has accomplished too many amazing results to count, but in her opinion, her greatest accomplishment is landing a job that she loves while simultaneously managing to have a great family life. She noted everyone knows that it can be tough to strike a work-life balance with a very demanding job and a young child, especially one with health issues (who is now a thriving 25 year old). With determination and focus, she’s managed to keep her son (and the rest of her family) healthy, all while providing excellent service to our clients.

Laurie is an amazing resource for our firm and our clients. If you’re stuck with a pre-suit or litigation problem, reach out to Laurie and her skilled and knowledgeable team.

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(1) Coverage Question?
If it seems like a tough coverage question, it’s best to obtain an EUO. Recorded statements are almost always a good idea, so if you can obtain one, go for it. But, when the facts present a more difficult coverage question, it’s best to seek an EUO where an experienced lawyer can help you navigate the legal nuances involved. Whether it’s a golf cart, a kit car, a work vehicle, a young driver away at school, or an event that just doesn’t seem to arise out of the ownership, maintenance, or use of the vehicle (e.g., tailgating-related accident, injuries from a fist-fight inside the vehicle, or injuries from using mobile gym equipment mounted to a vehicle), we can help you.

(2) Ask the Right Questions
Whether you obtain an EUO or take a recorded statement, be prepared to ask the right questions. In preparation for conducting an EUO or a recorded statement, review the claim file and determine what issues need to be resolved. This will help guide you in formulating the right list of questions to ask. During the EUO, listen carefully to the insured’s responses and ask the proper follow-up questions. For example, if an insured tells you she was traveling to a job site or work meeting at the time of the accident, follow up with questions to confirm whether she was on the clock, how often she uses her vehicle in the course and scope of her employment, and so on.

(3) BOLO for "Regular Use"
Be on the lookout for potential issues relating to “regular use.” Some of the most common examples of situations where a vehicle’s regular use may need to be fleshed out include: (1) occasional or incidental use versus frequent or regular use; (2) vehicles not owned by the named insured but instead owned by a family member living in the named insured’s household; (3) vehicles used for work; and (4) repairs and total losses. In these instances, ask questions such as who the primary driver of the vehicle is, who maintains keys to the vehicle, whether permission is needed to drive the vehicle, who oversees vehicle maintenance and costs, etc.

(4) Determining a Person's Residence
There are several factors to consider in determining a person’s residence. Under Florida law, a person’s residence is their place of abode (i.e., typically where they sleep each night) and can be permanent or temporary; and a resident is generally a person who lives at a place with no present intention of removing themselves from that place (i.e., no plans to permanently move elsewhere or leave the household altogether). When this issue arises, try to determine where the person receives mail, the longest amount of consecutive nights the person has stayed overnight at the location, whether the person has his/her/their own bedroom at the location, whether he/she/they have any intention of moving and when, etc.

(5) Named Insured's "Household"
When determining residency, you also need to consider whether the alleged resident is a member of the named insured’s “household” – Florida courts have established that aside from living under the same roof as a named insured, a person must also meet other requirements in order to be considered a resident of the named insured’s household. This includes: (1) having close ties of kinship with the named insured; (2) living in a fixed dwelling unit; and (3) having enjoyment of each part of the living facilities that the named insured also enjoys. Here, consider questions regarding whether all of the residents do any activities together (e.g., eat meals, grocery shop, watch television), whether the insured has full access to the entire house or only certain rooms/areas, and whether the insured freely allows others to enter into his/her/their part of the residence.

If you have any questions on the tips above, please contact Michael Clarke, Sebastian Mejia or Ryan Elias.

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In Perez v. Citizens Property Insurance Corporation, No. 3D20-1709 (Fla. 3d DCA July 6, 2022), the Third District Court of Appeal affirmed summary judgment entered in favor of the insurer.  The plaintiff-insured filed her Hurricane Irma-related property damage claim two years after alleged date of loss, entitling Citizens to a presumption of prejudice due to the insured’s late reporting of the claim. Citizens moved for summary judgment, and the insured submitted an expert affidavit opposing the motion, asserting the damage was related to Hurricane Irma based upon the insured’s statements, a review of the historic weather data, and a review of the property damage three years after the alleged date of loss, most of which had already been repaired. The Third DCA found the affidavit was insufficient in establishing a genuine issue of material fact and did not rebut the presumption of prejudice for late reporting. The insured had made several repairs and maintained no documentation or photos reflecting the extent of the alleged storm-related damage, which made it impossible for Citizens to determine what it owed. Read more here.


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Congratulations to Angela Flowers, of our Ocala office, for prevailing in Lovell v. Security First Ins. Co., No. 2D21-501 (Fla. 2d DCA July 1, 2022).

The Court agreed with Angela that the insureds failed to timely appeal because, pursuant to the new appellate rule governing non-final appeals, it did not have jurisdiction over an appeal to enforce a purported settlement agreement because the appeal was taken from a subsequent trial order clarifying that the trial court’s prior denial was as a matter of law, and a motion for rehearing or clarification does not toll rendition of a non-final order. Further, the clarifying order is not independently appealable because the court did not issue a new ruling on the enforceability of the purported settlement agreement. Read full opinion here.



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Charles Watkins, of our Miami office, was invited to participate as a guest on #IncludingYou with Amy C. Waninger where they discussed Talent Pipelines and how Kubicki Draper is strengthening its talent pipeline by investing in Black college students. We look forward to supporting Charles, check out the podcast here.



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Kubicki Draper proudly sponsored the Florida Bar Appellate Practice Section’s Dessert Reception in Orlando, Florida at the Annual Florida Bar Convention. And, our very own, Angela Flowers and Caryn Bellus, both of whom are Executive Council members and past Chairs of the Appellate Practice Section, represented KD at the event. The Appellate Practice Section of The Florida Bar is a 1,500+ member organization devoted to promoting excellence in Florida's state and federal appellate courts.


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In Apex Roofing and Restoration, LLC v. State Farm Florida Insurance Company, No. 5D21-1919 (Fla. 5th DCA July 1, 2022), the Fifth District Court of Appeal (“DCA”) concluded that when a claimant files a Civil Remedy Notice (“CRN”), the statutorily-mandated sixty-day period to respond to the CRN will not be tolled if the insurer invokes its right to appraisal during that period, even if appraisal is not completed until after the sixty-day period has expired. The Fifth DCA noted that last year, the Fourth DCA reached the same conclusion in Zaleski v. State Farm Florida Insurance Company, 315 So. 3d 7 (Fla. 4th DCA 2021). For more information, see the opinion here.


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Congratulations to Peter Baumberger and Rebecca Leigh Brock who were selected for inclusion in Florida Trend Magazine's 2022 “Florida Legal Elite” list! Florida Legal Elite presents a prestigious roster of attorneys chosen for recognition by their peers each year. Less than 2% of active Florida Bar members practicing in Florida appear among the exclusive Florida Legal Elite. 


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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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KD is proud to highlight the upcoming Juneteenth holiday as part of its annual traditions. While Freedom Day was designated to commemorate the end of slavery, to us it also serves as a reminder to reflect, promote unity and understanding and to listen and learn with open minds and open hearts. We are committed to doing our part in shaping a better history for future generations of Americans where every voice is heard and included.


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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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As part of the National African-American Insurance Association (NAAIA), Florida Chapter’s Black History Month celebrations, NAAIA is hosting a DEI conversation with our very own, Charles Watkins.  The interview is scheduled for February 27 beginning at 5:30 pm EST. As Kubicki Draper’s Chief Diversity, Equity and Inclusion Officer, Charles brings a wealth of experience and insight to the topics of both insurance and DE&I.

For more information and/or to register for this event, visit:https://events.r20.constantcontact.com/register/eventReg?oeidk=a07ejmx6uue310bc923&oseq=&c=&ch=. 


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Opportunities for Florida CE credits continue online with the KD team! 

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Join Kubicki Draper's Construction Group on Friday, November 4 in Tampa, Florida for a full day of interesting construction presentations!

If you are a construction claims professional, you won't want to miss it!

This complimentary event is designed to provide claims professionals with valuable information that will broaden construction and risk knowledge and will assist in claims handling and management of construction cases. Lunch is included and guests are invited to stay for a cocktail reception immediately following the program.

Attendees will be eligible to receive 1 Florida Continuing Education Credit for each topic attended.

Space is limited, so register today!

Conference Program

Considerations in Defending Contractors Involved in Public Projects
Learn about various issues that arise when defending contractors who are involved in public projects in Florida. This course will review the statutory and legal implications.

Experts, Evidence and Daubert: The Admissibility of Evidence in Construction Defect Claims
From pre-suit statutory 558 investigations to trial testimony, experts are one of the most critical aspects to litigating construction defect claims. In this course, we discuss pre-suit considerations, retention of “qualified” experts, testing protocols, Daubert challenges, and more. Actual case studies are used to apply theory to reality and improve your ability to properly evaluate and litigate a wide variety of construction defect claims.

Controlling Expert Costs in Construction Related Cases
A discussion of the various aspects of expert retention and why each step in the process is critical -- from selecting the right expert, to communicating and providing information and being concise in scope, all while being cost-effective.

Keeping up with Construction Coverage: An Overview of Florida Law
In this course, you will learn how to navigate the current law in Florida with respect to coverage in the construction defect arena along with practical tips and a discussion of current events.

Risk Transfer – Seeking Entitlement to Indemnity/Defense before Trial
Learn effective ways to transfer risk and/or pursue and/or defend entitlement to indemnity and defense claims in order to gain leverage and best protect your client.

For more information, or to register please email info@kubickidraper.com.

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September 28, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Hospitality, Retail and Premises Liability Practice Group

Presenters: Raquel Loret de Mola, Lisandra Guerrero, Katherine McGovern

Because amusement parks and attractions encompass a significant part of Florida’s economy, the likelihood of potential claims and lawsuits increases along with the corresponding litigation costs, administrative fines, attorneys’ fees, etc. This presentation will review park duties to guest, the potential tort claims that may arise, as well as potential defenses that may be available.

For more information, or to register please contact info@kubickidraper.com.


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August 25, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Appellate and Coverage Practice Group:

Presenters: Jacqueline Bertelsen, Michael Clarke, Sharon Degnan

This course will provide attendees with a basic understanding of the legal grounds upon which punitive damages can be awarded against individual and corporate defendants. It will also address the basic pleading requirements and evidentiary showing needed to permit punitive damage claims to be pursued under Florida law. The presenters will review the recent rule change in the Florida Rules of Appellate Procedure which now allows parties to appeal orders granting or denying motions to amend the complaint to assert punitive damage claims and they will discuss the significance of this rule change to litigants in the Florida courts.

For more information, or to register please contact info@kubickidraper.com.


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August 17, 2022
10:00 p.m. - 2:00 p.m. EST

Presenters: Rebecca Brock, Kenneth Oliver, Sarah Goldberg, Charles Watkins

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

Regulatory Awareness
Insurance Law and Updates
Ethical Requirements
Industry Trends
Disciplinary Trends and Case Studies

For more information, or to register please contact info@kubickidraper.com.




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July 28, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Appellate and Coverage Practice Group

Presenters: Sebastian Mejia, Michael Clarke, Ryan Elias

This course will provide a framework for the proper use of Examinations Under Oath in order to analyze coverage issues related to Residency and Non-owned Autos/Regular Use.

For more infomation, or to register please contact info@kubickidraper.com.
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July 27, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Hospitality, Retail, and Premises Liability Practice Group

Presenters: Lisandra Guerrero, Francesca Ippolito-Craven, Raquel Loret de Mola

This course will review the importance of understanding when the Limitation of Liability Act may apply as opposed to state law and what the disadvantages and advantages of its application are.

For more infomation, or to register please contact info@kubickidraper.com.


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July 25, 2022
12:00 p.m. - 1:00 p.m. EST

Presenters: Barbara Fox and Bretton Albrecht

This presentation aims to educate and assist claims professionals in in the most recent cases which affect their handling of claims.

For more infomation, or to register please contact info@kubickidraper.com.
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IN THIS KDQ ISSUE:

• KD in the Community
• What to Cover When Coverage Issues Arise: 5 Tips for Determining If You Need An EUO and, If So, What Questions to Ask
• Spotlight on Jason Friedman
• News / Annoucements
• The Ins and Outs of Florida Deceptive & Unfair Trade Practices Act Claims: What They Are, What Considerations Are Needed, and How to Defend Them
• Under Construction: A Quick How-To for Investigating & Analyzing Roadway Claims Occurring in or Near Construction Zones
• Presentations & Speaking Engagements
• Recent Results: Appellate
• Recent Results: Trials & Motions
• New Team Members
• New Additions
• Contact Info

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IN THIS KDQ ISSUE:

• KD in the Community
• Recent Rule Change Allows for Immediate Appellate Review of Orders Permitting or Denying Punitive Damages
• Insuring a Subcontractor? Four Factors to Consider in Evaluating a Tender Demand from a General Contractor
• Spotlight on Laurie Adams
• Presentations and Speaking Engagements
• Appraisal: The Secret Weapon You May Want to Consider for Your Claim
• On the Hook for a Prevailing Party's Attorney's Fees? Here's What to Know About Contingency Fee Multipliers
• Recent Results: Appellate and Trials, Motions, Mediations
• Charting the Right Course in Admiralty Jurisdiction: 5 Tips for Staying Afloat
• New Team Members
• News / Annoucements
• Contact Info

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IN THIS ISSUE:

• KD in the Community
• Super Lawyers 2021
• News | Annoucements
• Spotlight on Brad McCormick
• Presentations
• Speaking Engagements
• New Shareholders and Equity Partners
• Recent Results: Appellate
• Recent Results: Trials, Motions, Mediations
• New Additions

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IN THIS ISSUE:

• KD in the Community
• News | Annoucements
• Meet Our Newest Shareholders
• New Team Members
• Spotlight on Anthony G. Atala
• Dram Shop Liability for Open and Closed Container Service
• Battling Unsavory Foodborne Illness Claims: Understanding the Potential Causes of Action and Attacking the Use of Circumstantial Evidence
• Florida Adopts the Federal Summary Judgment Standard: A Summary
• Recent Results: Appellate, Trials, Motions, Mediations
• Presentations / Speaking Engagements
• Save the Date: KD’s Construction Conference Set for October 15

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Brian Chojnowski

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IN THIS ISSUE:

• Spotlight on: Kara K. Cosse
• More KD News
• New Additions
• 2020 Florida Super Lawyers and Rising Stars
• Glass House or Brick Wall: Using Policy Condition Violations Realistically to Defend a Claim
• Anti-concurrent Cause: A Shield, a Sword, or Both? You Decide.
• Join Us on LinkedIn
• Can I Get a Lime With My Corona? I Caught Covid at Your Place
• Landlords and Lenders COVID-19 Reality Check: Is that check in the mail?
• Recent Results: Appellate
• Recent Results: Trials, Motions, Mediations
• Presentations & Speaking Engagements
• Perspectives: KD Attorneys Reflect on their Experiences with Racism and Their Hopes for the Future

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Congratulations to Caryn Bellus and Ben Carter, of our Miami office, who prevailed in a federal court appeal arising out of the defective construction of a casino in Maryland.

Caryn and Ben represented Cincinnati Specialty Underwriters Insurance Company, which issued a CGL policy to window contractor KNS Group, LLC. The subcontractor who hired KNS, GM&P Consulting and Glazing Contractors, Inc., was eventually sued by the casino’s owner for faulty workmanship, and GM&P sought a defense and indemnity as an additional insured on KNS’s policy, which Cincinnati denied. In the subsequent coverage action, the district entered summary judgment for Cincinnati, finding that it had no duty to defend or indemnify GM&P because the policy’s additional insured coverage only extended to claims of vicarious liability for KNS’s negligence, which the underlying complaint did not allege.

On appeal, GM&P argued that the policy, which covered GM&P for property damage caused “in whole or in part” by KNS, included the casino owner’s claims because the underlying complaint alleged improper installation of the casino’s “glass façade,” which GM&P had subcontracted to KNS. In response, Cincinnati argued that the underlying complaint said nothing about KNS, and thus GM&P was being sued only for its own negligence, which the plain language of the policy did not cover. The Eleventh Circuit agreed, holding that the policy only covered GM&P for liability that “is caused by or occurs by reason of acts or omissions of the named insured.” Because there were no such allegations in the underlying complaint, the court affirmed summary judgment for Cincinnati.

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Congratulations to Kendra Therrell, Erin Johnston and Ben Carter on a favorable defense verdict on a rear-end auto (admitted liability) accident in Gainesville, Florida. Our team offered $100,000 before trial, Plaintiff’s demand was consistently $3,000,000 and they asked the jury for $8.4 million. The jury deliberated and came back with a $100,000 verdict, rejecting Plaintiff’s more than $300,000 in past medical damages including multiple injections, lumbar ablations, and a lumbar surgery.

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Kara Kennedy Cosse, of our Jacksonville office, and Michael Carney, of our Ft. Lauderdale office, obtained a defense verdict in a cast iron pipe trial against Mark Nation of Nation Law Firm. The insured filed a lawsuit alleging accidental resulting damage to his bathroom floor and connecting hallway from sewage that backed up out of a toilet due to deteriorated, collapsed, 52-year-old cast iron pipes. The insured claimed he was working on the date of loss and that his sister called him to come home from work to help clean up sewage on the floor. The carrier initially paid the resulting damage to the floor and hallway based on representations by the insured that the damages were accidental, but denied replacement of the pipes because they were deteriorated and specifically excluded in the policy. The insured sued the carrier, requested trenching of his home to replace the cast iron pipes.

Kara and Michael successfully argued to the jury that payment should never have been made in the first place, as the loss was not accidental based on the insured’s prior claim history and because a billboard was the impetus for the lawsuit, not a physical loss. The insured had four (4) prior claims that depicted the property’s general unkempt condition over a span of 10 years, and photographs of the unrelated claims depicted two (2) prior PVC plumbing re-routes in the kitchen and laundry room. The insured reported all four (4) prior claims immediately, and the claim in dispute was reported three (3) months late. Critically, the insured admitted he saw billboard advertisements for cast iron pipes prior to the loss and actually changed the date of loss on the stand when Michael confirmed with him that he was a government employee who would not have been working on November 22, 2018, as he swore to, because November 22, 2018 was Thanksgiving when federal employees do not work. Kara and Michael took the position that the insured knew or should have known that plumbing overflows were imminent at the property based on the prior PVC re-routes and that the insured should have expected losses like this to occur with the remaining cast iron pipe lines at the house. They also argued that the reason why the loss was not timely reported, like all of the other losses, was because the billboard advertisement was the impetus to the lawsuit, not an accidental loss on a date the insured recanted on the stand. The jury was out for just over an hour and came back with a complete defense verdict, and a proposal for settlement was filed more than two (2) years before trial, which should allow for recovery of defense fees and costs.



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Kara Cosse, of our Jacksonville office, and Michael Carney, of our Ft. Lauderdale office, obtained a defense verdict in a cast iron pipe trial against Mark Nation of Nation Law Firm.  The insured filed a lawsuit alleging accidental resulting damage to his bathroom floor and connecting hallway from sewage that backed up out of a toilet due to deteriorated, collapsed, 52-year-old cast iron pipes. The insured claimed he was working on the date of loss and that his sister called him to come home from work to help clean up sewage on the floor. The carrier initially paid the resulting damage to the floor and hallway based on representations by the insured that the damages were accidental, but denied replacement of the pipes because they were deteriorated and specifically excluded in the policy. The insured sued the carrier, requested trenching of his home to replace the cast iron pipes.
 
Kara and Michael successfully argued to the jury that payment should never have been made in the first place, as the loss was not accidental based on the insured’s prior claim history and because a billboard was the impetus for the lawsuit, not a physical loss. The insured had four (4) prior claims that depicted the property’s general unkempt condition over a span of 10 years, and photographs of the unrelated claims depicted two (2) prior PVC plumbing re-routes in the kitchen and laundry room. The insured reported all four (4) prior claims immediately, and the claim in dispute was reported three (3) months late. Critically, the insured admitted he saw billboard advertisements for cast iron pipes prior to the loss and actually changed the date of loss on the stand when Michael confirmed with him that he was a government employee who would not have been working on November 22, 2018, as he swore to, because November 22, 2018 was Thanksgiving when federal employees do not work. Kara and Michael took the position that the insured knew or should have known that plumbing overflows were imminent at the property based on the prior PVC re-routes and that the insured should have expected losses like this to occur with the remaining cast iron pipe lines at the house. They also argued that the reason why the loss was not timely reported, like all of the other losses, was because the billboard advertisement was the impetus to the lawsuit, not an accidental loss on a date the insured recanted on the stand. The jury was out for just over an hour and came back with a complete defense verdict, and a proposal for settlement was filed more than two (2) years before trial, which should allow for recovery of defense fees and costs.

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Caryn Bellus, of our Miami office, prevailed on all issues on appeal in a premises liability case. In HRUSKA v. ON THE EDGE DOCKSIDE LLC, d/b/a On The Edge Bar and Grill, 2022 WL 1284253 (11th Cir. April 29, 2022), Plaintiff sued a restaurant and individual members of an LLC for negligence claiming that she was bitten by a spider while dining in the restaurant's outdoor dining area. In its opinion, the Eleventh Circuit declined Plaintiff's appeal of a Magistrate's discovery order. The Court then affirmed the trial court's dismissal of Plaintiff's claims against the LLC's individual members, finding that Plaintiff failed to pierce the corporate veil. After reviewing the legal duties a landowner owes to a business invitee and the evidence regarding maintenance of the restaurant, the Court also affirmed summary judgment in favor of the restaurant finding that there was no evidence that the restaurant breached its duty to maintain the premises in a reasonably safe condition. Read more here.
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Congratulations to Michael C. Clarke and Jennifer L. Emerson of the Tampa office for their recent victory in Progressive Select Insurance Company v. Kagan Jugan & Associates, P.A., No. 2D21-274 (Fla. 2d DCA Mar. 2, 2022), where the Second District reversed a trial court order finding that a PIP insurer’s nominal proposal for settlement (“PFS”) was not made in good faith. The court reaffirmed the well-established rule that a trial court is governed by binding precedent, including district court opinions that have previously decided the relevant issue in dispute. The Second District had previously established that a PIP insurer’s notice and election of the fee schedule reimbursement methodology was valid and, therefore, no longer unsettled, despite the Florida Supreme Court’s recent acceptance of discretionary jurisdiction to review the case.  See State Farm Mut. Auto. Ins. Co. v. MRI Assocs. of Tampa, Inc., 252 So. 3d 773 (Fla. 2d DCA 2018).
 
Applying this rule, the court held that a PFS is made in good faith when the offeror had a reasonable foundation to make the offer with an intent to settle. Progressive had relied on a nearly factually-identical case from the Second District to make the nominal offer in its evaluation of its contractual exposure and, therefore, acted in good faith, As a result, the court held Progressive’s PFS should be enforced.  
 
The takeaway: Binding precedent from district courts is just that: BINDING! And, whether the Florida Supreme Court or another court of appeal may eventually weigh in on the issue, it does not make the existing binding law any less binding. Read more here.

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In Avatar Property and Cas. Ins. Co., v. De Caires, 2021 WL 3176774 (Fla. 3d DCA July 28, 2021), the Third District Court of Appeal reversed the entry of a directed verdict on damages in favor of the plaintiff/insured in a first party property insurance claim.  The Court agreed with the insurer’s position that the evidence demonstrated that the defense vigorously contested the amount of damages claimed, and while the defense did not present its own expert witness on the amount of damages, that did not mean that the entry of a directed verdict for plaintiff was correct.  Rather, the record showed that significant conflicting testimony was elicited by the defense from the plaintiff’s own witnesses.  Consequently, it was error to enter a directed verdict on damages for $80,830.16 where conflicting evidence regarding the amount of damages suffered existed such that the jury could reach different reasonable inferences.  Read more here.


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Caryn Bellus and Angela Flowers obtained an affirmance of an attorney fee and cost award after a defense proposal for settlement.

This is the second of two winning appellate decisions in Pelecki v. Federated National Insurance Company, 5D19-3702 (Fla. 5th DCA May 14, 2021).

In the first, the homeowner, Andrea Pelecki, appealed a $0 final judgment in favor of her insurer, which arose from a jury verdict in her favor for $15,000 less a setoff of $30,000 for insurer’s prior settlement with plaintiff’s husband.

In this second appeal, Andrea challenged a judgment of $126,047.14 for the insurer’s trial attorney’s fees and costs based on her rejection of the insurer’s $5,000 proposal for settlement to her.  The Fifth District affirmed the award of fees and costs, except for a small award of costs for an expert who did not testify at trial. 

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Bretton Albrecht, Caryn Bellus, and Bill Bissett, obtained an affirmance of a final defense summary judgment in favor of our client, the Law Firm of Akerman, LLP in Tien v. Akerman, LLP, Case No. 3D19-0281. (Fla. 3d DCA, May 5, 2021).

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KD’s appellate attorneys are available to assist you with questions about Florida’s new summary judgment standard and/or any other issues.


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Sharon Degnan, of our Orlando office, obtained an affirmance of a Motion for Summary Judgment in Camacho v. Wert & Rubber Applications, Inc., Case No. 2D18-3583 (Fla. 2d DCA 2020), which has been pending for nine years with one trial and two appeals. As background, the defense asserted the workers compensation immunity defense at trial, but ultimately, the trial resulted in a jury verdict of $1,870,484.40 for Plaintiff and $432,043.20 for Plaintiff’s spouse. Sharon handled the initial appeal and the case was reversed and remanded for “further proceedings on the [Plaintiffs’] complaint for negligence and vicarious liability in which [Defendants] may assert their defense of horizontal immunity under § 440.10(1)(e).” Based upon this language, Sharon filed a motion for summary judgment, and successfully argued it before a new judge who did not preside over the original trial. Plaintiffs appealed, but the appellate court agreed that the defense was entitled to summary judgment. To top it all off, proposals for settlements were filed as to both Plaintiffs in July 2013, so the Fee Judgment, if pursued, should be substantial.

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Caryn L. Bellus and Bretton Albrecht, of our Miami office, persuaded the Fourth District Court of Appeal to uphold a summary judgment in favor of an insurer in a first-party property loss. In Branford v. American Integrity Insurance Co. of Florida, 297 So. 3d 551 (Fla. 4th DCA 2020), the Fourth District Court of Appeal agreed that the insured’s failure to comply with multiple post-loss obligations in connection with her water loss claim, as well as her prior similar water loss claim with a different carrier, required judgment for the insurer despite the insured’s argument that the insurer was required, but failed to prove, that it was prejudiced by the noncompliance.

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Caryn L. Bellus and Angela C. Flowers, of our Miami and Ocala offices, respectively, successfully convinced the Fifth District Court of Appeal to affirm a final judgment for the insurer in a Hurricane Matthew property loss. In Pelecki v. Federated National Insurance Company, 2020 WL 4915804 (Fla. 5th DCA 2020), the appellate court found that the insurance company was entitled to a set off from the jury verdict for sums paid to a co-owner of the home pursuant to a proposal for settlement accepted during the lawsuit, resulting in a defense judgment. On appeal, Plaintiff also challenged an adverse directed verdict on a mold claim, the striking of her surprise expert testimony concerning mold, the admission of field adjuster photos, and a variety of other so-called evidentiary errors. Plaintiff further claimed that the trial court erred in refusing to give a concurring cause instruction and to shift the burden to the insurance company to prove the method by which water penetrated the house. The appellate court rejected all of Plaintiff’s arguments and affirmed the judgment in favor of the insurance company.

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Caryn L. Bellus, of our Miami office, Angela C. Flowers, of our Ocala office, and Barbara Fox, of our Miami office, prevailed in upholding a defense verdict in a nursing home wrongful death case in Jones v. Palm Garden of West Palm Beach, LLC, 2020 WL 5846434 (Fla. 4th DCA 2020). Our appellate team convinced the court to affirm a final judgment entered following a defense verdict finding that Defendant (the nursing home) was not responsible for the decedent’s death during his stay at the facility. Plaintiff’s claims sounded in negligence and statutory breach of the decedent’s rights as a nursing home resident, asserting that the nursing home failed to secure the facility and prevent the decedent from eloping despite allegedly knowing he was mentally impaired and at risk for escaping. On appeal, Plaintiff sought a new trial alleging various evidentiary errors, including her objection to the admission of evidence that the decedent died as a result of suicide. Our appellate team successfully argued that Plaintiff was competent and intentionally departed the property to commit suicide, evidence of which evidence was properly admitted at trial.

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Michael S. Walsh, of our Ft. Lauderdale office, obtained a very important denial of Plaintiff’s motion for summary judgment on the “billed amount” issue, a critical issue in PIP litigation. Specifically, Plaintiff filed a motion for summary judgment alleging underpayment and arguing that the insurer was required by 627.735 (5)(a)(5), Fla. Stat., to pay one hundred percent of the charges as opposed to eighty percent, even though the policy had no Medical Payment Coverage relying on Geico Indem. Co. v. Accident & Injury Clinic, Inc. a/a/o Frank Irizarry, 290 So. 3d 980 (Fla. 5th DCA 2019). Though the Judge previously ruled in favor of Plaintiff on the “billed amount,” Mike was able to distinguish the Fifth District Court of Appeal case as well as § 627.736 (5)(a)(5), by focusing on the permissive language of “may” versus the mandatory language of “shall,” and successfully convinced the judge to reverse his prior ruling. Mike also pointed out that for the in question, Plaintiff always demanded eighty percent of the charges, but years later, sought more.
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Sarah R. Goldberg, of our Miami office, successfully argued a motion for summary judgment on a Hurricane Irma claim. Plaintiff entered into an agreed order moving the case to an appraisal. The carrier paid the appraisal award timely. After the appraisal award was paid, Plaintiff alleged that not all claims had not been resolved by the appraisal and requested supplemental payments for alleged mold damages. Ultimately, the judge was persuaded by Sarah’s argument that Plaintiff cannot bring a supplemental claim for mold damages post-appraisal because Plaintiff signed an assignment agreement whereby Plaintiff’s right to damages for mold remediation were fully assigned to a mold remediation company. The court did not give any weight to Plaintiff’s arguments that the assignment agreement to the mold remediator was invalid as the mold remediation company had been paid in full and had executed a release for claims of mold remediation. The victory was sweetened by the fact that Plaintiff filed a sanctions motion against the carrier and Sarah in order to get them to withdraw the motion for summary judgment the week prior to the hearing.
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Sarah R. Goldberg, of our Miami office, obtained a voluntary dismissal on a denied Hurricane Irma claim. Plaintiff testified at his deposition that he placed a tarp on his roof following Hurricane Irma to mitigate his damages. Sarah researched historical, aerial photographs of the property, which showed that a tarp was placed on the roof for at least one year prior to Hurricane Irma. A motion for summary judgment was filed, with support of an engineer’s affidavit, setting forth that the tarp was on the roof prior to the storm and that the interior leaks pre-dated Irma. Plaintiff folded under the pressure and leverage filing a voluntary dismissal just a few days prior to the hearing on the summary judgment and the night before the public adjuster’s deposition.
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Scott Simon, of our Miami office, obtained a voluntary dismissal in a PIP case. Scott deposed Plaintiff’s corporate representative who admitted there was no evidence to demonstrate that Plaintiff treated within 14 days of the accident. Scott asked for a dismissal, and plaintiff refused. Scott filed a motion for summary judgment and unilaterally set it for hearing after opposing counsel refused to cooperate. Unsurprisingly, Plaintiff moved to continue the summary judgment hearing, claiming they had an affidavit from someone who would provide sworn testimony that treatment took place within 14 days. Scott fought the continuance arguing that Plaintiff had months to obtain this alleged affidavit, and although the judge granted the continuance (due to Plaintiff’s questionable COVID-19 arguments), Scott convinced the judge to require Plaintiff to identify the alleged witness and the content of the affidavit at the continuance hearing, and Scott set the witness for deposition promptly thereafter. Opposing counsel refused to provide the necessary information to serve the witness, but Scott did not relent – he tracked her down and had her served while simultaneously pressuring opposing counsel with his motion for summary judgment. After six years of litigation, Plaintiff dismissed the case with prejudice.
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