- Start the investigation early – it may be difficult to track down key witnesses years later. Even if you are unable to secure surveillance footage of the incident, someone may have captured footage on a cell phone video which could be critical to your defense!
- Check on plaintiff’s legal status at the time of the incident. Plaintiff's legal status dictates the duty owed to them by the theme park.
- Courts have moved away from applying a heightened duty onto theme parks; duty should be assessed the same way in these factual scenarios as it is assessed in any other premises liability cases.
- When a lawsuit involves a theme park ride, the courts in Florida dive into each case’s individual facts and really analyze the nature, construction, and operation of the ride itself that allegedly caused the injury.
- The courts have consistently held that the care required by a park must correspond with the risk involved.
- Whether reasonable care was exercised, is a question of fact for the jury.
December 21, 2022
December 21, 2022
A bad faith lawsuit may not be filed until resolution of the underlying first party litigation.
• The time to review and respond to claims communications is changed from 14 days to 7 days unless there are factors beyond the control of the carrier.
• The time to start an investigation after receipt of a proof of loss is changed from 14 days to 7 days unless there are factors beyond the control of the carrier.
• Reduces the time to pay or deny a claim from 90 days to 60 days from the notice of the claim unless there are factors beyond the control of the carrier.
Additional changes to Section 627.70131, Florida Statutes, include:
• A requirement that any estimate generated by the insurance carrier must be sent to the insured within 7 days.
• Provisions for inspection and investigation of the claim through electronic methods which provides clear photographs and documentation of the property.
• A definition for “Factors Outside of the Carrier’s Control.”
• A claim or re-opened claim must be made within 1 year of the date of loss. Under the previous version of the Statute, there were 2 years to make a claim or re-opened claim.
• A supplemental claim must be made within 18 months of the date of loss. Under the previous version of the Statute, there were 3 years to make a supplemental claim.
Eliminates one-way attorney’s fees.
Binding arbitration for resolution of claims.
Assignment of Benefits are eliminated for residential and commercial policies issued on or after January 1, 2023.
Permits a joint proposal for settlement.
This legislation is targeted at reducing litigation costs, shortening the time to bring a claim to resolution and keeping affordable private insurance options for consumers. With the changes above, we anticipate the years to come will focus on alternative dispute resolution and bad faith litigation.
Stay tuned for CE opportunities in 2023 hosted by the Kubicki Draper’s First Party Practice Group regarding issues of making proper claims determinations during the initial stages of a claim, preparing for arbitration, and defending bad faith claims – all of which are implicated by new law.
December 9, 2022
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.
November 15, 2022
September 16, 2022
August 29, 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.
August 15, 2022
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.
August 10, 2022
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.
August 9, 2022
July 19, 2022
July 18, 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.
July 7, 2022
July 6, 2022
July 5, 2022
June 29, 2022
June 24, 2022
June 22, 2022
June 17, 2022
June 16, 2022
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.