BIG BEND CHAPTER HEADNOTES FEBRUARY

FEBRUARY 2015 BIG BEND CHAPTER HEADNOTES FEBRUARY Paralegal Association of Florida, Inc. HAPPY VALENTINE S DAY! BIG BEND CHAPTER SPRING SEMINAR SATURDAY MARCH 21, 2015 February 3 EC Meeting 6:00 p.m. Keiser Univ. #B215 Thomasville Road February 12 Sg. Scott Winfrey 12:00 p.m. Workplace violence (continued) March 3 EC Meeting 6:00 p.m. Keiser Univ. #B215 Thomasville Road March 12 Ethics and Professionalism 12:00 p.m. Hon. Bruce McKibben Advance reservations are required for our monthly meetings. Contact Shalonda Hopkins no later than noon on the Tuesday prior to the meeting. Cost is $18 for Chapter Members and $23 for nonmembers: shalonda.hopkins@yahoo.com 1. HELP OUR CHAPTER BY GETTING A SPONSOR FOR OUR SPRING SEMINAR. CONTACT VENDORS YOU KNOW AND SEND THEM THE SPONSONSHIP FORM. 1. BIG BEND CHAPTER Post Office Box 43 Tallahassee, FL 32303 www.bigbendparalegal.org 1

FEBRUARY 2015 HEADNOTES-FEBRUARY 2015 OFFICERS FOR YEAR 2014-2015 La Tashsua Hugans, CP, FRP President Email: tasha_bbpa@hotmail.com CONGRATULATIONS TO OUR OFFICERS!!!. Asha Maharaj-Lucas Vice President amaharajlucas@vlplaw.com Patricia Finkey, CP Recording Secretary Email: tfinkey@fbpe.org Sylvia Sanders, CP,FRP,CPM Treasurer Email: sylvia_sanders@doh.state.fl.us Shalonda Hopkins Director-at-Large Email: shalonda.hopkins@yahoo.com Sara Fulghum CP, FRP Immediate Past President, Editor of HeadNotes Email: parasaraf@gmail.com Officers Year 2014-2015 BIG BEND CHAPTER Post Office Box 43 Tallahassee, FL 32303 www.bigbendparalegal.org 2

SATURDAY MARCH 21, 2015 The Big Bend Chapter of the Paralegal Association of Florida Presents Our 2015 Spring Seminar NALA APPROVED FOR 7 HOURS OF CLE CREDIT: 6 GENERAL AND 1 ETHICS Dust off the Plate and Get Ready for the Pitch! Spring Training for the Paralegal! We have an outstanding Line Up of Speakers with topics sure to Knock it out of the Park Mark your calendars and plan to attend Saturday, March 21, 2015 at the Staybridge Suites, Tallahassee Monitor our Website for more information & To access the Registration Form. 3

ATTENTION: ALL MEMBERS Did you know that as a BBC of PAF active or student member, you automatically qualify to apply for a Professional Development Scholarship? Your Executive Committee has approved the award of not one, but two (2) Spring Seminar attendance scholarships this year! The Professional Development Scholarship can also be awarded to members who apply for the payment of, or reimbursement for, the payment of any annual professional membership dues, such as your annual Florida Bar FRP dues and/or annual PAF/BBP dues. Additionally, please apply if you are interested in receiving a scholarship to attend the PAF annual meeting/spring Seminar or Fall seminar. The Professional Development Scholarship is a direct member benefit and your Executive Committee would love to award more scholarships this year to reward our members for their hard work and commitment to BBC of PAF. Please contact Tasha Hugans or Beth Sumners if you have any questions regarding this scholarship. 4

FEBURARY 12, 2015 SPEAKER WORKPLACE VIOLENCE SARGEANT SCOTT WINFREY Sgt. Scotty Winfrey studied at Tallahassee Community College receiving his Associate's Degree in 2009. He has been with the Florida Department of Law Enforcement, Capitol Police since 2001, and currently serves as an EOD Bomb Tech Master and Master Taser Instructor. As a State Law Enforcement Officer, the mission of the Capitol Police is to serve the safety and security needs of both the legislative and executive branches of state government. Capitol Police serve as a specially trained and highly effective security and law enforcement agency serving the Capitol Complex. It is the primary responsibility of the Capitol Police to protect the security of the Governor, the Lieutenant Governor, the members of the Cabinet, and the members of the Senate and of the House of Representatives, and those employees assigned to assist such state officials in the performance of their official duties. Sgt. Winfrey has also participated and graduated from The Florida Criminal Justice Executive Institute's Florida Leadership Academy in April 2014 as a First Line Supervisor. The graduates serve in leadership roles in criminal justice agencies from across the state and learn skills necessary to support the needs of their agency and the community as they prepare for future challenges. The goal of the Florida Leadership Academy is to prepare firstline supervisors in criminal justice organizations to exemplify the character and integrity expected of criminal justice professionals and to examine the various components necessary to being an efficient leader. 5

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JOB BANK NEWS PARALEGAL-LEGAL ASSISTANT Fuller, Johnson, et al. in Tallahassee looking for a full-time legal assistant/paralegal job; hours are 8:30 to 5:30. [Posted 12/3/14] LITIGATION PARALEGAL-NORTH TAMPA The Bleakley Bavol Law Firm seeks paralegal with 3+ years of litigation/trial experience. Past experience with medical malpractice defense, employment law, product liability defense is helpful but not necessary. Competitive salary and benefits for the right candidate. Qualified candidates may email cover letter and resume to contactus@bleakleybavol.com. [Posted 12/3/14] Bryant Miller Olive The multi-office, multi-state law firm of Bryant Miller Olive seeks a talented Legal Assistant to help support the local litigation and governmental consulting practice groups in our downtown Tallahassee office. Responsibilities include preparing quarterly lobbyist compensation reports, completing lobby registration forms, maintaining client files for audit, assist with monitoring session or committee meeting online, preparing motions, briefs, discoveries, pleadings, and all other correspondence and court filings, tracking of litigation and providing case management activities, organizing exhibits, organizing and indexing documents, client interaction, scheduling meetings, coordinating travel, maintaining attorney s calendar, processing time-entry and expense reports, and other duties as needed. Qualifications include a minimum of four years experience as a legal assistant in a law firm and a four year degree is preferred; knowledge of state and federal court filing guidelines and e-filing; demonstrated computer skills including proficiency in MS Office and electronic research tools; ability to be flexible (including working flexible hours on short notice), professionally handle pressure and adapt to changing work priorities, work flow and work assignments; must present a polished and professional attitude and be a team player; strong organizational skills and attention to detail. We offer a comprehensive benefit plan which includes, but is not limited to, employer-paid medical, dental, vision, life, shortterm and long-term disability insurance, long-term care 7

insurance and supplemental insurance options; generous paidtime-off plan; potential for year-end bonus and profit sharing; 401(k) with employer match; paid-parking; business-casual work environment and jeans-friday. Please forward your cover letter including salary requirements and resume in Word or PDF format to careers@bmolaw.com If your qualifications meet our needs, we will contact you directly. No phone calls please. We are an Equal Opportunity Employer committed to building and maintaining a diverse workforce. If you know of any openings, contact our Job Bank Chairperson: BECKY HILLIARD becky.hilliard@hklaw.com LITIGATION PARALEGAL-NORTH TAMPA The Bleakley Bavol Law Firm seeks paralegal with 3+ years of litigation/trial experience. Past experience with medical malpractice defense, employment law, product liability defense is helpful but not necessary. Competitive salary and benefits for the right candidate. Qualified candidates may email cover letter and resume to contactus@bleakleybavol.com. [Posted 12/3/14] 8

PARALEGAL SOCIAL Date: January 29, 2015 Time: 5:30-ish Join us at Chili s for our quarterly social. It is a great opportunity to meet folks, network, and make new friends. 719 Apalachee Parkway, Tallahassee (850) 877-2148 See you there! 9

40 Fla. L. Weekly D262c Insurance -- Homeowners -- Sinkhole claim -- Rescission of policy -- Misrepresentation of condition of home on applications for coverage -- Error to enter summary judgment in favor of insurer based on insureds' negative answer to question whether they had knowledge of any prior repairs made to any structures on insured location for cracking damage where insurer failed to establish beyond factual dispute that the answer to the question in the application was incorrect or a misrepresentation and further failed to establish that the representation was material to the acceptance of insurer's risk or that true facts would have caused it not to issue policies LUIS MORA and ROSAURA MORA, Appellants, v. TOWER HILL PRIME INSURANCE COMPANY, Appellee. 2nd District. Case No. 2D13-4125. Opinion filed January 23, 2015. Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Counsel: A. Lee Smith and Aaron S. Kling of Thompson Trial Group, P.A., Tampa, for Appellants. Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee. (ALTENBERND, Judge.) Luis and Rosaura Mora appeal a final summary judgment entered in favor of Tower Hill Prime Insurance Company. The judgment rescinded their homeowners insurance policy based on the theory that the Moras had misrepresented the condition of their home in violation of section 627.409, Florida Statutes (2007), when they submitted their applications for the coverage. We reverse because the limited evidence in the record at the time of the hearing on Tower Hill's motion for summary judgment did not establish its right to obtain a summary judgment on this defense. See Griffin v. Am. Gen. Life and Accident Ins. Co., 752 So. 2d 621 (Fla. 2d DCA 1999). The Moras, who happen to be realtors, decided to purchase a model home in November 2005. The home had been built in 2002 and had been used for three years as the builder's office and model. In connection with this purchase, the Moras obtained a homeowners insurance policy from Tower Hill. In 2007, apparently because of a change in occupancy status, this policy was cancelled and replaced with another Tower Hill policy. The 10

replacement policy was renewed for the period of November 30, 2009, to November 30, 2010. In July 2010, nearly five years after the purchase of the home, the Moras made a sinkhole claim. This claim was investigated by Tower Hill, and it confirmed that sinkhole damage had occurred. The Moras and Tower Hill apparently disagreed on the extent of the damage and the amount Tower Hill owed to the Moras. As a result, the Moras sued Tower Hill in 2011. 1 It is undisputed that the Moras signed an application for the original policy and for the replacement policy. On page four of each of the form applications, the question appears: Do you have any knowledge of any prior repairs made to any structures on the insured location for cracking damage? On each application, the box next to this question is checked no. During discovery, Tower Hill obtained a real estate inspection form that was prepared when the Moras purchased this home. They also obtained a form identified as the builder's Homeowner Orientation 1.1, or homeowner orientation report. On these forms, there are notations that a crack existed around the pool deck and that a large crack existed on the ceilings of the living room, the dining room, the family room, and the home theater. The homeowner orientation report was signed by Mrs. Mora, and it has handwritten notations that appear to be instructions for repairs. The handwritten notations may be those of one of the Moras. These notations include: repair 3 cracks in drywall at ceiling, repair drywall at... stairwell base board, repair nook window drywall cracks, repair cracks at entry under soffit (stucco), and fix cracks under three windows. The Moras were not asked about these documents during their depositions. It may be that the documents were obtained by discovery after those depositions were taken. Tower Hill moved for summary judgment, relying on the questions about cracking damage in the applications and on the two documents from the home inspection. It submitted an affidavit from an assistant vice president of underwriting that identifies these documents and then concludes: 17. Had Tower Hill known of the existing cracking damage to the property, as listed on the Real Estate Inspection report, and the Homeowner Orientation report, it would not have issued [the original policy]. 18. Had Tower Hill known of the existing damage to the property, as listed on the Real Estate Inspection report, and the Homeowner Orientation report, it would not have issued [the replacement policy]. When moving for summary judgment, Tower Hill did not file any photographs or other evidence describing the nature or extent of the cracks mentioned in the inspection reports from 2005. It filed a two-page affidavit from an employee of the builder that simply authenticates the real estate inspection form and homeowner orientation report as belonging to the Moras. There are no depositions or affidavits from anyone who may 11

have performed the requested repairs or who was able to explain more about the cracks mentioned in these forms. Mr. and Mrs. Mora each testified when deposed in 2012 that they did not recall noticing any cracks in the house at the time of purchase seven years earlier. Based only on this evidence, the trial court granted summary judgment in favor of Tower Hill declaring the homeowners policy void. The Moras appeal that summary judgment. Section 627.409 allows an insurer to forfeit coverage when an insured makes certain misrepresentations. This section provides in pertinent part: 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. 627.409(1)(a)-(b). The statute allows a policy to be forfeited under at least two distinctly different circumstances. First, the misrepresentation may be an intentional act of fraud. If the insured knowingly makes a false statement in hopes that the insurance company will rely on that statement to issue the insurance policy, there is no dispute that the policy can be rescinded. See, e.g., Gainsco v. ECS/Choicepoint Servs., Inc., 853 So. 2d 491, 492-93 (Fla. 1st DCA 2003). Proof of such fraud, of course, is difficult. The insurer has the burden of proof to establish a misrepresentation. Griffin, 752 So. 2d at 623. Thus, actual fraud is not the most common circumstance under which insurers avoid paying claims under insurance policies. In this case, Tower Hill does not argue that it established actual fraud as a matter of undisputed fact. But a policy can also be rescinded when a misrepresentation is material to the acceptance of the risk or 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. See 627.409(1)(a), (b). 2 It is well established that in these instances a misrepresentation need not be knowingly made in order for the insurer to void the policy. See Cont'l Assurance Co. v. Carroll, 485 So. 2d 406 (Fla. 1986). But forfeitures of insurance policies are not favored [in Florida], especially when the event that gives rise to the insurer's liability has occurred. LeMaster v. USAA Life Ins. Co., 922 F. Supp. 581, 585 (M.D. Fla. 1996) (citing Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813, 815 (Fla. 1951), and Travelers Protective Ass'n of Am. v. Jones, 91 F.2d 377, 378 (5th Cir. 1937)). Thus, on a claim to rescind a policy based on a misrepresentation that falls short of fraud, the insurer must prove that the insured's statement is a misrepresentation, 12

that it is material, and that the insurer detrimentally relied on it. See Griffin, 752 So. 2d at 623 (citing Douglas v. Mut. Life Ins. Co. of N.Y., 191 So. 2d 483 (Fla. 2d DCA 1966)). Under subsection 627.409(1)(b), the insurer needs to provide an explanation as to why in good faith and pursuant to a policy requirement or other requirement it would not have issued the policy or would not have issued it under the same terms. Tower Hill fell short of its burden of proof for this summary judgment in at least two respects. First, it did not establish beyond factual dispute that the answer to the question in the application is incorrect or is a misrepresentation. Second, assuming the statement is a misrepresentation, Tower Hill's proof does not establish that the representation is material to the acceptance of its risk or that the true facts would have caused it not to issue these policies. As to the first deficiency, Tower Hill seems to equate cracking damage in its application with cracks or repair of cracks on the inspection forms. We conclude that an insured might not regard repair of common drywall or stucco cracks as a matter that involved more than normal maintenance. In other words, an insured might conclude that Tower Hill added the word damage to the question to limit the inquiry to events more significant than common drywall cracking. As explained in Mercury Insurance Co. of Florida v. Markham, 36 So. 3d 730, 733 (Fla. 1st DCA 2010): An insurer may not deny coverage under this statute, however, if the alleged misrepresentation was in response to an ambiguous question. See Boca Raton Comty. Hosp., Inc. v. Brucker, 695 So. 2d 911, 913 (Fla. 4th DCA 1997); Comprehensive Benefit Adm'rs, Inc. v. Nu-Cape Constr., Inc., 549 So. 2d 700 (Fla. 2d DCA 1989). A question is ambiguous when it is susceptible to two reasonable interpretations, one in which a negative response would be correct and one in which an affirmative response would be correct. If Tower Hill intended cracking damage to include all repairs of any crack in drywall or stucco, then it would seem the questions on its applications were ambiguous. In this record, Tower Hill has not established beyond factual dispute that the Moras made a misrepresentation on their applications when they indicated that they were unaware of any prior repairs for cracking damage on their home. As to the second deficiency, on this record the true facts for purposes of section 627.409 are nothing more than facts that the house had drywall, stucco, and other cracks that were resolved without complication by the builder before the sale to the Moras in 2005. It is a simple fact of life that most new Florida homes develop nonstructural cracks in drywall, stucco, and other areas in the several years following their construction. Tower Hill cannot seriously contend that it refuses to insure all homes in Florida that have a history of minor maintenance to drywall and stucco at the time of the application. If that were true, then it would only insure a handful of homes in Florida. We would expect that a positive answer to Tower Hill's question about cracking damage on its application would lead to further investigation to determine if the true facts indicate 13

a condition material to the risk or a matter that might cause Tower Hill to underwrite the risk in a different manner. But at this point in the litigation, our expectations are not important to the outcome of the case. The conclusory opinion of Tower Hill's assistant vice president of underwriting in the affidavit simply does not present sufficient facts to explain why the answers to this specific question on the applications were material to the risk and something on which Tower Hill detrimentally relied or why the true facts in the inspection reports were a matter that would have caused Tower Hill in good faith not to issue the two policies pursuant to a policy requirement or other requirement. Accordingly, we reverse the summary judgment and remand for further proceedings. Reversed and remanded. (CRENSHAW, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.) 1 The Moras filed for bankruptcy in 2009 or 2010, but there is nothing in the record indicating that this has affected the matters on appeal in this case. 2 In most, if not all, circumstances in which disclosure of the true facts would have led the insurer in good faith not to issue the policy -- satisfying subsection 627.409(1)(b) -- the insured's misrepresentation would also be material to the acceptance of the risk under subsection (1)(a). Thus, there is a great degree of overlap between the two provisions of the statute. * * * 14