Trial Verdicts and Results
On May 01, 2024 (Order entered May 10, 2024), Karma Hall, Miami Partner, obtained a final summary judgment in a first-party matter entitled Carleen Carthy v. Defendant Insurance Company. Plaintiff sued Defendant for breach of contract based on a denial of claim letter issued by Defendant Insurance Company citing the Policy’s exclusion for constant or repeated seepage or leakage of water provision.
Defendant argued that it presented evidence of excluded damage caused by constant or repeated seepage or leakage of water, over the course of months, with resultant damage in a non-hidden area of the Property. Defendant further argued that Plaintiff’s Response in Opposition lacked any admissible evidence opposition evidence creating a material fact as Plaintiff’s sworn deposition testimony makes clear she never witnessed any overflow or leaking of water on or about the date of loss, and relies entirely on what others have told her. Defendant argued one Affidavit submitted in opposition was inadmissible as the witness was previously stricken and that any deposition testimony made by Plaintiff regarding what she was told by other persons is inadmissible hearsay.
The Court agreed. Although Plaintiff argued Defendant failed to present evidence of excluded damage caused by constant or repeated seepage or leakage of water and that Defendant’s Corporate Representative’s Affidavit was inadmissible due to lack of personal knowledge, the Court found that the Field Adjuster’s Report was properly introduced as a business records via Defendant’s Corporate Representative’s Affidavit, as permitted by Florida Rule of Evidence 90.803(6), and that Florida’s 3d DCA, in Mesa v. Citizens, 358 So.3d 452 (Fla. 3d DCA 2023), expressly contemplated that a field adjuster’s report can be admissible as a business record. The Court held no admissible evidence was introduced by Plaintiff to dispute Defendant’s position that the damage is the result of constant or repeated seepage or leakage of water. Moreover, to the extent that Plaintiff’s deposition testimony is a recitation of Plaintiff’s understanding of events as told to her by others, such statements are inadmissible hearsay. Defendant’s Motion for Summary Judgment was granted. Post trial motions are pending. The defense is seeking fees pursuant to a PFS as well prevailing party costs. Read More.
Miami Senior Partner Anthony Perez and Tallahassee Associate Zuriel Denmark secured a dismissal with prejudice in the Leon County matter styled Gloria Gonzalez v. Defendant Insurance Company. Plaintiff filed suit alleging that Defendant breached the insurance contract by denying coverage for her claim for damage to the roof and interior of her property resulting from a windstorm. During mediation, Plaintiff was shown evidence of existing damage to her roof that directly contradicted the allegations asserted in this lawsuit. Plaintiff immediately dismissed the case with prejudice. Read More.
On December 6, 2024, Chair of Sexual Misconduct Unit, Elizabeth Jimenez, proves case alleging the rape of a minor on client’s property was fraudulent. Plaintiff went from a $2 million policy limit demand to agreeing to dismiss the case with prejudice in exchange for Defendants waiving their right to pursue attorneys’ fees and costs triggered by an expired nuisance value PFS and a 57.105 Motion for Sanctions. There was also a Motion to Dismiss/Strike Plaintiffs’ Complaint for Fraud Upon the Court and an Amended Motion for Summary Judgment pending to be heard.
Plaintiff alleged her 14-year old daughter was raped by a 16-year old boy in the pool area bathroom of an apartment complex our client owns and operates. Plaintiff claimed that as a result, her daughter had attempting suicide multiple times and suffered permanent and long term emotional and psychological damage that required residential treatment and lifelong care. Plaintiff alleged she had to pull her daughter out of school because of the damages sustained.
Through initiative and due diligence, we discovered Plaintiff and her minor daughter lied in responses to written discovery and in deposition about the minor’s relationship with the alleged assailant, prior and subsequent romantic relationships, ownership and use of a cell phone, social media accounts, her communications with the alleged assailant through her phone and social media accounts, the names and information of numerous potential key witnesses, how and when the alleged incident occurred, the relationship between Plaintiff and her minor daughter, the cause of the suicide attempts, and the real reason the minor was pulled out of school.
Plaintiff withheld any all information needed to specifically tailor any subpoena for cell phone or social media records by stating the minor didn’t have or use a cell phone, and did not have social media accounts within the year of the alleged rape. We were told there were no email addresses, phone numbers, or account names. Nothing existed. They objected to all our proposed subpoenas for the records stating there were no records and the subpoenas didn’t have the necessary information to make them specifically tailored. The Judge sustained the objections. However, we were able to prepare a specifically tailored subpoena to the School Board, requesting certain communications to and from the alleged minor victim. The School Board advised they had none, and after several weeks of calls, and explaining to them they should and how they could access them, they found 50,000+ of the alleged minor rape victim’s emails and sent it to us. The emails were in Spanish, but our team was able to read them all because we read, write, and speak Spanish. We discovered the minor falsely accused the alleged assailant, an ex-boyfriend, of rape for the following reasons:
- her mother found out she had numerous boyfriends, was involved in intimate physical relationships with them, and gave her an ultimatum, either she was raped or she was a “slut” and she didn’t want to see her again; and
- because her ex-boyfriend broke up with her after finding out she was cheating on him with other boys.
Notably, their relationship ended a month prior to the alleged date of rape but she continued to harass him and he had to threaten to report her to the school if she did not leave him alone. A month before the alleged date of rape, she had already moved on to another boyfriend.
We were able to obtain favorable testimony from one of the investigating Deputies, who had previously worked for DCF, and had substantial experience investigating sex crimes. Specifically, we elicited testimony about how he investigated hundreds of alleged rapes of minors where the alleged rape victims falsely accused ex-boyfriends of rape because they got caught by a parent and were afraid or they were upset an ex broke up with them or did something to them they weren’t happy with. Here, we had both. He also confirmed when the minor spoke to him, she acted like she didn’t know the alleged assailant and didn’t have a romantic relationship with him.
Additionally, during the minor’s deposition, we were able to pin her story down as to how the alleged assailant allegedly gained access to the pool area bathroom and were able to prove it was impossible to have occurred as she said. Specifically, the minor claimed the alleged assailant gained access to the pool area bathroom by walking through the property’s clubhouse, on a weekday morning, prior to school, and that they walked to school together after the rape and made it to class on time. Class started at 7am. A map showed the property was about 1 mile- 1.5 miles away from school. What she failed to consider was that the clubhouse did not open until 9am on weekdays, was locked, bolted, and protected by an alarm, and even residents do not have a key or code that would allow them access. We were also able to pull all her emails for the entire month of alleged incident, which showed she was on her computer, emailing with a different boyfriend and friends, every morning, during the time she alleged she was being raped on our property. She also never reported an alleged rape until her mother found out from her brother about all her relationships, 2 months after her breakup with the alleged assailant and 2 weeks after the alleged date of incident. That is when the ultimatum was given, and the mother called police. In fact, the CAD report noted the minor was not talking when the mother called police.
The emails also provided us with all her social media information, phone numbers for her phone, the alleged assailant, all her boyfriends and friends, and photos she took and sent. As a result, we were able to prepare specifically tailored subpoenas to obtain her cell phone records and responses to subpoenas served on the numerous social media providers, advising they did not have the content requested because too much time had passed and that only the account holder could access anything they saved through their account. This created a potential spoliation issue to use against Plaintiff. However, even more significant was the emails we obtained, wherein she is telling her new boyfriend to sign into her social media accounts and delete all photos, communications, and content regarding her ex-boyfriend and alleged assailant, because her mom took her phone and was going to kill her if she saw it.
The emails also showed that Plaintiff was beating the minor and leaving bruises on her that prevented her from going to school on numerous occasions because “..if [she] can’t get the alleged assailant arrested, [she] is a slut.” Notably, the police never arrested the alleged assailant.
The minor discussed wanting to kill herself because her mother doesn’t love her, she only loves her brother, has her as a maid, cooking, cleaning, and doing laundry. We were able to get background information during the deposition that Plaintiff came to the U.S. from Honduras with her son but left her minor daughter (the alleged victim) in Honduras. The minor explained she was teased often about not having a father and that her mother didn’t love her. Eventually, she came to the U.S. with coyotes by crossing the border and went on to live with her mother, who re-married. Her mother did not pull her out of school immediately after the alleged rape. She pulled her out of school 1 year later when Plaintiff had another baby with her new husband and had the minor daughter taking care of the newborn, cooking, cleaning, and doing housework. At that point, the minor had already been suspended numerous times from school for skipping class with boys.
Right after obtaining the emails, Plaintiff’s counsel withdrew from the case and Plaintiff was pro-se. She refused to dismiss the case and instead chose to retain another attorney by paying an hourly rate, to continue to pursue the fraudulent case. We picked the specific emails needed to prove the fraud and obtained certified translations so we could prepare our Motion for Fraud Upon the Court, 57.105 letter, 57.105 Motion for Sanctions, and Amended Motion for Summary Judgment. We attended a Court Ordered hybrid Mediation/Non-Binding Arbitration that resulted in Plaintiff’s agreement to dismiss the case with prejudice in exchange for Defendants’ waiver of their right to pursue attorneys’ fees and costs against Plaintiff triggered by the expired nuisance value PFS and a 57.105 Motion for Sanctions.Miami Appellate Partner Bonnie Sack secured an appellate victory in the Second District Court of Appeal in the matter styled Chastain. v. Imperial Lakes Estates Condominium Association, Inc. At the trial level, we obtained summary judgment on behalf of the condominium association based on workers’ compensation immunity. The plaintiff was allegedly injured while working for one of our subcontractors. The nuanced legal issue concerned whether the association itself was a contractor that could avail itself of worker’s compensation immunity as the statutory employer of the employees of its subcontractor. Plaintiff argued that the Association’s duty to maintain association property is a statutory duty and therefore the association could not be a statutory employer under 440.10. We argued that the Declaration of Association is a contract that obligates the Association to provide a service to the unit owners, in this case landscaping and irrigation. There is arguably a split on this issue between the Third and Fourth Districts, with the trial court, Judge Charles Sniffen, Circuit Court for Manatee County, finding that the association was the statutory employer. The Second District agreed, affirming without a written opinion. Additionally, the appellate court granted our Motion for Appellate Fees based on a rejected proposal for settlement.
Senior Associate Attorney William Dennis obtained a favorable result in a First-Party Property matter styled Dialys Cabello Gonzalez and Ainier Ramon Vidal Plasencia v. Defendant Insurance Company. Plaintiffs filed suit against Defendant Insurance Company for breach of contract. They specifically claimed that their bathroom and kitchen sinks were backing up, causing flooding/water damage. Defendant Insurance Company requested a recorded statement from the Plaintiffs, as well as other documents, but never received them. Defendant also hired a Professional Engineer, who opined that any damage to the bathroom and kitchen area was caused by wear and tear. The Plaintiffs sent an invoice for $22,207.67 as well as an estimate of damages for $117,698.41.
Defendant filed its Motion for Summary Judgment, arguing that the Plaintiffs failed to comply with their post loss duties, which indemnified Defendant from payment for this claim. Further, Defendant argued that any damage to the subject property was caused by wear and tear, which is not covered under the Plaintiffs’ insurance policy. The Court, and Honorable Judge Don T. Hall agreed with Defendant, and entered an Order for Final Summary Judgment in favor of the Defendant. The Plaintiffs rejected Defendant’s Proposal for Settlement, which means that they will be required to pay for Attorneys fees and costs incurred by Defendant.
Boca Raton Partner, David J. Pascuzzi, Esq., obtained summary judgment on a named peril policy Ian claim denied for no wind damage/no peril created opening in matter styled Ernesto Perez v. Defendant Insurance Company. Plaintiff alleged a breach of a property insurance policy based on the denial of a Hurricane Ian claim for no wind damage to the flat roof of the home. At his deposition, the insured admitted that before Ian, he had water damage to a closet ceiling that he did not repair but repaired bubbles that had formed on the flat roof. He reported the claim because there were new bubbles. Insurer moved for summary judgment arguing there was no evidence supporting any wind damage and that the claimed interior damage existed before Hurricane Ian. The insured submitted an engineer report adopted by affidavit indicating that the roof had sustained Hurricane Ian damage that caused a leak and interior water damage. The insurer moved to strike the affidavit and report as conclusory, barred by Daubert and based on improper stacking of inferences. The Court agreed striking the affidavit and entering summary judgment in favor of the insurer.
On September 13, 2024, Senior Partner Jerome Silverberg obtained summary judgments in favor of our insured physician and his employer in matter styled Plaintiff v. Wellington Regional Medical Center, et al. Plaintiff was expected to board total economic damages in excess of $25M. The matter involved a 46 year old female that had suffered a stroke and underwent an embolectomy and was recovering well with minimal deficits. Approximately one week later, her neurological status changed. A third year resident was called who ordered a CT Scan. However, a stroke alert was not called for four hours later. The patient requires full time care. Our doctor was allegedly charged with supervising the resident in the hospital’s residency program. Our doctor’s employer participated and assisted the hospital in the residency program and was obligated to provide qualified physicians to perform professional graduate medical education and supervisory services to the hospital’s residents. We were able to establish that our doctor was not on the schedule to supervise residents on the date in question and that the resident at no time sought supervision from our doctor or any other physician. We were also able to establish that the hospital’s residency program was created, developed and operated by the hospital and a Chief Academic Officer employed directly by the hospital having nothing to do with our physician’s employer.
On June 5, 2024, Senior Partner Jerome Silverberg was granted Dismissal with Prejudice in matter styled Plaintiff v. Joseph Ryan Grider, DDS, Juan Alberto, DDS, Clear Choice Dental Implant Centers, et al. The Plaintiff presented to Clear Choice with a history of prior jaw damage as a result of an injury that she had received years earlier. She had teeth missing and jaw damage. The Plaintiff sought to have a dental prothesis. The prosthodontist recommended a Zirconia DAO4 (“all on fours”) upper and lower arch prosthetic replacement. Pursuant to the prosthodontic plan, Dr. Grider, a Board Certified Oral and Maxillofacial Surgeon removed the patient’s remaining teeth and inserted the implants for placement of the prosthesis. The Plaintiff was dissatisfied with the fit and sued claiming damages. It was alleged that Dr. Grider removed too much bone when contouring the teeth extractions. Following the deposition of the Plaintiff’s expert and a Motion to Strike the expert for the failure of the Plaintiff to present a qualified expert pursuant to Fla. Stat. 766.102(5)(a), as well as the inability to present testimony of how much bone was removed or that the amount of bone removed was below the standard of care, the Plaintiff voluntarily dismissed the action with prejudice as against Dr. Grider. The case is proceeding against the prosthodontist.
On September 17, 2024, Senior Partner Jerome Silverberg was granted Dismissal without Prejudice in matter styled Plaintiff v. Dr. David Berkower, Dr. Ignacio Zebaleta and Ventre Medical Associates. The Plaintiff was a psychiatric patient that allegedly overdosed on medications prescribed. The Plaintiff served a Notice of Intent that was deficient due to the claimed failure of the Plaintiff to comply with the statutory pre-suit requirements pursuant to Fla. Stat. 766.1065 requiring the Plaintiff to include medical authorizations for release of Plaintiff’s medical records from health care providers as a part of the Notice of Intent. It was claimed that the Plaintiff’s Notice of Intent was deficient in a number of other respects. However, the Court dismissed the case on the failure to comply with Fla. Stat. 766.1065. The defense further asserted that the case law is clear that the Plaintiff cannot now cure the defects in the Notice of Intent as the Statute of Limitations has expired.
After a trial before a Magistrate on November 1, 2024, Boston Associate Cassian Harman obtained a Judgment for the Defendant, TransWaste, Inc. in the property matter styled Marjorie Normand v.TransWaste, Inc. The Plaintiff claimed Defendant negligently drove a tractor-trailer across her driveway while delivering a dumpster to her neighbor, causing significant damage. The Plaintiff subsequently claimed that she lost the ability to use her driveway and that it required total reconstruction. At trial, Plaintiff used photographic evidence, witness testimony, and police report to argue that the weight of the truck and the route the driver took during the delivery proved Defendant was liable for the damage. The Defense was able to use the photographic evidence to cross-examine the Plaintiff’s witness and elicit testimony that another trucking company removed a dumpster from the property prior to Defendant’s delivery. Further, Defendant was able to show that the tire tread prints on Plaintiff’s driveway were not the same as those on the tires used in Defendant’s trucks. Defense argued Plaintiff’s case was solely based upon speculation with no direct evidence of fault. On 11/5/2024, the Magistrate entered a Judgement in favor of the Defendant.
Dismissal With Prejudice After Plaintiff Fails to Provide Discovery
Stuart Senior Partner, Nora Bailey, Esq., and Associate, Zoe Nelson, Esq., secured a dismissal with prejudice in the lower court based on the Kozel factors and Plaintiff’s failure to respond to written discovery or to numerous court orders. The Plaintiff appealed, arguing that her voluntary dismissal, filed thirty minutes before the Court issued its ruling dismissing the case with prejudice, divested the Court of jurisdiction to enter said ruling. On appeal to the Fourth District, Ms. Bailey argued that the right of a party to dismiss their case voluntarily can be abridged where the opposing party has requested sanctions prior to the dismissal, and that Plaintiff was given adequate notice of the impending striking of her pleadings but nonetheless failed to comply with numerous court orders, such that the trial court did not abuse its discretion. The Fourth District agreed, issuing a per curiam affirmance of the lower court’s ruling.
Plaintiff, Fortification Testing, placed a tarp on the roof of Defendant’s insured’s property pursuant to an Assignment of Benefits (AOB). The underlying claim had been denied before services were performed by Fortification and before the AOB was signed. Defendant informed Fortification of the denial and declined to pay their invoice for tarp placement. Fortification filed suit, alleging to be the assignee of David Cooper, who was not Defendant’s insured. Further, the AOB was defective on several grounds. Defendant Insurance Company filed a Motion for Summary Judgment arguing that 1.) Plaintiff’s AOB was defective because it holds the insured liable for payments for work potentially not covered under the insurance policy in violation of Florida Statute 627.7152 et. seq.; 2.) the AOB did not contain a written, itemized, per-unit cost estimate of services to be performed, as required by Florida Statute 627.7152(2)(a)(5), which rendered the AOB void and unenforceable; and 3.) the AOB was not executed on behalf of Defendant’s insured and therefore Plaintiff lacked standing to enforce rights under the policy on behalf of Defendant’s insured.
Plaintiff filed a Response in Opposition to Defendant’s Motion for Summary Judgment and a hearing was scheduled. On the morning of the scheduled hearing, November 12, 2024, Plaintiff filed a Notice of Voluntary Dismissal without prejudice, and later converted the Dismissal to With Prejudice.
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