In Commodore, Inc. d/b/a GreenStreet Café, Inc. v. Certain Underwriters at Lloyd's London, etc., et al., No. 3D21-0671 (Fla. 3d DCA May 11, 2022), the Third District Court of Appeal affirmed a dismissal of a petition for declaratory relief, holding that alleged economic losses due to the COVID-19 pandemic were not covered under a policy of insurance. The court reasoned that coverage for loss of business income was for the suspension of operations caused by direct physical loss of, or damage to, the insured property, and the loss of the intended use of an eat-in restaurant alone is not a direct physical loss. Rather, actual, physical, tangible alteration to the insured property is required for coverage to be triggered. Read more here.


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In Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, No. 21-10744 (11th Cir. Apr. 13, 2022), the Eleventh Circuit held that a dealership which provided a “loaner” vehicle to customers while their vehicle was in service was shielded from vicarious liability by the Graves Amendment, finding the dealership owned the vehicle, was engaged in the trade or business of renting or leasing motor vehicles, committed no negligence or criminal wrongdoing, and rented or leased the vehicle to the customers for consideration. Read more here.


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May 1-7 is National Hurricane Preparedness Week, and as many of us have experienced, storms can approach quickly leaving little to no time to adequately prepare. Experts indicate the 2022 hurricane season is expected to be above normal for activity, so we have included some tips and helpful links to help you prepare.

If you are an insurance professional, remember to check your license status and ensure you have met all of your CE requirements, so your license is in good standing and is active. If you need credits, we welcome you to join our upcoming webinars announced here on LinkedIn and on our website. We are also happy to schedule a private complimentary webinar for you and your team. Contact us at info@kubickidraper.com.



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Florida Supreme Court holds that the admissibility of a Plaintiff's past medical expenses is limited to the discounted amounts paid by Medicare. Read full opinion here.


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Kubicki Draper is committed to fostering an environment of equal opportunity for success and believes diversity is not only a moral imperative, but is also sound business practice. We believe a diverse law firm is a stronger, more vibrant one.

Diversity month gives us another opportunity to recognize and highlight some programs and organizations that are important and that we wholeheartedly champion. 

Miami-Dade Florida Association for Women Lawyers (MDFAWL) Scholarship Program
NAAIA Florida Scholarship Program
Miami Carol City Law Magnet Program
Miami-Dade Public School’s Black History Guided Lessons
The Holocaust Memorial Resource and Education Center of Florida

Visit our diversity page here.


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In Shazam Auto Glass, LLC v. GEICO General Ins. Co., No. 2d21-383 (Fla. 2d DCA April 13, 2022), the Second DCA held that when a circuit court sitting in its appellate capacity denies a motion for appellate attorney’s fees, that order is reviewable by direct appeal rather than first-tier certiorari. In reaching its conclusion, the Second DCA found that such orders constitute an original decision that has not been subject to judicial review, thereby providing the Court with jurisdiction as a direct appeal under Florida Rule of Appellate Procedure 9.030(b)(1)(A). Read more here.


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In McNamara v. Government Employees Insurance Company, No. 20-13251 (11th Cir. April 5, 2022), the Eleventh Circuit declined to follow its previous, unpublished opinion in Cawthorn v. Auto-Owners Insurance Co., 791 F. App’x 60 (11th Cir. 2019), which held that an “excess judgment,” for the purposes of proving the causation element of a bad-faith-claim, can only arise from a trial and resulting verdict. In retreating from Cawthorn, the Eleventh Circuit held that an excess judgment may be demonstrated based on a consent judgment that memorializes a private settlement agreement between a third party and an insured. Read more here.


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In Williams v. State Farm Florida Insurance Company, 2D20-2092, the Second DCA reversed summary judgment for the insurer in the insured’s first-party bad faith action, holding that the insurer’s invocation of appraisal and payment of the award after the expiration of the 60-day cure period on the insured’s CRN did not cure the alleged bad faith. The dispute arose from a claim for damage caused by lightning. After the insurer acknowledged coverage and made several payments, the insured disputed the amount of the loss, and the insurer invoked appraisal. During appraisal, the insured filed a CRN. Several months later, appraisal concluded and the insurer paid the amount of the award. In the bad faith action, the trial court found that the 60-day cure period was tolled by the appraisal. The Second DCA reversed, confirming other Florida courts’ holdings that nothing in the bad faith statute tolls the cure period until appraisal is completed. Read more here.


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In All Insurance Restoration Services, Inc. v. American Integrity Insurance Company of Florida, 4D21-99 (Fla. 4th DCA March 23, 2022), the Fourth DCA held the Florida Constitution’s homestead exemptions have no application to an insured’s post-loss assignment of benefits under a homeowner’s policy. Read more here.


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In Water Damage Express, LLC v. First Protective Insurance Company, 4D21-618 (March 16, 2022), the Fourth District Court of Appeal reversed an order striking the provider’s claim for attorney’s fees under §627.7152(10), Fla. Stat. The issue in the case was whether the statute, which became effective on May 24, 2019, applied to the provider’s claim for fees under a policy and assignment of benefits where both predated the statute. The appellate court held that the date the complaint was filed is not the key date, and that the statute does not apply retroactively.  Read more here.


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In People’s Trust Insurance Company v. First Call 24/7, Inc., 4D21-1504 (March 9, 2022), the Fourth District reversed an award of damages under a homeowner’s insurance policy to the homeowner’s assignee because the homeowner failed to comply with the policy’s right-to-repair endorsement. After the homeowner reported a claim for water damage, the insurer acknowledged coverage and exercised its right to repair. The insurer paid the homeowner’s assignee for emergency services, and sent the homeowner a work authorization for the remaining repairs. The homeowner never signed the form, and the assignee eventually submitted an invoice for restoration services, and filed suit after the insurer refused to pay. The trial court entered summary judgment for the assignee, but the appellate court reversed, holding that once the insurer exercised its right to repair, a new contract was formed between the insurer and the homeowner, obligating the insurer to make repairs, and requiring the homeowner to sign the required forms and allow the repairs to be made. The failure to sign the work authorization was thus a material breach of the policy, and without evidence that the insurer improperly exercised its right to repair, or that the provision was invalid, no benefits were owed on the policy. This case underscores that the insurer’s right to repair is an integral part of the policy, and the consequences of failing to comply can be severe for the homeowner and its assignee. Read more here.


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In Wiggins v. Brightview Landscape Services, Inc., 4D21-1886 (Fla. 4th DCA March 16, 2022), the court reversed an order denying a motion to vacate default, finding an error in coding the plaintiff’s complaint, which cause the defendant to miss multiple filings, constituted excusable neglect. The court noted that a “clerical and systems error” caused coding of the plaintiff’s personal injury action to be the same as a related worker’s compensation matter. The appellate court found that the default should be set aside because the defendant did not intentionally ignore the filings and nothing indicated a recurring problem. Read more here.


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Congratulations to our Miami PIP/SIU team for having a record 2774 dismissals in 2021 which amounted to over an 80% close out rate!

A big thanks to our clients for their support, and to all of our attorneys and staff for helping us deliver results that matter year after year.


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We are so proud of Rebecca Leigh Brock and the great work she is doing as a board member of ChildNet Care for Kids. In support of Rebecca and Childnet Care, the firm sponsored a luncheon to raise awareness and funds to help abused, neglected, and abandoned children in Palm Beach County and Broward County. For more information on how you can help click here.


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Today is International Women’s Day (IWD), and in recognition of this day and this month dedicated to women’s history, we proudly celebrate just some of the many accomplished and inspirational women that make up over 70% of our firm. We asked our team to contribute quotes, advice and/or barriers they have broken, and we proudly share their contributions here with you.

To women and little girls everywhere: there is no limit to who you are, to what you can do, or to who you become, and we wish you happiness and success in all that you set out to do.

Happy Women’s Day!

IWD by Aileen Diaz
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We are so proud of Claudette Armbrister who took the initiative to coordinate efforts in our Miami office and collect over 50 articles of clothing from our team for Dress for Success Miami. The Dress for Success organization is a not-for-profit that provides a network of support, professional attire and the development tools to help people thrive in work and in life. A big thank you to Claudette and the rest of the KD family for contributing to important causes in our community. For more information, click here.



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Congratulations to our Tampa PIP/SIU team for closing more files than they opened last year!

A big thanks to our clients for their support, and to all of our team, attorneys and staff, for helping us deliver results that matter year after year!


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In Impex Caribe Corporation v. Carl Levin, P.A., No. 3D20-1806 (Fla. 3d DCA Mar. 2, 2022), the Third District Court of Appeal reversed the part of a trial court’s order that applied a contingency fee multiplier of two to an award of attorney’s fees to the prevailing plaintiff below. In its opinion, the court explained there are three factors to consider in determining whether such a multiplier should be applied, and the prevailing plaintiff below failed to prove the very first of these factors had been satisfied. Specifically, the first factor requires a showing by the party seeking a contingency fee multiplier that the relevant market area lacks attorneys with the appropriate skill level to handle the case effectively and who would take this case without a contingency fee multiplier being applied. No such facts were presented in this case. The case was factually similar to Universal Property & Casualty Insurance Company v. Deshpande, 314 So. 3d 416 (Fla. 3d DCA 2020), wherein the Third District reached a similar conclusion. The moral to the story: if a party prevails at trial and seeks a contingency fee multiplier, it needs to satisfy all three factors, and regarding the first factor specifically, the party needs to show the market area lacks sufficiently-skilled attorneys who would take the case without demanding a contingency fee multiplier. Read full opinion here.


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Our Ocala office has relocated! The new address will be: 1396 NE 20th Avenue, Suite #500, Ocala, FL 34470.


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Congratulations to our Jacksonville PIP / SIU team for closing more files than they opened last year!

A big thank you to our clients for their support, and to all of our team, attorneys and staff, for helping us deliver results that matter year after year!



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May 20, 2022
12:00 p.m. - 1:00 p.m. EST

Presenters: Blake Fiery, Barbara Fox, Jennifer Remy-Estorino

This presentation will explore strategies for handling multiple claimant accidents and resolving all claims against insureds, even in low-limit situations. The course will offer a brief recap of current law in Florida with respect to an insurer’s obligations to its insured, as well as address pitfalls to avoid including: conflicting demands, affidavit requests, statement requests and other requests from counsel. Through hypothetical scenarios and real-life examples, the presenters will show attendees how to navigate these claims to keep everyone happy.

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


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May 18, 2022
10:00 a.m. - 2:00 p.m. EST

Presenters: Martin Blaya, Barbara Fox, Kenneth Oliver

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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May 10, 2022
11:00 a.m. - 12:00 p.m. EST

Presenters: Peter Baumberger and Bryan Krasinski

This presentation will explore how to strategically maximize opportunities for early case resolution in Construction related cases and to effectively defend Construction cases. The presenters will share real life examples of tactics that can assist in resolving cases early, and also share some experiences where attempts at early case resolution was ultimately counterproductive.

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


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April 20, 2022
12:00 p.m. - 1:00 p.m. EST

Presenters: Jason Friedman, Jacqueline Bertelsen, Jared Brownfield

By now, we have all seen electronic scooters in our communities, and it looks like they are here to stay. This presentation will review the numerous issues scooter riders and scooter rental companies face in litigation, including: issues related to insurance coverage, liability, and potential risk transfer. The course will also provide several ways to best protect your client when litigating scooter claims.

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


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April 6, 2022
10:00 a.m. - 2:00 p.m. EST

Presenters: Charles Watkins, Anthony Atala, Lisa Truckenbrod, Toni Turocy

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 contact info@kubickidraper.com.
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February 23, 2022
12:00 p.m. - 1:00 p.m. EST

Presenters: Sam Itayim, Rebecca Kay, Nicholas Young

This course will review the various tools and the proper procedures used to recover fees and costs when a plaintiff dismisses a case -- including motions to tax costs, motions for sanctions, and proposals for settlement.

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


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In American Mobile Health Services, Inc. a/a/o Tania Jimenez v. State Farm Mutual Automobile Insurance Company, No. 3D21-222 (Fla. 3d DCA Feb. 16, 2022), Florida’s Third District Court of Appeal affirmed a judgment entered in favor of State Farm following a jury verdict in a Personal Injury Protection (“PIP”) coverage case.  The plaintiff, a medical provider, objected to the testimony of State Farm’s expert, arguing that the charges for medical treatment rendered by the plaintiff were unreasonable since they exceeded 200 percent of the amounts allowed for the same services under the Medicare Part B Fee Schedule.  In its opinion, the Third District adopted the holding in an Eleventh Judicial Circuit case from 2019, which stated that when an insurer elects to use the fee schedule limitation—like State Farm did—the amounts in that schedule function as a “hard cap on the charges a provider may recover” under the PIP Statute. If, however, the insurer does not elect a fee schedule limitation, then any such federal or state fee schedules will merely become a factor to consider in determining the reasonableness of the provider’s charges.  The Third District further explained that the PIP Statute does not require State Farm base its argument as to the unreasonableness of the plaintiff’s charges on any factor besides the Medicare Part B Fee Schedule.  The Statute’s use of the word “may” in subsection (5)(a) reflects that State Farm need not consider every factor listed in the Statute when determining reasonableness. Read full opinion here.


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February 16, 2022
10:00 a.m. - 2:00 p.m. EST

Presenters: Caryn Bellus, Michael Clarke, Melody Kitchen, Jennifer Remy-Estorino

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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February 15, 2022
12:00 p.m. - 1:00 p.m. EST

Presenters: Raul Carreras, Charles Kondla, Jane Rankin

Whether you are a property owner, tenant or lender, the COVID-19 pandemic has had effect on evictions, foreclosures and the management of real estate. Current laws on the litigation issues will be reviewed, as well as practical solutions for residential and commercial landlords to keep their properties successfully operating. An overview of condominium association liability for common areas will also be explored for invitees, licensees and trespassers with a focus on what is a common area, when a duty is owed and risk management.

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


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

Presenters: Jason Friedman, Caryn Bellus, Francesca Ippolito-Craven, Sean Xenakis

Plaintiffs often only sue the landowner in a premises liability case. This presentation will discuss who else may have liability even when the landowner has a non-delegable duty to those lawfully on its premises. Our attorneys will focus on numerous effective ways to transfer risk and/or bring in the entities that were actually negligent in order to best protect your client.

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


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December 6, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Anthony Atala, Erika Cordovi, Barbara Fox, Joanne Nachio

2020 was the year of the unknown. However, that did not curve fraudulent first party claims in Florida. This course will highlight some of the trends seen in 2020: engineering inspections, weather events, Senate Bill 76, hot litigation topics, attorney discipline, and how these same issues are affecting 2021 and beyond.

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


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December 1, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Peter Baumberger, Michael Carney, Kenneth Oliver

Plaintiff attorneys use a legal strategy commonly called the "reptile theory" to obtain larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. Reptilian theory tactics are deployed during every phase of a case – from discovery through closing argument. This course will provide an overview of the reptilian strategy, how to spot when these tactics are being used and how to defend against the tactics and create the best opportunity for success.

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

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November 16, 2021
10:00 a.m. - 3:00 p.m. EST

Presenters: Kenneth Oliver, Michael Carney, Jason Friedman, Melody Kitchen

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 5-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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November 10, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Barbara Fox, Bretton Albrecht, Jennifer Remy-Estorino

This presentation will provide an overview of civil remedy notices (CRNs), under Florida’s bad faith statute, §624.155, Fla. Stat. The team will cover what civil remedies are, why they are important, and what the requirements are for responding to them.

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

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November 3, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Lisandra Guerrero, Raquel Loret de Mola, Kimberly Beckwith, Katherine Kmiec

This course will review the importance of understanding when maritime law may apply to a claim. The team will also go over the advantages and disadvantages of maritime law vs. state law.

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



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October 26, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Caryn Bellus and Kenneth Oliver

This course will assist claims professionals in utilizing Florida’s new summary judgment standard to win and resolve cases.

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


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The well-being of our attendees and our team is a priority. In this spirit, we have made the difficult decision to convert our live construction conference to a virtual platform due to the present circumstances.

As much as we would have loved to see everyone in person, we hope you will join us for the great program we have lined up from the comfort of your workspace.

If you already registered, you will receive online connection links for each session over the next couple of days.

If you have not yet registered, please contact info@kubickidraper.com for more information.
The complimentary event is designed to provide claims professionals with valuable information that will assist them in their claims handling and management.

We look forward to hosting you and will look forward to getting our live events back on track next year!

Construction Conference Program

Experts in Construction Related Cases - Selection, Direction and Protection

Presenters: Charles Kondla, Pedro Lopez, Harold Saul, Paul McCullough (SEA Limited)

This course will discuss the various aspects of expert retention and why each step in the process can be critical, starting with selection of the expert. This course will walk the audience through the entire process from choosing the right expert to putting the expert in the best position to not only help your case, but also survive a Daubert challenge. The course will culminate in a mock Daubert evidentiary hearing of the expert.
 

Warranty Claims in Construction Cases

Presenters: Michelle Krone, Aaron Haak, Eric Fluharty

Warranty issues arise in almost all construction cases. Whether statutory, express or implied, it is necessary to understand the differences. In this course, the KD team will review the various types of warranty claims, the ramifications of the pleadings, the potential damages recoverable and the defenses available.
 

Construction Defect Claims: Overview and Current Trends on Indemnity Law

Presenters: Michael Suarez, Bryan Krasinski, Jayme Idle

This course will provide a general overview of indemnity law and varying perspectives of its application from three Florida based construction defect practitioners. Topics range from interpretation of contractual indemnity provisions, anti-indemnity statutes, and additional insured considerations. The final discussion will be on the reasons behind and the effect of the current trend of contractors asserting claims for entitlement to contractual indemnity against their subcontractors and then swiftly seeking early determination by the court through summary judgment motions.
 

Construction Defect Coverage Issues

Presenters: Caryn Bellus, Jacqueline Bertelsen, Barbara Fox

Given the number of contractors often involved and the length of time it takes to complete construction projects, coverage issues arise in almost every case. This course will walk claims professionals through the steps of identifying and handling coverage issues, as well as highlighting the latest “hot coverage topics” in construction claims.
 

Effective Construction Defect Case Resolution

Presenters: Peter Baumberger, Raquel Loret de Mola

Achieving early case resolution in construction cases has become increasingly more challenging for claims professionals and parties involved in construction cases. This presentation will cover those challenges and will discuss strategies to effectively approach early case resolution in a cost effective manner.
 

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

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September 7, 2021
12:00 p.m. - 1:00 p.m.

Presenters: Anthony Atala, Barbara Fox

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

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


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September 1, 2021
12:00 p.m. - 1:00 p.m. ET

Presenters: Erika Cordovi, Anthony Atala, Barbara Fox - Members of KD's First Party Property Practice Group

A step-by-step guide to navigating the appraisal process. This course will provide instruction and practical advice on utilizing the appraisal process for successful resolution of claims. It will contain a discussion of Florida law on appraisal, discuss defense strategy and common pitfalls to avoid, and include an update on recent case law.

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


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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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As temperatures begin to cool down, and snow birds and tourists return to Florida, premises liability claims against condominium associations are beginning to heat up. Interested in learning about potential liability for condos?

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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).

Tell me about it:

What did appellate court do:

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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Caryn L. Bellus, of our Miami office, prevailed in upholding a final summary judgment in a premises liability case obtained at the trial level by Charles F. Kondla, also of our Miami office. In Griffis v. Regal Cinemas, Inc., No. 2D19-1856, 2020 WL 6537806 (Fla. 2d DCA Nov. 6, 2020), the Second District Court of Appeal affirmed the final summary judgment determining that Plaintiff failed to meet his burden of proof by showing circumstantial evidence that Regal Cinemas had actual or constructive notice under §768.0755, Florida Statutes. On appeal, Plaintiff argued there were genuine issues of material fact concerning constructive knowledge of a substance on the floor outside the theater’s box office. The Second District rejected Plaintiff’s arguments and affirmed the judgment in favor of Regal Cinemas finding that Plaintiff failed to present evidence that the substance existed for a sufficient length of time such that Regal Cinemas knew or should have known of it and that Plaintiff further failed to plead that the condition occurred with regularity, and was therefore, foreseeable.
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Sharon Degnan, of our Orlando office, recently prevailed in upholding a final summary judgment obtained at the trial level by David Drahos, of our West Palm Beach office. In Ferrer v. Jewelry Repair Enterprises, Inc., No. 4D19-2747, 2021 WL 191464 (Fla. 4th DCA January 21, 2021). Our client, a franchisor with storefronts and kiosks located throughout several states, was sued by a former employee of one of its franchisees. The franchisee employee suffered serious injuries after being shot by the franchisee’s owner, who then turned the gun on himself in an attempted murder/suicide occurring in the franchisee’s store. The main argument pursued by the franchisee employee was that our client maintained control over the franchisee and failed to recognize the risk to employees and fire the franchisee’s owner before the shooting. However, both the trial court and the Fourth DCA determined that, pursuant to the clear language in the Franchise Agreement governing the relationship between the parties, the franchisor did not maintain any substantial control over the franchisee’s day-to-day operations or its owner and that the franchisor’s control was limited to the uniform standardization of products and services and providing regular and ongoing support for its franchisees. Sharon argued on appeal—and the Fourth DCA agreed—that the franchisee operated independently of the franchisor, with our client having no authority to hire and fire its franchisee’s employees. The court recognized that these types of franchise agreements are common throughout Florida and often contain similar language limiting the franchisor’s control over its franchisees.
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Sarah R. Goldberg, of our Miami office, won summary judgment on a Hurricane Irma claim. Plaintiff entered into an agreed order moving this case to an appraisal, and the carrier timely paid the appraisal award. After the appraisal award was paid, Plaintiff argued that not all claims had not been resolved by the appraisal and requested supplemental payments for alleged mold damages. The trial judge heard arguments for over an hour and ultimately agreed with Sarah that Plaintiff cannot bring a supplemental claim for mold damages post-appraisal because Plaintiff signed an assignment agreement for mold remediation services to a mold remediation company. The mold remediation company was paid in full for their services and executed a Release for claims of mold remediation. The Court did not give any weight to Plaintiff’s last-ditch efforts to argue that the assignment agreement was invalid.
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Kimberly A. Beckwith, of our Tampa office, obtained a defense verdict in a case for property damage, lost wages, and mental anguish. The client drove off the road and crashed through Plaintiff’s fence, garden, truck, and landed squarely in the middle of Plaintiff’s mobile home. Luckily, no one was hurt, but our client was arrested for DUI. Plaintiff sued Defendant in small claims court claiming property damage, mental anguish, and lost wages. Kim filed a motion to dismiss outlining the numerous deficiencies with Plaintiff’s claims, including that 1) since he was not injured, his claim for mental anguish is barred, and 2) his claim for 6 weeks of lost wages was without support. Kim persuasively argued that Plaintiff voluntarily took off from work to repair some of the damage, that a hand-written letter from his employer regarding Plaintiff’s pay rate was inadequate to establish damages. At trial, Plaintiff attempted to add to his damages by claiming additional losses of personal property to which Kim quickly shot down by pointing out that he previously signed a property damage release. The Judge gently explained to Plaintiff that his case was flawed and ruled in favor of our client, entering a complete defense verdict.
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Benjamin Cohen, of our Ft. Lauderdale office, was retained to defend a law firm and two of its attorneys, individually, against a motion for sanctions under § 57.105, Fla. Stat. brought by a commercial attorney that the firm had sued for defamation. The attorney sought six figures in fees from the law firm and its attorneys claiming that there was no legal basis for bringing the claim. The case involved allegations of tortious interference, defamation, and other causes of action and the Defendant lawyer was asserting that his publications, if any, were subject to and protected by the absolute litigation privilege as they were made to clients or prospective clients within the course and scope of his actual or prospective representation. At a contentious evidentiary hearing on the issue, Ben was able to convince the Judge that the published communications were not made within the course and scope of the Defendant attorney’s actual or prospective representation, and thus, the communications were not subject to the litigation privilege.
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Travis J. Beal, of our Ft. Lauderdale office, won a Daubert motion and corresponding Motion in Limine in a toxic-tort case successfully excluding Plaintiffs’ expert’s causation opinions. Specifically, the court ruled that “without reliable information about the actual levels of exposure, any opinion [the neuropsychology and neurotoxicology expert] could offer linking Plaintiffs’ exposure to the products used in the renovations with particular health outcomes is unreliable and speculative.”

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