Trial Verdicts and Results
On December 10, 2020, Founding Partner Jack Luks, Esq., and Junior Partner Allison Janowitz, Esq., prevailed on a Motion to Strike Plaintiff’s Pleadings based on Fraud on the Court in Gandy, Anthony v. Florida Mall. This case arose out of a trip and fall in the parking lot of Florida Mall on December 23, 2017. Plaintiff asserted that Florida Mall failed to maintain the parking lot in a reasonably safe condition, resulting in Plaintiff’s injuries to his right shoulder, right knee, and lumbar spine. Plaintiff claimed medical damages of about $100,000 as a result of the fall. Throughout the investigation of the claim, the Defense found multiple surgeries on Plaintiff’s right knee that were not disclosed during deposition or discovery. Further, Plaintiff failed to disclose two subsequent incidents where he was admitted to the hospital complaining of pain in his right shoulder.
The Court found that the Plaintiff’s misrepresentations regarding the extent of his injuries, the limitations that had previously been attributed to other injuries, as well as failing to disclose the surgeries and post-accident falls, were intentional and that the misrepresentations were a scheme to mislead the Court. Accordingly, the Court granted the Motion for Dismissal based upon Fraud on the Court. Read more
Construction Defect Partner David Rosinsky, Esq., and Junior Partner Raul Flores, Esq., obtained successful risk transfer in a crane accident with serious personal injuries. In the matter styled Cecchi v. Beyel Brothers Crane and Rigging of South Florida, Plaintiff fell 20-feet when a suspended 5,680 lb steel eye beam struck the scissor lift he was standing on. He suffered a fracture of his left hip and pelvis, requiring multiple surgeries, and resulting in a significant workers' compensation lien. Plaintiff sued our clients, the crane company and crane operator, for gross negligence in the operation of the crane that hoisted the eye beam. Based on an indemnification provision in the crane rental agreement with Plaintiff’s employer, which included the rental of the crane and the lending of the crane operator, we served a tender request to Plaintiff’s employer for the defense and indemnification of our clients. After the employer failed to serve a response, a third-party complaint was filed against the employer for contractual indemnification and breach of contract on the duty to defend. The employer subsequently accepted our tender request and ultimately settled with Plaintiff with zero contribution from our clients. Read more
Senior Associate Dustan Lorimer, Esq., obtained a dismissal in the matter styled Michael Kirk and Jordana Kirk, Individually and as “next friends” on behalf of Dominic Kirk and Payton Kirk v. Dana Construction, Inc., et. al. The lawsuit was filed on May 5, 2020, with allegations of construction defects that led to water intrusion, consequential mold growth, and ultimately Plaintiffs’ resulting personal injury claims arising from mold exposure. In support of the construction defect claims, Plaintiffs attached two expert reports to the Complaint concluding that the alleged water intrusion was primarily caused by excessive cracks in the exterior concrete block walls. However, the Insured’s, Dana Construction, Inc., work included certain flatwork on the sidewalk and driveway, as well as final framing punch-out work. Therefore, the causal connection between the Insured’s work and claimed damages was questionable, at best.
Despite several requests for dismissal, Plaintiffs’ Counsel declined to dismiss any parties because at the time, only limited written discovery was completed and initial documents were exchanged. No depositions were conducted and no expert opinions were finalized. Even so, a Motion for Sanctions coupled with a Motion for Summary Judgment was prepared to extract the Insured. To that end, an affidavit was completed by the Insured attesting to the fact that its work did not result in the damages complained of. Additionally, the Insured prepared and filed an affidavit indicating that the performance of its work did not cause or contribute to Plaintiffs’ alleged injuries. Under clearly established precedent, the burden then shifted to Plaintiffs to come forth with counter-evidence sufficient to reveal a genuine issue of material fact. Failing to do this and persuaded by our argument, Plaintiffs’ Counsel dismissed the claims against the Insured with prejudice early in this complex construction defect case, with minimal discovery completed. Read More.
Tallahassee Associate Tabitha Jackson, Esq., recently triumphed in a matter styled Micah Thompson v. The Board of Trustees for the Florida State University, et al., a Leon County suit brought by a former arrestee. Plaintiff brought a three-count suit against the FSU police for an arrest for driving under the influence. Specifically, the Counts included False Arrest, False Imprisonment, and Malicious Prosecution. Plaintiff argued that because the charges ended in a Nolle Prosequi, an entitlement to damages arose. Defendant argued in turn that not only was probable cause present during the arrest, as Plaintiff was speeding, failed the field sobriety test, and had an open bottle of vodka in his car, but also that FSU, as well as all officers involved, were all cloaked with immunity under Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 919 (Fla. 1985) and §768.28, Fla. Stat. The day before the hearing on Defendant’s Motion to Dismiss, Plaintiff’s counsel Voluntarily Dismissed the complaint with prejudice. Read more
Junior Partner Matthew Wendler, Esq., obtained summary judgment in matter styled Acquavella v. Ft. Lauderdale Jet Center, LLC, et al. Our client was retained to cut out a 529 square-foot excavation into which a flight-simulator plane would be installed. Fifteen days after our client completed its scope of work and left the job site, the plaintiff sustained serious injuries when he fell 30 feet from the aerial lift he was operating near the excavation. Pursuant to Slavin v. Kay and its progeny, we argued that our client owed no duty to Plaintiff. Following a March 2, 2021 special-set hearing, the Court entered summary judgment in our client’s favor. Read more
Junior Partner Karma Hall, Esq., and Junior Partner Justin Schwerling, Esq., obtained a Voluntary Dismissal With Prejudice in a First Party Breach of Contract Action brought by an Assignee water restoration company, under an Assignment by the named insured. In the case, styled Express Damage Restoration, LLC A/A/O Ivan Williams, v. Citizens Property Insurance Corporation, Plaintiff contended that services provided under the assignment of benefits were covered. Defendant filed a Motion for Final Summary Judgment, arguing that Plaintiff lacked evidence to meet its burden of proof on the Policy’s peril created opening provision. Rather than proceed on the merits of the Motion for Final Summary Judgment, Plaintiff voluntarily dismissed with prejudice its claim for breach of contract. Read more
Senior Associate Lauren Wages, Esq., obtained a Voluntary Dismissal with Prejudice in a matter styled Xpress Restoration Inc. a/a/o Yleana Ferrera v. Citizens. We filed a motion for summary judgment based on the pre-suit payment of the $3,000 reasonable emergency measures limit under the policy for accidental discharge or overflow of water from within the plumbing system. Plaintiff dismissed the lawsuit with prejudice on the eve of our hearing on the motion for summary judgment as Plaintiff was unable to provide any summary judgment evidence showing that the limit was inapplicable. Read more
Associate Estefania Negrette, Esq., Junior Partner Lisa Taylor, Esq., and Managing Partner William Peterfriend, Esq., obtained a dismissal in a First-Party Property matter styled Island Roofing & Restoration, LLC a/a/o Timothy and Kathleen Burke v. United Property & Casualty Insurance Company. The matter arose from a homeowner’s claim for damage from Hurricane Irma. Plaintiff, via a purported assignment of benefits obtained from the insureds, sought to recover insurance proceeds in excess of $165,000, including the cost for a full roof replacement. The lawsuit was filed by Plaintiff in May 2019, and after several years of contentious litigation, the matter was set to commence trial in February 2021. Prior to trial, Plaintiffs withdrew their experts. In preparation for trial, Defendant moved to exclude lay opinion testimony, hearsay testimony regarding the alleged damages, and testimony regarding previously unreported damages. In response, Plaintiff filed a voluntary dismissal on the eve of trial. Read more
Associate Brittany Ehrenman, Esq., Managing Partner William Peterfriend, Esq., and Senior Partner James Sparkman, Esq., obtained a dismissal in a First-Party Property matter styled Island Roofing & Restoration, LLC a/a/o Betty Hoffman v. United Property & Casualty Insurance Company. The matter arose from a homeowner’s claim for damage allegedly from Hurricane Irma. Plaintiff, via a purported electronically signed assignment of benefits obtained from the Insured, sought to recover insurance proceeds in excess of $168,000, including the cost for a full roof replacement. The lawsuit was filed by Plaintiff in May 2019, and after several years of litigation, the matter was set to begin trial in March 2021. After taking the Insured’s deposition, it became clear that the Insured did not sign the assignment of benefits. Defendant prepared a Motion for Summary Judgment to argue that Plaintiff had no standing to bring the lawsuit. Just three weeks before trial, Plaintiff attempted to correct their standing issue and filed an Emergency Motion to Amend their Complaint. In preparation for trial, Defendant moved to present evidence of Plaintiff and Insured’s non-compliance with policy conditions and to exclude hearsay testimony regarding the alleged damages and lay opinion testimony. Following an eleventh hour emergency motion by opposing counsel to withdraw from the case, Plaintiff filed a voluntary dismissal. Read more
Jacksonville Managing Partner, Todd Springer, Esq., and Appellate Partner Daniel Weinger, Esq., obtained a favorable result when the court granted Defendant, MOR PPM’s Motion for Final Summary Judgment on November 24, 2020, in the matter styled Malcolm Fabre v. MOR PPM, Inc. in the Circuit Court of Putnam County. Plaintiff filed suit alleging that he slipped and fell on a liquid substance in the administrative building at the Seminole Electric Cooperative power plant. MOR PPM provided many services at the plant including housekeeping services pursuant to a contract. As a result of the accident Plaintiff suffered a C6-C7 fracture requiring surgery, concussion, broken temporal bone, back and neck pain with multiple injections, headaches, and vertigo/balance issues with multiple ongoing blackouts. Plaintiff’s medical expenses and past lost wages totaled approximately $750,000. At the hearing, Mr. Springer persuaded the court that Plaintiff failed to meet his burden of proof that the Defendant had either actual or constructive notice of any hazardous condition in the administration building pursuant to Florida Statute §768.0755. Further, the contract between the Seminole Electric Cooperative and MOR PPM did not create a duty for MOR PPM to continually monitor the floors of the administration building for spills or other foreign substances. Finally, Mr. Springer successfully argued that allegations of negligent maintenance, supervision, inspection and general mode of operation are irrelevant as such claims in transient foreign substance cases have been abolished. Read more
In matter styled Jesus Marisol Gamarra v. Citizens Property Insurance Corporation, Junior Partners Jeremy Fischler, Esq., and Matthew Wendler, Esq., convinced Plaintiff and the Property Law Advocates (formerly The Strems Law Firm), to settle a roof damage claim for $500.00, inclusive of attorney’s fees and costs, after nearly four (4) years of litigation. The matter involved an allegation that the Plaintiff suffered wind damage at her Broward County property in February, 2017. After the claim was inspected by a field adjuster, it was determined that there was no wind damage to the property, and the claim was denied. The Strems Law Firm immediately filed suit, and to avoid summary judgment retained an engineer to claim that there was wind damage to the roof. Plaintiff’s water mitigation company also retained an expert to assert that there was wind damage to the roof. Plaintiff testified, as most Insureds do, that she noticed damage to her property and contacted the appropriate people to assist her with the claim. However, after diligently uncovering that Plaintiff withheld pertinent information in the policy application and during litigation, we persuaded Plaintiff to dismiss the claim for nominal damages. Read more
Key West Managing Partner, Jessalea Shettle, Esq., Senior Partner John Bringardner, and Appellate Partner Daniel Weinger, Esq., obtained Summary Judgment in a slip and fall case, entitled Cheryl Elmore and James Elmore v. Defendant Store just three days before the case was set to go to trial in Gainesville, Florida. Plaintiff filed suit alleging that she slipped and fell on an unknown substance in the café area of the Defendant’s store. As a result of the incident, the Plaintiff required knee surgery and incurred over $100,000.00 in medical bills. At the hearing, Ms. Shettle convinced the Court the Plaintiff had not met her burden of proof that the Defendant had either actual or constructive notice of any hazardous condition on the café floor pursuant to Florida Statute §768.0755. The Court ruled, as a matter of law, that the Defendant was not liable for any injuries suffered by the Plaintiff. A proposal for settlement was filed early on in this case, which has allowed the client the opportunity to recover approximately 70% of the total defense costs for this matter. Read more
Tallahassee Managing Partner Dale Paleschic, Senior Managing Appellate Partner Daniel Weinger, and Senior Associate Alec Masson recently prevailed in a precedent setting appeal in the First District Court of Appeal in Hamblen v. Pilot Travel Centers, LLC, Case No. 1D19-1613 (Fla. 1st DCA February 26, 2021). The appeal turned on the resolution of an issue of first impression involving an interpretation of section 768.24 of Florida’s Wrongful Death Act. That statute provides that “[a] survivor's death before final judgment shall limit the survivor's recovery to lost support and services to the date of his or her death.”
The underlying wrongful death case was brought by the father as the sole survivor of his deceased daughter, who died in an automobile accident. At trial he sought recovery for pain and suffering but not for lost support and services. The jury returned a net verdict of $1,700,000.00 after assigning the substantial majority of fault on two non-party Fabre Defendants. Thereafter, the trial court entered “Final Judgment”. A timely motion for new trial was filed and ultimately denied by the trial court. Shortly after Defendant’s appeal had commenced, it was discovered that the decedent’s father had passed away while Defendant’s motion for new trial was still pending.
We filed a motion to set aside the final judgment under Florida Rule of Civil Procedure 1.540(b), arguing that although the trial court originally entered a “Final Judgment”, the judgment was not truly “final” until such time as the trial court ruled on the timely filed motion for new trial. Because the decedent’s father passed away while the motion for new trial was still pending, his death occurred before “final judgment” and, under section 768.24, his recovery was limited to lost support and services to the date of the decedent’s death. In addition to making statutory interpretation arguments, Defendant argued that its position was consistent with the underlying “philosophy of the [Wrongful Death] Act [which] is to afford recovery [of mental pain and suffering damages to] the living rather than the dead.” Fla. Clarklift, Inc. v. Reutimann, 323 So. 2d 640, 641 (Fla. 2d DCA 1975). The trial court agreed, set aside the final judgment and, because there was no claim for lost support and services, entered a new final judgment in the amount of $0. Read more
Admitted Liability; $173,000 2-level Cervical Disk Replacement; $618,000 Life Care Plan; Jury Defense Verdict on December 3, 2020.
Partners Chris Moore, Esq., (Stuart) and Jim Sparkman, Esq., (Boca Raton) tried a Post-Covid case to defense verdict in a rear-end accident case. The trial represented the first Post-Covid civil trial in the 19th Judicial Circuit. Before trial, we admitted liability on behalf of the defendants and vigorously defended causation.
Plaintiff called 3 treating medical providers (Dr. Stuart Krost, Dr. Harold Bach and Dr. Michael Hennings) and retained and called a neuro-radiologist (Dr. Eric Pfeiffer) to testify the accident was the cause of plaintiff’s injuries and surgery. Plaintiff incurred over $173,000 in medical bills, stemming primarily from a 2 level cervical disk replacement. In addition, the Plaintiff obtained a life care plan by Dr. Stuart Krost for future medicals in excess of $618,000. Plaintiff contended that he essentially never had prior neck problems and that the few prior medical visits he had with neck pain years prior were temporary, far less severe and he had not treated for more than 2 years prior to the subject DOA.
The defense focused on the property damage photographs and used a mechanical engineer to explain to the jury the low forces involved in the subject incident. In addition, the defense used board certified surgeon Dr. Gaetano Scuderi to opine that image studies did not support any recent injury to the spine from the subject accident, but showed long standing, chronic degenerative changes. The defense expert explained to the jury how the prior disc problems would not heal themselves, but would grow worse over time and lead to the need for the actual disc replacement surgery that occurred in this case. The defense also vigorously challenged plaintiff’s treating physicians on their billing and ownership interest in Ambulatory Surgery Center of Boca Raton, which was allegedly not disclosed to the plaintiff in violation of Florida Law. The defense was able to get a special instruction on Section 456.052, Florida Statutes, which requires surgeons to disclose financial interests that they may have in facilities, such as a surgery center. Read more
In defense of these claims, our firm conducted a thorough and aggressive investigation and learned of the facts that had not been made public, and found additional evidence that supported the actions taken by our client. In fact, we found witnesses and ocean images that established the boys had been seen just prior to and during the storm just off the coast, that the Coast Guard had been contacted and that the boat was then seen in the ocean images overturned and with no signs of life—all before our client was even aware the boys had not timely checked in. The firm’s client was not in custody or control of the boys that day, and he was working at his office so he had no information about the storm.
Ultimately, we filed a summary judgment motion based primarily on the total lack of evidence that our client breached any duty of care. The Order granted summary judgment on behalf of our client and found that his actions did not increase the risk of harm, and that he committed no breach of any duty of care. The case was later amicably resolved.
The summary judgment order in our client’s favor is vindication for the actions of a parent, whose concern and attempt to find his son was not wrong, nor actionable. In the words of the well-reasoned order, “The Defendant went looking for his son and for his son’s companion, Perry. This simple, and understandable act, does not give rise to liability based on the undertaker doctrine.” We add that his actions and determined efforts to search undaunted for weeks should be praised and emulated. Read more
PIP Partner Jairo Lanao, Esq., obtained dismissal in the matter styled Jorge Perez v. United Automobile Insurance Co. The lawsuit was filed in 2012 on behalf of United Auto’s named insured, Jorge Perez, for an auto accident on February 24, 2011, in which he was driving his wife’s vehicle. After receiving treatment for his injuries at a chiropractor and medical doctor, United Auto denied payment of his medical expenses on the grounds that his wife’s vehicle was not insured by United Auto, but by Travelers Insurance. Thus, it fell under an exclusion clause of the policy which precluded coverage of a claim occurring in a vehicle owned by any of the named insured spouses but not listed on the policy. The Plaintiff filed a claim for a declaratory judgment, seeking to have the court declare that at a minimum, the two insurers, United Auto and Travelers, should pay “pro rata” or, alternatively, United Auto should be liable as the husband was its named insured and, as such, United could not deny coverage as to his own spouse’s vehicle.The United Auto policy, just like the Travelers policy, contained a general definition of a “named insured and the spouse if a resident of the named insured”. United Auto’s motion for summary judgment called attention to the fact that both the United Auto and Travelers policies contained the same definition of a named insured and their spouses, as well as the exclusion clause pertaining to a vehicle owned by a spouse but not listed on the policy. Mr. Lanao, on behalf of United, served a motion for sanctions supported by case law from several courts of appeal tracking similar policy language and holdings of no right of recovery. Persuaded by Mr. Lanao’s arguments, Plaintiff’s counsel was forced to dismiss the case within the 21-day safe harbor period and prior to the hearing on the still pending motion for summary judgment. Read more
Partner Jonah Kaplan, Esq., recently obtained full Summary Judgment in a First-Party Property matter styled Timothy and Dorothy Maxwelll v. Centauri. The matter stemmed from a homeowner’s claim for water damage from a plumbing loss. Plaintiffs were seeking in excess of $200,000. Prior to this lawsuit, Centauri issued payment in full in the amount of $10,000 to the Plaintiffs for the alleged loss based on a Limited Water Damage Coverage Endorsement. The Court found that as a matter of law, there is no ambiguity in the Policy and Plaintiffs are only owed $10,000. The Policy contained a Water Damage Exclusion Endorsement, which the Court found to exclude all of the direct and indirect damages related to the plumbing loss. The Limited Water Damage Coverage Endorsement (CSH FL LWD 08 14) only provides for $10,000 in direct damages, but does not in any manner, affect the exclusion of the indirect damages referenced in the Water Damage Exclusion Endorsement. The Court further found there is no coverage under the Policy for damages for tear out and replacement for any part of Plaintiffs’ home to repair the failed plumbing system by virtue of the Water Damage Exclusion Endorsement (CSH FL WDE 03 10 16). Thus, the Policy capped all of the Plaintiffs’ direct and indirect damages (including but not limited to tear out and replacement and loss of use) for their alleged claim to $10,000. The Court found that the Plaintiffs were only entitled to recover $10,000 for direct physical damages as a result of the alleged loss pursuant to the Limited Water Damage Coverage Endorsement. Read more
Martindale-Hubbell and martindale.com are registered trademarks, Martindale-Hubbell Peer Review Ratings is a trademark and Lawyers.com is a service mark of Reed Elsevier Properties Inc., used under license. AV, BV and CV are registered certification marks and AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc. Copyright 2009 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
by tdburns, llc. - website designer, ft. lauderdale, fl