Minority Mentoring Picnic THe KDQuarterly KD In the Community... winter 2012 The attorneys of Kubicki Draper are dedicated to serving their communities throughout the year. They often volunteer their time with local organizations, and the offices also come together as a unit to give back to their communities. Participants in the Walk for PKD EDITOR Bretton Albrecht IN THIS ISSUE 2 Summary Judgements Are Back in Slip and Fall Cases 3 Spotlight on Charles Watkins 4 Purchase-Money Security Interests 5 Education: Seminars & Speaking Engagements 6-7 Cases/ Appellate Results 8 KD Announcements New Additions Jorge Santeiro, Jr. and Karina Perez of the Tampa office participated in the Great American Teach-In. This event, held throughout the Tampa Bay area, is designed to teach local students about the benefits of education and career planning. Jorge Santeiro, Jr., spoke to middle school students at Tampa Charter School about the Bill of Rights, the practice of law, and the importance of education. Karina Perez spoke to high school students at Plant City High School about planning for college, choosing a career, and practicing law. Harold Saul of the Tampa office, along with family, friends and other KD attorneys and staff participated in the Walk for PKD for the fourth consecutive year. The team was captained by Harold Saul and was named Ivan s Investors for a PKD Cure in honor of Harold s father. The Team raised over $21,000 and was the top team for the Tampa Walk. Mentoring Tent hosted by KD Kendra Therrell of the Fort Myers/Naples office helped coordinate the annual Trunk or Treat event at Cape Coral First United Methodist Church. This free community outreach provides a safe Halloween alternative for families and children. Trick-or-treating, free food, games and bounce houses were provided. The event involved coordinating more than 120 volunteers and vendors, and had more than 3,000 attendees from the community. Charles Watkins, Nicole Ellis, Radia Turay and Becky Brock of the Miami office recently took an active role in guiding and mentoring several law school students at the Annual Minority Mentoring Picnic hosted at Amelia Earhart Park in the Miami area. Once again, Kubicki Draper contributed to the event as a sponsor and hosted a mentoring tent. Kubicki Draper is honored to have participated in this worthy effort to give back to our community and to help the next generation of attorneys find their footing, sure and safe, upon the rock of service.
Based on a recent decision from the Third District Court of Appeals in Delgado v. Laundromax, Inc., 65 So.3d 1087 (3 DCA 2011), Summary Judgments are once again obtainable in slip and fall actions pending in the courts of Florida. As many adjusters are probably aware, Summary Judgment Motions were frequently filed in slip and fall cases in Florida prior to 2001. Indeed, many courts were inclined to grant Summary Judgment Motions in slip and fall cases when the evidence showed that the condition was not created by the premises owner and where the plaintiff failed to offer evidence regarding how long the condition was present before the accident (ie, lack of notice). [See Winn Dixie v. Marcotte, 553 So.2d 213 (5 DCA 1989); and Hamideh v. K-Mart, 648 So.2d 824 (3 DCA 1995)] On the other hand, where a savvy plaintiff s attorney submitted evidence that the slip and fall condition had footprints, wheel marks, or other evidence of age, then the liability issue regarding the premises owner s notice of the condition presented a jury question and Summary Judgments were denied. [See Woods v. Winn-Dixie, 621 So.2d 710 (3 DCA 1993); and Washington v. Pic-N-Pay Supermarket, 453 So.2d 508 (4 DCA 1984)] In short, victory or defeat in a slip and fall lawsuit was largely dependent on the facts and evidence surrounding the accident and the respective legal skills of the lawyers representing the parties. For reasons that are not entirely clear, the Florida Supreme Court decided to overturn the apple cart in the controversial 2001 case Owens v. Publix, 802 So.2d 315 (Fla. 2001). In Owens v. Publix, the plaintiff slipped and fell on the proverbial banana peel. Although there were some conflicts in the evidence regarding the age of the banana peel, the trial court granted a directed verdict in favor of Publix which found that there was not sufficient evidence on the notice issue to hold the supermarket liable.the directed verdict was later affirmed by the Fifth District Court of Appeals. Rather than simply reversing the directed verdict and sending the notice issue back to the jury, the Florida Supreme Court decided to create a brand new legal standard against premise liability owners who are sued in slip and fall actions. In doing so, the Florida Supreme Court held that the existence of a transient condition on the defendant s premises created a rebuttable presumption against the defendant that the premises were not maintained with reasonable care. This ruling had the effect of shifting the burden of proof on the primary liability issue to the defendant instead of the plaintiff, who historically had this burden of proof. Further, in Owens v. Publix the Florida Supreme Court created an additional basis for liability against premises owners under the mode of operation theory. Under the mode of operation theory, the defendant s actual or constructive notice of a transient condition was no longer relevant if the plaintiff could prove that the defendant s mode of operation at the business was such that slip and fall conditions would be created on a regular basis. This mode of operation theory created a separate basis for negligence against the premises owner. SUMMARY JUDGMENTS ARE BACK IN SLIP AND FALL CASES! By Gregory J. Prusak 2 In response to the legal and financial burdens that the Owens v. Publix decision placed on businesses throughout Florida, the legislature enacted F.S. 768.0710 in 2002. F.S. 768.0710 restored the balance in the universe and placed the burden of proof in slip and fall actions back on the plaintiff. However, the statute stated that actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim...but may be offered by any party together with all of the evidence. F.S. 768.0710 did not contain any language regarding Summary Judgments, nor any provisions which created an absolute defense for a business or premise owner sued for a slip and fall accident. Accordingly, the Plaintiff s Bar has argued for years that Summary Judgments are no longer obtainable in slip and fall actions and that issues regarding the actual or constructive notice of a business owner are in all cases matters for the jury to determine. It should be noted that the FL legislature passed a new slip and fall statute on July 1, 2010, known as F.S. 768.0755. The provisions of F.S. 768.0755 were more favorable to business owners and again placed the burden of proving slip and fall liability on the plaintiff. While F.S. 768.0755 does not mention the mode of operation theory, section 1(b) allows the judge or jury to factor in whether the condition occurred with regularity and was therefore foreseeable. With this history in mind, the Third District Court of Appeals heard argument in Delgado v. Laundromax on June 15, 2011. In Delgado v. Laundromax, the facts showed that the plaintiff slipped and fell on a clear liquid (water) after taking a few steps onto the premises of the laundromat. The accident occurred in 2003, accordingly the defendant argued that the 2002 version of the statute (ie, F.S. 768.0710) was applicable. During discovery, the plaintiff admitted that she had no evidence that the clear liquid (water) substance was caused by the actions of the Defendant, that she did not know where the water came from, or how long the water was on the floor. Most importantly, with respect to the notice issue, the plaintiff admitted that she did not know of any person at Laundromax who was aware of the existence of the condition prior to her fall. Based on the foregoing record, the Defendant, Laundromax filed a Motion for Summary Judgment. In response, the plaintiff argued that liability issues under F.S. 768.0710 invariably give rise to jury questions on the issue of whether the defendant had actual or constructive notice of the transient condition prior to the accident. The trial judge rejected these arguments by plaintiff s counsel and granted a Summary Judgment in favor of Laundromax. In doing so, the trial court held that the plaintiff failed to provide any actual or constructive evidence that the defendant knew or should have known about the condition prior to the fall. In affirming the SummaryJudgment, the Third DCA cited Broz v. Winn-Dixie, 546 So.2d 83 (3 DCA 1989) and noted that the mere presence of water on the floor is not enough to establish constructive notice. continued at bottom of next page
I N T H E S P O T L I G H T : For Charles Watkins, a shareholder in the Miami office, the most rewarding aspect of being a civil defense attorney is achieving justice for his clients. He explains that many do not appreciate how life-altering it is for people to be sued and forced to undergo the resulting litigation process. One of his treasured mementos is a note from a client, expressing her appreciation for the defense verdict Mr. Watkins obtained in a case where the client was sued for extravagant damages following a minor auto accident. Mr. Watkins enjoys trying cases to verdict and has done so over 70 times. One of the highlights of his career is obtaining a complete defense jury verdict for his client in an auto accident case where the plaintiffs were seriously injured and the jury awarded damages against the other (non-client) defendants totaling over $20 million. Originally from Jamaica, Mr. Watkins comes from a family of lawyers. His father was a jurist and during his lifelong practice, one of the foremost experts in constitutional law in the Caribbean. He also has a daughter, brother, nephew, and cousin who are lawyers, with another nephew in law school. After his family moved to Florida, Mr. Watkins earned his Bachelor s degree from Barry University and his Masters in International Business from Florida International University. Following his graduation, he worked as an adjuster for a major insurance company, where he was quickly promoted to claims manager. Mr. Watkins earned his Juris Doctorate from the University of Miami, completing the four-year program in just three years. Charles Watkins Mr. Watkins is passionate about defending the rights of his clients, putting a stop to overreaching plaintiffs, and bringing out the truth. Upon being admitted to The Florida Bar, Mr. Watkins joined Kubicki Draper. He speaks with appreciation about how Dan Draper (one of the firm s founding shareholders) in particular took an active role in mentoring him and set an example for training excellent lawyers. Mr. Watkins, who has now been with the firm for almost twenty years, took that example to heart and actively mentors young lawyers and law students, both at Kubicki Draper and in the community. Most recently, he helped direct and organize the firm s participation in a Minority Mentoring Picnic for law school students in the Miami area. Mr. Watkins service and involvement in the community and legal profession is far too extensive to detail here. The highlights include his mentoring involvement, founding the MGC Scholarship Fund to help qualified students, and his past service as a guardian ad litem defending the rights of children. In addition to these and other community and legal organizations, he is a member of the American Board of Trial Advocates (ABOTA). He is also a member of the Council on Litigation Management (CLM), which promotes the highest standards in claims and litigation management in Insurance, Corporate Industry and among Defense Counsel. As one of the CLM s National Diversity Chairs, Mr. Watkins helped plan and is one of the moderators at the prestigious 2011 Diversity Forum in New York City. When asked about his greatest achievements, Mr. Watkins responds that he credits his success in life and lawyering to his faith and his family. Mr. Watkins and his wife Audrey have been married for over thirty years and have two grown children who are also successful with their education and careers. He says he is very blessed to have achieved so much, both personally and professionally. In a further attempt to defeat the Motion for Summary Judgment, the plaintiff argued on appeal that there was a jury question under F.S. 768.0710 regarding whether or not Laundromax had a negligent mode of operation with respect to the manner in which the defendant maintained the premises. However, the Third DCA held that the plaintiff offered no evidence of a negligent mode of operation despite the fact that the suit had been in litigation since 2006. The Third DCA likewise noted that the plaintiff testified in discovery that the laundromat was always clean and orderly on her prior visits to the defendant s premises. Accordingly, the Delgado v. Laundromax decision establishes that Summary Judgments are proper in slip and fall actions even though the legislature has enacted two different statutes on this premises liability issue (ie, F.S. 768.0710 replaced by F.S. 768.0755). in order to prevail by Summary Judgment, the premises owner must prove (1) that it did not create the transient condition; and (2) that there was no actual or constructive notice regarding the age of the transient 3 condition prior to the accident. In addition, depending on the nature of the defendant s business, the plaintiff may need to prove that the subject condition occurs frequently and is thus foreseeable under the defendant s mode of operation to avoid Summary Judgment. Please note that there is considerable debate in the legal community regarding whether the new slip and fall statute, FS 768.0755 is to be applied retroactively or in a prospective manner after its effective date of July 1, 2010. Many trial courts are applying the statute in a retroactive manner upon timely motions by defense counsel. However, in Kelso v. Big Lots, 2010 WL 2889882 (M.D. Fla. 2010), the Middle District ruled that FS 768.0755 is substantive in nature and should not be applied retroactively. That being said, it's still a good strategy to try and persuade the trial court to apply the statute retroactively. Indeed. FS 768.0755 does not contain any provisions on the "mode of operation" theory. Therefore, an argument can be made to the court that the doctrine is no longer applicable in slip and fall actions.
Purchase-Money Security Interests By Frank Delia The focus of this article is a particular type of security interest, known as a Purchase-Money Security Interest or PMSI, which arises when a buyer borrows money to make a purchase and immediately gives the lender a security interest in the item purchased with the borrowed funds. The holder of a PMSI will generally have priority over another creditor who has a security interest in the same item. When the issue of lien priorities arises, the person who understands the requirements for a PMSI will be equipped to argue either that the PMSI is valid or invalid, depending on whether the person seeks to enforce the PMSI or seeks to challenge its priority. I have litigated this issue from both sides of the fight. What I want to impart in this article is that, although most believe a PMSI is an air-tight lien with absolute priority, it actually is not. In determining whether a PMSI is valid or has priority, the saying is true that The Devil is In the Details. The key provision in Florida is section 679.324, Florida Statutes, which is entitled Priority of purchase-money security interests, and which provides in relevant part: Except as otherwise provided in subsection (7), a perfected purchase-money security interest in goods other than inventory or livestock has priority over a conflicting security interest in the same goods, and, except as otherwise provided in s. 679.327, a perfected security interest in its identifiable proceeds also has priority, if the purchase-money security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter. 679.324(1), Fla. Stat. A PMSI in inventory can also be created subject to certain requirements, such as giving written notice to current lien-holders. See 679.324(2), Fla. Stat. A PMSI may also apply when a bank or other lender gives value to enable the debtor to acquire rights in or the use of the collateral if the value is in fact used. See 679.324(7), Fla. Stat. That type of loan is often referred to as an enabling loan. Under section 679.324, four things must generally be done to properly form a PMSI in goods or inventory. First, a security agreement must be executed between the seller and buyer. Here, it is very important that the agreement relate only to the goods that will be transferred to the customer in the future. Second, the PMSI must be perfected by filling with the appropriate agency in the state where the customer is legally organized (UCC-1 Financing Statement). Third, the PMSI must be perfected prior to the customer receiving the goods (seller must file the Financing Statement before the goods are delivered). Fourth, the PMSI creditor must generally give written notice to a holder of a conflicting security interest if the holder of that conflicting security interest has filed a financing statement after giving a prior loan. The notice must inform the holder of the security interest that it intends to attach a PMSI and must list what is covered by item or type. A lender looking to acquire a PMSI should follow the above four guidelines and also consult the full statute for further guidance. A lender seeking to oppose a PMSI claim can use the above guide to find weakness in the claim. It is important to keep in mind that the person or party seeking to establish the existence and priority of a PMSI will bear the burden of proof. In most of the cases that I have litigated where I have had to oppose a PMSI claim, I have been able to find a defect or an objectionable issue. Commonly, the lenders claiming a PMSI are unable to meet their burden of showing they have a valid PMSI. I cannot overemphasize the number of defects I have found in PMSI cases. Lenders seeking to perfect a PMSI would be wise to issue the funds directly to the seller of the collateral or to issue a check naming the seller and the debtor as joint payees. Remember, by the time the issue of who has a superior lien interest arises, typically several years have gone by and small things like bills and invoices may get lost. Needless to say, it is often difficult for the lender to get copies of these documents from a debtor who defaults. Thus, a party seeking to challenge a PMSI claim should usually file an immediate objection and demand proof of the PMSI, as the PMSI claimant will often have a difficult time tracing the loan to a particular set of goods. On the other hand, a party seeking to enforce a PMSI should make sure to document and preserve a record showing that the requirements for a PMSI were followed. We look forward to seeing you at our fifth annual Claims Management Conference. visit our website for more information kubickidraper.com 4
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 to participate in industry-related events throughout the country. Michael Clarke of the Tampa office co-authored the Florida Case Law Update for publication in the Spring issue of the Trial Advocate Quarterly. Mr. Clarke also appeared as a featured speaker at the Florida Defense Lawyers Association s 2011 Annual Meeting to present on this topic. Angela Flowers of the Ocala office participated in a Mock Oral Argument presentation on September 12, 2011 at the Annual Education Program of the Florida Conference of District Court of Appeal Judges. Both Florida District Court of Appeal judges and Supreme Court of Florida Justices were in attendance. Angela served as Chief Judge in the program titled Turning the Tables on Oral Argument: From the Bench to the Podium. Judge Altenbernd of the Second DCA, Judge Griffin of the Fifth DCA, and Judge Suarez of the Third DCA played the roles of the attorneys. Michael Carney of the Ft. Lauderdale office presented at the FCCI Annual Claims Conference in Sarasota on Ethics. Michael Walsh of the Ft. Lauderdale office and Joe Carey of the Orlando office presented a seminar to North American Risk regarding Medical Coding. Michael Balducci of the West Palm Beach Office, Chad Hess of the Tallahassee Office, and Ken Oliver of the Ft. Myers Office presented a seminar at Geico in Lakeland on topics including evaluating DUI and potential punitive damages claims; identifying and handling collateral source setoffs; and recognizing and resolving various medical, medicare, and hospital liens. Jorge Santeiro of the Tampa office, Greg Prusak of the Orlando office and Ken Oliver of the Ft. Myers office presented a variety of topics to claims professionals from Gallagher Bassett. Liens, Early Case Resolutions, Proposals for Settlement and Premises Liability Issues Involving Hotels and Resorts were some of the topics covered. Brad McCormick of the Miami office and Melonie Bueno of the West Palm Beach office in conjunction with FRS Team presented on Fabrics Restoration and Top Ten Bad Faith Pitfalls to Avoid in Florida to a variety of carriers including CJW & Associates, Custard and Federated Mutual. Michael Carney and Michael Walsh of the Ft. Lauderdale office and Betty Marion of the Ocala office and visited North American Risk to present on Fraud/Counter Claims. Greg Prusak of the Orlando office, Brad McCormick of the Miami office and Michael Carney of the Ft. Lauderdale office, spoke at Discover Re regarding the Top Ten Bad Faith Pitfalls to Avoid in Florida. Michael Carney of the Ft. Lauderdale office, Brad McCormick of the Miami office, and Michael Clarke of the Tampa office presented a seminar on Ethics, Proposals for Settlement, and recent developments in PIP law to Assurance America Insurance Company. Michael Walsh of the Ft. Lauderdale office and Michael Clarke of the Tampa office presented a seminar on medical coding analysis in support of PIP defense to Mercury Insurance Company. Brad McCormick of the Miami office and Betsy Gallagher of the Tampa office presented a CEU program to The Hartford on the Production of Documents from an Insurer: When to Fight and When to Surrender. Laurie Adams and Melonie Bueno of the West Palm Beach office, presented a CLE seminar on First Party Claims Handling. The topics included demands, civil remedies, global mediations, hospital liens, removal to federal court, discovery and fees in a first party action, and prevailing party costs. Jorge Santeiro, Jr. and Bryan Krasinski of the Tampa office presented on Percutaneous Discectomies and Letters of Protection to the West Coast Claims Association. 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 305.982.6621, ad@kubickidraper.com. 5
r e c e n t r e s u l t s TRIALS Laurie Adams and Melonie Bueno of the West Palm Beach office obtained a favorable trial result in a wrongful death claim which arose from the death of a 16-year-old girl in an auto accident. The plaintiff parents, through their high profile law firm, sought $10,000,000.00 in damages for the wrongful death of their daughter while she was being driven in a motor vehicle by the parents' employee. The client was the defendant driver, who admitted liability for the accident and the death, and was alleged to have been driving recklessly, showboating, running stop signs, and speeding with multiple minors in the vehicle. The accident caused the deaths of three people including the plaintiff, and the client driver received a thirtythree year jail sentence for manslaughter as a result. Ms. Adams and Ms. Bueno focused their defense on reducing the damages, and also argued that biomechanical expert testimony showed the decedent's failure to wear a seatbelt significantly contributed to her death. At the close of an emotional two-week trial, the jury placed 20% liability on the decedent for failure to wear her seatbelt, and returned a verdict of $3,000,000.00 in damages, far less than plaintiffs sought from the jury. Carey N. Bos of the Orlando office obtained a complete defense verdict after a three and a half day trial in an auto accident case. It took the jury just over an hour to reach its decision. The collision occurred when Plaintiff, who was driving a tractor-trailer, made a quick left turn in front of Defendant, a taxicab driver who had the right-of-way. At trial, Plaintiff claimed that he did not see the taxicab before the accident and that the Defendant was the one who was speeding and driving carelessly. However, Mr. Bos was able to get Plaintiff s accident reconstruction expert to admit on cross-examination that Plaintiff should have seen Defendant, who he claimed was 3.2 seconds away from Plaintiff, before impact, even assuming Defendant was traveling at 65 mph as Plaintiff asserted (although Defendant testified he was not traveling that fast). Mr. Bos was able to get Plaintiff s accident reconstructionist to further admit that Plaintiff should not have made the left turn in front of Defendant, no matter what speed Defendant was going. Thus, Mr. Bos successfully presented the defenses of lack of liability and lack of causation of damages. This was a huge victory, as Plaintiff had demanded $400,000 at mediation and was asking the jury for a total of $140,000 in economic damages, PLUS an unspecified amount for pain and suffering and other non-economic damages. Stuart Poage and Fraz Ahmed of the Tallahassee office recently concluded a five day federal jury trial involving a U/M claim against their client insurer. They previously tried the same claim about one year ago and obtained a complete defense verdict. Although liability for causing the accident was admitted, there was substantial dispute regarding the causation of damages and the alleged aggravation of Plaintiff s prior and preexisting injuries and conditions. At the second trial, Mr. Poage and Mr. Ahmed were again able to attack the testimony of Plaintiff's physicians, and they were also able to mount a heavy attack on Plaintiff's credibility. For example, Plaintiff had attended the first two days of trial using a cane, and both he and his wife testified he needed it. However, the defense presented surveillance conducted of Plaintiff the first two nights of trial, which caught him out on the town without the cane the entire time. Despite this impeachment evidence, Plaintiff's attorney asked the jury for $900,000.00, claiming a permanent aggravation of a pre-existing condition. However, after only 55 minutes of deliberation, the 12-person jury came back with another complete defense verdict. 6 Greg Prusak of the Orlando office recently obtained a defense verdict in favor of the insurer in an uninsured motorist suit. The plaintiff was a 46-year-old man who claimed that he was entitled to resident relative status and corresponding U/M benefits under an automobile insurance policy issued to his older sister. The plaintiff claimed that he had moved in with his sister following his release from prison, and that he intended to live in her home permanently at the time of the motor vehicle accident giving rise to this case, in which plaintiff had suffered a fractured hip that required surgery. Plaintiff claimed medical bills in excess of $60,000.00, and had a potential wage loss claim of around $20,000.00. Mr. Prusak defended on the basis that plaintiff was not entitled to coverage as a resident relative, as the evidence showed he had moved out of his sister s home prior to the accident. In an unusual twist, plaintiff s sister eventually even admitted her brother was not living with her at the time of the accident. At the close of trial, Mr. Prusak persuaded the Court to follow prior case law holding that a person claiming resident relative status must prove he intended to reside in the dwelling of the insured family member on a permanent basis at the time of the accident for which benefits are sought. Thereafter, the jury awarded a defense verdict in favor of the insurer after just 30 minutes of deliberation, finding that the plaintiff was not a resident relative under the policy. In obtaining the defense verdict, Mr. Prusak obtained considerable legal and technical support from Attorney Angela Flowers of Kubicki Draper s Appellate Division. MOTIONS Laurie Adams and Melonie Bueno of the West Palm Beach office successfully dismissed a bad faith claim in Palm Beach County Circuit Court. After underlying counsel received a verdict in excess of $350,000.00 on a $50,000.00 uninsured motorist policy, Ms. Adams and Ms. Bueno argued that abatement was not an acceptable remedy because accrual of the claim could not occur until the damages were fixed, and abatement creates unacceptable discovery risks in an unaccrued claim. The Court agreed and dismissed plaintiff's claim for bad faith. Peter Baumberger of the Miami office prevailed on a motion to dismiss a statutory warranty count against a general contractor in a multimillion dollar construction defect case. The basis of the ruling was that, in view of the allegations in the complaint, the defects manifested or occurred after the three year statutory warranty period had expired. The opposition argued that this issue should be addressed via a motion for summary judgment following completion of discovery, but Mr. Baumberger was able to persuade the court that dismissal was appropriate in view of the allegations contained within the operative complaint. He was also able to persuade the Court that the dismissal should be with prejudice. Laurie Adams and Melonie Bueno of the West Palm Beach office successfully struck plaintiffs' proposal for settlement and plaintiffs' total claims for attorney s fees in the amount of $400,000.00. Subsequent to the wrongful death trial of a 16-year-old girl that involved aggravated liability and an emotionally charged two-week trial, Ms. Adams and Ms. Bueno successfully argued that the proposal for settlement was invalid, as it contained six different ambiguities and required judicial interpretation. The court agreed, striking the proposal for settlement, and plaintiff recovered no attorney s fees.
r e c e n t r e s u l t s Brian Chojnowski of the Tallahassee office obtained a favorable result in a non-binding arbitration in a construction defect case. Plaintiff alleged the asphalt at a condominium project was defectively installed, claimed our client was solely responsible for the alleged workmanship issues, and was seeking nearly $500,000 in damages. The arbitrator reduced that figure by 45% for the amount of useful life Plaintiff had already received from the asphalt, assigned our client only 5% liability, while apportioning 10% to the Plaintiff and the remaining 85% among the Developer, General Contractors, and Architects. Thus, the total amount awarded against our client was only $13,646.27. Although the arbitrator s award was not binding, it convinced Plaintiff to settle for $75,000, far less than originally sought. Michael Clarke of the Tampa office recently defeated a claim for attorney s fees based upon a Proposal for Settlement (PFS) served in an attempt to circumvent the holding of State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993), and claim fees for fees in Trudell v. The Travelers Home and Marine Ins. Co., Case No.: 2009-CC-001869 (Fla. 10th Jud. Cir. Cty. Ct. October 14, 2011). Specifically, after obtaining a fee judgment in excess of the amount demanded within a PFS on fees alone, the plaintiff then sought additional attorney s fees for all time spent in pursuit of establishing the reasonable amount of fees within the judgment. The trial court determined that such a claim for fees for fees was invalid as the pursuit of fees under the above facts are not part of a civil action under 768.79, Florida Statutes. Sharon Degnan and Josh Polsky, both of the Fort Lauderdale office, obtained a judgment of no coverage in favor of their insurance company client on the eve of trial. The underlying personal injury claim, wherein the plaintiff was seeking damages in excess of $750,000.00, arose out of a one-car motor vehicle accident on I-75 that occurred while the insured s mother was driving the insured vehicle, when the right rear axle broke off, causing the vehicle to overturn at a high rate of speed. The plaintiff sustained substantial injuries, including a broken neck and back, which resulted in an emergency surgery to fuse her cervical spine. The Insurer intervened in the underlying personal injury litigation and sought a declaratory judgment that coverage for the mother s claim was excluded under an insured person exclusion in the policy, which precluded coverage for bodily injury damages to "any insured," which included the mother s damages so long as she was driving the insured vehicle as a permissive user. After initially denying the Insurer s summary judgment motion, the court reconsidered its ruling on the eve the trial and, after nearly two years of litigation, entered a judgment in favor of the Insurer based upon counsel s argument that the policy exclusion was applicable and the trigger theory asserted by plaintiff carried an inherent flaw which would ultimately lead to a favorable coverage determination in favor of the Insurer. Karina Perez of the Tampa office obtained a Summary Judgment in a slip and fall case. Ms. Perez represented a contractor hired to install high speed internet lines and junction boxes in a large condominium complex in Sarasota. The Plaintiff stepped on one of the junction boxes, which allegedly gave way. She suffered a fracture to her right heel as well as vertebral fractures to L1 and L2 and was in a wheelchair for two months. When she was finally out of her wheelchair, undergoing physical therapy and getting around on crutches, her right foot gave way while negotiating a set of stairs, causing her to fall once again and this time fracturing her left tibia. Ms. Perez moved for summary judgment, arguing that the defendant owed no legal duty to Plaintiff and that Plaintiff s case was based on an impermissible stacking of inferences, as there was no evidence of negligent installation of the box in the first place. Despite the Motion being opposed by both the Plaintiff and a Co-Defendant, Ms. Perez prevailed in obtaining a summary judgment. APPELLATE Caryn L. Bellus of the Miami office prevailed on appeal in American Safety Casualty Insurance Co. v. Mijares Holding Co., LLC, 36 Fla. L. Weekly D2212 (Fla. 3d DCA 2011). In the underlying action, Plaintiff Mijares Holding had sued American Safety and a co-defendant insurer in a multi-count complaint. After the trial court entered an order denying a motion to dismiss as to our client, American Safety, Ms. Bellus appealed to the Third District Court of Appeal, where she successfully argued that the trial court s order must be reversed and the cause dismissed as to American Safety for improper venue, as the subject insurance policies contained mandatory and enforceable forum selection clauses, which provided that the Superior Court of Cobb County, Georgia shall have jurisdiction over the parties rights and obligations under the policies. The Third District Court of Appeal agreed that the forum selection clauses were valid and enforceable, and it therefore reversed with directions to dismiss American Safety from the action because the clauses expressly provided that jurisdiction and venue could only be had in Georgia. Ms. Bellus also successfully opposed Appellee s motion for rehearing. In denying rehearing, the Third District issued a new opinion that was even more detailed and favorable, see American Safety Casualty Insurance Co. v. Mijares Holding Co., LLC, 3D10-3150, --- So. 3d --- (Fla. 3d DCA Dec. 28, 2011). Michael Clarke of the Tampa office obtained a summary judgment, followed by affirmance on appeal, in Niesen v. City of Clearwater, et. al., Case No.: 10-12383 (11th Cir. May 17, 2011), before the United States Court of Appeals for the Eleventh Circuit. Mr. Clarke successfully argued that the estate s claims, arising from the alleged use of excessive force by police officers in beating an individual to death in 1977, were barred by the statute of limitations. The plaintiff attempted to avoid application of the defense by arguing that the defendants conspired to conceal the use of force and cover up the beating only later to have a participant admit that the official reports of the incident had been falsified in an ongoing conspiracy. The Eleventh Circuit Court of Appeals found that the plaintiff had sufficient information to proceed in the cause of action prior to the expiration of the statute of limitations. Michael Clarke of the Tampa office obtained a decision and opinion in Florida Emergency Physicians (a/a/o Greg Herman) v. Progressive Express Ins. Co., Case No.: 09-72- AP, (Fla. 18th Jud. Cir. Ct. August 11, 2011), affirming the lower court action in setting aside a voluntary dismissal served by plaintiff and directing that judgment be entered in favor of the defendant. Interestingly, this was the second appeal in the action and the plaintiff s voluntary dismissal of the case occurred on original remand in an attempt to avoid the appellate mandate directing further proceedings which would result in a defense judgment. The defendant is currently seeking the award of its attorney s fees. 7
Announcements Laurie Adams of the West Palm Beach office has been selected Top Lawyer for the 2012 Edition of the South Florida Legal Guide. She has also been named Florida Legal Elite and received the 2011 South Florida Women Extraordinaire award for top women business leaders in South Florida. Caryn Bellus has been selected Top Lawyer for the 2012 Edition of the South Florida Legal Guide. Michael J. Carney of the Ft. Lauderdale office, for the 4th year in a row, was selected Top Lawyer in the 2012 South Florida Legal Guide. Angela Flowers participated in a Mock Oral Argument presentation at the Annual Education Program of the Florida Conference of District Court of Appeal Judges. Both Florida District Court of Appeal judges and Supreme Court of Florida Justices were in attendance. Ms. Flowers served as Chief Judge in the program titled Turning the Tables on Oral Argument: From the Bench to the Podium. Judge Altenbernd of the Second DCA, Judge Griffin of the Fifth DCA, and Judge Suarez of the Third DCA played the roles of the attorneys. Betsy Gallagher of the Tampa office was recognized in Florida Trend Magazine as Legal Elite for 2011 in the area of Appellate Practice. She was also recognized as one of Tampa s Best Lawyers 2012 in the area of appellate practice which was distributed with The Tampa Tribune and Wall Street Journal. Jennifer LeVine of the West Palm Beach office was selected to participate in the Anti-Defamation League s Glass Leadership Institute (GLI). The program is intended to introduce leaders to the important work of the Anti-Defamation League, which is one of the nation's premier civil rights and human relations agencies. Through a year-long series of lectures, GLI participants will gain the knowledge and skills to effectively defend democratic ideals, combat all forms of hatred, and protect civil rights for all as they serve as leaders in the organization and in the community. Congratulations to Rebecca Cooperman Kay of the Miami office and Jessica Lanifero of the Jacksonville office who recently welcomed baby boys into the world and to Chelsea Winicki of the Jacksonville office who had a baby girl. New Additions to the Firm: We are pleased to announce the addition of a new Shareholder. Richard B. Collins joins us in Tallahassee and will focus on handling complex litigation and drug and pharmacy litigation matters with a focus on medical devices, medical malpractice, products liability and professional ethics and discipline law. 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 305.982.6707...bmc@kubickidraper.com 305.982.6732...sharon.christy@kubickidraper.com Firm Administrator 305.982.6619...rls@kubickidraper.com Seminars/Continuing Education Credits 305.982.6621...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 www.kubickidraper.com 8