IN THIS ISSUE IMPORTANT CHANGES TO FLORIDA S PIP LAW

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1 THe KDQuarterly FALL 2012 EDITOR Bretton Albrecht IN THIS ISSUE 2-3 Changes to Florida s PIP Law continued 3 New Additions 4 Spotlight on Betty D.Marion Congratulations to KD Attorneys 5 Events & Speaking Engagements Appellate Results 6-7 Recent Results Trials & Motions 8 Announcements The following attorneys were selected for inclusion in a magazine published with the Daily Business Review, Legal Leaders Presents South Florida s Top Rated Lawyers COMMERCIAL LITIGATION: Jeremy Slusher, West Palm Beach MEDICAL MALPRACTICE: Daniel Draper, Miami PERSONAL INJURY: Laurie Adams, West Palm Beach Earleen Cote, Ft.Lauderdale G. William Bissett, Peter Murphy and Charles Watkins, Miami REAL ESTATE: Jane Rankin, Ft. Lauderdale/West Palm Beach IMPORTANT CHANGES TO FLORIDA S PIP LAW By Michael S. Walsh The 2012 legislative session brought with it many significant changes to Florida s personal injury protection (PIP) law, which will impact how claims are reviewed, analyzed and defended. The goal of this article will be to provide an overview of some of the key amendments from the defense perspective. If the history of Florida s PIP law is any indication of what is to come, it will likely be a mix of good, bad, and who knows. While the impact of the recent amendments cannot be predicted with certainty, this article will aim to provide some insight into the likely impacts of the changes. Of course, because the new session law amends, enacts, or otherwise impacts more than 10 different statutes, and because the changes have different effective dates, the session law itself should be consulted for further guidance and details. See Ch , 1-18, Laws of Fla. (House Bill 119).1 One note of importance at the outset is that most of the amendments to the No Fault statutes will apply regardless of whether they are expressly incorporated in the particular policy form and, thus, for the most part, insurers will not need to amend their policy form before the effective date of the statutory amendments. See Ch , 8 Laws of Fla. (creating , Fla. Stat., effective 7/1/12, providing that , Fla. Stat., control regardless of their inclusion in an insurance policy form). A significant exception appears to be the portion of Ch , 10, Laws of Fla., amending (5)(a)5., Fla. Stat., discussed herein below. continued on page 2 1The Florida Senate website is a great resource for accessing new bills, bill summaries, session laws, legislative history and other materials, both for the Senate and House. See

2 IMPORTANT CHANGES TO FLORIDA S PIP LAW Fraud Prevention Measures Presently, five of the top ten cities for automobile fraud are in Florida. Statistics aside, those who handle PIP know fraud runs rampant. Not surprisingly, a number of the new statutory changes address this major issue directly. Some of the amendments designed to combat the problem of fraud include the following: 1.The amendments broaden the circumstances in which long-form Florida Traffic Crash Reports ( FTCR ) are required. For example, a long-form will be required any time an accident results in death, personal injury to, or any indication of complaints of pain or discomfort by, any of the parties or passengers involved in the crash. Additionally, both the long and short form crash reports must include detailed information, including a list of all passengers in the vehicles involved. See Ch , 1 Laws of Fla. (amending , Fla. Stat., effective 7/1/12). These changes will assist insurance companies in determining who truly complained of discomfort or pain following an accident and will help root out fraudulent PIP claims. 2. A healthcare provider filing a PIP claim knowing the assignee intentionally submitted a fraudulent healthcare clinic application or document commits fraud. The amended statute further provides that a licensed health care provider found guilty of PIP fraud loses its license for five years and may not receive PIP reimbursement for ten years. See Ch , 13, Laws of Fla. (amending , Fla. Stat., effective 7/1/12). Although fraud will continue in Florida, this harsh sanction should assist in the reduction of fraud by physicians, although to what extent is unknown. These penalties will also help deter physicians from merely opening up a new clinic under a different name. 3. If an insurer has reasonable belief a fraudulent insurance act has been committed, they must: Notify the claimant in writing within 30 days after submission of the claim that the claim is being investigated for suspected fraud; The insurer has a 60-day period after the 30 days to investigate; The claim must then be denied within 90 days after submission of the claim; All claims denied for suspected fraud must be reported to the Division of Insurance Fraud. See Ch , 10, Laws of Fla. (amending/creating (4)(I), Fla. Stat., effective 1/1/13). This amendment combats fraud by giving insurers significantly more time to investigate, which was previously only 30 days. In addition, although not a new change, it should be noted that when fraud is found by the court or admitted by the claimant, the insurer can recover benefits paid before discovery of the fraud in their entirety from the person who committed the fraud. In addition, the prevailing party is entitled to recover its costs and attorney s fees in any action to enforce its right of recovery for benefits paid as a result of fraud. See (4)(h), Fla. Stat. Return of the Examination Under Oath The Florida Supreme Court s decision in Custer v. United Automobile Insurance Company, 62 So. 3d 1086 (Fla. 2010), is infamously known as the case which practically eliminated an insurer s right to conduct an examination under oath ( EUO ), or at least its right to deny a PIP claim for failure to attend an EUO. Resolving the issue, the Legislature expressly preserves the insurer s right to conduct an EUO of an insured, including an omnibus insured. Most importantly, the insured or omnibus insured must comply with the terms of the policy and compliance with this portion of the statute is a condition precedent to receiving benefits. See Ch , 10, Laws of Fla. (amending/creating (6)(g), Fla. Stat., effective 1/1/13). The amended statute arms carriers with the ability to deny a claim for the failure to attend a duly scheduled and noticed EUO. However, the statute restricts the scope of the questioning during the EUO to relevant information or information that could reasonably be expected to lead to relevant information. See id. As a result, the carrier must be careful as to the type of questions asked in the examination to avoid sanctions. Lastly, the amended statute expressly states the insured cannot make it a general business practice to request EUOs without a reasonable basis. Consequently, it is highly recommended that insurers have a legitimate reason for conducting the EUO, as deponents will certainly be asked such questions in deposition by the plaintiff s counsel. Independent Medical Examinations There is one significant change to the provision governing independent medical examinations ( IME ). Whereas, previously, the insurer bore the burden to prove the unreasonableness of a claimant s failure to appear at an IME, the amendments create a rebuttable presumption in favor of the insurer that an insured s refusal to submit to, or failure to attend, two examinations is unreasonable. See Ch , 10, Laws of Fla. (amending (7)(b), Fla. Stat., effective 1/1/13). This change will be of great benefit to the defense. An insured s failure to attend two properly scheduled and noticed IMEs, will create a rebuttable presumption that the insured s refusal or failure to attend was unreasonable. Once this rebuttable presumption arises, it will be the claimant/plaintiff s burden to prove the failure to attend was reasonable. Since many claimants are difficult to locate after treatment, this will place the obligation (after two no-shows) on plaintiff s counsel to track down the claimant and prove reasonableness of the failure to attend. By way of caution, however, in order for the presumption of unreasonableness to arise, the insurer must properly schedule and give notice of the two IMEs, and the insured must fail to attend both. Insurers should also be certain they send notices of the examination to all known addresses of the insured/claimant and their counsel, if represented, to prevent plaintiffs from asserting the notices were sent to the wrong address. 2

3 PIP Schedule of Maximum Charges Medical providers are required to charge only a reasonable amount for services rendered to an injured person. Much of the PIP litigation over the past few years has dealt with the reasonableness of the charge for the services and treatment billed to the insurer by the provider. Florida s No-Fault Law sets forth schedules of maximum reimbursement, each of which applies to specified care and services. Medical services and care not included in a specific schedule are generally reimbursed at 80% of 200% of the physicians schedule of Medicare Part B. However, it appears that, effective July 1, 2012, insurers desiring to utilize the PIP schedule of maximum charges must amend their policy forms to include the schedule. Curiously, the amendments to the larger statute containing this subdivision are not effective until January 1, 2013, which raises substantial questions regarding the meaning, scope, and true effective date of this amended subdivision. See Ch , 10, Laws of Fla. (amending (5), Fla. Stat., effective 1/1/13, but amending (5)(a)5., effective 7/1/12); see also Fla. H.R. Economic Affairs Comm., HB 119 (2012), Staff Analysis at 4, (final May 7, 2012) (available at ( Effective July 1, 2012, insurers that want to utilize the PIP schedule of maximum charges must amend their forms to include the schedule. ). What Care and Treatment is Reimbursable One of the most significant changes to the new PIP statute is the limitation of what care and treatment is reimbursable and who can provide the care. Firstly, the insured/claimant must seek treatment within 14 days after the accident. Otherwise, no care or treatment is reimbursable. If the insured/claimant does seek treatment within 14 days after the accident, the initial services and care may only be provided, supervised or ordered by a licensed MD, dentist, chiropractor, a hospital or facility that is a wholly-owned hospital or a person or entity licensed under Chapter 401 providing emergency transportation and treatment. See Ch , 10, Laws of Fla. (amending (1), Fla. Stat., effective 1/1/13). The amended statute provides that, after the initial care, follow up care may be provided, supervised or ordered by an MD, chiropractor, dentist, physician s assistant, advanced registered nurse practitioner, a hospital, ambulatory surgical center or an entity wholly owned by one or more physicians. It is worth noting that a physical therapist is allowed to provide such treatment if the referral is made by a provider under this paragraph. See id. If the insured treats within the 14 days, with the appropriate physicians providing the initial treatment, then there are two levels of entitlement to PIP medical benefits: 1. Benefits will be limited to $2, for treatment if there is no finding of an emergency medical condition. 2. Benefits will be extended to the full amount of $10, if there is a finding of an emergency medical condition. See id. These caps obviously raise the question, What is an emergency medical condition? Although there will doubtless be substantial litigation over this question, the Legislature has, in amending a different statute, provided a general definition as follows: [A] medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) Serious jeopardy to patient health. (b) Serious impairment to bodily functions. (c) Serious dysfunction of any bodily organ or part. See Ch , 9, Laws of Fla. creating (16), Fla. Stat., effective 1/1/13). A chiropractor cannot make the finding of an emergency medical condition. Such a finding must be made by a licensed MD, dentist, physician s assistant or advanced registered nurse practitioner. See Ch , 10, Laws of Fla. (amending (1), Fla. Stat., effective 1/1/13). It seems likely that some chiropractic clinics may start retaining at least one of these types of professionals for sole the purpose of evaluating emergency medical conditions, in an effort to obtain the full $10, in PIP benefits. It also seems likely that most insureds will be declared to have suffered an emergency medical condition by the initial treatment provider within 14 days of the accident. Uncertainty looms as to how courts will interpret the vague definition of emergency medical condition, such as what serious jeopardy to a patient s health actually means or what constitutes a serious impairment to bodily functions. It is also uncertain when the finding of an emergency medical condition must be made, as the amended statute appears to be on this issue. The statute does not appear implement any limitations of when such a finding can be made but seems to just say there needs to be a finding of same. This, too, is likely to occasion substantial controversy and litigation. CONCLUSION As noted throughout this article, there is no way to predict exactly how the recent statutory amendments to Florida s PIP law will impact insurers or the defense of PIP claims. If the history of prior PIP amendments is any indication, the one thing that is certain is that there will be substantial litigation over the meaning of the new changes. Only time will tell the full impact of the amendments, as insurers and plaintiffs alike challenge the scope and meaning of the amendments and courts rule on those challenges in particular cases. New Additions to the Firm We are pleased to welcome: Pensacola office: Amy C. Shea and Grayson Miller, Associates Orlando office: Jeffrey R. DeFelice, Associate Miami office: LeVale W. Simpson and Marcus G. Mahfood, Associates Valerie A. Dondero, Shareholder 3

4 S P O T L I G H T O N : Betty D. Marion Betty D. Marion, a shareholder in the Ocala office, has been practicng law in Marion County, Florida for over 25 years. A Florida native, Betty developed an interest in the aw at an early age. She started working as a legal secretary for her father, a general practitioner, when she was just 17. This experience not only gave her a skill she could take anywhere, but also the confidence and desire to become an advocate herself. After working as a legal secretary for a few years at different law firms, including for a time in New York City, Betty s drive for excellence in advocacy led her to pursue her own legal career. She earned her Bachelor of Arts degree, with honors, from the University of Central Florida, and her Juris Doctor degree from the University of Florida College of Law, where her father also attended law school. Betty was admitted to The Florida Bar in She has achieved an AV rating from Martindale-Hubbell, a preeminent peer-review rating reflecting the highest level of professional excellence. She is also Board Certified by The Florida Bar in Workers Compensation, and she is a member of the Marion County Chapter of the Florida Association of Women Lawyers, as well as the state and local bar associations. Betty joined Kubicki Draper s team of attorneys in In addition to defending employers in workers compensation matters and wrongful termination suits, she often represents defendants in general liability and negligence cases, including automobile accidents, premises liability claims, wrongful death claims, wrongful termination suits, veterinary malpractice claims, and licensure defense. She frequently lectures in many of these areas, and recently spoke at the Florida Association of Equine Practitioner s 8th Annual Promoting Excellence Symposium, together with another presenter, on topics including preventing pre-purchase exam claims. She also spoke earlier this year at the Florida Insurance Fraud Educational Conference on workers compensation trends and fighting insurance fraud. Betty has many professional accolades, but the one she is most proud of came just recently when she was voted Boss of the Year for 2012 by the Marion County Legal Support Association, which is the local chapter of a statewide association of legal assistants, secretaries and paralegals. Another of Betty s most treasured achievements has been mentoring and training hundreds of associates over the years, instilling in them the same ethics, values, professionalism, and dedication to excellence in which she was trained. In her role as a defense advocate, Betty combines her legal expertise with her natural analytical and problem-solving abilities in order to find the best solutions for her clients, whether that means negotiating a favorable settlement or battling it out in court. Betty is also a successful wife and mother. She has two grown boys, ages 19 and 21. Betty and her husband enjoy spending time together in the great outdoors, including golfing, fishing, snorkeling, and scalloping. congratulations Steve Cozart Michelle Krone William Sabinson Melonie Bueno Several of our attorneys were recently certified AV Preeminent, the highest mark obtainable, by Martindale-Hubbell. The Martindale-Hubbell Peer Review Ratings are an objective indicator of a lawyer's high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States and Canada. Congratulations to: Michelle Krone - Ft. Myers, Steve Cozart - Pensacola, William Sabinson and Melonie Bueno - West Palm Beach, Chelsea Winicki -Jacksonville, Stuart Poage - Tallahassee 4 Chelsea Winicki Stuart Poage

5 events & speaking engagements Jarred Dichek, of the Miami office, and Michael Clarke, of the Tampa office, recently visited Mendota Insurance to present on the New Changes in Florida s PIP Law. Joe Carey and Greg Prusak, of the Orlando office, together with Ken Oliver and Kendra Therrell, of the Ft. Myers office, presented on UM and Early Case Resolution at USAA. Betty D. Marion, of the Ocala office, recently attended and spoke at the Florida Association of Equine Practitioner s Eighth Annual Promoting Excellence Symposium in the Southeast, held in Naples, Florida. She spoke, together with Nina Mouledous, DVM, Trust Representative of AVMA/PLIT on Preventing Pre-purchase Exam Claims and the Legal Realities and also on Specific Claims Review and Actual Cases. Stuart Poage and Chad Hess, of the Tallahassee office, along with Ken Oliver, of Ft. Myers, and Sean Kelly Xenakis, of Tampa, presented a seminar to Travelers on Bad Faith and Percutaneous Discectomy. Brad McCormick, of the Miami office, presented on Undocumented Workers at Old Republic Construction Program Group s Annual Litigation Meeting in Phoenix, Arizona. Laurie Adams, of the West Palm Beach office, and Earleen Cote, of the Ft. Lauderdale office, attended the CLM s National Women s Leadership Forum. Ms. Adams chaired a panel of four other professional women, who are mothers, daughters, wives and workers to tackle the sensitive topic: Can Women Have it All, Yet? Peter Baumberger, Jennifer Remy-Estorino, and Christopher Utrera, all of the Miami office, presented a seminar to BUPA International on Subrogation. Jeremy Slusher, of the West Palm Beach office, participated in Sterling Education Services Third Annual Landlord/Tenant Law Seminar. 5 r e c e n t r e s u l t s APPELLATE SUMMARY JUDGEMENT Sick Building Syndrome G. William Bissett, of the Miami office, recently secured the affirmance of a summary judgment in favor of the owner of an office building that was alleged to have the so-called sick building syndrome. The case, brought by three individuals who worked in the building at various periods of time, had been pending for nearly ten years, with extensive discovery. Each plaintiff claimed various respiratory ailments and skin conditions and demanded substantial sums to settle the case. As the case was heading for trial, lead counsel, Francesca Ippolito-Craven, also of the Miami office, obtained an expert s affidavit which basically stated that all of the air quality testing results upon which the plaintiffs were relying fell within acceptable ranges and did not exceed any applicable safety standards. Even though there existed many factual conflicts in the depositions taken over the years, counsel was successful in persuading both the trial court and the appellate court that the defendant had adequately shifted the burden to plaintiff to come forward with a counteraffidavit from an expert to avoid summary judgment. The plaintiffs also attempted to generate an issue of fact by placing multiple depositions and documents before the appellate court as an appendix to their brief, but Mr. Bissett successfully moved to strike the entire appendix, as the contents had not been timely and properly put into the trial court record before the summary judgment was granted. TRIAL Litigation History Check of Potential Jurors; Untimely Filing of Motion for Attorney s Fees & Costs Sharon C. Degnan, of the Fort Lauderdale office, prevailed on appeal in Borroto v. Garcia. Following a jury verdict in favor of the plaintiff, Ms. Degnan appealed to the Third District Court of Appeal and successfully argued that the defense should have been permitted to conduct juror interviews after it came to light following the return of the verdict that two of the jurors had apparently failed to reveal their prior involvement in an auto accident for which they sought medical treatment. Of interest in this decision is a long concurring opinion from one of the judges on the panel suggesting that, although Florida law does not currently appear to require that a litigation history check of the potential jurors be conducted prior to the conclusion of jury selection and before a jury is sworn, that such a requirement could be implemented by the trial court, on a case by case basis, and particularly in a lengthy trial. Additionally, in this case, Ms. Degnan successfully defended a cross-appeal on the issue of whether the trial court had properly denied the plaintiff s motion for attorney s fees and costs pursuant to a proposal for settlement, based upon the plaintiff s failure to file her attorney s fees and costs motion until 73 days after the final judgment, which was beyond the period provided for in Florida Rule of Civil Procedure

6 r e c e n t TRIALS & MOTIONS UM Selection/Rejection Form Angela C. Flowers, of the Ocala office, and Melonie Bueno, of the West Palm Beach office, obtained a Final Summary Judgment in a declaratory action brought by the estate of a pedestrian/decedent against the decedent s insurer. The Plaintiff originally filed a three-count complaint for declaratory judgment; breach of contract; and first party bad faith. Ms. Flowers and Ms. Bueno were successful in obtaining an abatement of the breach of contact and first party bad faith counts until the declaratory judgment count was resolved. In the declaratory action, Plaintiff alleged that the UM selection/rejection form which was signed by the named insured did not strictly comply with , Fla. Stat., thus creating an ambiguity and giving rise to UM/UIM coverage. The issue in controversy was the UM selection/rejection form s omission of the word liability in the statutorily required heading. Ms. Flowers and Ms. Bueno filed a Motion for Final Summary Judgment, arguing that (1) the UM selection/rejection form was valid because it had been approved by the Insurance Commissioner of the State of Florida, (2) similar UM selection/rejection forms were approved by appellate courts in the past, (3) there was no ambiguity created because Plaintiff rejected all coverage, and (4) the omission of the word liability did not fall within the portion of the heading which applied to the Plaintiff s rejection of all coverage. Ms. Flowers and Ms. Bueno persuaded the Court to rule in their client s favor. The trial judge found that the insurer was entitled to rely on the Department of Insurance and, because the Plaintiff had rejected UM/UIM coverage outright, the insurer had wholly complied with Fla. Stat DISMISSAL Insurance Application Electronic Signature Challenge Valerie A. Dondero, of the Miami office, recently prevailed on a Motion to Dismiss and for Attorneys Fees pursuant to F.S The trial court awarded attorneys fees in favor of Ms. Dondero s client and against both the Plaintiff and his counsel for filing a meritless affirmative defense that sought to challenge the Plaintiff s online electronic signature on his application for insurance and on his Uninsured Motorist Selection/Rejection form. The Plaintiff admitted the validity of his electronic signature during deposition and then denied its validity in Answer to the insurer s counterclaim for Declaratory Relief. Ms. Dondero prevailed on Summary Judgment on the validity of the Plaintiff s online electronic signature under Florida s Uniform Electronic Transactions Act (UETA) and a finding that the Plaintiff was not entitled to Uninsured Motorist coverage under his auto policy. The Summary Judgment was affirmed, per curiam, by the Fourth District Court of Appeal. Following the Appeal, the parties returned to the trial court for the award of attorneys fees and awarded the insurer all its fees in the successful dismissal of Plaintiff s affirmative defense. r e s u l t s SUMMARY JUDGEMENT Construction Defect/Slavin Doctrine Harold Saul, of the Tampa office, with the assistance of his associates, Joseph Etter, IV, and Bryan Krasinski, successfully obtained a summary judgment in a wrongful death case arising from an accident that occurred when the car in which decedent was a passenger struck a guardrail constructed by the defendant-client. The KD defense team developed evidence through depositions showing that their client had constructed the guardrail in full compliance with the plans from the Florida Department of Transportation. Thus, they moved for summary judgment on the Slavin v. Kay Doctrine, arguing that the FDOT accepted the work and any defect that existed was patent or discoverable and, therefore, that their contractor client had no liability. The plaintiff vigorously opposed the Motion, arguing there was still an issue of fact as to whether the alleged dangerous condition was patent, but Mr. Saul responded by citing several portions of the plaintiff s own expert s deposition testimony to support the defense motion, and he successfully persuaded the trial court that there were no issues of fact and that the defendant was entitled to summary judgment. Slip-and-Fall Chad B. Hess, of the Tallahassee office, recently obtained a final summary judgment in a slip-and-fall case on behalf of his client, a legal aid clinic. The plaintiff alleged that upon exiting the clinic and descending a two-riser set of steps on an exterior walkway, her left foot slipped out from underneath her, causing her to fall and ultimately undergo a knee replacement surgery. She alleged that she had seen children drinking juice or soda near the walkway on her way into the building. She also alleged that the steps should have had a railing, which was, admittedly, absent. Mr. Hess chose to dispense with written discovery requests, and he immediately set the plaintiff and the only known witness, the plaintiff s adult daughter, for deposition. Neither testified to seeing a spilled drink. The plaintiff testified that she did not know the cause of her foot slipping and had no knowledge of any defect in or on the step. She conceded that she did not know of anything wrong with the step, and she admitted that she sued the legal aid clinic due to her belief that a business is responsible for accidental injuries to patrons. Cleverly, she also testified to her belief that had there been a railing, she would not have been injured. Due to Plaintiff s inability to identify a cause for the initial slip, Mr. Hess moved for summary judgment. He filed a supporting affidavit from an architect to the effect that a railing was not required for a two-riser set of steps. Plaintiff filed opposition 6

7 r e c e n t r e s u l t s arguing that the step was a slippery defective step, in conflict with her sworn deposition testimony, and arguing that the later addition of a railing was evidence that there had been a defect at the time of the incident. Mr. Hess moved to strike the opposition materials as a sham filing and on the basis of subsequent remedial measures being inadmissible per the evidence code. The court granted the motion to strike and, later in the same hearing, granted the legal aid clinic a final summary judgment for plaintiff s failure to show evidence of negligence. With sharp focus on bringing the liability issues to a head before engaging in expensive damages discovery, Mr. Hess saved his client substantial defense costs and closed the case within a few short months of it being opened. Declaratory Relief/Commercial Auto Policy/Wrongful Death Trucking Accident Valerie A. Dondero, of the Miami office, prevailed on a Motion for Summary Final Judgment in favor of an Insurer on its Petition for Declaratory Relief filed in Nassau County, Florida. Ms. Dondero s client alleged there was no Liability coverage under a Commercial Auto Policy for the wrongful death of a gentleman who was involved in a trucking accident with the insured. Ms. Dondero was able to prove that neither the tractor nor the attached trailer fell within the definition of insured auto contained within the policy of insurance and the driver of the tractor trailer did not fall within the definition of insured under the facts of the loss. Despite allegations to the contrary, Ms. Dondero was able to prove that the insured attempted to add both the tractor-trailer and the driver to the Commercial Auto Policy minutes after the accident occurred. The court further found that Ms. Dondero s client had no duty to defend nor indemnify its insureds in the wrongful death lawsuit. Strict Liability David Drahos, of the West Palm Beach office, successfully obtained a summary judgment in a difficult case, in which plaintiff was claiming strict liability and seeking over $200, in damages, plus fees and costs, for an allegedly defective super aquarium that ruptured, causing water damage to an apartment. Mr. Drahos successfully argued that our client, the defendant who had manufactured the aquarium, was entitled to summary judgment on the strict liability claims because the aquarium was not a dangerous product and the defendant had a reasonable and undisputed expectation that the aquarium would be inspected upon delivery. TRIALS & MOTIONS Construction Defect/Florida Building Code Rich Cartlidge, of the West Palm Beach office, prevailed on a motion for Partial Summary Judgment based on Chapter 14 of the 2001 Florida Building Code. Plaintiff had alleged that the paint applied to the exterior walls of the ocean front residence was required to provide weather protection under the building code. Plaintiff further alleged that the paint failed to provide the required weather protection and that our client was liable on a pro rata basis for approximately $1.7 million in damages. Mr. Cartlidge successfully argued that under Chapter 14 of the Florida Building Code paint was not a veneer and, therefore, was not required to provide the weather protection. As a result of prevailing on this defense motion for partial summary judgment, Plaintiff can no longer assert damages for interior water intrusion against our client, leaving only a claim for inadequate protection of steel columns, and substantially reducing Plaintiff s claimed damages against our client. ATTORNEY S FEE DISPUTE Valerie A. Dondero, of the Miami office, recently prevailed for an insurer in an Attorney s Fee dispute wherein the claimant, an additional insured under a Commercial Auto policy, alleged entitlement to indemnity against the insurer for attorney s fees expended in the defense of a catastrophic injury suit for a two-year period of time prior to the insurer assuming defense of the suit. The insured demanded almost $100,000 in fees plus interest and the insurer took the position that it had liability, if at all, for the time between the tender of the complaint that triggered the duty to defend and the date the defense was assumed, which amounted to almost one month. The insurer relied on Florida case law which allows an insurer to tender its policy limits for its named insured, and secure a release for the named insured, while leaving an additional insured in the litigation. In addition, the policy issued to the insured provided that there was no continuing duty to defend once the tender of policy limits was made. The Defendant accepted $3,000 to settle its indemnity claim. No Coverage Under Auto Policy Bretton C. Albrecht, of the Miami office, obtained a final summary judgment of no coverage in a case arising from an incident in which the plaintiff was allegedly injured while helping unload a 16-foot box truck rented by the insured. Plaintiff originally sued the insured, who requested a defense under his personal automobile insurance policy. The insurer denied coverage and the insured assigned his rights under the policy. Plaintiff, in turn, sued the insurer, seeking an adjudication of coverage under the insured s policy. However, Ms. Albrecht successfully moved for final summary judgment, and persuaded the court that the undisputed facts revealed by the pleadings and discovery demonstrated that the subject rental truck was not covered under the insured s policy, because the rental truck did not meet the policy s definition of a covered non-owned auto, including because it had a load capacity far greater than the load capacity limits described in the policy. The trial court agreed and entered a final summary judgment of no coverage in favor of the insurer. 7

8 Announcements Caryn Bellus, of the Miami office, was selected by her peers for inclusion in The Best Lawyers in America, and she will be listed in the debut edition of Florida s Best Lawyers, which appeared in four of Florida s newspapers on October 26, 2012: The Miami Herald, The Tampa Tribune, The Orlando Sentinel, and The Wall Street Journal. Best Lawyers is a preeminent peer review publication, and being selected for inclusion in Best Lawyers is widely regarded as a significant honor conferred on a lawyer by his or her peers. e Tampa office, was also selected by her peers for inclusion in The Best her name will appear in the debut edition of Florida s Best Lawyers. e will appear in four of Florida s newspapers: The Miami Herald, The ando Sentinel and The Wall Street Journal on October 26, he Tampa office, authored an article, YOU ARE NOT LISTENING! OR SUSTAINED OBJECTIONS FOR APPEAL, that was published in ial Advocate Quarterly. Ft. Lauderdale office, was recently appointed to the Riverwalk Fort ectors. he Tampa office, was honored with a lifetime membership in the the University of Florida s Leadership Giving Society. he Ocala office, was recently voted Boss of the Year for 2012 by the pport Association, which is the local chapter of a statewide association taries and paralegals. he Tampa office, was rated AV Preeminent in Insurance Law. The orporate Counsel magazine and The National Law Journal will feature the s in Insurance. in the Tallahassee office, was appointed by The Florida Bar to the Second Judicial Circuit Unlicensed Practice of Law Committee to serve a 3 year term. The purpose of this committee is to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the Code of Conduct which, in public interest, lawyers are bound to observe. Corie is TBA's first Paralegal member and the Paralegal for Richard Collins, of the Tallahassee office, who is a Tallahassee Bar Association Board Member. Betsy Gallagher, of the Tampa office, was listed in the 2012 edition of Tampa s Top Rated Lawyers, the Definitive Guide to Legal Representation. Ms. Gallagher s practice area in the publication is appellate practice. The list will also appear as a stand alone magazine in such publications as The Tampa Tribune and The Wall Street Journal. Radia Turay, of the Miami office, and her husband Stanley Beckley, recently welcomed a baby boy. Congratulations! FOLLOW US ON Brad McCormick Sharon Christy Rosemarie Silva Aileen Diaz C O N T A C T I N F O R M A T I O N New Assignments bmc@kubickidraper.com sharon.christy@kubickidraper.com Firm Administrator rls@kubickidraper.com Seminars/Continuing Education Credits ad@kubickidraper.com Statewide Coverage in Florida from 11 Offices MIAMI key west FORT LAUDERDALE WEST PALM BEACH NAPLES/FORT MYERS TAMPA OCALA ORLANDO JACKSONVILLE TALLAHASSEE PENSACOLA 8