March 26, 2024
In Arway v. Progressive American Insurance Company, 6D23-399 (Fla. 6th DCA March 1, 2024), the Sixth DCA reversed and remanded the trial court’s entry of summary judgment in favor of Progressive. Arway brought the underlying lawsuit to recover underinsured motorist (UM) benefits under a Progressive policy of insurance. Progressive argued, and the trial court ultimately agreed, that the five-year statute of limitations (SOL) ran from the date of the motor vehicle collision, thereby barring Arway’s suit. On appeal, the Sixth DCA focused on the subject policy’s exhaustion provision which required Arway to exhaust the tortfeasor’s bodily injury (BI) coverage prior to obtaining UM benefits under her own policy. Notwithstanding the exhaustion condition precedent, the subject policy also included a provision preventing Arway from filing suit against Progressive unless she was in full compliance with the policy terms—e.g., the exhaustion provision. The Sixth DCA, citing similar policy provisions in Woodall v. Travelers Indemnity Co., 699 So. 2d 1361 (Fla. 1997), held that the exhaustion and no-action provisions of Arway’s Progressive policy tolled the SOL until Arway received payment from the tortfeasor’s BI liability carrier. View the opinion here.
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March 19, 2024
In Pitts v. Neptune, 1D2022-0960 (Fla. 1st DCA March 6, 2024), the plaintiffs sought certiorari review of the trial court’s order compelling plaintiffs to respond to the defendant’s financial bias discovery regarding the relationship between the plaintiffs’ law firm and what plaintiff referred to as their “hybrid expert/treating physicians.” Plaintiffs had refused to provide the discovery, citing Worley v. Central Florida YMCA, Inc., in which the Florida Supreme Court protected a lawyer’s referral of a client to a treating physician as a confidential attorney-client communication, and limited the discovery of the financial relationship between a non-party law firm and a plaintiff’s treating physician. In dismissing the plaintiffs’ petition, the First District observed that to the extent Worley remains good law post-tort reform, it applies to treating physicians, who testify as fact witnesses regarding their own medical performance on a particular occasion. By contrast, plaintiffs’ “hybrid” witnesses were acting as experts retained for trial. They were given litigation binders with medical records from the plaintiffs’ medical providers, and planned to testify based on their review of those records. The Court held this to be the work of an expert witness, not an ordinary treating physician, which brought the financial relationship between the witnesses and the plaintiffs’ law firm within the scope of discovery. The distinction between treating physicians and experts disguised as “hybrids”—which the Court based on the substance of the witness’ testimony rather than their label on the witness list—will be helpful for defendants seeking financial bias discovery. View the opinion here.
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March 5, 2024
In NBIS Constr. & Transp. Ins. Servs., Inc. v. Liebherr-America, Inc., No. 22-14104 (11th Cir. Feb. 29, 2024), a magistrate judge considered a negligence claim for damages to a crane arising from the collapse of the crane boom. The plaintiff argued that the defendant crane distributor was negligent for failing to properly train the plaintiff’s employees and failing to timely transmit a safety bulletin. The defendant argued that the economic loss rule applied to preclude products liability actions when the product only damages itself. The magistrate ruled that the economic loss rule did not apply because the parties had stipulated that the crane was not defective. Based on the stipulation, the magistrate concluded that the negligence action was not a products liability action but “an action alleging negligent services provided.” On appeal, the defendant argued that the theories of negligence were essentially failure to warn claims, to which the economic loss rule had traditionally been applied. The Eleventh Circuit found merit in both positions and certified the following question: “Whether, under Florida law, the economic loss rule applies to negligence claims against a distributor of a product, stipulated to be non-defective, for the failure to alert a product owner of a known danger, when the only damages claimed are to the product itself?” View the opinion here.
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February 16, 2024
Dismissal Affirmed When Assignment of Property Insurance Benefits Fails to Strictly Comply with § 627.7152(2)
In Gale Force Roofing & Rest., LLC v. Am. Integrity Ins. Co., No. 2D22-4104 (Fla. 2d DCA Feb. 16, 2024), the Second DCA considered whether dismissal of a complaint was proper based on the AOB’s failure to “[c]ontain a provision that allows the assignor to rescind the assignment agreement without a penalty or fee by submitting a written notice of rescission” as required by § 627.7152(2)(a)2, Fla. Stat. (2021) (emphasis added). While the AOB contained some of these terms in different provisions, the Court concluded that its failure to contain a single provision setting forth each and every term made the AOB unenforceable. Specifically, while the AOB allowed for rescission, it did not permit rescission by submitting “a written notice.” And while it mentioned that rescission would be without a “penalty,” it did not also mention a “fee.” This decision supports filing a motion to dismiss in property insurance cases filed by an assignee if the AOB does not contain a single provision parroting the exact wording of the statute. View the opinion here.
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February 16, 2024
Split Among District Courts Regarding Whether Property Insurance Presuit Notice Requirement Applies Retroactively
In Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 14, 2024), the Third District aligned itself with the Fourth District, holding that the presuit notice requirement for property insurance claims applies retroactively. The presuit notice requirement was added in section 627.70152(3)(a), Fla. Stat. (2021), which was effective on July 1, 2021. The statute says it “applies exclusively to all suits arising under a residential or commercial property insurance policy.” The Third District found that this language intended for retroactive application to policies issued before July 1, 2021. The court also ruled that, because the statute was procedural in nature, retroactive application was constitutional. In so doing, the court certified conflict with the Sixth District. Circuit courts will be required to follow the precedent in their district, but the argument should still be preserved in the Sixth District. View the opinion here.
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January 18, 2024
In United Medical, LLC, a/a/o Roberto Prin v. Progressive Preferred Insurance Company, et al., No. 3D23-01 (Fla. 3d DCA Jan. 17. 2024), the Third District Court of Appeal reviewed an order granting an out-of-state insurer’s motion to dismiss based on a lack of personal jurisdiction under the test established in Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The Court determined that Plaintiff met the first element of the test by alleging as a statutory basis for jurisdiction that the insurer was licensed to transact business in Florida and maintained agents there to do so. However, the out-of-state insurer presented a legally sufficient affidavit averring that it was incorporated in and a resident of Ohio and did not conduct business in Florida. Thus, the burden shifted to Plaintiff to produce an opposing affidavit or other sworn proof establishing the basis of jurisdiction. The Third District held that Plaintiff “acted at its own peril“ by electing to rely on three website pages that did not refute the sworn affidavit, obligating the trial court to grant the motion to dismiss. View the full opinion here.
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January 11, 2024
In United Automobile Insurance Company v. ISO-Diagnostics Testing, Inc., No. 4D2022-1735 (Fla. 4th DCA Jan. 10. 2024), the Fourth District Court of Appeal held that the term “year” as it appears in Florida’s No-Fault Statute, section 627.736, refers to a service year and not a calendar year. Importantly, while the Florida Legislature made this clear in its 2015 amendment to section 627.736(5)(a)2, replacing the term “year” with “service year” and defining it as “the period from March 1 through the end of February of the following year,” the Fourth District explained that even prior to the Legislature’s 2015 amendment, the Legislature intended the word “year” to mean a service year beginning on March 1. The Fourth District reasoned that although the Legislature had not previously used the term “service year” or defined that term in the Statute, it still referred to the March 1 date, supporting the plain meaning to be that a service year—not a calendar year—applied. View full opinion here.
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January 4, 2024
In Arce v. Citizens Property and Casualty Insurance Corporation, No. 3D22-0722 (Fla. 3d DCA Jan. 3, 2024), the Third District Court of Appeal (DCA) affirmed summary judgment in favor of Citizens, holding it was prejudiced by the nearly three-year-late filing of a Hurricane Irma claim. In doing so, the Court rejected the holding in Perez v. Citizens Property Insurance Corporation, 345 So. 3d 893 (Fla. 4th DCA 2022), which created a “policy language exception” to the well-established Florida rule that an insurer is entitled to a rebuttable presumption that it was prejudiced by the untimely reporting of a claim, holding instead that since Citizens’ policy language in its “Duties after Loss” provision incorporates the term “prejudice,” the burden is Citizens’—not the insureds—to prove Citizens was prejudiced. The Third DCA soundly rejected the holding Perez, calling it “counterintuitive” and explaining it “upends the commonsense notice/presumption framework that has evolved from years of practical application.” It has certified conflict with Perez.
For more information, see the opinion here.
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For more information, see the opinion here.
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January 4, 2024
In Patios West One Condominium Association, Inc. v. American Coastal Insurance Company, No. 3D22-1895 (Fla. 3d DCA Jan 3, 2024), the Third District Court of Appeal (DCA) reversed and remanded a trial court’s order denying an insured’s motion to compel appraisal on the grounds that the insured’s notice of supplemental or reopened claim was legally insufficient since it failed to incorporate an estimate for damages. In reversing the order, the Third DCA explained that neither section 627.70132, Florida Statute, nor the insurer’s policy language expressly require an insured to submit any such estimate with its notice of a supplemental or reopened claim. It further held the facts in Goldberg v. Universal Property and Casualty Insurance Company, 302 So. 3d 919 (Fla. 4th DCA 2020), were distinguishable, explaining the Goldberg requirement that an estimate be submitted with a notice of supplemental or reopened claim is nothing more than dicta, and to the extent that this was the holding in Goldberg, it ignores the plain language of section 627.70132
For more information, see the opinion here.
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For more information, see the opinion here.
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October 19, 2023
We are thrilled to announce that Marlene DeTour, one of our regional managers, has been honored with the CFCALA Presidents' Council Award for Professionalism. This accolade stands as a testament to Marlene's dedication and proficiency in legal administration, and we take great pride in having her as a vital part of our team.
Please join us in extending our heartfelt congratulations to her!
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October 11, 2023
In Citizens Property Insurance Corporation v. Salazar, No. 3D20-0367 (Fla. 3d DCA Oct. 4, 2023), the Third District Court of Appeal reversed a final judgment entered against Citizens and held that the trial court erred in denying Citizens’ motion to limit damages to the actual cash value (“ACV”) of directly-damaged property. The claim arose from a kitchen sink leak. Citizens calculated and paid the ACV as required under Florida Statute 627.7011(3)(a). The insured completed repairs for an amount less than the estimated ACV and never provided Citizens with receipts showing the completion of those repairs. Instead, she submitted an estimate over eight times higher than Citizens’ original estimate, including matching costs, which are not considered ACV-related damages. On appeal, the Third District agreed with Citizens, remanding the case for a new trial and explaining that the admission of the homeowner’s estimate into evidence at trial was improper since the homeowner had not proven her covered (ACV-related) damages exceeded the amount already paid by Citizens.
Read the full opinion here.
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October 5, 2023
Jonathan Aihie of our Miami office, joined NAAIA Florida in the Step Out Walk Event in Fort Lauderdale to raise money and awareness to support the American Diabetes Association and to celebrate National Hispanic Heritage Month. NAAIA Florida raised over $5,000.00 to support the ADA and the NAAIA Florida Scholarship. We are proud of Jonathan and his efforts to support this important cause.
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September 25, 2023
In Universal Property & Casualty Insurance Co. v. Navlen, 4D2022-1590, the Fourth District reversed the trial court’s order denying Universal’s motion to strike the insureds’ expert witness and remanded for a new trial, holding that the expert’s reliance on experience and personal knowledge to form his opinion didn’t pass muster under the Daubert standard codified by Section 90.702, Florida Statutes. The case arose out of the insureds’ claim for wind damage to their roof, which Universal concluded fell below the policy deductible. Before trial, Universal moved to exclude the insured’s expert he testified at deposition that he did not inspect the insured’s roof before it was replaced, formed opinions based on inspecting neighboring roofs, took no position about the percentage of the roof that was damaged, relied on wind speed measurements taken 17 miles from the property, based his opinion on “Benchmark” data that was not included in his report, and could not rule out other causes of the roof damage. The appellate court concluded the expert’s opinion didn’t satisfy Daubert because the insureds did not offer any independent corroboration that the “Benchmark” data, which the expert claimed he used “all the time,” was sufficiently reliable. Similarly, the court faulted the expert for failing to conduct any calculation or use any other method to support his opinion that more than 25% of the roof was damaged, noting that he merely “guestimated” based on reviewing photos. The opinion reinforces the adage that while an expert may rely on experience and personal knowledge in forming an opinion, they must establish how the experience led to their conclusion, why the experience is a sufficient basis for the opinion, and how the experience was reliably applied to the facts.
Read the full opinion here.
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September 25, 2023
In T.I.O. Medical Intervention, LLC, a/a/o Mary Faison v. Liberty Mutual Fire Insurance Co., 4D2022-2130, the Fourth District affirmed the county court’s summary judgment for the insurer, holding that the insured’s Georgia auto policy did not provide Florida PIP coverage to a nonresident involved in an accident in the state. The policy stated it would provide at least the minimum amounts and types of coverage in other states with compulsory insurance laws requiring a nonresident to maintain insurance “whenever” the nonresident uses a vehicle in that state. In turn, Florida’s PIP statute requires nonresident owners or registrants to maintain PIP coverage for vehicles that have been physically present in the state for more than 90 of the preceding 365 days. The appellate court first noted that there was no evidence the insured was the owner of the vehicle, was driving the vehicle at the time of the accident, or that the vehicle had been in Florida for more than 90 of the preceding 365 days. Thus, Florida law did not require the insured to maintain PIP coverage. And, even if the evidence showed Florida’s PIP requirement was triggered, the policy still would not provide coverage, because Florida law only requires a nonresident to maintain PIP coverage under certain circumstances, not “whenever” they use a vehicle in the state. As is often the case, policy language is paramount when analyzing what coverage is available.
Read the full opiion here.
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September 25, 2023
In Stuart Roofing, Inc. v. Thomas, 4D2022-2580, the Fourth District reversed and remanded for entry of directed verdict in favor of the roofer on the homeowner’s claim under the Florida Deceptive and Unfair Trade Practices Act because the insured failed to establish the amount of actual damages caused by the roofer’s work, which is a necessary element of a FDUTPA claim. The homeowner hired Stuart Roofing to replace his roof, but refused to pay the final invoice because the roofer used subpar materials contrary to the parties’ contract. The roofer sued for breach of contract and the homeowner counterclaimed for violation of FDUTPA. After the jury awarded damages on the FDUTPA claim, the roofer moved for directed verdict arguing the homeowner failed to present evidence of his actual damages. The trial court denied the motion but the Fourth District reversed, holding actual damages under FDUTPA are the difference in market values of the product or service that was delivered versus what was promised. While the homeowner established what the roofer promised, he failed to establish the value of what was delivered, instead producing evidence of amounts paid for repairs. The court concluded that such amounts represent consequential damages, which are not recoverable under FDUTPA, and reversed the judgment for the homeowner on the FDUTPA claim.
Read the full opinion here.
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September 20, 2023
In Heritage Property & Casualty Insurance Company v. Wellington Place HOA, Inc., No. 4D2022-2749 (Fla. 4th DCA September 13, 2023), the Insureds claimed roof damage following Hurricane Irma. The Insurer provided coverage for the loss but did not settle or close the claim. The Insureds later sought payment for additional roof damage and damage to windows and doors. Following the Insurer’s failure to settle the claim, the Insureds filed suit and the trial court granted the Insureds’ motion to stay litigation and compel appraisal. On appeal, the Insurer argued that appraisal is not ripe, as the subsequently reported damage constituted a re-opened claim or supplemental claim for which coverage had yet to be determined. In affirming the trial court’s order, the Fourth DCA held that absent policy language requiring further coverage determinations, where an insurer admits a loss is covered and proceeds to hold the claim open for further adjustment, a dispute regarding additional or supplemental damage under the claim is one concerning the amount of loss which is ripe for appraisal.
Read the full opinion here.
Read the full opinion here.
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September 19, 2023
In Haratz, DDS, P.A. v. Dental Team of Atlantis, LLC, No. 4D2022-3228 (Fla. 4th DCA September 13, 2023), the Fourth District reversed the trial court’s order of dismissal with prejudice, holding that where a complaint generally alleges that all conditions precedent to bringing suit have been satisfied by the plaintiff or waived by the defendant, dismissal is improper if the defendant fails to refute the specific allegation in a motion to dismiss. In the underlying action, the trial court erred in granting dismissal, as factual issues regarding Plaintiff/Appellant’s compliance with conditions precedent remained due to the Appellee/Defendant’s failure to address the complaint’s waiver allegations in its motion to dismiss. Read the entire opinion here.
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August 16, 2023
The Third District Holds that the Question of Whether an Insured is Entitled to Coverage Under the Plain Language of a Policy Should Have Been Resolved on Directed Verdict.
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August 16, 2023
We are honored to be recognized as a Certified Age-Friendly Employer by the Age-Friendly Institute -- the nation’s only certification program that identifies organizations committed to being the best places to work for employees aged 50+.
As outlined by the Age-Friendly Institute, we are committed to: valuing employees based on proficiency, qualifications and contribution; maintaining policies, practices and programs supporting people age 50+; valuing employee knowledge, maturity, reliability and productivity and offering meaningful employment, development opportunities and competitive pay and benefits for employees 50+.
To learn more about available opportunities at KD, visit: www.kubickidraper.com/careers
To learn more about the Age-Friendly Institute, visit: https://institute.agefriendly.org/initiatives/certified-age-friendly-employer-program/
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As outlined by the Age-Friendly Institute, we are committed to: valuing employees based on proficiency, qualifications and contribution; maintaining policies, practices and programs supporting people age 50+; valuing employee knowledge, maturity, reliability and productivity and offering meaningful employment, development opportunities and competitive pay and benefits for employees 50+.
To learn more about available opportunities at KD, visit: www.kubickidraper.com/careers
To learn more about the Age-Friendly Institute, visit: https://institute.agefriendly.org/initiatives/certified-age-friendly-employer-program/
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July 3, 2023
In People’s Trust Ins Co v. Kidwell Group LLC, Case No. 4D22-1314 (Fla. 4th DCA Jun. 28, 2023), involving a hurricane damaged roof, the homeowner obtained an engineering report on cause and extent of damages in exchange for an assignment of benefits. After the insurer admitted a covered loss and settled, the homeowner repaired his roof and the report was not used in the project. The insurer then refused to pay the assignee’s invoice for the report, giving rise to the case.
On appeal, the Fourth DCA reversed, finding that the insurer’s motion for directed verdict should have been granted. It found that evidence presented at jury trial demonstrated that the engineering report was not a “cost to repair or replace” the roof under the policy’s loss settlement provision. Further, reversal was warranted based on erroneous jury instructions and verdict form. To read full opinion, click HERE.
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