4 Cases To Watch In Florida In 2nd Half Of 2015 By Carolina Bolado July 22, 2015

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1 4 Cases To Watch In Florida In 2nd Half Of 2015 By Carolina Bolado July 22, 2015 Florida attorneys are keeping a close eye on cases involving compensation for attorneys who represent plaintiffs in workers' compensation cases, the statute of limitations for mortgage foreclosure actions, and personal injures in which a government health care plan is in play. Here, Law360 breaks down four of the biggest cases on attorneys' radar for the second half of Castellanos v. Next Door Co. In Castellanos v. Next Door Co., a Florida worker named Marvin Castellanos has asked the state's highest court to overturn a statutory limitation on prevailing- party attorneys' fees in workers' compensation cases, which he said is unconstitutional and limits access to the courts. The formula for calculating attorneys' fees in the state's workers' compensation statute led to a $164 award for Castellanos' lawyer for 107 hours of legal work on his case. The statute also makes it a misdemeanor for an attorney to take payment for work relating to a workers' comp case without approval by a judge of compensation claims. The First District Court of Appeal affirmed the award but also certified the question to the Florida Supreme Court of whether the award is adequate and consistent with provisions of the state's constitution that protect access to the courts and due process. The attorneys' fee formula was introduced via changes to the workers' compensation statute ushered in by former Gov. Jeb Bush during his tenure at the state's helm. Plaintiffs attorneys decried the changes and maintain that they bar access to the courts for injured workers, while businesses said the

2 reform measures helped decrease their costs. Mark Delegal, a partner at Holland & Knight LLP in Tallahassee, said he expects the Florida Supreme Court to strike down this particular part of the workers' compensation overhaul. The court heard oral arguments in November and is expected to release an opinion soon. It will be a boon for lawyers, Delegal said. There will be more litigation. That will favor plaintiffs and defense lawyers alike. Unfortunately, businesses and consumers will pay more. Castellanos is represented by Richard A. Sicking, Mark A. Touby and Richard E. Chait of Touby Chait & Sicking PL. Next Door Co. is represented by Raoul G. Cantero and David P. Draigh of White & Case LLP. The case is Castellanos v. Next Door Co. et al., case number SC , in the Supreme Court of the State of Florida. Bartram v. U.S. Bank NA Real estate attorneys are keeping a close eye on a foreclosure dispute currently before the Florida Supreme Court that could change the way the statute of limitations is applied to mortgage foreclosure suits, according to Manuel Farach of Richman Greer PA. Mortgage foreclosures get a special dispensation, some folks call it different treatment from most other lawsuits, Farach said. Mortgages are viewed as having a monthly accrual. There's a different cause of action each month. The instant case, Bartram v. U.S. Bank NA, began with a 2006 foreclosure lawsuit against Lewis Bartram, who, after a divorce, stopped making payments to the bank or to his ex- wife on a $650,000 mortgage. In April 2011, with Bartram's suit still languishing in the courts, his ex- wife Patricia Bartram filed a suit to foreclose her mortgage, naming her ex- husband, the bank and the homeowners' association as defendants. One month later, the foreclosure suit against Lewis Bartram was dismissed, and he filed a claim seeking declaratory judgment from the bank because it had been more than five years since his default and the statute of limitations had run out. He argued that the clock began to run when he defaulted in

3 January 2006 and the bank accelerated the loan. The trial court sided with him, but the Fifth District Court of Appeal reversed the ruling and certified the question of whether the acceleration of payments under a loan triggers the statute of limitations to the Florida Supreme Court. Oral arguments are scheduled for Nov. 4. Farach said this could have serious consequences for banks if the Florida Supreme Court reverses the Fifth District's decision. In order to avoid being accused of filing fraudulent documents, many lenders would dismiss their lawsuits and refile them, he said. Farach added that a group of lawsuits that were affected by the robosigning scandal during the recent mortgage foreclosure crisis could be affected. There are some lawsuits out there that would be time- barred if the Florida Supreme Court reverses that decision, Farach said. US Bank is represented by Jeffrey C. Sirolly and Michael D. Starks of Baker Donelson Bearman Caldwell & Berkowitz PC. Lewis Bertram is represented by Michael A. Wasylik of Ricardo & Wasylik PL, Thomas R. Pycraft Jr. of Pycraft Legal Services, and Dineen Pashoukos Wasylik. The case is Bartram v. U.S. Bank NA et al., case number SC , in the Supreme Court of Florida. Joerg v. State Farm Automobile Insurance Co. The case of Luke Joerg, who was injured by a car while riding his bicycle, could have ramifications on how future damages are calculated in personal injury cases when the plaintiff is covered by a government health care plan. Joerg, as an adult with a developmental disability, was eligible for Medicare, according to court documents. In the suit, filed by the Joerg family against State Farm under their uninsured motorists coverage, the trial court ruled that evidence of past medical expenses must reflect the lower Medicare reimbursement amounts, and a jury awarded the family $469,000 to pay for future medical expenses. The Second District Court of Appeal, however, granted State Farm a new trial and said the jurors should have been instructed on the cost of Medicare services, which are relevant for determining how much to award in future damages.

4 In making this decision, the Second District looked to the Florida Supreme Court's 1984 decision in Florida Physician's Insurance Reciprocal v. Stanley, in which the court held that evidence of free or low cost services from governmental or charitable agencies available to anyone with specific disabilities could be used to determine future damages. The Florida Supreme Court held oral arguments in the Joerg case in March and is expected to issue an opinion before the year is out, according to Delegal, who added that if the high court decides to overturn Stanley, damages awards will increase, as will the cost of insurance for customers. State Farm is represented by Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler PA. Joerg is represented by Tracy Raffles Gunn of Gunn Appellate Practice PA. The case is Joerg et al. v. State Farm Automobile Insurance Co., case number SC , in the Supreme Court of Florida. Ober v. Town of Lauderdale- by- the- Sea Municipal liens on properties are the subject of a case currently before the Fourth District Court of Appeal in which a property owner, James Ober, is challenging a summary judgment ruling that municipal liens, which are filed after a lis pendens and are usually wiped out in a foreclosure action, are not extinguished if the city records its liens after final judgment and before the foreclosure sale. Ober bought a foreclosed home from Bank of America NA. The city of Lauderdale- by- the- Sea, which was concerned about zombie homes that are unoccupied and untended during the long foreclosure process, recorded its code enforcement liens after the final judgment but before the foreclosure sale of the property. Ober asked the court for a declaration that the liens on the property recorded after the lis pendens, or the notice that the foreclosure suit had been filed, were extinguished by the foreclosure process. Farach, who represents Ober, said municipalities have struggled with enforcing their liens and dealing with the zombie foreclosures since the Florida Supreme Court's 2013 decision in City of Palm Bay v. Wells Fargo, in which the court said the city could not give its municipal code enforcement

5 liens a superpriority status over a mortgage because it conflicts with state law. The argument of the cities is that the statute says you have to file a claim within 30 days of the lis pendens being filed, Farach said. They think they've found a way around the Palm Bay decision. Ober is represented by Manuel Farach of Richman Greer PA. Lauderdale- by- the- Sea is represented by Susan L. Trevarthen, Laura K. Wendell and Eric P. Hockman of Weiss Serota Helfman Cole Bierman & Popok PL. The case is Ober v. Town of Lauderdale- by- the- Sea, case number 4D , in the Fourth District Court of Appeal of Florida.

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