October, 2017    


Attorney Spotlight - Robert May!

Robert May manages Groelle & Salmon’s subrogation department from the firm’s Tampa office location. Mr. May practices in all Florida courts and in Federal Court, and handles subrogation cases outside of Florida, including in Texas where he is also licensed, and up the east coast to New York, either with local co-counsel or with pro hac vice admission. Robert was a sole practitioner before joining the firm in 2010, and was named a partner in 2015.  Robert devotes 95% of his legal practice to representing insurers in subrogation cases, and has personally recovered in excess of $21 million for his insurance clients over the years. Mr. May is a member of NASP (National Association of Subrogation Professionals). The subrogation team is the actually largest individual litigation team in the firm, comprised of lawyers, adjusters, a paralegal, and legal assistants who all exclusively are engaged in subrogation. 

Robert May obtained his Bachelor of Arts degree in Political Science from the University of Georgia, and his Juris Doctor from  Samford University’s Cumberland School of Law in Birmingham, AL. While attending law school, Robert was a member of the American Journal of Trial Advocacy Law Review; and he interned with the City of Bessemer, AL district attorney’s office, and with the Honorable Virginia E. Hopkins, US District Court for Northern District of Alabama, South Division.

Robert has extensive litigation and first-chair trial experience in all aspects of subrogation disputes, and has significant experience with resolution of subrogation actions in alternative dispute resolution fora.  His practice necessarily focuses on complex construction defect and product defect litigation; but also includes many other areas such as insurance agent E&O claims, tort claims against the state and federal government, automobile liability claims, recovery of mistaken payments, misrepresentations in real estate transactions, asset seizure; as well as appellate work. He has presented oral argument at the Fourth District Court of Appeals in construction litigation regarding duties owed by builders to subsequent/remote purchasers of homes.

Robert implemented the firm’s FNOL (first notice of loss) review program with insurer clients, which involves his team reviewing all reported losses to participating insurers from inception of the reported claims. His subrogation team then stays directly involved through the life-cycle of the claim through trial, if necessary, to protect the carrier’s subrogation interests, partnering with hand-selected experts necessary to pursue the subrogation recovery.

Groelle & Salmon’s subrogation team currently handles all aspects of subrogation for over a dozen commercial and residential insurers, both in and outside of Florida. Many of those insurers allow the subrogation team electronic access to their claim system, from “read-only” to the ability to insert or annotate claim notes and tasks for adjusters, and upload and download documents on a claim. The subrogation team is capable of learning an insurer’s claim system quickly and efficiently, and has experience with Time Matters, Exzeo, Waterstreet, FileBound, Symbility, Advanced Claims, and Insurer claims, Click Claims, and other programs, to facilitate and maximize subrogation recovery for an insurer. 

Robert May is also an active presenter at educational seminars and training classes in the claims arena and at seminars, and participates and offers related claims training internally for insurance companies.

Originally from Atlanta, Robert has called Tampa, Florida his home since 2006.  He is an avid scuba diver, spear fisherman, fitness enthusiast, and enjoys pretty much any activity having to do with the water.  Robert 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, or just to introduce yourself!

Robert May, Esq.
Tampa Office

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Slayton Being Whittled Away

In Siegel v. Tower Hill Signature Insurance Co. No. 3D16-1861, 2017 Fla.App. LEXIS 12424 (3d DCA Aug. 30, 2017), the Third District Court of Appeal declined to follow Slayton v. Universal Prop. & Cas. Ins. Co., 103 So. 3d 934 (Fla. 5th DCA 2012), and reversed a lower court’s entry of two summary judgment orders in favor of Tower Hill, finding that genuine issues of fact existed that precluded summary judgment.

The Tower Hill policy in Siegel had  a “loss settlement” provision which Tower Hill argued was identical to the “loss settlement” provision in Slayton, and that as a consequence, its pre-suit payment of the RCV amount it determined by  its adjuster’s estimate was consistent with its policy obligations.  Tower Hill’s payment decision letter communicated that the payment did not necessarily constitute a full and final settlement of the Seigels’ claim and that the Siegels could submit supplemental claims for any damages discovered in the reconstruction and repair of the insured property.

The Siegels’ policy had an endorsement that was not present in the policy addressed in Slayton. The endorsement required Tower Hill to “initially pay at least the ‘actual cash value’ of the insured loss, less any applicable deductible. . .”    The Third District Court noted that such endorsement was in compliance with Florida Statutes, section 627.7011(3)(a), that set a minimum amount for initial payments made pursuant to replacement cost homeowners policies to “initially pay at least the actual cash value of the insured loss, less any applicable deductible.”   This statutory minimum initial payment issue, which was not addressed in Slayton, was a key to the departure of the appellate court in Siegel from Slayton.    “Were it not for this endorsement, the loss settlement provision cited above in Slayton and in the Seigels’ policy, standing alone, would violate the initial payment requirement in section 627.7011, because the current version requires the insurer to pay ‘at least the actual cash value’ as opposed to the lower of either the limit of liability, the replacement cost or the amount actually spent to repair or replace the damaged building.

The Third District Court of Appeal also rejected Tower Hill’s argument that it complied with the initial payment requirements endorsement of the policy and F.S. section 627.7011 because it paid the replacement cost amount of its adjuster’s estimate, as opposed to a lower actual cash value amount that it could have paid.  The Appellate Court stated: “We reject this argument because even if Tower Hill did pay the replacement cost based upon its estimate, this amount would still be lower than the Siegels’ actual cash value estimate, and consequently, a genuine issue of fact would still exist as to actual cash value.”   The Court further reasoned: “We find no support in Slayton or any other authority Tower Hill cites for the proposition that the insurer is able to unilaterally determine, as a matter of law, actual cash value or replacement cost value.”

The Third District Court of Appeal also reversed the summary judgment (that had been granted by the trial court based upon the insureds’ alleged failure to comply with conditions precedent in failing to permit a plumbing re-inspection, pre-suit), where the summary judgment motion supporting affidavit was based upon letters from Tower Hill to the Siegels citing to repeated attempts to schedule a re-inspection, without providing record support for the actual making of the requests or the Seigels’ refusal to provide the inspection.  This genuine issue of fact precluded summary judgment based upon the conditions precedent defense of Tower Hill.

The holding in Siegel has already been followed by another Third District Court of Appeal decision in Milhomme v. Tower Hill Signature Ins. Co.,  No. 3D16-2089, 2017 Fla.App. LEXIS 13322 (3d DCA Sept. 20, 2017) and appears to reflect a growing trend to recede from Slayton.   In a similar factual situation as presented in Siegel, the District Court of Appeal in Milhomme reversed a summary judgment that had been granted in favor of Tower Hill and cited to its reasons and explanation in Siegel for the reversal. 

In Milhomme, Tower Hill had paid the higher RCV value of its adjuster’s estimate (as opposed to a lower potential ACV payment), and its claim decision letter (as in Seigel) remained open for “supplemental claims.”   In reversing summary judgment, the Appellate Court noted that a comparison of the Tower Hill’s adjuster’s estimate to the Milhommes’ public adjuster’s “detailed, line-item estimate” reflected a disagreement regarding actual cash value and the “appropriate scope,” differences which created fact issues that precluded summary judgment. The Milhomme Appellate Court also noted:  “The Milhommes’ claim and the adjusted loss amount prepared by Mr. Quintero [the public adjuster] was not a ‘supplemental claim’, or one for ‘damages discovered in the covered reconstruction and repair’ of the property. The Milhommes’ claim addressed the original casualty event and the amounts contended to be necessary to repair and restore the direct physical loss to the covered property.”   Therefore, it appears that an insurer’s payment decision letter which remains “open” for “supplemental claims” will not insulate an insurer from suit where fact issues over scope of repairs or the actual cash value amount are created pre-suit by differences between the insurer’s adjuster’s estimate and an insured’s representative’s estimate.

Ralph Leemis, Esq.
Orlando Office

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Latest Fifth DCA Decision Involving a Sinkhole Claim Expresses the Importance of Representations Made During Appellate Oral Arguments

The Fifth District Court of Appeal added yet another opinion in the hopes of reducing the longstanding contention in sinkhole litigation.  In Ringelman v. Citizens Prop. Ins. Co., 2017 Fla. App. LEXIS 12567 (Fla. 5th DCA, September 1, 2017), the insured reported a sinkhole claim that he purportedly discovered in June 2011.  The policy in question had a sinkhole loss provision that substantively mirrored the language of Section 627.707, Florida Statutes.

After completing its investigation, Citizens accepted coverage for the insured’s claim, advising the insured that it would pay approximately $200,000.00 towards stabilization once he forwarded a signed subsurface remediation contract to Citizens.  The insured disagreed with Citizens’ valuation of his claim, and after pre-suit negotiations were unsuccessful, the insured sued Citizens for breach of contract.  At trial, the jury determined that Citizens breached the policy and calculated that the insured’s total stabilization damages equaled $445,000.00.

After trial, Citizens successfully argued before the trial court that the verdict should be reduced to the policy limits of $225,900.00 after accounting for the deductible and previous payments.  The trial court also agreed with Citizens’ proposed final judgment, which included the following pertinent language:

The Plaintiff must use the net proceeds from the remitted monetary final judgment, after consideration of the reasonable attorney’s fees and reasonable litigation costs, to repair the sinkhole-damaged property; unless, Defendant pursuant to the subject policy, chooses to exceed the policy limits in the repair of the property.

The insured appealed this ruling, arguing that he was placed in a “precarious position” when the trial court required him to repair his property while simultaneously having to adhere to a judgment limitation equaling approximately half of the costs that the jury determined.  The Fifth District ultimately agreed with the insured.  Specifically, it adopted the Second District Court of Appeal’s rationale it most recently rendered in a number of cases, finding that a trial court cannot prohibit an insurer from enforcing statutory and contractual provisions by withholding insurance proceeds until the insured has “enter[ed] into a contract for the performance of building stabilization or foundation repairs.”  Additionally, the Fifth District relied on Citizens’ counsel’s statements during oral argument that, upon receipt of a signed stabilization contract, Citizens would pay towards the necessary remediation costs, even if the amount exceeded the $225,900.00 policy limit.  Consequently, the Fifth District affirmed the final judgment relative to the necessity for the insured to submit a signed stabilization contract but remanded with instructions that payment towards the insured’s repairs would not be capped at $225,900.00.

Citizens, as Florida’s governmental insurer of last resort, has (with a few exceptions) maintained the same position over the last few years: to pay towards all necessary sinkhole-related repairs, regardless of the policy limit.  What makes this case unique, however, is the fact that the Fifth District expressly relied on representations made during oral argument that led to the decision it rendered.

David Terry, Esq.
Orlando Office

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Insurer’s Motion for Entitlement to Fees Denied Due to Lack of Good Faith and Procedural Issues

In South Florida Diagnostic Group (a/a/o Guillermo Ariel) v. United Automobile Insurance Company, Case No. 14-19804 COCE 53, Broward County Judge Robert W. Lee denied an insurer’s motion for entitlement to attorney’s fees following a jury verdict because the Defendant failed to properly serve its proposal for settlement and failed to make the proposal in good faith.

After the jury returned a verdict in favor of the insurer, it moved for entitlement to fees as the prevailing party. There was no dispute that the Plaintiff received the proposal for settlement and refused to accept it.  However, Plaintiff contended that the Notice failed to strictly comply with the service requirements in Rules 1.442 and 2.516(b) by failing to properly serve the Proposal by e-mail. Further, Plaintiff claimed that the Proposal was not made in good faith at the time the offer was made by the Defendant.

The Court held that Defendant’s failure to properly serve the Proposal for Settlement by e-mail, despite the undisputed fact that Plaintiff timely received the Proposal and failed to accept it, must result in the denial of the motion.  Wheaton v. Wheaton, 42 Fla. L. Weekly D411b (Fla. 3d DCA 2017); Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015); and Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014).

Additionally, the Court agreed with Plaintiff’s counsel that the Proposal was not made in good faith. The Court, citing State Farm Mutual Automobile Ins. Co. v. Sharkey, 928 So.2d 1263, 1264 (Fla. 4th DCA 2006), held that, while “nominal” offers can be upheld if made in good faith, such offers must be assessed in the context of the time that the Defendant made the offer. As held by the Court in Sharkey, although offers are “not suspect merely because they are nominal,” this requires the trial court to consider “all the surrounding circumstances when the offer was made” to determine whether the nominal offer bears a reasonable relationship to the amount of damages or realistic assessment of liability. Here, the proposal was filed for a nominal amount of $500 inclusive of attorney’s fees, was filed about five months after the insurer’s initial filing of a Motion for Enlargement of Time to respond to the Complaint, and six months before the Defendant filed its Answer and Affirmative Defenses.  Despite the Defendant’s successful trial verdict, the Court determined that at the time of the offer, the Defendant’s likelihood of success was “at best…no more than 50-50.” Therefore, the Court held that Defendant did not have a “realistic reasonable foundation” to believe that a nominal Proposal was viable.

Parties filing Proposals for Settlement, particularly for nominal amounts, should take care to gauge the facts and circumstances of the litigation at the time the offer is made to ensure that those proposals have a greater chance of being upheld as having been made in good faith.

Darryl Boutin, Esq.
West Palm Beach - East Office


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Florida’s 5th DCA Finds No Limit To Filing CRN While Demand for Appraisal is Pending

The Fifth District Court of Appeal recently decided Landers v. State Farm Florida Ins. Co., 42 Fla. L. Weekly D1768b (5th DCA August 11, 2017), in which it considered whether, when a policy allows for appraisal, an insured must wait until that process is concluded before filing a civil remedy notice (CRN) under F.S. Section 624.155. In Landers, the parties’ experts agreed on the existence of a sinkhole at the insured property, but did not agree on whether underpinning was necessary for proper stabilization.  State Farm demanded appraisal under the policy to resolve the disagreement, but the appraisal was stayed after Landers agreed to proceed with the State Farm expert’s recommended repair plan. After repairs were completed, State Farm reiterated its request for appraisal and Landers hired a new expert. While Landers’ expert report was pending, Landers filed a CRN, demanding immediate tender of the remaining dwelling policy limits.

Landers then filed suit against State Farm for breach of contract, and State Farm again sought appraisal. The court compelled appraisal, which decision was affirmed on appeal. The appraisal process determined the amount of loss exceeded the policy limits. Landers then brought a bad faith suit. State Farm moved for summary judgment, asserting that when the CRN was filed there was no contractual amount due under the contract, as the appraisal process was not concluded.

The 5th DCA reasoned that the plain language of section 624.155(3)(d) did not limit when a CRN could be filed, nor require a final coverage determination before filing. The Landers Court relied on Vest v. Travelers Ins. Co., 753 So. 2d 1270 (Fla. 2000),  wherein the Florida Supreme Court held there is no statutory requirement to preclude an insured from filing a CRN before there is a determination of liability or damages. The Landers Court also noted that nothing in the statute or case law precludes filing of a CRN while there was a pending appraisal demand; and it pointed out that preventing an insured from filing a CRN before coverage and liability was established would frustrate the purpose of the statute and further delay the claims process, and discourage insurers from acting timely on claims.

While appraisal can be an expeditious means of resolving disputes over the amount of a covered loss, insurers be mindful that employing the appraisal process does not preclude a policyholder from filing a CRN, and with the recent holding in Cammarata v. State Farm, 152 So. 3d 606 (Fla. 4th DCA 2014), and Barton v. Capitol Preferred Ins. Co., 41 Fla. L. Weekly D2736 (5th DCA December 9, 2016), there can be significant disadvantages to unilaterally invoked appraisal as an alternative dispute resolution. Under those decisions, an appraisal award against the insurer is a finding of liability and damage that is obtained by means other than trial and verdict, which include an appraisal award, agreed settlement, arbitration or stipulation.

Billie Bellamy, Esq.
Orlando Office

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A Blueprint for An Aggressive Defense

In Leida Perez & Miguel Suarez v. Homeowners Choice Property & Casualty Ins. Co. (Hillsborough Circuit Court Case No.: 2016-CA-010243), Judge Gregory Holder entered an Order dismissing the Plaintiff’s Complaint without prejudice and sanctioned Plaintiffs’ counsel, awarding Homeowners Choice the attorney fees and costs incurred by Homeowners Choice to defend the Plaintiffs’ claim.

Homeowners Choice requested recorded statements of the Insureds in the claim investigation, and Ms. Perez submitted to recorded statement, but the insured’s attorney refused to allow Homeowners Choice to take the recorded statement of Mr. Perez, asserting Ms. Perez had already given a recorded statement. 

After Plaintiffs filed suit against Homeowners Choice, the Court abated the lawsuit to allow the insured to comply with post-loss conditions, including submitting to examination under oath.  The examinations under oath of both Insureds were coordinated with their counsel, Strems Law Firm, but after business hours the evening before the examinations under oath, Strems Law Firm unilaterally canceled them.   

A defense Motion to Lift the Abatement and Motion for Sanctions was filed for Homeowners Choice, with the intent of pursuing a dispositive motion on the issue of breach of contract, for the Insureds failure to comply with the post-loss conditions. Judge Holder entered an Order lifting the abatement, and granted Homeowners Choice’s Motion for Sanctions and dismissed the Plaintiffs’ lawsuit. 

Although Judge Holder’s dismissal of the Plaintiffs’ Complaint is without prejudice, the Order entered by the Court on October 16, 2017 requires that Plaintiffs 1) satisfy post-loss conditions precedent under the policy; 2) allows Homeowners Choice 90 days after Plaintiffs’ full compliance with contractual conditions to make a coverage determination; and 3) requires Strems Law Firm issue payment to Homeowners Choice for the any sanctions to be awarded by the Court, to be determined by evidentiary hearing before the Plaintiffs can re-file the lawsuit, if they choose to do so.  As a result, Homeowners Choice is able to complete its claim investigation and make a coverage determination in the insured Plaintiffs’ claim, which it was not previously afforded the opportunity to do.

Importantly, Homeowners Choice can recover the attorney fees and costs incurred as a result of the conduct by the insureds and their attorney in the premature filing of suit.  The situation where insureds and their attorneys that report claims are blatantly ignoring an Insurer’s pre-suit requests to comply with post loss conditions occurs frequently in Florida, and when defense counsel challenge noncompliance by defensive motion, Plaintiffs then request the Court simply abate the suit to allow compliance with the policy conditions to remedy any breach of the policy, often without any further deterrent for such conduct. 

In this case, however, Homeowners Choice was able to take advantage of the aggressive litigation strategy to convince the Court to lift the abatement with the Plaintiffs’ blatant failure to comply with the policy conditions.  We thank Homeowners Choice for its continued trust in the judgment of the attorneys at Groelle & Salmon to aggressively represent its interests.  Jim Goodnow and Bill Mitchell of Groelle & Salmon’s Tampa office represented Homeowners Choice in this matter.                                        

James Goodnow, Esq.
Tampa Office

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-Attorney Spotlight!

-Slayton Being Whittled Away

-Latest Fifth DCA Decision Involving a Sinkhole Claim Expresses the Importance of Representations Made During Appellate Oral Arguments

-Insurer’s Motion for Entitlement to Fees Denied Due to Lack of Good Faith and Procedural Issues

-Florida’s 5th DCA Finds No Limit To Filing CRN While Demand for Appraisal is Pending

-A Blueprint for An Aggressive Defense


Groelle & Salmon, P.A. 

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