March 17, 2023
The House and Senate have been in regular communication and negotiations to move each chamber’s bill forward concurrently. While each chamber thus far has adopted varying language, as of this week, the bills have begun to narrow and mirror each other substantially. Specifically, each chamber’s bill has identical portions regarding bad faith and attorney’s fees.
Fla. Stat. 624.155 – bad faith provisions
The proposed changes state an insurer cannot be liable for bad faith with respect to a liability insurance claim if the insurer tenders the lesser of the policy limits or the amount demanded by the client within a certain period of time after receiving notice of the claim. Both chambers have agreed that this time period will be set at 90 days.
Additionally, the bills also would change Fla. Stat. 624.155 to state that negligence alone is insufficient to constitute bad faith, that a court can adjust a damages award if a third-party claimant or insured does not act in good faith, and that an insurer does not commit bad faith by failing to pay multiple competing claims arising out of one accident—even if those claims’ total exceeds the policy limits—so long as the insurer within 90 days either files an interpleader action or makes the full policy limits available before an arbitrator is selected.
Fla. Statutes 627.428 and 626.9373 – Attorney’s Fees
The proposed changes would fully repeal both of these statutes. However, they create a new section to Chapter 86, Fla. Stat., which creates a right of action for declaratory relief to determine insurance coverage only after denial of a claim.
Enactment
These changes would only effect prospective claims arising after the enactment date.
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Fla. Stat. 624.155 – bad faith provisions
The proposed changes state an insurer cannot be liable for bad faith with respect to a liability insurance claim if the insurer tenders the lesser of the policy limits or the amount demanded by the client within a certain period of time after receiving notice of the claim. Both chambers have agreed that this time period will be set at 90 days.
Additionally, the bills also would change Fla. Stat. 624.155 to state that negligence alone is insufficient to constitute bad faith, that a court can adjust a damages award if a third-party claimant or insured does not act in good faith, and that an insurer does not commit bad faith by failing to pay multiple competing claims arising out of one accident—even if those claims’ total exceeds the policy limits—so long as the insurer within 90 days either files an interpleader action or makes the full policy limits available before an arbitrator is selected.
Fla. Statutes 627.428 and 626.9373 – Attorney’s Fees
The proposed changes would fully repeal both of these statutes. However, they create a new section to Chapter 86, Fla. Stat., which creates a right of action for declaratory relief to determine insurance coverage only after denial of a claim.
- In doing so, the court shall award attorneys fees to the named insured, omnibus insured, or named beneficiary under the policy at issue upon rendition of a declaratory judgment in their favor.
- Additionally, this right would not be transferrable, assignable, or acquired by any other manner by anyone other than a named or omnibus insured or a named beneficiary.
- Explicitly stating that a defense by insurer of reservation of rights does not constitute denial of claim.
Enactment
These changes would only effect prospective claims arising after the enactment date.
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March 8, 2023
Today, is International Women’s Day, a day celebrated around the world to mark and recognize the achievements of all women. This year’s theme is #EmbraceEquity.
“You Define Success…Together, We Achieve It,” Kubicki Draper’s motto, could not be more well-suited for this global day celebrating the social, economic, cultural, and political achievements of women. Our firm is committed to promoting a culture that creates opportunities for women and supports their professional endeavors. Proudly, Kubicki Draper is led by an Executive Board, half of which are women. 75% of our employees are women, 56% of our attorneys are women, and 54% of our shareholders are women. Our firm would not be what it is today without you – THANK YOU!
I am honored to share some of our leaders’ voices about this important and reflective day over the next few weeks. -Brad McCormick, Firm President, Executive Board Member and Equity Partner
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March 6, 2023
January 12, 2023
This presentation focused on the duties owed to guests, the potential tort claims that may arise and the potential defenses that may be available. Below are some quick tips to remember when handling theme park claims.
- 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.
If you have any questions about this presentation and/or would like to discuss a specific theme park claim issue, our team is ready to assist: premises@kubickidraper.com.
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December 21, 2022
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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December 21, 2022
The Florida Senate and House have passed SB 2-A, an act relating to property insurance. Here are some highlights of the major changes for litigation and claims handling:
A bad faith lawsuit may not be filed until resolution of the underlying first party litigation.
A bad faith lawsuit may not be filed until resolution of the underlying first party litigation.
Section 624.1551, Florida Statutes, is amended to provide that there can be no cause of action for extra-contractual damages until there is adjudication on the merits of the underlying breach of insurance contract action against the insurance carrier and a final judgment or decree is entered against the insurance carrier.
Acceptance of a proposal for settlement or payment of an appraisal award is not a final judgment. However, the difference between the final appraisal award and the estimate prepared by the appraiser for the insurance carrier may be evidence of bad faith.
Shorter times to investigate a loss and communicate with the policyholder.
Section 627.70131, Florida Statutes, is amended. Several deadlines are shortened, including:
• 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.”
• 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.”
Shortened time frames to make claims.
Section 627.70132, Florida Statutes, is amended to provide:
• 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.
• 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.
Section 627.70152, Florida Statutes, is amended to eliminate attorney’s fees and costs. Attorney’s fees and costs are no longer available under Section 627.428, Florida Statutes, for lawsuits involving residential or commercial property insurance policies.
Binding arbitration for resolution of claims.
Section 617.70154, Florida Statutes, is created and sets forth requirements for including an endorsement in insurance policies to resolve claims through mandatory binding arbitration.
Assignment of Benefits are eliminated for residential and commercial policies issued on or after January 1, 2023.
Permits a joint proposal for settlement.
Section 768.79, Florida Statutes, is amended to allow a property insurer to make a joint offer of judgment or settlement that is conditioned on mutual acceptance of all joint offerees in a breach of contract action.
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.
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December 9, 2022
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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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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November 15, 2022
We are so proud to have earned 2 national and 12 regional rankings in the 2023 edition of the “Best Law Firms” list published by U.S. News & World Report and Best Lawyers.Firms included in the “Best Law Firms” list are recognized for professional excellence and rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, and peer reviews from leading attorneys.
NATIONAL RANKINGS
Tier 1 in Appellate Practice
Tier 3 in Litigation - Construction
REGIONAL RANKINGS
Miami
Tier 1 in Appellate Practice
Tier 1 in Litigation - Construction
Tier 1 in Litigation - Insurance
Tier 1 in Mass Tort Litigation / Class Actions - Defendants
Tier 1 in Personal Injury Litigation - Defendants
Tier 2 in Construction Law
Tier 3 in Commercial Litigation
Orlando
Tier 1 in Appellate Practice
Fort Lauderdale
Tier 2 in Litigation - Insurance
Tier 3 in Real Estate Law
West Palm Beach
Tier 2 in Personal Injury Litigation - Defendants
Tampa
Tier 3 in Appellate Practice
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September 16, 2022
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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August 29, 2022
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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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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August 15, 2022
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.
Continue...
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.
Continue...
August 10, 2022
(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.
Continue...
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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August 9, 2022
The Fourth District overturned a default final judgment when the underlying Complaint sued an insurer under sections 627.736(4)(f), (6)(b), and (11)(f) of the Florida PIP statute. Because these provisions do not provide for damages, the Complaint sought statutory fines under the Unfair Insurance Trade Practices Act. § 626.9521(2), Fla. Stat. (2002). The insurer argued that Plaintiff was improperly seeking bad faith damages. The court agreed and held that Plaintiff’s claims were legally insufficient and that “the statutory remedy for a first-party bad-faith action is found in section 624.155, Fla. Stat.” See full opinion here.
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July 19, 2022
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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July 18, 2022
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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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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July 7, 2022
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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July 6, 2022
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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July 5, 2022
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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June 29, 2022
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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June 24, 2022
