July, 2017    
   

   
 

Attorney Spotlight - Patrick Carleton!

Patrick Carleton practices from the firm’s West Palm Beach office, concentrating his practice on first and third party insurance coverage and litigation, construction litigation, and appellate work.

Patrick obtained a Bachelor’s degree in Economics, with a minor in Finance, from the University of Michigan - Dearborn, where he was a DJ and program director for the student-run college radio station.

Though working full time for an information technology systems integration and consulting firm, Patrick graduated magna cum laude from the University of Detroit Mercy School of Law, where he served on the Moot Court Board of Directors, and on Law Review and had published an article on internet regulation and the Commerce Clause of the U.S. Constitution.  He earned a Dean’s Scholarship for Outstanding Academic Achievement, and was inducted into the Frank Murphy Honor Society. He received Book/CALI awards in tax, sales, and Constitutional law; and was a student member of the American Inns of Court, a professional society that promotes excellence in legal practice and ethics.

His successes in litigation and coverage practice are numerous, especially in complex coverage issues that have resulted in favorable resolutions to our clients. In one particular matter, after judgment was entered against the insurer in the trial court on Plaintiff’s motion for summary judgment exposing the insurer to hundreds of thousands of dollars in damages, the insurer asked us to review the ruling for appellate consideration. Patrick reviewed deposition testimony, summary judgment briefs, Plaintiffs’ admissions, expert reports, and other information, and he outlined a basis for appeal, highlighting evidentiary support to challenge the trial court ruling, and filed a successful appeal resulting in overturning the trial court ruling and entry of judgment for the insurer on the coverage issue.

Patrick’s litigation experience encompasses a significant amount of construction litigation, and includes a matter on which he obtained a jury verdict in favor of an asphalt paving contractor that had paved the roadways for a condominium complex. When the roadways experienced catastrophic and widespread failure, the developer sued the paving contractor alleging defective materials and workmanship. However, Patrick’s scrutiny of the daily logs, engineering reports and other project documentation revealed improper preparation and construction of the sub-grade by other contractors, and allowed him to prove the failure of the roadways was not the result of any act or failure of the paving subcontractor; and the jury found for the paving contractor, awarding it over $300,000 in damages, which also entitled it to recover its litigation costs and attorneys’ fees!

Originally from Michigan, Patrick currently resides in South Palm Beach, Florida where he is on the Board of Directors of his condominium association. He has been a frequent volunteer for Habitat for Humanity and in his church; and he enjoys scuba diving, skiing and golf.  Patrick is always open to general questions on legal matters in his areas of practice, so don’t hesitate to give him a call with issues he can assist you with!

 

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Proposals for Settlement Are Enforceable in Small Claims Court

In Korah v. Lakeland Toyota Scion, Inc. and Clive Hunter, (County Court, 10th Judicial Circuit Polk County, Small Claims Div., Case No. 2014SC-004377), plaintiff filed a claim involving a vehicle transaction. The defendants served a Proposal for Settlement (“PFS”) pursuant to Florida Statute §768.79 and Florida Rules of Civil Procedure 1.442.  After a jury trial, judgment was entered for defendants, and plaintiff took nothing.

Defendants filed a Motion for Attorney Fees and Costs to recover their fees as allowed by the Proposal for Settlement. The Court noted Procedural Rule 1.442 did not apply in a small claims action, and denied the attorney fee recovery. However, on appellate review, the Korah Court found that a party may avail themselves of Florida Statutes §768.79, which provides for the award of attorney fees to a party when a case on a policy of insurance or other contract, regardless of the applicability of Rule 1.442 in a small claims action.

Plaintiff also argued that a Proposal for Settlement of $100.00 was not reasonable, but the Korah court noted that the burden was on the offeree to demonstrate the offer was not reasonable, and in the present action, defendants had consistently contended they had no liability. The Korah Court found nothing in the record to support a finding that defendants’ proposal was not made in good faith, and plaintiff failed to prove the absence of good faith.  Accordingly, the Court found that defendants were entitled to an award of reasonable attorney fees and costs incurred from the date of the filing of the PFS, and reserved jurisdiction to determine a reasonable award.


Patrick Carleton, Esq.
West Palm Beach - West Office

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9th Judicial Circuit Court Dismisses First Party Property Claim Litigation With Prejudice For Failure of Plaintiff’s Attorneys To Comply With Court Orders and Rules of Civil Procedure

On April 17, 2017, a trial court judge in the 9th Judicial Circuit Court dismissed Plaintiff Javier Santos’ lawsuit against his homeowner’s insurer, Florida Family Insurance Company (“FFIC”) for violation of Rules of Civil Procedure and Court Orders by his attorneys from the Strems Law Firm (“Strems”).  Santos filed suit against FFIC for denying coverage for his property damage claim on the basis of it being a pre-existing damage.  Mr. Santos’ action was dismissed with prejudice, and FFIC was awarded fees and costs by the trial court for the Strems Law Firm’s’ failure to comply with several Court Orders, and according to the trial Court, for violating the Florida Rules of Civil Procedure on at least 12 occasions.

The Court applied the six factors articulated in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993) that must be determined for the sanction of dismissal of the litigation to be appropriate.  The six factors are:

1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.  Id.

The Santos Court found that Strems violated the Order on FFIC’s Motion for Sanctions, the Order Preliminary to Hearing on Motion to Tax Costs and Award Attorney’s Fees, and the Uniform Order Setting the Case for Jury Trial; Pre-Trial Conference and Requiring Pre-Trial Matters to be Completed on numerous occasions, without providing any justification for their failures to comply.

In the case, the trial Court had previously sanctioned Strems for misconduct. The trial Court also made a finding that Mr. Santos was personally involved in the non-compliance and disobedience, as he had failed to produce specific documents in response to FFIC’s multiple requests for the documents.  Because the insurer was compelled to file seven Motions to Compel to address the failure of the Plaintiff to respond to the discovery requests, the trial Court found that FFIC was prejudiced by the burdensome effort and undue expense, and that the Court had wasted its time and resources on the various hearings and issuing rulings in the matter.  The Court made the finding that Mr. Santos and the Strems firm had demonstrated “a deliberate and contumacious disregard” of the Court’s authority, and granted the sanction of the dismissal of the case with prejudice.

 


Samantha Poznak, Esq.
West Palm Beach - East Office

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Trial Court in the 11th Judicial Circuit Court Dismisses Property Claims Litigation Case with Prejudice for Fraud on the Court

Recently, the 11th Judicial Circuit Court dismissed an action brought against the Plaintiff’s homeowner’s insurer, SafePoint Insurance Company (“SafePoint”) with prejudice when the Court was convinced that there was fraud in the claim.  During the litigation, it was revealed that the Plaintiffs’ water mitigation contractor, All Insurance Restorations Services (“AIRS”) had communicated with the insured Plaintiffs almost two weeks prior to the reported date of the loss.  Insureds Ivy and Glasford Robinson reported an April 9, 2015, kitchen plumbing loss to their insurer, SafePoint.  After conducting its claim investigation, SafePoint responded to the claim and denied coverage for the claim.  The Robinsons filed a breach of contract suit against SafePoint through the Strems Law Firm (“Strems”).

During the discovery in the litigation, the Robinsons provided materially inconsistent testimony regarding the facts of the loss surrounding the occurrence and discovery of the loss.  The insured Plaintiffs each testified to a different chronology of events and activity related to the loss and claim, and it was determined they gave false testimony regarding work that had been performed at the insured property.  Of significance, both Plaintiffs were consistent in their testimony that they had first communicated with and retained the water mitigation contractor, All Insurance Restoration Services, after the reported April 9, 2015 loss occurred.  However, discovery of the Plaintiffs’ telephone records revealed that AIRS communicated with the Plaintiffs 10 days before the reported loss date.

The Court concluded that the only reason that AIRS would have communicated with the Plaintiffs before the reported loss date would be to “contrive false water damage claims in order to fraudulently recover money” under the Plaintiffs’ policy with SafePoint. On that determination, the trial Court made the finding that dismissal of the action was warranted, and that SafePoint was entitled to recover its attorneys’ fees and costs incurred in having to defend a frivolous lawsuit, including pre-suit costs.


Samantha Poznak, Esq.
West Palm Beach - East Office

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The Duty to Warn an Uninvited Licensee or Trespasser of a Concealed Danger Known to the Owner Arises Only When the Owner Discovers the Entrant's Presence on the Property

The Florida Fourth District Court of Appeals, in Delores Arp v. Waterway East Association Inc., et al., recently affirmed a trial court grant of summary judgment for the owner of a shopping center in an action by a pedestrian that was injured while on the property of the shopping center. 

The plaintiff was injured while walking over a pathway of ‘paver stones’ located in a utility easement on the property owned and operated by W.E. Association. The plaintiff, Ms. Arp, stepped on a cracked paver stone that was allegedly “a little loose” causing her to roll her ankle and fall, while Ms. Arp and a companion were walking back to her residence following a dinner cruise in Delray Beach.

The plaintiff elected to take a shortcut through the shopping center parking lot, which compelled her to step over a raised curb at the end of the parking lot and walk through a grassy area, over a short path of paver stones next to a storm pump station, through more grass, and around a guardrail. This portion of the property was subject to a perpetual utility easement in favor of the City of Delray Beach for installation and maintenance of utilities, and did not have a “No Trespassing” sign at the time of the incident. The plaintiff testified that she regularly saw other people use the shortcut. On the evening of the accident, she did not visit any of the businesses in the shopping center and her only reason for taking the shortcut was to shorten the time of getting to her residence. The plaintiff filed a negligence action against W.E. Association asserting she was an implied invitee on the property by virtue of the creation of the pathway, and that she was injured as a result of the property owner’s negligent maintenance of the pathway. 

W.E. Association moved for summary judgment arguing that: (1) it did not breach any duty to the plaintiff, who was either a trespasser or an uninvited licensee, and (2) that it had no duty to maintain an area covered by an exclusive utility easement granted to the City.  The trial court granted the motion for summary judgment, holding that the plaintiff “was at best a licensee” and that W.E. Association's “only duty was not to harm her willfully or wantonly.” 

On appeal, the plaintiff argued that the lower court erred in granting summary judgment because she was an implied invitee on the property, asserting the paver stones were open to the public and were used by the public as a convenient pathway between the shopping center and nearby residences. As an alternative, she argued the factual issues regarding her status on the property created a question for the jury.  

However, the appellate court did not agree, and affirmed the trial court’s summary judgment on a finding that the plaintiff's status on the property did not present a fact question. The Court reasoned that a reasonable jury could not conclude from the record that the easement area was designed as a “convenient path” to be used by pedestrians to reach the shopping center and that the area plainly was not intended for use by visitors or as a walkway to and from the shopping center parking lot. The Court also held that the plaintiff was on (that area of) the property without an express or reasonably implied invitation and that the duty to warn an uninvited licensee or trespasser of a concealed danger known to the owner arises only if the owner becomes aware of the entrant's presence on the property.


Jerrad Patterson, Esq.
West Palm Beach - West Office

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Tendering Payment in Response to Civil Remedy Notice after Suit is Filed Presents Risk of Fee Liability

The Appellate Division of the Sixth Judicial Circuit in and for Pinellas County recently affirmed a trial court’s entry of a confession of judgment ruling against an insurer, and awarded attorney fees to an insured, illustrating the difficulty that insurers face in settling disputed claims after suit is filed. In Continental Casualty Co. v. Jason Webster, 24 Fla. L. Weekly Supp. 902a (Fla. 6th Cir. Oct. 28, 2016) (per curium), the Sixth Circuit Appellate Division reviewed a County Court order entering confessed judgment in favor of the insured, denying the insurer’s motion for summary judgment, and granting the insured’s motion for entitlement to attorney fees.

In the Webster case, the insured’s boat was damaged while insured by Continental. Continental initially evaluated the damage as only cosmetic, and issued payment for minor repairs. The parties subsequently had a joint inspection of the boat which determined the damage would result in the boat being a constructive total loss, and Continental paid out the total hull policy limit, less the amount of prior payment, to the insured. However, the insured disputed the limits reduction by the prior payment, asserting the initial payment spent on repairs was wasted, and demanded the full hull policy limits without reduction of prior payment. The insured filed a Civil Remedy Notice of Insurer Violations (“CRN”) with the Florida Department of Financial Services and, nine days later, filed suit against Continental seeking a declaration of rights under the insurance policy. In response, Continental tendered payment to the insured for the additional disputed amount, plus interest, within the 60-day cure period of the CRN, and filed a motion for summary judgment seeking a ruling that the declaratory action was moot by its payment of full policy limits. The insured filed his motion for summary judgment and motion for entitlement to attorney’s fees pursuant to F.S. §627.428. The County Court judge denied Continental’s motion for summary judgment, entered a confessed judgment in favor of the insured, and granted the insured’s motion for entitlement to fees.

The Sixth Circuit Appellate Division affirmed the County Court’s actions, expressly declining to read an “election of remedies” application under the bad faith statute. The Appellate Court held that, while curing the complaint within the 60-day cure payment may preclude a bad faith action, it did not relieve the insurer of the obligation to the insured after the legal action was filed.

The Sixth Circuit relied on the recent Florida Supreme Court opinion Johnson v. Omega Ins. Co., 200 So. 3d 1207 (Fla. 2016). It declined to limit the confession of judgment doctrine only to cases where there was wrongful behavior by the insurer that forced its insured to sue. The Sixth Circuit, following Johnson, held that an insurance company’s payment of a previously denied claim following the initiation of a lawsuit, but prior to issuance of a final judgment, constitutes the “functional equivalent” of a confession of judgment, and it affirmed the insured’s entitlement to attorney fees based on a confession of judgment. The Webster decision illustrates the risks an insurer can face in paying claims after litigation has been filed, when no general release is available or part of the settlement to relieve the insurer of the additional claims for atttorney fees or other claimed damages in litigation. As always, insurance defense litigators must remain mindful of the exposure to attorney’s fees when resolving disputes after an insured has filed suit, especially when a CRN has been filed, in considering how to conclude the claim.

Headshot of Michael Raudebaugh
Michael J. Raudebaugh, Esq.
West Palm Beach - West Office

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Palm Beach Legal Aid 29th Annual Pro Bono Gala Evening Recognizes Outstanding Pro Bono Advocates!

Robert Groelle at his desk

The Palm Beach County legal community on June 3rd honored 11 attorneys, 3 law firms, a retired judge/mediator and a charitable organization. The “Paris”-themed Pro Bono Recognition Evening & Auction benefiting Legal Aid Society of Palm Beach County was held at the Palm Beach County Convention Center in West Palm Beach, Florida.  Included in those recognized for providing pro bono legal services was the firm’s own Robert Groelle.  Mr. Groelle received the Real Property Law Award for his assistance in representing an elderly woman in the community who had lost her residence from flooding associated with storms. After receiving a housing grant to rebuild her home, she was taken advantage of by the contractor she engaged.  Mr. Groelle expressed his appreciation for the honor, both to the Palm Beach legal community, the Legal Aid Society, and the associates of the firm that assisted in providing the selfless efforts to help those in need of legal aid that would not otherwise obtain it.

 

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We're Here For You in Vero!

We want to encourage insurers and adjusters that work claims or deal with litigation along Florida’s Treasure Coast – from St. Lucie through Indian River and Brevard Counties – to be aware that we have a fully staffed firm office in Vero Beach,  Florida (Indian River County). Attorneys that work from our Vero Beach office reside in various of the Treasure Coast residential areas, including in St. Lucie County, within a couple miles of the county courthouse that handles small claims; in Brevard County very close to the courthouse; and that the Indian River County courthouse is only about 3 miles from our firm office in Vero Beach!  We will always have the staff and attorneys you need for assistance available!

 

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-Attorney Spotlight!

-Proposals for Settlement Are Enforceable in Small Claims Court

-9th Judicial Circuit Court Dismisses First Party Property Claim Litigation With Prejudice For Failure of Plaintiff’s Attorneys To Comply With Court Orders and Rules of Civil Procedure

-Trial Court in the 11th Judicial Circuit Court Dismisses Property Claims Litigation Case with Prejudice for Fraud on the Court

-The Duty to Warn an Uninvited Licensee or Trespasser of a Concealed Danger Known to the Owner Arises Only When the Owner Discovers the Entrant's Presence on the Property

-Tendering Payment in Response to Civil Remedy Notice after Suit is Filed Presents Risk of Fee Liability

-Palm Beach Legal Aid 29th Annual Pro Bono Gala Evening Recognizes Outstanding Pro Bono Advocates!

-We're Here For You in Vero!

 

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

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