Misrepresentations on an Insurance Application as a Defense to Coverage

Transcription

1 THe KDQuarterly Summer / FALL 2009 EDITOR: Sharon Degnan IN THIS ISSUE 2 Legally Speaking 3 Spotlight on Michael Carney 4 To Hire or Not to Hire Off-Duty Police 5 Helping to Rebuild After Katrina 6-7 Trial/ Appellate Results New Additions to the KD Family 8 KD Announcements Coming soon FOURTH ANNUAL CLAIMS MANAGEMENT CONFERENCE Please plan to attend our 2010 Conference! Details will be available on our website kubickidraper.com We look forward to seeing everyone there! Misrepresentations on an Insurance Application as a Defense to Coverage By Poorad Razavi, Esq. and Peter Baumberger, Esq. Misrepresentations by an insured, which are made on an insurance application, can provide an insurer with a powerful legal tool when defending against a claimed loss. Florida law permits an insurer to unilaterally rescind a policy where misrepresentations in the policy application meet the requirements of , Fla. Stat. Just recently, in United Auto. Ins. Co. v. Salgado, 34 Fla. L. Weekly D1578 (Fla. 3d DCA August 5, 2009), the Third District Court of Appeal reaffirmed the legal proposition that an insurer is entitled... to rely upon the accuracy of the information contained in the application and has no duty to make additional inquiry. Section (1), Fla. Stat. specifically states as follows: (1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply: (a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer. (b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss. Courts have not struggled with permitting rescission in cases where the misrepresentation relates directly to the claimed loss. The more difficult issue, however, is where the misrepresentation does not directly relate to the loss. There are several cases in Florida where courts have seemingly permitted insurers to rescind insurance policies where the misrepresentation was made in the application and the insurance risk may have been increased due to the subject misrepresentation, but the claimed loss was at least arguably, unrelated to the alleged misrepresentations. For example, in Government Employees Ins. Co. v. Decheona, 610 So. 2d 480 (Fla. 3d DCA 1993), the Third District Court of Appeal found that rescission was appropriate under (1) where the insured, who was involved in an accident, had failed to disclose that she was actually separated, rather than divorced, from her husband. The insurer set forth evidence that the insured s husband had a deplorable driving record and had actually lost his license due to a drunk driving conviction. It does not appear from the Notably, does not impose any knowledge or intent requirement. Therefore, a misrepresentation need not be knowingly made by the insured before an insurer can rescind. Even unintentional mistakes on the part of the insured will act as a bar to coverage so long as they alter the risk or the likelihood of coverage. opinion that the husband was involved in the accident which gave rise to the subject claim, though this is not specifically set forth in the opinion. Nonetheless, the court found that rescission was appropriate because the insurer would not have issued the policy had it known about the true marital status of the insured and her husband, in light of her husband s driving history. continued on page 2

2 continued from page 1 Similarly, in Nationwide Mutual Fire Ins. Co. v. Kramer, 725 So. 2d 1141 (Fla. 2d DCA 1999), the court found rescission to be appropriate under (1), following a claim made by an insured for the theft of the insured vehicle. The alleged misrepresentations involved the insured s failure to disclose a prior bankruptcy filing, the fact that the insureds were not Florida residents, and the failure to disclose the correct location of the vehicle. The insurer presented evidence that it would not have issued the subject policy had it known about the insured s bankruptcy, which the court found to be sufficient to justify rescission via directed verdict. Interestingly, while there was no direct discussion in this case regarding whether the nondisclosure was related to the theft at issue, an argument could certainly be made that the material misrepresentation (failure to disclose a prior bankruptcy) was not related to the loss (vehicle theft). Additionally, in Pina v. General Ins. Co. 443 So. 2d 395 (Fla. 3d DCA 1984), the Third District Court of Appeal, in a very brief decision, found that rescission was appropriate where the insured failed to disclose her son as a driver. Although this opinion provides no discussion as to the underlying loss, it is notable that the plaintiff in this case was the insured, not the insured s son, suggesting that the loss at issue did not involve the undisclosed son. There are cases, however, where insurers have not been permitted to rescind their policies based on a material misrepresentation where the alleged misrepresentation was not relevant to the circumstances surrounding the loss. For example, in United Auto. Ins. Co. v. Miami Chiropractic Associates, the Miami-Dade County Circuit Court, sitting as an appellate court, affirmed summary judgment for the insured, finding that there was no material misrepresentation following an automobile accident where an insured failed to disclose a household member, who was not involved in the loss. The court s holding that there was not a material misrepresentation was based on several factors, including that the undisclosed driver was not seeking benefits. However, this appeared to be just one of the factors involved in the court s decision that the misrepresentation was not material since the court also found that the policy premium difference for the additional driver was minimal, and that the insurer delayed seven-months in returning the premium. Although the United Auto Ins. Co. case is not a district court of appeal opinion, it is still worth mentioning since it involves a case where an insurer was not permitted to rescind a policy where the undisclosed driver was not seeking benefits and did not appear to be involved at all in the loss at issue. Having said this, the fact that the undisclosed driver was not seeking benefits was only one of the factors involved in the ruling that the misrepresentation was not material since the court also considered in its decision that the premium change for the additional driver was minimal (though the amount of change was not discussed) and that the insurer waited seven months to return the premium. The Salgado case also involved an undisclosed driver. There the insured, and not the undisclosed driver, was involved in the claimed loss. The Third District, however, found that the nondisclosure of the undisclosed driver was a material misrepresentation because it would have resulted in a higher premium had the insurer known the true facts. This case is arguably the strictest interpretation of and arguably stands for the proposition that once a misrepresentation has been made, the insurer may rescind the policy regardless of whether the misrepresentation was related to the loss. In sum, there is support in both the language of (1) and in the case law to justify an insurer s rescission of an insurance policy where a misrepresentation meets the requirements of (1), but is discovered following a claim of loss unrelated to the specific misrepresentation. However, this area of law is not well settled. As made clear from the cases cited above, an insurer seeking to legally test this situation will be in a stronger position to prevail where the misrepresentation is one that, if known, would have resulted in the insurance company not issuing the policy at all or, at the very least, would have substantially increased the policy premium, as opposed to a minimal change. Whether the circumstances sufficient to rescind a policy are present in a claim should be carefully considered based on the specific facts of the case. LEGALLY SPEAKING: Kubicki Draper s Lawyers Display Their Leadership Potential At Various Seminars During the first half of the year, Kubicki Draper attorneys have continued in the tradition of educating their clients and colleagues by lecturing at various seminars and roundtable discussions throughout the state. In February of 2009, the firm hosted its Third Annual Claims Management Conference at the Gaylord Palms resort in Orlando. The event, which is a full day seminar with morning and afternoon sessions and various break-out groups, was very well-attended this year with just short of 500 attendees. Most members of the firm participate in the conference and present seminar topics on a wide range of subjects, in various practice areas, spanning from medical malpractice to premises and product liability to trucking and mass transit issues. This year s seminar included presentations on a wide range of auto liability issues as well as adjuster ethics. At the conference, our lawyers shared their thoughts and perspectives, and offered their advice, for handling a variety of complex litigation issues, including early case resolution strategies, tips for avoiding bad faith, trying cases with an excess verdict risk, negotiating multiple claims with small policy limits, and percutaneous disc strategies. We look forward to seeing every one at next year s seminar! Full house at our 2009 Claims Management Conference! 2

3 S P O T L I G H T O N : Michael Carney Michael Carney, a shareholder in Kubicki Draper s Fort Lauderdale office, and one of the firm s old timers has been with the firm for over ten years. Mike was born and raised in Pittsburgh, Pennsylvania. Mike s mother is a teacher. His father is an attorney, who practices in Pittsburgh handling contracts and labor issues for utility companies and manufacturers. Still a loyal fan of the Pittsburgh Steelers, Mike played football during his high school and college years. Mike attended Davidson College in Davidson, North Carolina, where, in his senior year he played both receiver and a defensive back for the Wildcats. Off the field, Mike earned a bachelor s degree in English. It was only at the end of his college career that Mike decided to pursue a legal education. He attended the University of Miami School of Law, graduating in At Kubicki Draper, Mike s practice focuses on defending high stakes litigation matters. His practice spans multiple areas, including defending wrongful death and catastrophic injury negligence claims, employment practice disputes, product and premises liability suits, ADA litigation, and professional malpractice issues. Mike practices in courts throughout the state of Florida as well as in federal court. Mike has come to be A firm believer in the U.S. civil justice system, Mike asserts... Our civil justice system seems to get some bad press, but the American system provides an almost perfect mechanism for represented parties to get to and resolve the essence of their civil disputes. known as an attorney whose clients rely on him when they need someone to handle their high-exposure litigation matters or to head up a complex trial team. Mike s considerable experience and success at trial have equipped him with the ability and resources to meet the challenges any case presents. Mike is well regarded by his legal adversaries and is often complemented by the opposing counsel and trial judges that he appears before for his professionalism. Mike also enjoys speaking and lecturing at seminars on a variety of civil litigation issues. He acknowledges that teaching may have been his second calling. Mike not only advocates for the clients he represents. He also is a firm believer in the United States civil justice system as a whole. Having tried over 75 cases to verdict, Mike has concluded that the truth tends to come out in trial. Mike has seen that juries tend to get things right, that folks from different spheres and different backgrounds working together typically reach a just and fair result. Mike and his wife, Robin, an attorney in Miami, have two children, Sophia, age 10, and Jack, age 7. The Carney children are talented in their own right; Sophia is a performer, who recently starred in Hairspray, and Jack is a baseball player. In his time away from the office, Mike enjoys fishing and golfing, preferably with his children. Greg Prusak makes his presentation at the 2009 ResortTorts Roundtable In May of 2009, Gregory J. Prusak of our Orlando office joined forces with plaintiff s lawyer John Elliott Leighton to present the ResortTorts Roundtable 2009 at the Miami Intercontinental Hotel. This seminar, which was sponsored by the Daily Business Review and attended by nearly 100 attorneys and business leaders, featured Mr. Prusak and Mr. Leighton and Professor Sam Terilli of the University of Miami, who moderated the presentation. The program included lectures by both Mr. Prusak and Mr. Leighton as well as a lengthy question and answer session. Mr. Prusak reviewed general premises liability law in Florida and applied it to theme park and lodging liability issues proprietors in Florida. Throughout the presentation, the lecturers shared their experience, insights, and perspectives on handling cases in Florida 3 involving liability for negligent or intentional acts that arise in a resort, vacation, or recreational setting. In August of 2009, Sharon C. Degnan of our Fort Lauderdale office presented the 2009 Case Law Update to a group of attorneys at the Florida Defense Lawyers Association (FDLA) Annual Meeting held at the Doral Golf Resort and Spa in Miami. Ms. Degnan discussed a number of cases that were released in Florida s appellate courts over the past year, which would be of interest to defense lawyers. Among the areas discussed were newly released cases dealing with Amendment 7, the Graves Amendment, and proposals for settlement. Prior to the lecture, Ms. Degnan, along with her partner, Caryn Bellus, had compiled a lengthy case law outline, comprised of over 100 of noteworthy cases from the Florida appellate courts. This outline is scheduled to be published in the upcoming edition of the Trial Advocate Quarterly, which is the magazine of the FDLA.

4 TO HIRE OR NOT TO HIRE: The Legal Ramifications Of Hiring Off-duty Police Officers To Provide Security Services To Private Establishments Under Florida Law By Francesca A. Ippolito-Craven, Esq. and G. William Bissett, Esq. Lodging and food establishments face a Catch 22 situation deciding whether to hire off-duty police officers to provide security services. An off-duty police officer, due to the nature of his or her profession, is thought to be more skilled than the average licensed security guard. The negative side, however, is that an establishment may be held vicariously liable when its off-duty police officer assaults a patron, uses excessive force, or effects an unfounded arrest. In Florida, the determination of whether a private entity is responsible for the actions of an off-duty officer hinges on whether at the time of the actions in question, the police officer was acting in furtherance of his or her official law enforcement authority, as opposed to performing a truly off-duty function or act at the direction or request of the private employer. Thus, the question is whether at the relevant time, the officer was engaging in police action. A number of Florida cases have concluded that this question should be answered by a jury. Whether an off-duty officer is acting in his official capacity as a law enforcement officer is not always clear cut. Even when effectuating an arrest, an off-duty officer may not necessarily be found to be acting within his or her capacity as a police officer. For example, in Cirou v. Basler, 432 So. 2d 628 (Fla. 3d DCA 1983), a police officer, while acting as a security guard at a boat show, injured a shoplifting suspect. A private security guard had summoned the officer to assist in detaining the suspect. The suspect claimed the officer was taking directions from the boat show sponsor and that he was unlawfully detained, dragged into a back room, and physically beaten because he refused to remain on the convention premises or to go with the officer into a back room for the purpose of explaining the circumstances of his possessing goods which were on exhibition. Id. at 629. The suspect sued the boat show, and alleged it was vicariously liable for the actions of the officer. In turn, the boat show filed a motion for summary judgment on the basis that the off-duty police officer was acting in his official capacity at the time of the alleged assault. The trial court granted summary judgment. The appellate court reversed and stated that there was evidence which tended to show [the officer] was an employee of the boat show and there was also evidence suggesting that the police officer was acting within the scope of his regular employment as a City of Miami Beach police officer when he arrested plaintiff. The appellate court did not canvass the evidence in any respect, but simply said it was wildly conflicting and raised a jury issue. Similarly, the court in McWain v. Greyhound Lines, Inc., 357 So. 2d 780 (Fla. 3d DCA 1978), also concluded that the capacity of the off-duty officer at the time of an alleged incident was a jury question. In McWain, the plaintiff was in a Greyhound bus station when he became involved in an altercation. As a result, the plaintiff was arrested by an offduty City of Miami police officer, who, at the time of the arrest, was employed by and acting as a security guard for Greyhound. After the off-duty officer made the arrest, he called for assistance in transporting the plaintiff to jail. Police officers on-duty for the City of Miami responded to his call and placed the plaintiff into a police car to transport him to jail. The off-duty officer followed in his own private car. At some distance from the bus station, the cars stopped at a red light. At this point, the off-duty officer got out of his car, opened the back door of the police car, and allegedly assaulted the plaintiff. The plaintiff filed an action seeking to hold Greyhound vicariously liable for the off-duty police officer s alleged assault. Greyhound filed a motion for summary judgment stating at the time of the assault, the off-duty officer was making an arrest, and therefore, acting in his capacity as a police officer. The trial court granted summary judgment and the plaintiff appealed. The appellate court reversed and stated,without explanation, that the capacity of the officer at the time of the incident was a question of fact for the jury. One can only assume the appellate court s decision was based upon the assault and battery which the officer committed when he was no longer engaged in any police action, but rather was still on Greyhound s clock. There is one Florida case, stemming from a workers compensation claim, where the appellate court affirmed the trial court s decision to grant summary judgment and found there was no genuine issue of fact pertaining to the capacity of the off-duty officer. In City of Hialeah v. Weber, 491 So. 2d 1204 (Fla. 1st DCA 1986), the appellate court reasoned that an off-duty officer working security for a private establishment was acting within the scope of his employment with the city based upon the fact that he wore his police uniform while performing his job, carried a gun and sometimes used his patrol car and police radio. Part of his job was to arrest any customer who became violent or broke the law. The officer further testified that his decision as to whether to make an arrest was made solely pursuant to his authority as a police officer. The officer was injured while attempting to arrest individuals he observed committing acts of vandalism. The appellate court ruled he was performing his job as a police officer at the time of his injuries. 4

5 The Weber court relied upon City of Manchester v. Huard, 113 N.H. 81, 301 A. 2d 719 (1973). In that case, it was held that an off-duty police officer working security at a restaurant was performing the duties of a regular officer in preserving the public peace when he was injured while attempting to arrest a customer. The court pointed out that at the time he was injured, the officer was in the process of making an arrest, that he wore his police uniform and equipment, that a police supervisor would periodically check in on officers working off-duty, and that he was still subject to police procedures, regulations, and discipline while working the off-duty job. Additionally, there are a series of Florida criminal cases addressing the issue of whether a police officer was engaged in the exercise of police authority or acting in a private capacity. In these cases, a criminal defendant was charged with battery on a law enforcement officer. The defendant claimed he was not guilty because the officer was working in a private capacity, such as a security guard for a private employer. In this regard, a conviction for battery on a law enforcement officer requires proof that the officer was engaged in the performance of a lawful duty not just on the job at the time the battery occurred. See State v. Hartzog, 575 So. 2d 1328 (Fla. 1st DCA 1991); Hughes v. State, 400 So. 2d 533 (Fla. 1st DCA 1981); State v. Robinson, 379 So. 2d 712 (Fla. 5th DCA 1980). As these cases recognize, a conviction for battery on a police officer is permissible when an off-duty officer is working in a private employment during the course of which the officer is called upon to engage in an activity of an official police nature. In Hartzog, the appellate court held the off-duty officer was engaged in lawful performance of his duties when he was struck while investigating a shoplifting suspect detained by a store employee. Similarly, in Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001), the appellate court held that the off-duty officer was engaged in lawful performance of duties when struck while arresting a suspect for shoplifting. In Hughes, however, the appellate court held that the off-duty officer was not engaged in the lawful performance of his duties when he was slapped by a bar patron while checking identification at the door. The offduty officer had not begun to investigate any criminal activity on behalf of the patron before the battery occurred and there was no proof that the officer was otherwise performing any official police duty. In light of the foregoing, there are several actions which are advisable for an establishment to take when hiring off-duty police officers. First, when hiring off-duty police officers, the establishment should become familiar, and comply, with the particular police department s standard operating procedures pertaining to off-duty employment. Second, the establishment should not select any particular off-duty officer and should leave it up to the police department to assign the officer. On the other side of the coin, if an assigned officer s actions on the premises appear questionable, the establishment should immediately inform the police department and request that he or she not be assigned to the establishment in the future. Third, the establishment should limit its instruction to the officer to a general assignment of duties and/or to a certain area. Finally, an establishment should require off-duty officers to wear their police uniform, badge and gear. If an establishment is sued based upon a theory of vicarious liability for the actions of an off-duty officer, the investigation should not only focus on gathering facts pertaining to the incident, but also on the protocols of the police department and the background of the police officer. Find out if there is a police report, arrest affidavit, control of persons report, dispatch log, and/or an internal affairs report pertaining to the incident. These documents may help prove the off-duty officer was acting in his official capacity as a police officer at the time of the incident. It is important to obtain and evaluate the applicable police department s standard operating procedures, including those pertaining to off-duty police officers, what constitutes an arrest, what is considered excessive force, and what types of force are considered acceptable for the particular circumstances. Obtain and evaluate the personnel file and internal affairs records of the officer to see if the police officer has significant training and experience, has accolades or has been disciplined for similar incidents in the past. Consider consulting with, and/or retaining, a former police chief and/or security expert, who can provide valuable insight into what is, or is not, considered police action. Helping Those In Need Kendra Therrell, an associate in the firm s Fort Myers office, recently returned from Hancock County, Mississippi, where she and her family spent a week lending a hand in re-building homes for families who continue to be displaced in the aftermath of Hurricane Katrina. Hancock County, located along Mississippi s Gulf Coast, still suffers from wide-spread devastation despite four years of clean-up. Kendra s family, including her fouryear old son Paul, and eight other families from the Cape Coral First United Methodist church volunteered their time and muscle in order to help rebuild and bring a little hope to families still in need. 5

6 r e c e n t t r i a l / a p p e l l a t e r e s u l t s TRIAL Charles H. Watkins and Nicole M. Ellis of our Miami office recently obtained a complete defense verdict in a week long (SIU) material misrepresentation case. Mr. Watkins and Ms. Ellis prevailed on behalf of their client and were able to get the jury to conclude that coverage was excluded based on a misrepresentation. Of note in this case is that it was the first case involving a Transponder Key security system that the client was able to win in Miami- Dade county! Charles H. Watkins and Nicole M. Ellis of our Miami office obtained a summary judgment in an exceedingly complicated and extensive pleading case involving the issues of malicious prosecution, civil theft, false arrest and imprisonment, assault and battery, intentional and negligent infliction of emotional distress and derivative claims. After considerable legal research, a successful summary judgment motion was argued, which prevented a long and potentially large exposure case from going to a jury. Michael S. Walsh of our West Palm Beach office obtained final summary judgments in three cases involving a plaintiff (chiropractic clinic) who was seeking PIP benefits on behalf of three claimants/patients who were involved in an automobile accident. The insurance company had scheduled examinations under oath for each of the three claimants involved in the accident and they all failed to appear. Mr. Walsh filed a summary judgment arguing that the claimants had failed to comply with all conditions precedent and were in violation of the policy terms and therefore not entitled to recover. The plaintiffs attorney filed an affidavit from the claimants prior attorney alleging issues of fact including that the claimants attended the examinations under oath and that it was the insurance company that failed to move forward with the examinations under oath. Mr. Walsh successfully argued that the affidavit was based on hearsay as the affiant was not at the examinations under oath and therefore did not have personal knowledge. The judge agreed and the three cases were dismissed with prejudice. Laurie J. Adams and Melonie Bueno of our West Palm Beach office obtained a very favorable verdict in an admitted liability and admitted causation, single car accident case. The fifteen year old female plaintiff was a negligent free passenger in Ms. Adams client s car. The impact was violent with very heavy property damage, and the plaintiff had to be extracted from the vehicle by firefighters. As a result of the accident, the plaintiff suffered an amputated middle finger on her dominant hand, which required a three day hospital admission and surgery to complete the amputation, as well as a fractured and deviated right finger, and alleged lumbar herniated disc, cervical strain/sprain and hip strain/sprain. She underwent months of therapy, and had no prior injuries. Ms. Adams client admitted liability for causing the accident and hand injuries, but disputed the remainder of the injuries. The plaintiff asked the jury for 1.1 million dollars, including $400,000 dollars for future medical bills and spine surgery. The jury returned a verdict of just $227,000.00, with only $10,000 in future medical bills Jennifer Sullivan Davis of our Tallahassee office obtained a favorable jury verdict in federal district court in a life insurance dispute on behalf of a beneficiary of two life insurance contracts. The named beneficiary submitted a claim for death benefits under a life insurance policy insuring the life of her husband. After receiving the birth certificate of the insured, the insurer applied a downward adjustment of the death benefits on the basis that the Issue Age on the policy was six years younger than the insured s actual age. While Florida has a statute that allows insurers to make a downward adjustment in cases of misrepresentations of age, the insurance policies at issue added another twist, that is, if the mistake was discovered while the insured is still alive, then the insurer should simply adjust the premium retroactively. The jury was asked to determine whether the misrepresentation of age and/or date of birth were made by the applicant/insured or by the insurance agent in recording the information, and whether the insured ever learned of the mistake before his death. The jury found that the applicant/insured gave the correct age and date of birth on the application for the first policy, which was recorded incorrectly by the insurance agent. The trial court previously ruled in its order denying the insurer s motion for summary judgment that if the mistake was attributed to the insurance agent and, thus, the insurer, then the insurer knew the truth all along, in fact, at the outset, and the reduced-deathbenefit provision was inapplicable. Based on the jury s finding, the court entered judgment in favor of the beneficiary. Post-trial motions are pending. George W. Hatch, III, and Jennifer Sullivan Davis of our Tallahassee office obtained a defense verdict after a four day trial in an auto negligence case where the plaintiff alleged various soft-tissue injuries to her neck, back, and shoulders. After admitting liability, the defense successfully argued that the automobile accident was not the legal cause of the plaintiff s damages and that her injuries were solely related to her pre-existing degenerative disc disease, osteophyte complexes, and arthritis. The 49-year old plaintiff had over $18,000 in past medical expenses, an estimated $55,000 in future medical expenses, and had asked the jury to award her a total of $100,000. The policy coverage was $10,000. The defendant will be seeking costs. Michael T. Haire and Yvette M. Pace of our Orlando office settled in mediation a case involving a large industrial casualty. Our client was an industrial equipment supplier. The Plaintiff's demand was Five Million Dollars ($5,000,000.00). Our client paid One Hundred Six Thousand Dollars ($106,000.00) to settle the claims against it. Earleen H. Cote and Scott M. Rosso, of our Fort Lauderdale office, received a complete defense verdict in a case involving two plaintiffs where one of the plaintiffs drove his car through the second floor wall of his condominium parking garage onto the ground below. The plaintiffs claimed the wall was constructed defectively with inadequate rebar and that the condominium association should have known of the dangerous condition. It was conceded that the defect existed, but there was no proof that the association could have known of the condition. Expert engineers and accident reconstruction expert testified for both parties regarding the speed of the vehicle as it crashed through the wall and the forces involved. A third individual in the car completely rebutted the version of events testified to by the two plaintiffs and said a verbal and physical argument between the two 6

7 r e c e n t t r i a l / a p p e l l a t e r e s u l t s plaintiffs was the actual reason for the crash as opposed to the brake failure claimed by the plaintiffs. Both plaintiffs claimed serious bodily injuries including herniated discs both in the neck and back, post traumatic stress disorder and a broken collar bone. Neither plaintiff ever came below $150k to resolve their cases and they asked the jury to award well in excess of that. Brad J. McCormick and Steve W. Cornman of our Miami office obtained a complete defense verdict in a construction defect case. The suit was filed in Key West by the owner of a Marriott Hotel, alleging, among other things, that the defendant negligently installed the HVAC system, resulting in damages to the property, including, but limited to, excessive humidity, moisture and mold. It was the plaintiff s contention that the entire HVAC system, as well as the contaminated drywall, had to be replaced. Following a two-week trial, the plaintiff asked the jury to find the defendant negligent and award damages in excess of $750, As a result of the defense verdict and a strategic Proposal for Settlement, the defendant is entitled to fees and costs. Jorge Santeiro, Jr. and Douglas C. Saltarelli of our Tampa office obtained an outstanding verdict in a motor vehicle accident case, Plaintiff claimed numerous injuries as a result of being T-Boned when our 16-year-old client ran a stop sign. Liability was admitted and the case was tried on causation and damages. Plaintiff s orthopedic surgeon recommended a three-level cervical fusion. Plaintiff s past medical specials totaled over $19, and his last demand before trial was $299, After three days of trial, the jury returned its verdict awarding Plaintiff only $5, in past medical expenses. The jury awarded no other economic damages, found no permanency and awarded no pain and suffering. Plaintiff agreed to the entry of a zero judgment in light of expired proposals of settlement totaling $30, APPELLATE Sharon C. Degnan of our Fort Lauderdale office obtained a favorable opinion from the First District Court of Appeal in Chester v. Denny s Restaurant, 2009 WL (Fla. 1st Aug. 17, 2009). In this case, the appellate court affirmed a workers compensation order rejecting multiple arguments from the claimant that additional benefits were owed. Caryn L. Bellus of our Miami office and Sharon C. Degnan of our Fort Lauderdale office appeared as amicus curiae on behalf of the Florida Defense Lawyers Association, in the case of Rippy v. Shepard, 2009 WL (Fla. App. 2 Dist. Aug 6, 2009), where the First District ruled consistent with the position supported by Ms. Bellus and Ms. Degnan that a farm tractor is not a dangerous instrumentality. Sharon C. Degnan of our Fort Lauderdale office obtained a favorable ruling from the First District Court of Appeal in Herreria v. All Traders Staffing, 12 So. 3d 223 (Fla. 1st DCA 2009). In this case, the appellate court affirmed the JCC s ruling that a workers compensation claimant s psychiatric condition did not arise out of the course and scope of his employment and thus was not compensable. Sharon C. Degnan of our Fort Lauderdale office received a favorable opinion from the Third District Court of Appeal in Harvey v. Concord Fund IV Retail, L.P., 10 So. 3d 689 (Fla. 3d DCA 2009). In this case, the Third DCA affirmed a defense verdict and rejected the plaintiff s argument that the defense expert had testified improperly. The court agreed with Ms. Degnan s argument on appeal that any error in the expert s testimony was elicited by plaintiff s counsel and thus constituted invited error. N E W A D D I T I O N S T O K U B I C K I D R A P E R F A M I LY Kubicki Draper wishes to announce the addition of a number of new attorneys, who have joined the ranks in the past few months: In the Fort Myers office: Peter W. Kamm, who joins the firm as an associate. In the Fort Lauderdale office: Joshua E. Polsky, who joins the firm as an associate. In the Tampa office: Gina Rosato, who joins the firm as an associate. In the West Palm Beach office: Darren Odesnik and Laura Geddes-Paez who join the firm as associates. 7

8 ANNOUNCEMENTS G. William Bissett of our Miami office recently authored the Florida Chapter in the 2009 edition of the Tort Law Desk Reference: A Fifty State Compendium. Jennifer Sullivan Davis of our Tallahassee office was installed as the Florida Association of Women Lawyers Tallahassee Chapter Representative at the Florida Bar s Annual Meeting on June 26, Caryn L. Bellus of our Miami office has won the Florida Defense Lawyers Association s 2009 Amicus Award. Ms. Bellus serves as the Chair of the Florida Defense Lawyers Association Amicus Curiae Committee. Ms. Bellus also has been re-appointed to serve as the chair of Publications Committee for the Appellate Practice Section of the Florida Bar. Adilia C. Quintana-Hedges of our Miami office has been appointed to the Board of Directors of the Dade County Bar Association Young Lawyers Division. She is also the Chair of the Horizons Committee and Vice-Chair of the Professionalism Committee. Angela C. Flowers, of our Ocala office, Caryn L. Bellus of our Miami office and Betsy E. Gallagher of our Tampa office are continuing to serve on the Executive Council for the Appellate Practice Section of the Florida Bar for the term. Amy L. Miles of our Tampa office, authored "Comments from Chief Justice Peggy A. Quince on Advocacy: for the Client, the Courts, and the Profession." The article was published in the Summer, 2009 edition of "The Record"--the publication of the Appellate Practice Section of the Florida Bar. Ms. Miles was also recently appointed by the Appellate Practice Section to serve as one of the three Assistant Editors for "The Record." Caryn L. Bellus of our Miami office, Angela C. Flowers of our Ocala office, and Betsy E. Gallagher of our Tampa office were each recognized in Florida Trend Magazine as "Legal Elite" for 2009 in the area of Appellate Practice. Betsy E. Gallagher of our Tampa office was appointed to Chair the Outreach Committee for the Florida Appellate Practice Section of the Florida Bar. The 2009 edition of Super Lawyers Magazine recently released its list of top lawyers in various practice areas and a number of Kubicki Draper attorneys were named. Brad J. McCormick and Daniel Draper, Jr., both of the Miami office were listed as top attorneys in the area of Civil Litigation Defense. Rolando A. Diaz of our Miami office was listed in the area of Personal Injury Defense: Medical Malpractice. Caryn L. Bellus of our Miami Office, Angela C. Flowers of our Ocala Office and Betsy E. Gallagher of our Tampa office were listed in the area of Appellate Practice. Betsy E. Gallagher of our Tampa office served as a panelist at the University of Florida College of Law as part of the school's alumni "Meet the Profession" program on September 11, Ms. Gallagher addressed two areas: Appellate Practice and practicing law in a medium sized firm. Please Make a Note: The firm s Ocala office has re-located: The new address is 1805 SE 16th Avenue, Suite 901, Ocala, FL The phone number for the Ocala office remains the same. C O N T A C T I N F O R M A T I O N Brad McCormick Aileen Diaz Rosemarie Silva New Assignments bmc@kubickidraper.com ad@kubickidraper.com Firm Administrator rls@kubickidraper.com Statewide Coverage in Florida from 12 Offices MIAMI key west FORT LAUDERDALE WEST PALM BEACH FORT MYERS NAPLES TAMPA OCALA ORLANDO JACKSONVILLE TALLAHASSEE PENSACOLA 8