KUBICKI DRAPER. Kubicki Draper. congratulates its lawyers selected for inclusion

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1 THe KDQuarterly fall 2011 *Peter Baumberger L A W O F F I C E S KUBICKI DRAPER Professional Association Founded 1963 Daniel Draper, Jr. Caryn Bellus Kubicki Draper congratulates its lawyers selected for inclusion in Angela Flowers *Steven Cornman Betsy Gallagher Sharon Degnan Brad McCormick Rolando Diaz *Poorad Razavi * Selected as Florida Super Lawyers Rising Stars EDITOR: Chelsea R. Winicki IN THIS ISSUE 2... Uninsured/Underinsured Motorist Case Law Update 3... KD Announcements/New Additions to the Firm 4... Beware of the Lower Limit U/M Trap 5... Appellate Results Trial and Motion Results 8... In the Community/Seminars & Speaking Engagements Save the Date! FIFTH ANNUAL Claims Management Conference APRIL 27, 2012 JW MARRIOTT Orlando, Florida

2 UNINSURED/UNDERINSURED MOTORIST CASE LAW UPDATE By Betsy E. Gallagher IN 2011, FLORIDA S APPELLATE COURTS HAVE PROVIDED SOME NEW LAW IN THE OFT-LITIGATED AREA OF UNINSURED/ UNDERINSURED (UM) MOTORIST LAW. THESE RECENT OPINIONS PROVIDE AN OPPORTUNITY TO REEDUCATE OURSELVES ON SOME OF THE ESTABLISHED PRINCIPLES. The Statutorily-Mandated Rejection Form Provides Insurers Some Protection For years, section (1), Florida Statutes, has required that uninsured motorist coverage be afforded unless an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy. An amendment to the statute requires insurers to obtain such rejection of UM coverage, or the selection of limits lower than the purchased liability limits, on a form approved by the Office of Insurance Regulation (OIR) of the Financial Services Commission (previously the Department of Insurance) (1), Fla. Stat. The UM statute also added subsection (9) in 1987, which allows insurers to offer reduced UM coverage to insureds, provided the insurers comply with all of the statutory conditions. Insurers must inform the named insured, applicant, or lessee, on a form approved by the OIR, of the limitations imposed pursuant to such offer of reduced coverage. The signing of the approved form by a person expressly authorized under subsections (1) or (9) creates a conclusive presumption that there has been an informed, knowing rejection of UM coverage or election of lower limits as provided by subsection (1), or acceptance of the limitations as allowed by subsection (9). See, e.g., (9), Fla. Stat. ( it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations ). In 2011, Florida courts have continued to interpret and apply these provisions. In Mitleider v. Brier Grieves Agency, Inc., 53 So. 3d 410 (Fla. 4th DCA 2011), the Fourth District Court of Appeal addressed the issue of whether the execution of the UM coverage rejection form relieves the insurance agency and its agent of any liability for a claim for negligent failure to procure uninsured motorist coverage. The Fourth District found that the conclusive presumption created by section (9), quoted above, fully protected the insurance agency, agent, and the insurance company. The court further noted that the presumption cannot be overcome by testimony that the insured did not read the form. In Contreras v. 21st Century Insurance Co., 53 So. 3d 1194 (Fla. 5th DCA 2011), a Fifth District Court of Appeal certiorari proceeding, the insured s counsel sent two presuit letters to the insurer requesting a copy of any UM rejection form. The insurer responded with a copy of the policy declarations page, which showed that the policy had no UM coverage. The insured filed a declaratory judgment action, claiming that the insurer failed to provide the UM rejection form pursuant to section the statute that requires [d]isclosure of certain [insurance] information. After the complaint was served in Contreras, the insurer provided the UM rejection form and moved for judgment on the pleadings on the grounds that the disclosure statute does not require insurers to provide a copy of the UM rejection form and that there was no basis for any monetary recovery of a policy benefit. The trial court granted the insurer s motion for judgment on the pleadings. The insured immediately served a Notice of Confession of Judgment and asked for attorney s fees and costs on the basis that the insurer had 2 confessed judgment by providing a copy of the UM rejection form. The trial court denied the insured s motion and the insured filed a petition for writ of certiorari. The Fifth District denied the writ but noted that the confession of judgment doctrine can apply to cases where a party, entitled to documents specified in section , is denied them by the insurer until suit is filed to enforce its rights. The Common Law Doctrine of Stacking Continues to be Followed Two favorable appellate decisions on stacking were issued in In analyzing primary or excess policies, Florida courts continue to apply the common law developed through appellate decisions and specifically look at whether separate premiums have been paid by the insured in determining whether UM coverage is stacked or not stacked. In Simmons v. State Farm Florida Insurance Co., 55 So. 3d 636 (Fla. 5th DCA 2011), the plaintiff sought to stack $1,000,000 for each of four covered vehicles under an umbrella policy issued to the plaintiff s father. The State Farm policy at issue provided $1,000,000 in stated excess UM coverage. Testimony showed that State Farm had determined the amount of the UM premium based on the number of ratable exposures listed in the policy, which was determined by the number of vehicles or drivers, whichever was less. No separate premium was paid for each automobile. The Fifth District Court of Appeal concluded that since only one premium had been paid for UM coverage, the policy was a non-stacking policy by law, and only $1,000,000 in excess UM coverage was afforded under the umbrella policy. In Swan v. State Farm Mutual Auto Insurance Co., 60 So. 3d 514 (Fla. 3d DCA 2011), a case involving primary UM coverage, the Third District Court of Appeal rejected the insureds position that they were entitled to an additional $200,000 in UM coverage. The insureds, Mr. and Mrs. Swan, had applied for two separate policies from State Farm. The first policy insured the vehicle occupied by the Swans in the subject accident, and had $100,000 per person/$200,000 per accident UM limits. State Farm tendered the $200,000 under the first policy. The Swans, however, had rejected UM coverage in the second policy purchased from State Farm. The Third District rejected the Swans argument that they were entitled to stack coverage under the second policy because they had purchased stacked coverage on the first State Farm policy. The court held that the number of uninsured motorist coverages available to be stacked should be based on the number of coverages for which uninsured motorist premiums were paid. A UM Provision Requiring Joinder of the Tortfeasor Is Void In Ruddy v. Carell, 54 So. 3d 1055 (Fla. 5th DCA 2011), the Fifth District agreed with the Fourth District s late 2010 decision in Saris v. State Farm Mut. Auto. Ins., 49 So. 3d 815 (Fla. 4th DCA 2010). Both courts held that a policy provision requiring the insured to sue the driver or owner of the uninsured vehicle, when bringing an action for uninsured motorist benefits, is against public policy and void. In Saris, the Fourth District held that such a provision places an additional burden on the insured which is not imposed by the UM statute and therefore against the public policy of the UM statute. continued at bottom of next page

3 of our Miami office and Michael Walsh of our Ft. Lauderdale office have been named as shareholders in the firm. Caryn Bellus of our Miami office was named to South Florida Legal Guide s Top Lawyers List, in the areas of appellate practice and insurance coverage. Caryn Bellus was recognized in the class of 2011 Legal Elite in Florida Trend Magazine, for appellate practice. Betsy E. Gallagher of our Tampa office was appointed the Chair of the Alumn Outreach Committee of the Board of Trustees, University of Florida Levin College of Law Harold S. Saul of our Tampa office has been invited to join the prestigious Council o Litigation Management. The Council is a nonpartisan alliance comprised of thousand of insurance companies, corporations, Corporate Counsel, Litigation and Ris Managers, claims professionals and attorneys. Through education and collaboratio the organization s goals are to create a common interest in the representation b firms of companies, and to promote and further the highest standards of litigatio management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows. Caryn Bellus, of our Miami office, and Betsy E. Gallagher, of our Tampa office, are currently serving on the Friends Committee of the National Association of Women Judges. Bill Bissett and Francesca Ippolito-Craven, both of our Miami office, co-authored the Florida Tort Law section contained in the 2011 edition of the Tort Law Desk Reference: A Fifty State Compendium. Caryn Bellus, of our Miami office, was elected vice chair of The Appellate Practice Section of the Florida Bar. Courtney A. Umberger, of our Tampa office, was appointed to be an ad hoc member of the Outreach Committee of the Board of Trustees of the University of Florida Levin College of Law. She will be working with the Admissions Office. Caryn Bellus, of our Miami office, received the 2011 Florida Defense Lawyers ( FDLA ) Amicus Curiae Award. Joshua Polsky, of our Fort Lauderdale office, was recently appointed by the City Commission to the City of Plantation s Unsafe Structures Board. Nicole Ellis, of our Miami office, was recently installed as the President of the Wilkie D. Ferguson, Jr. Bar Association for the 2011/2012 term. Ms. Ellis succeeds her sister, Jennifer, who is the outgoing president. This organization represents the interests of the African American Bar in the Miami-Dade County area. Ms. Ellis, in conjunction with the Board of Directors of the Association, have certainly, and effectively, brought what was a floundering organization back to prominence in the Miami area by their dedication to community service and promotion of diversity issues in our changing cultural landscape. The Association will next present their Annual Judicial Forum where they expect a wide turn out of State Court Judges, as well as Federal Court Justices. This forum usually brings a wealth of Judicial brain power that addresses the common issues of the practice of law and how it affects people in our society. Jennifer R. LeVine, of our West Palm Beach office, recently had an article published in the Journal of Technology Law and Policy. The article, entitled Over-exposed? TSA Scanner and the Fourth Amendment Right to Privacy, discusses the new Backscatter and Millimeter Wave TSA technology. Critics of the technology argue that the technology is highly invasive, and therefore violates the Fourth Amendment of the United States Constitution, while proponents contend that the technology is useful and necessary. AnnouncementsSteve Cornman New Additions to the Firm In the Ocala Office: Betty D. Marion who joins the firm as a shareholder In the Orlando Office: Carey N. Bos who joins the firm as a shareholder In the Miami Office: Lauren S. Adler Rebecca Brock Ryan M. Charlson who join the firm as associates In the West Palm Beach Office: Richard L. Cartlidge Jennifer R. LeVine Ryan S. Shipp Michael F. Suarez who join the firm as associates A Bad Faith Suit Against a UM Insurer May Not Proceed Until the Appeal Is Concluded In Illinois National Insurance Co. v. Bolen, 53 So. 3d 388 (Fla. 5th DCA 2011), the Fifth District held that a bad faith claim against a UM insurer may not be brought until there is a final determination of liability and damages on the UM claim. As the court plainly stated, the bad faith claim may not proceed until the UM carrier s appeal has been finally determined. A UM Insurer s Proposal for Settlement Will Be Enforced Where a Nominal Offer Is Made In Allstate Insurance Co. v. Staszower, 61 So. 3d 1245 (Fla. 4th DCA 2011), the insured brought an action against the alleged tortfeasor and the underinsured motorist, Allstate. Before trial, Allstate served a $100 proposal for settlement. The jury returned a verdict of only $1,670, and Allstate filed 3 a motion for final judgment in its favor, as well as a motion for setoffs and attorney s fees. Allstate asserted that the verdict was below the $10,000 liability limits of the tortfeasor and that the underinsured motorist coverage did not come into play. The trial court denied all of Allstate s motions. On appeal, the Fourth District reversed. The court determined that Allstate was the prevailing party because the verdict did not exceed the liability limits, and was therefore entitled to costs. The Fourth District further held that the trial court had erred in denying fees to Allstate under (1), Florida Statutes, given that the $100 offer by Allstate clearly exceeded Plaintiff s zero recovery from Allstate. Furthermore, Allstate s counsel had presented evidence at the hearing that at the time Allstate presented the proposal, it had evidence that Allstate had no exposure.* *Note that an attorney s unsworn statements do not constitute evidence. See, e.g., Taylor v. Taylor, --- So. 3d ----, 36 Fla. L. Weekly D1564 (Fla. 4th DCA July 20, 2011); Arnold v. Arnold, 889 So. 2d 215, 216 (Fla. 2d DCA 2004).

4 AS MOST ADJUSTERS AND ATTORNEYS THAT WORK IN THE INSURANCE DEFENSE INDUSTRY KNOW, FLORIDA HAS A WELL-DESERVED REPUTATION FOR BEING A HAVEN FOR BAD FAITH OR EXTRA CONTRACTUAL LIABILITY LAWSUITS. These lawsuits are brought against the insurer. In most of these claims, Plaintiff s counsel alleges that the insurer failed to engage in a good faith effort to settle a first-party or third-party claim for insurance benefits. This article focuses on the Plaintiff s attorneys efforts to prove bad faith liability against the insurance industry in claims that arise out of uninsured motorist (U/M) benefits. BEWARE OF THE LOWER LIMIT U/M TRAP By Gregory J. Prusak Although longstanding rinciples related to ontract law generally imit a party s damage iability to the amount egotiated in the contract the insurance policy), lorida s U/M statute, F.S (10) expands ontractual liability to mounts greater than the U/M co erage agreed to and paid for by the insured. In the instance of a U/M benefits case, subsection (10) of F.S states in pertinent part, The damages recoverable from an uninsured motorist carrier in an action brought under s (ie, the bad faith statute) shall include that total amount of claimant s damages, including the amount in excess of the policy limits...interest, and reasonable attorney s fees and costs. To make matters worse, this provision of F.S (10) expressly states that the total amount of the claimant s damages is recoverable whether caused by an insurer or a third-party tortfeasor. This potential exposure to an automobile insurer is extreme and obviously has the potential to create damage liability against the insurer which is not causally related to the insurer s failure to timely pay the U/M limits purchased by the insured. Indeed, the alleged failure to timely pay U/M limits typically has no connection to the injuries, medical expenses and/or lost wages incurred by the insured through the negligence of a third-party motorist. However, until the Florida legislature rectifies the egregious legal consequences created against an insurer through F.S (10), all automobile insurers doing business in Florida must pay close attention to how they evaluate and adjust first-party U/M claims. With respect to this first-party U/M exposure, there has been an increasing trend by Plaintiffs attorneys to create extra contractual or bad faith liability through claims involving automobile insurance policies that contain U/M limits which are lower than the bodily injury (BI) limits. Pursuant to F.S and Florida decisional case law, an insured may purchase a policy of insurance which contains U/M limits lower than the BI limits, in the same policy. However, by selling such a policy, the insurer must comply with a number of statutory burdens. The insurer must provide the potential insured with a form approved by the Insurance Commissioner which contains the following language in 12-point, bold type font: You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully. 4 If the insured then signs the form, it is presumed under Florida law that the insured has selected U/M limits which are lower than the BI limits. See Long v. Prudential, 707 So.2d 390 (Fla. 5th DCA 1998); and State Farm v. Parrish, 873 So.2d 547 (Fla. 5th DCA 2004). One would think that this agreed contractual transaction would settle the issue regarding available U/M limits throughout the duration of the subject automobile policy. Not so fast, we are in Florida! Indeed, pursuant to F.S and the appellate decisions that have interpreted this U/M statute, the insurer has a continuing obligation and an annual duty to advise the insured of his or her option to continue to carry U/M limits lower than BI limits, to purchase U/M limits equal to the BI limits or to reject U/M coverage altogether. The annual notice must be attached to the insurance premium and must be given on a form approved by the Insurance Commissioner. It must be stressed that the automobile insurer will be legally liable to pay U/M coverage equal to the BI limits if it cannot prove that the required notices were sent to the insured on an annual basis. This legal result will occur even if the insured originally executed an insurance application which selected lower U/M limits. See Yzaguirre v. Progressive American Ins. Co., Inc., 793 So.2d 99 (Fla. 2d DCA 2001). An automobile insurer s failure to recognize that it has a legal obligation to send annual notices to the insured can create a scenario wherein the insurer improperly denies a claim for U/M benefits based on the original lower limits selected by the insured. If this denial by the insurer occurs in conjunction with a Civil Remedy Notice filed under F.S , the insurer could later be exposed to damages equal to the BI limits of the policy and all other damages suffered by the insured as a result of the negligence of a third-party motorist. Again, this extra contractual exposure will also include interest, as well as attorney s fees and costs incurred by the insured. This lower limit U/M trap typically arises out of a scenario wherein Plaintiff s counsel makes a demand for U/M limits equal to the BI limits during an automobile negligence claim or suit. An uninformed adjuster may respond by denying the claim and arguing that the insured originally selected lower U/M limits and signed the Application 3, 5, 10 or even 15 years or more earlier. Once the trap is set, the Plaintiff s counsel then demands that the insurer produce all annual notices required under F.S If the insurer cannot produce this documentation, the related appellate decisions in Florida indicate that the insurer is now liable to pay U/M limits equal to the BI limits. On the surface, this document production burden on the part of the insurer does not seem complicated. However, in most cases, annual automobile policy renewals are sent to the insured by a remote or distant agent. In such cases, the insurer is forced to rely on the record keeping practices of the agent. If the agent has not maintained these records, or otherwise forwarded them to the insurer, but they cannot be produced, then all of the aforementioned legal consequences and penalties under F.S and can arise. In many of these claims involving the lower limit U/M trap, the Plaintiff s attorney will argue that the insurer must also prove that the insured executed a rejection or selection form in conjunction with the annual notice in order to show that the selection of lower U/M limits was retained. Fortunately, this is not the law. Indeed, in American Fire & Cas. Co. v. Bigger,

5 442 So.2d 1109 (Fla. 4th DCA1983), the appellate court, following the Florida Supreme Court decision of American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla. 1983), noted, where an insured is aware of his right to obtain uninsured coverage equal in amount to liability coverage, and decides to maintain his uninsured motorist coverage at the lower limits, the insurance company does not have to offer such coverage at the exact moment of change in the policy. In the Bigger decision, the appellate court reversed the trial court s ruling. The trial court awarded U/M limits to the insured in an amount equal to the BI limits, even though the insured initially selected lower U/M limits. In reversing the trial court s ruling, the appellate court held, the insured was obviously aware of the right to higher U/M coverage because of the repeated notices to that effect and Spaulding specifically holds that such awareness constitutes an election to continue the lower coverage limits. If the insurer maintains records regarding the annual notices required by F.S , the insurer has the opportunity to prevail on this issue by Motion for Summary Judgment. In fact, the author of this article recently prevailed on this defense in the case of Merchant v. The Hartford, in Orange County, Florida. Despite the foregoing, some Plaintiff attorneys argue that the issue regarding whether the annual notices were sent is always a jury question, thereby precluding Summary Judgment. This tactic is obviously geared toward placing the insurer in front of a jury on a claim for first-party insurance benefits with the hope that the jury will side with the insured. In doing so, Plaintiff s counsel will rely on Yzaguirre v. Progressive American Ins. Co., Inc., referenced above, wherein the appellate court reversed a Summary Judgment rendered in favor of the insurer on the lower U/M selection issue. However, a careful reading of the Yzaguirre case reveals that Summary Judgments can be entered in favor of the insurer on this defense so long as the insurer can produce evidence of the required annual notices. In Yzaguirre, the appellate court held that if Progressive did send the required annual notices of U/M coverage options, then the trial court is bound by [the insured s] original election of... U/M coverage. Yzaguirre, 793 So.2d at 101. Based on the foregoing discussion, how then can an automobile insurer protect itself from potential exposure and bad faith liability arising out of the sale of policies to insureds wherein the U/M limits selected are lower than the BI limits? In order to protect the insurer, it would be advisable for all automobile insurers doing business in Florida to maintain some sort of electronic record keeping system wherein the annual notices are compiled. In circumstances where the annual premium is issued directly by the insurer, this record keeping procedure should be relatively simple. However, if the automobile insurer relies on independent statewide agents to issue annual premiums and the annual U/M notices required under F.S , then a system should be created wherein the agent is required to send the insurer a copy of the required notice that was attached to the annual premium sent to the insured. If this required record keeping is maintained by the automobile insurer, then it can effectively challenge claims that are made by Plaintiff s counsel which seek to expand the U/M limits beyond the amount originally selected, and the insurer may very well be able to prevail by Summary Judgment on this defense. On the other hand, if the initial investigation by the adjuster reflects that the annual notices, required under F.S , were not maintained or cannot be located, then the safer strategy would be for the insurer to simply agree to pay U/M limits equal to the BI limits to avoid the extensive exposure that can arise out of a subsequent bad faith action. 5 r e c e n t r e s u l t s APPELLATE Caryn L. Bellus, of the Miami office, obtained a favorable result in Rosel v. Allstate, 57 So. 3d 862 (Fla. 3d DCA 2011), before the Third District Court of Appeal. Ms. Bellus successfully argued that the jury verdict for the Defendant insurer should be affirmed because the Plaintiff was barred from recovering under the policy of insurance based on her material misrepresentations regarding the theft of her vehicle. Caryn L. Bellus, of the Miami office also obtained a favorable result in Coles v. Hall, 59 So. 3d 1149 (Fla. 3d DCA 2011), before the Third District Court of Appeal. Ms. Bellus successfully argued that the jury verdict should be affirmed and no new trial was warranted because a police officer s testimony regarding the location of the accident was properly admitted at trial. Sharon C. Degnan, of the Fort Lauderdale office, obtained a favorable result in a worker s compensation appeal in Faust v. FedEx Ground and Broadspire, 57 So. 3d 849 (Fla. 1st DCA 2011). The First District Court of Appeal affirmed, in its entirety, a Merits Order entered by the Judge of Compensation Claims finding that the claimant was not entitled to benefits because he did not suffer a work-related accident. Sharon C. Degnan, of the Fort Lauderdale office, also obtained a favorable result in Salomon v. Austin Trading, Inc., 2011 WL (Fla. 4th DCA 2011) before the Fourth District Court of Appeal. Ms. Degnan successfully argued that the trial court did not abuse its discretion in instructing the jury on the doctrine of joint and several liability in response to an inquiry during its deliberations or in failing to give a curative instruction in response to a comment made by defense counsel at trial and therefore no new trial was warranted. Sharon C. Degnan, of the Fort Lauderdale office, was successful in limiting an order granting new trial, which was entered following a jury trial in a motor vehicle accident case, to the issue of damages for plaintiff s non-permanent injuries in Kuebler v. Ferris, 65 So.3d 1154 (Fla. 4th DCA 2011). Soon after the appellate opinion was released, the case settled for a nominal amount. Angela C. Flowers, of the Ocala office, obtained a favorable result from the First District Court of Appeal in Gonzalez v. Claywell, 36 Fla. L. Weekly D1784 (Fla. 1st DCA 2011). The appellate court reversed an award of attorney s fees in favor of an injured motorist. The appellate court held that the motorist s proposal for settlement was invalid and unenforceable where it was impossible for the insured to meet the conditions of the proposal. Because the proposal for settlement required defendant s insurer, a non-party, to tender a check well in excess of its policy limits, it contained a condition that the defendant could not possibly perform and divested him of independent control of the decision to settle.

6 TRIALS r e c e n t complete defense verdict during a jury trial in August The case involved a rear end accident between a vehicle and a motorcycle. Plaintiff, the driver of the motorcycle, was knocked off the motorcycle during the accident. There was also $10, in property damage to the motorcycle. Liability for the accident was admitted. Plaintiff ultimately received treatment for neck and back injuries and underwent a left shoulder arthroscopy. Plaintiff s medical bills totalled $79, and were all unpaid. Due to the injuries and treatment, a threshold defense was not possible. Ms. Therrell was able to raise a causation defense due to Plaintiff waiting 10 months before seeking any treatment for the injuries he alleged as a result of the accident. However, Plaintiff argued that he did not receive treatment earlier because he could not afford treatment and even provided testimony from 2 credible witnesses to verify his complaints from the onset of the accident. Additionally, Plaintiff had no prior history of any of his alleged injuries. Ms. Therrell was successful in her causation defense and the jury returned a complete defense verdict. Prior to trial, the insurer, State Farm, offered Plaintiff the total policy limits of $50, to settle the case. However, Plaintiff rejected this offer. Ms. Therrell then filed a joint Proposal for Settlement on behalf of both the owner and the driver of the vehicle. Plaintiff filed a Proposal for Settlement, directed only to the owner of the vehicle, for the total policy limits. The Proposal for Settlement was accepted on behalf of the owner of the vehicle. Therefore, trial proceeded only against the driver of the vehicle who had no additional insurance coverage. Based on the unaccepted Proposal for Settlement, Ms. Therrell is now entitled to seek fees and costs against the Plaintiff. Chad Hess and Stuart Poage of the Tallahassee office obtained a great result in a non-jury trial in Federal District Court, in Panama City, Florida, during June The Plaintiffs in the case purchased a condominium pre-construction in 2005 and closed on the condominium in June Plaintiffs rented the unit for two years, earning almost $30, in income. In July 2009, Plaintiffs were advised of some roof repair issues and mold present in other units. However, there was no damage to Plaintiffs unit. Plaintiffs then discovered that during the construction of the condominium there were significant structural issues to the building caused by a design defect. The structural issues were all repaired prior to the certificate of occupancy being issued. However, the structural issues were never disclosed to Plaintiffs. Plaintiffs filed suit against the statutory developer and its member entities alleging fraud, negligent misrepresentation, breach of contract, breach of warranty, gross negligence, and unfair and deceptive trade practices. Plaintiffs alternatively pled entitlement to either money damages or recision of the original contract. Mr. Hess and Mr. Poage represented three of the developer entities and originally faced a total of 33 counts against their 3 clients. However, Mr. Hess and Mr. Poage filed a Motion for Summary Judgment early in the litigation, successfully obtaining a dismissal of 20 of the 33 counts. Offers of Judgment, on behalf of their clients, were also filed early in the litigation, totalling $15, for the three clients. During trial, it became clear the Judge intended to either enter a directed verdict or a defense verdict. In exchange for agreeing not to pursue fees and costs under the Offers of Judgment or Rule 11 sanctions, Plaintiffs entered voluntary dismissals 6 r e s u l t s against all three of Mr. Hess and Mr. Poage s clients. In addition, Plaintiffs agreed to pay a total of $100, toward the costs and fees. Trial continued against the co-defendant statutory developer and the court will render an opinion regarding the claims against the co-defendant. Joe Carey, of the Orlando office, obtained an excellent result in a jury trial in June The case involved a rear-end, multicar accident. Liability for the accident was admitted. Plaintiff was a 46 year old female who alleged she suffered multiple permanent injuries to her neck, lower back, right knee and left shoulder. Plaintiff s past medical expenses totalled over $38, Additionally, Plaintiff requested the jury award $3, to $4, in future medical care, each year, for the rest of Plaintiff s life. Plaintiff also asked the jury to award pain and suffering damages. Mr. Carey also faced the hurdle of the defense s own independent medical examiner testifying that Plaintiff s initial treatment was necessary and related to the subject accident and that Plaintiff sustained a permanent injury as a result of the subject accident. Despite the independent medical examiner s permanency rating, Mr. Carey was successful in his arguments to the jury, leading to the jury only awarding $20, in past medical expenses, finding no permanent injury, and refusing to award damages for future medical care. Mr. Carey filed a Proposal for Settlement for $40, that was not accepted by the Plaintiff, entitling Mr. Carey to move for an order awarding fees and costs to his client. Charles Watkins, of the Miami office, recently obtained a very favorable settlement for a client facing a large potential extra contractual loss. The case involved significant injuries, including Traumatic Brain Injury, a sweeping Brachial Plexus injury that left the plaintiff with minimal use of his dominant hand and loss of sensation in his fingers. Additionally, plaintiff alleged he suffered several fractures, including cervical fractures. Due to plaintiff s relatively young age, plaintiff was also alleging that he could no longer pursue his vocation. Mr. Watkins was able to marshal a good case on liability, despite representing a client with significant negative issues regarding education, knowledge, public presentation and ability to express and communicate the facts of the incident. Due to Mr. Watkins successfully overcoming these issues and skillfully cross examining plaintiff s expert witnesses to obtain favorable testimony regarding plaintiff s recovery from the alleged injuries, plaintiff and plaintiff s attorneys were placed in a precarious position to try the case. The case had exposure of $5 million, with the medical bills alone totalling close to $500, However, Mr. Watkins was able to obtain a settlement for less than $210, Needless to say the client was ecstatic.

7 MOTIONS r e c e n t Dismissal with Prejudice following the filing of a Motion for Summary Judgment. The defense raised by Mr. Walsh was material misrepresentation based on the insured s failure to list his daughter on his insurance application. Although there was a recorded statement that helped the defense, the statement could not be used in support of the Motion for Summary Judgment as it was unsworn testimony and thus hearsay. Mr. Walsh was able to establish that theinsured s daughter lived with the insured on the day he completed the application through use of the daughter s driver s license records. However, a material misrepresentation defense also requires proof that there would have been an increase in the policy premium or the policy would not have been issued, return of the premium, and notice. The case was litigated for 2 years and there were approximately 6-8 depositions conducted. After Mr. Walsh filed the Motion for Summary Judgment, the Judge granted Plaintiff s counsel 3 continuances due to Plaintiff s counsel s request to depose the insured, despite this request being made 1 year after the defense Motion for Summary Judgment was filed. Despite numerous potential issues of fact, Mr. Walsh successfully argued all issues and the Judge granted the Motion for Summary Judgment, dismissing the claims against Mr. Walsh s client. Mr. Walsh also filed a Proposal for Settlement early in the case. If the Proposal for Settlement is upheld by the trial court, Mr. Walsh s client will be entitled to recoup about $25, in fees and costs. Pete Murphy and Bill Bissett, both of the Miami office, recently teamed up to secure a Dismissal with Prejudice in a slip and fall case in which Plaintiff was demanding over $150, Their Motion to Dismiss argued that Plaintiff provided direct, specific, and material misrepresentations in her answers to interrogatories and during her deposition, when she denied having any prior symptoms or problems or pain in the knee which she claimed to have injured for the very first time during the subject accident at Defendant s store. Plaintiff further alleged that she had surgery on this knee, only as a result of the subject accident. The alleged knee injury was the heart of Plaintiff s case. Defense counsel s extensive investigation and securing of prior medical records demonstrated that in the ten years prior to the subject accident that several doctors had noted complaints of pain and symptoms expressed by Plaintiff involving the same knee. At the evidentiary hearing, Plaintiff was questioned at length by the Court, who ultimately found that her explanations of lapses in memory were simply not credible. Dismissals based on alleged fraud on the Court have become increasingly more difficult to secure in recent years, due to certain appellate reformulations of the applicable test for the Court to follow. However, as this case demonstrates, there is still hope. Earleen Cote and Sharon Degnan, both of the Fort Lauderdale office, were successful in defeating a claim for attorney s fees based upon a Proposal for Settlement (PFS) following the entry of a consent judgment entered into by an insured in lieu of going to trial for personal reasons. Among the non-monetary terms and conditions in the PFS, which had been used by the plaintiff s attorney hundreds of times before, were that a portion of the settlement be for punitive damages, that the settlement check come from the defendant s liability insurer, and that the claims be accepted as a whole and could not be settled separately. The trial court agreed with the defendant s argument that the PFS was ambiguous and thus invalid since, it is against 7 r e s u l t s Florida public policy for a liability insurer to insure against punitive damages, and thus it was unclear and in need of clarification whether the defendant could accept the PFS by tendering two separate checks one from the carrier for compensatory damages and one from the defendant directly for the punitive damages. Plaintiff was asking for over $230, in attorney s fees and has appealed the order denying entitlement to attorney s fees. Jessica L. Lanifero, of the Jacksonville office, obtained a Dismissal with Prejudice in a case involving a slip and fall accident at a Jacksonville grocery store. Plaintiff and her husband filed suit against the store on the very last day of the statute of limitations. However, Plaintiffs failed to perfect service on the Defendant within the time allotted by the Florida Rules of Civil Procedure. Plaintiffs obtained multiple extensions, from the Court, in order to attempt to perfect service on the Defendant. However, after more than two and a half years Plaintiff still had not perfected service on Defendant. During the two and a half years, the grocery store closed, the company dissolved, all of the grocery store s records were destroyed, the employees working on the date of the incident were no longer employed by the company, and the managing president of the company was deceased. Therefore, had this case proceeded to litigation, there would have been significant prejudice to Defendant. Ms. Lanifero successfully argued to the Court that the Defendant was irrevocably prejudiced by Plaintiffs unexplained delays in perfecting service. As a result of Ms. Lanifero s arguments to the Court, the Court granted a dismissal with prejudice. Jonathan Cox, of the West Palm office, and Michael Clarke, of the Tampa office, successfully obtained an Order Striking Plaintiffs expert, Dr. Michael Freeman, thereby preventing Dr. Freeman from testifying in an automobile negligence claim. Dr. Freeman, a chiropractor by training, is a widely used Plaintiff s expert who claims to specialize in the application of Epidemiology to determine injury causation in automobile cases. The Trial Court prohibited Dr. Freeman from testifying and ruled the application of Epidemiology is not generally accepted in the scientific community. If anyone has an automobile negligence case wherein Dr. Michael Freeman is a named expert, please contact either Mr. Cox or Mr. Clarke for assistance.they are happy to provide copies of the Motion and/or the Court s Order Striking Dr. Freeman. Adilia C. Hedges, of the Miami office, recently obtained a Summary Judgment in a Fraud and Material Misrepresentation case for a Insurer client. As many now know, and experience, it is most difficult to not only obtain a Summary Judgment, but to obtain a Summary Judgment on behalf of an Insurer on factual issues that relate to Fraud and Material Misrepresentation. Ms. Hedges obtained the summary judgment with skill, determination, dogged persuasion and with the assistance of Nicole Ellis, also of the Miami office. The Motion for Summary Judgment was heard twice as Ms. Hedges renewed her Motion after not prevailing during the first hearing. The case involved a boat that was completely destroyed, after sinking. Plaintiff alleged the boat should be covered by the policy of insurance. However, the evidence indicated that the boat sunk either on a test run or was sunk by the Coast Guard due to involvement in illegal activity. Plaintiff also continually alleged that the boat was stolen, despite this evidence being wholly unsubstantiated. Through timely pleading and discovery practice, Ms. Hedges was able to box the Plaintiff in regarding the unsubstantiated pleadings. Ms. Hedges ultimately prevailed on summary judgment. Ms. Hedges success is certainly a prime example of, if at first you don t succeed, try, try again.

8 In the Community... Kubicki Draper Attorneys Volunteer their Time to Give Back to their Communities The Kubicki Draper offices strive to give back to their communities throughout the year. The attorneys often volunteer their time with local organizations and the offices also come together as a unit to do projects together to help the members of their community. Kubicki Draper is proud to again be a Gold Sponsor of the Annual Minority Mentoring Picnic, for law students, slated for November 12, Last year the firm was able to speak with, and mentor, several hundred students as they stopped by our tent. Not only are we proud of our service to the law students in our community, but we also recognize this as an effective way to give back to the well spring of future legal expertise. We are happy to be able to perform this service and look forward to the continuing opportunity to encourage and help direct minority students into opportunities that the legal community can offer. Additionally, Kubicki Draper would certainly encourage any of our clients seeking to employ young talent to contact us, through partner Charles Watkins of the Miami office, who generally oversees our involvement in this worthy project. Fraz Ahmed, of the Jacksonville office, and a member of the Board of Governors for the Young Lawyers Section of the Jacksonville Bar Association, volunteered his time to assist with the Jacksonville Bar Association s Run for Cover 5K. This event benefitted the Florida Skin Cancer Foundation and is one of a number of races around the state of Florida that are run in memory of Alan C. Sundberg, Jr., who died of skin cancer in 1998, at the age of 33. Alan Sundberg is the son of former Florida Supreme Court Justice Alan C. Sunberg, Sr. As we approach the end of 2011 we are considering additional ways that we can give back during the end of this year, especially during the holiday season. Last year, during Christmastime, the West Palm Beach office adopted two families with special needs children. The first family was through Little Smiles of South Florida and the second family was through the Salvation Army. The West Palm Beach office provided gifts for both families, along with a Publix gift card for each in order for both families to enjoy a holiday dinner. Look for the next edition of the Kubicki Draper Quarterly for more information about how our offices continue to contribute to our communities! EDUCATION KD Seminars & Speaking Engagements: Kubicki Draper is committed to our clients and the legal community. The firm draws upon the collective talents of over 80 attorneys throughout Florida to present continuing education seminars to our clients and participate in industry related events throughout the country. RECENT PRESENTATIONS: Caryn Bellus, Steve Cozart, Jarred Dichek, Heath Gelman, Michael Walsh and Chelsea Winicki presented a seminar at Nationwide Insurance Company on June 2, 2011, regarding PIP, Medicare Liens, Fraud and Bad Faith. Joseph Carey, Michael Carney, Jarred Dichek, Michael Walsh, Kendra Therrell and Sean Xenakis presented on Examinations Under Oath & Fraud Counterclaims at the FIFEC Annual Conference in June. Gregory Prusak, Michael Milne and Jorge Santeiro presented at Rimkus Annual Conference in Tampa, June 22-23, Their topics included Condominium Conversion Claims and Premises Liability. Chad Hess, Ken Oliver and Sean Xenakis spoke at American Strategic Insurance, July 14, 2011, regarding Insurance Coverage Basics, Premises Liability, Proposals for Settlements and Collateral Sources, Offset and Liens. Melonie Bueno and Brad McCormick in conjunction with FRS Team presented on Fabrics Restoration and Bad Faith to Citizens Insurance in July. Jarred Dichek visited with claims professionals at Mendota Insurance in Minnesota to present on Counter Claims. William Bissett, Michael Carney, Chad Hess and Stuart Poage presented a seminar to Main Street America in August regarding Construction Defects, Insurance Coverage Basics, Premises Liability and Proposals for Settlement. Michael Clarke, Jarred Dichek and Ken Oliver presented on Commercial PIP Claims to FCCI on September 19, We welcome the opportunity to host a complimentary continuing education seminar at your office or participate as a speaker at your event. For more information, please contact Aileen Diaz , ad@kubickidraper.com. 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