April, 2017    
   

   
 

Welcome to New Partners!

Please join us in extending our congratulations to our firm partners Nishall Jairam and Robyn Feibusch in our West Palm Beach office, and Hazel Turner in our Tampa office! We are excited to have these experienced litigators become partners with the firm.

All three of these partners are already known to the firm clients for their commitment to client service and legal advocacy, and have demonstrated a tireless effort to effectively advocating our clients’ interests for many years. All of them are cognizant of the need to provide effective and economical case management and litigation defense to bring significant value to the matters our clients entrust to this firm, and to our client business relationships. It is their work ethic that allows each to stand out in the field of civil litigation defense, specializing in first party insurance coverage issues and litigation. Please do not hesitate to contact Nishall, Robyn, and/or Hazel with any issues or questions you may have related to first party insurance coverage practice, and experience the benefit they bring to our client relationships.

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Federal Court Questions Whether Appraisal Award Gives Rise to Bad Faith Claim

In Fox v. Starr Indem. & Liab. Co., the U.S. District Court for the Middle District of Florida considered whether an appraisal award under an insurance policy establishes the requisite “liability” necessary to bring a bad faith claim.

In Fox, the plaintiff suffered a fire loss to a property insured by the defendant. Due to a perceived delay in paying for the claim, Fox filed a Civil Remedy Notice. Subsequently, the parties participated in appraisal, and plaintiff was awarded $930,041.36, which was paid by defendant. Fox then brought suit alleging bad faith.

In granting the insurer’s Motion to Dismiss, the court determined that in order to state a claim for bad faith, a party first must succeed in a breach of contract action. Fox argued that pursuant to Cammarata v. State Farm Fla. Ins. Co., 152 So. 3d 606 (Fla. 4th DCA 2014), the appraisal award was sufficient to permit a cause of action for bad faith. The court disagreed, finding that Cammarata misapplied Florida law, which requires a finding of “liability” prior to a lawsuit for bad faith. The court held that “[r]ather than show a breach of contract, the payment of an appraisal award shows a defendant’s compliance with a contract.” As there was no prior finding that Starr breached the policy, the complaint for bad faith was dismissed.

While Cammarata is still binding in Florida state courts, the reasoning in Fox may be used by other appellate courts considering this issue. If another District Court of Appeals conflicts with Cammarata, the Florida Supreme Court would likely be asked to weigh in.

 


Andrew Labbe, Esq.
Boston Office

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Trial Court’s Discretion to Compel Appraisal Only Appropriate if Insured Complies with Post-Loss Obligations

In State Farm Insurance Company v. Jose R. Fernandez and Sandra Fernandez, the Third District Court of Appeals reversed a trial court’s decision to compel appraisal as the insureds did not comply with all their post-loss obligations.  This case is interesting because it demonstrates that while the trial court may have discretion to compel appraisal, courts only have jurisdiction to exercise that discretion when all the post-loss obligations by the insured have been met.

In this case, the insureds made a claim on October 28, 2005 with State Farm for damages to their home which occurred on October 24, 2005 due to Hurricane Wilma.  The insureds claimed that their property had damage to its “outdoor terrace lights, three outdoor ceiling fans, gutters, a crack on the inside of their swimming pool wall, some missing pool tiles, and water on the pool bathroom floor.” State farm investigated the claim in November, 2005 and advised the insureds through a letter that only the gutters and ceiling fan were within the policy’s coverage.  As the cost of repairs for those parts of the property would be less than the policy deductible, and State Farm maintained all other claimed damages were not covered, State Farm issued no payment to the insureds.

After nearly five years passed, the insureds’ public adjuster sent State Farm a demand for appraisal claiming Hurricane Wilma caused $142,733.81 in damages in April, 2010.  Such damages included the cost to repair or replace “the roof, outdoor ceiling fans, lights and ceramic tiles, the pool bathroom, the swimming pool and an exterior fence and ornamental iron fence.”  State Farm sent a letter to the insureds requesting a Sworn Statement in Proof of Loss, as required by the policy.  In May 2010, the insureds submitted a one-page Sworn Proof of Loss claiming $147,733.81 in dwelling damage with no documentation to support the claim.  An examination under oath of the insureds took place on February 1, 2011, but the insureds failed to provide documentation to support their claims.  As a result of their failure to submit documentation, State Farm denied coverage, and the insureds filed suit.

After filing suit, the insureds moved to compel appraisal and abate the action, which was granted by the trial court after an evidentiary hearing.  State Farm appealed the decision and the Third District Court of Appeal reversed. The Third District court held that “it is well-settled in Florida that all post-loss obligations must be satisfied before a trial court can exercise its discretion to compel appraisal.” The post-loss obligations that the insureds failed to comply with consisted of 1) giving immediate notice of the alleged additional damages to the property; 2) protecting the property from further damage; 3) keeping an accurate record of expenditures; 4) providing State Farm with requested documents to support their supplemental claim; and 4) failing to submit a sworn proof of loss within 60 days after the loss. As a result of these failures, the trial court lacked discretion to compel appraisal, and the matter was remanded to the trial court for further proceedings.


Joseph A. Nett, Esq.
Boston Office

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Fifth District Court of Appeal Holds That a Property Owner’s Duty to Maintain the Premises in a Safe Condition is Not Discharged When a Condition is Open and Obvious

In Trainor v. PNC Bank, et. al., Case No. 5D15-4536 (Fla. 5th DCA March 3, 2017), the plaintiff injured herself when she stepped into a pothole in a bank parking lot while attempting to reach the outdoor ATM.  Plaintiff sued the bank as well as the construction companies that were performing work in the parking lot, which necessitated that she take an alternate route to the ATM.  In her deposition, the plaintiff admitted that although she did not see the pothole before she stepped in it, there was nothing that prevented her from looking down and observing the pothole.

Accordingly, the defendants moved for summary judgment, arguing that their duty to the plaintiff was discharged under the obvious danger doctrine.  The trial court granted the motion, and the Fifth District Court of Appeal reversed.

In reaching its conclusion, the Fifth District noted that a person or entity in control of a property owes two separate duties to an invitee: “1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier.”  Id. (quoting Krol v. City of Orlando, 778 So. 2d 490, 492-93 (Fla. 5th DCA 2001)).  Thus, “while the open and obvious nature of a hazard may discharge a landowner’s or possessor’s duty to warn, it does not discharge the landowner’s or possessor’s duty to maintain the property in a reasonably safe condition.”  Id.

Rather, when a plaintiff alleges that there has been a breach of the duty to maintain the premises in a reasonably safe condition, there are generally issues of fact as to whether the condition was, in fact, dangerous, and if so, whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite being open and obvious.  Id.  Additionally, the obvious nature of the condition creates an issue of fact regarding the plaintiff’s own comparative negligence.  Id. (citing De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013)).  As such, the Fifth District concluded that when a plaintiff alleges a breach of both of the duties owed to an invitee, summary judgment based on the obvious danger doctrine is inappropriate.

 


Kelly Fantetti, Esq.
Tampa Office

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Third DCA Denies Certiorari Review of Abatement of Action Pending Completion of Repairs Under “Option to Repair” Policy Provision

The Florida Third District Court of Appeal recently denied insureds certiorari review of a trial court’s order abating their action for declaratory relief and breach of contract until the insurer has had an opportunity to exercise its option to repair under the policy. In Hernandez vs. Florida Peninsula Insurance  Company, the insureds filed a claim for water related damages. Florida Peninsula inspected the property and advised the insureds that it was exercising its option to repair the property. Florida Peninsula provided the insureds with the name of their selected contractor and two additional contractors which they could also chose from. The insureds were provided with a work authorization form, but refused to sign the form.

Approximately two months later, the insureds filed an action against Florida Peninsula asserting claims for breach of contract and declaratory relief. In response, Florida Peninsula filed a motion to abate or stay the action, asserting that any cause of action related to the claim was premature, because the repairs had not yet commenced due to the insureds’ failure to execute the work authorization form. The insureds asserted that they were in doubt as to their rights under the policy, and that the abatement of their action would effectively serve as dismissal of their action. At the hearing on the motion to abate, Florida Peninsula requested that the trial court abate the action and require the insureds to allow Florida Peninsula to make the repairs. The trial court granted the motion to abate and advised the insureds that they would “need to go through the process.” The insureds thereafter filed a petition for writ of certiorari seeking review of the trial court’s order.

On appeal, the insureds alleged irreparable harm in that abatement of their action amounted to dismissal of their complaint. The third District Court of Appeals disagreed with this characterization and denied the insureds’ petition for writ of certiorari. Specifically, the Court noted that Florida Peninsula’s counsel represented that the insureds could seek to lift the abatement after repairs were completed to dispute the scope of repairs or assert a failure to return the insured property to its pre-loss condition.  As Florida Peninsula agreed that the insureds were not precluded from continuing their suit after completion of repairs, the trial court’s order did not result in irreparable harm to the Insureds, and thereby failed to meet the threshold requirement for certiorari review.


Madelyn Rodriguez, Esq.
Miami Office

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Proposals for Settlement Served by E-mail Must Comply with Florida Rule of Judicial Administration 2.516

The Third District Court of Appeal recently affirmed a trial court’s ruling that proposals for settlement served by email must comply with the email service provisions of Florida Rule of Judicial Administration 2.516.

In Wheaton v. Wheaton, the appellant sought review of the trial court’s denial of her motion for attorney’s fees pursuant to a Proposal for Settlement, which the trial court denied because it did not comply with Florida Rule of Judicial Administration 2.516.

Rule 2.516 provides, in pertinent part:

  • Service: When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, . . . must be served in accordance with this rule on each party.
  • (1) Service by Electronic Mail (‘e-mail”). All documents required or permitted to be served on another party must be served by email, unless the parties otherwise stipulate or this rule otherwise provides.

(Emphasis added)

The Appellant argued that a Proposal for Settlement is neither a pleading nor a document filed in any court proceeding. Thus, she argued compliance with Rule 2.516 should only apply to a subsequent filing of a motion to enforce the Proposal.

The Third District Court of Appeals disagreed and reasoned that, while a Proposal for Settlement is not to be filed contemporaneously with its service, it should have been served by email because the Proposal is permitted to be served on another party—and the parties did not stipulate otherwise. Thus, the court ruled that Proposals for Settlement must comply  with Rule 2.516.

The Third DCA’s ruling is yet another requirement to keep in mind when using a PFS. Thus, practitioners must familiarize themselves not only with Florida Rule of Civil Procedure 1.442 and Section 768.79 Fla. Stat. (2015), but also with Florida Rule of Judicial Administration 2.516.

When serving a Proposal for Settlement via email, a party must:

  • Send an email to all addresses designated by the attorney or party and either:
    • attach a copy of the Proposal in PDF format; or
    • provide a link to the document on a website maintained by a clerk;
  • Ensure the subject line of the email says, in all caps: “SERVICE OF COURT DOCUMENT”, followed by the case number of the proceeding for which you are serving the documents;
  • Make sure the body of the email contains:
    • the court in which the proceeding is pending;
    • the case number;
    • the name of the initial party on each side;
    • the title of each document served with the email; and
    • the name and telephone number of the person required to serve the document;
  • Ensure the document is signed;
    • A signature may bear any of the “/s/,” “/s,” or “s/” formats;
  • Make certain that the email and attached documents does not exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court. If it does, the email and documents should be sent by separate emails, numbered sequentially in the subject line.


Dayana Echeverry, Esq.
Tampa Office

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Narrow Proposal for Settlement-Broad General Release

In the case of Costco Wholesale Corporation v. Elaine LLanio-Gonzalez and Luis Gonzalez, the Fourth District Court of Appeal recently reversed a 15th Judicial Circuit Court ruling regarding the validity of a proposal for settlement based on ambiguities contained within the attached general release. In the case, the defendant served proposals for settlement on both the plaintiffs involved. Neither of the plaintiffs accepted the proposals, and the Court subsequently granted summary judgment in favor of the Defendant. The Defendant then filed a motion to tax costs and attorney’s fees pursuant to its proposals for settlement. The Plaintiffs asserted in their response to the Defendant’s motion that the proposals were not made in “good faith”, the proposals were “improper”, and that the proposals were not in compliance with Florida Rule of Civil Procedure 1.442 because they did not properly state whether the proposal included attorneys’ fees. The trial Court denied the Defendant’s motion for attorney’s fees on grounds not raised by the plaintiffs, stating that the Defendant’s proposals for settlement were ambiguous and unenforceable because the proposal was narrowly tailored to the cause of action contained in the ongoing lawsuit but the release attached to the proposal was overly broad in that it related to claims and potential claims beyond the cause of action which was the subject of the lawsuit.

On Appeal the Fourth DCA disagreed with the trial court’s conclusion. Their analysis focused on whether the intention of the Defendant to obtain a release of liability for the cause of action associated with the present suit was made clear by the general release. The Court mentioned the release was sufficiently clear and definite to allow the Plaintiffs to make an informed decision, which is the current standard set forth by the Florida Supreme Court in State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). Additionally, the Court noted that specific provisions contained within the release which would be invalidated, did not render the release invalid because it was typical of other releases and sufficient informed the Plaintiff of the Defendant’s intentions. Accordingly, although it could be argued that the Defendant’s release was poorly drafted and contained ineffective boilerplate, the Fourth DCA ruling validated it and allowed the Defendant to recover their attorney’s fees.

It should be noted however, that validating a general release for purposes of enforcing a claim for fees pursuant to a proposal for settlement is quite a different ballgame from enforcing the actual terms of the release. If a general release is going to be reviewed, make sure you know what standard would be used and under what conditions it is to be reviewed.


William Mitchell, Esq.
Tampa Office

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-Welcome to New Partners!

-Federal Court Questions Whether Appraisal Award Gives Rise to Bad Faith Claim

-Trial Court’s Discretion to Compel Appraisal Only Appropriate if Insured Complies with Post-Loss Obligations

-Fifth District Court of Appeal Holds That a Property Owner’s Duty to Maintain the Premises in a Safe Condition is Not Discharged When a Condition is Open and Obvious

-Third DCA Denies Certiorari Review of Abatement of Action Pending Completion of Repairs Under “Option to Repair” Policy Provision

-Proposals for Settlement Served by E-mail Must Comply with Florida Rule of Judicial Administration 2.516

-Narrow Proposal for Settlement-Broad General Release

 

Groelle & Salmon, P.A. 
http://www.gspalaw.com/

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