News & Events
Accolades: Scott Newman has been named to the Chair position of the Insurance and Reinsurance Committee of the International Association of Defense Counsel for the 2009-2010 calendar year.
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Accolades: Walter Latimer was recently honored as one of the “Top Ten Attorneys” by one of the nation’s largest insurance carriers. Walter specializes in toxic torts and complex litigation.
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Accolades: Robert E. Geisler was recently nominated and selected as a “TOP LAWYER” for the 2010 Edition of the South Florida Legal Guide. Bob’s nomination by his peers places him among the “best of the best” in one of the region’s most respected annual legal publications. Bob specializes in construction defect litigation.
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Upcoming Seminar: Jennifer A. Hoffman will be moderating and presenting during a panel discussion entitled “Loss Prevention and Security Update: New Exposures in Tough Economic Times” at DRI’s Strictly Retail Seminar on March 4 and 5, 2010, in Chicago, Illinois. The presentation will focus on challenges facing loss control personnel who are tasked with controlling losses inside retail locations. Liability trends and theories, security training, shoplifting apprehensions, hiring and retention issues, criminal acts by third parties and other pressing concerns for retailers will be discussed.
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Defense Verdict – Department Store Prevails: Representing a major national retailer, Howard Stone recently obtained a defense verdict in federal court in Miami. The plaintiff purportedly sustained multiple injuries in a 2002 trip and fall, and was seeking in excess of $1-million. During the ensuing years, she claimed she developed other injuries as a result of the trip and fall including urinary incontinence, chronic emotional distress and, perhaps the most traumatic sequella, that she severed the tips of the fingers on her right hand in a lawnmower incident due to the narcotic medications prescribed for the injuries received in the trip and fall. Plaintiff’s attorney asked the jury to award the plaintiff $1.2 million and, after a brief deliberation, the jury rendered a defense verdict.
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Defense Verdict-Brain Injury Case: Representing a national home improvement chain, Jennifer A. Hoffman recently obtained a defense verdict in a brain damage claim after a five day trial in Florida state court. Plaintiff, a truck driver, seeking $1.7-million, claimed that as he was helping unload products during the early morning hours, he was knocked from his flatbed trailer by a forklift being operated by the defendant’s employees. Plaintiff had no memory of the incident. One of the plaintiff’s experts opined that plaintiff’s head injury was so severe that his IQ had been diminished to such a level that he could not make change for a toll booth. Consequently, the plaintiff could never work again as a truck driver. After 15 minutes of deliberation, the jury returned a defense verdict. This was Jennifer’s second defense verdict in a little over a year for this client, disputing a brain injury claim. The last trial was in federal court and involved a plaintiff who was a doctor with claims of significant future economic losses. The plaintiff in that case sought over $5 million.
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Solid Defense Erases Plaintiff’s Jury Award: After a three day jury trial in Florida state court, Mike Rotunno’s pre-trial and trial strategies resulted in a net verdict of only $2,600 against our client, a large international retailer, which, in essence, was viewed as a complete victory. Plaintiff claimed a knee injury from a slip and fall in the restroom of one of defendant’s stores resulting in almost $35,000 in medical and earnings specials. A pre-trial non-binding arbitration resulted in an award of $60,000 for the plaintiff, which he rejected as being insufficient. The case proceeded to trial and the plaintiff was awarded just under $35,000. However, the jury also found the plaintiff 50% comparatively negligent reducing his award by half this amount. Because the jury verdict did not exceed the arbitration award, the defendant was entitled to fees and costs which, when factored into the verdict along with the comparative negligence resulted in a net recovery to the plaintiff of approximately $2,600. In the eyes of our client, this was a very favorable outcome.
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Defense Verdict After Admitted Liability: In an admitted liability case tried only on the issue of damages, Mike Rotunno recently obtained a defense verdict for our client, a national exterminating company, after a four day trial in state court. Plaintiff had been rear-ended in an automobile accident by one of the defendant’s vehicles featuring a prominent plastic mouse on its roof. After years of conservative treatment for a claimed soft-tissue injury, the plaintiff received a diagnosis of fibromyalgia and filed suit. During trial, the plaintiff sought approximately $175,000 in past and future medical specials and claimed she could no longer work at her flower shop. The defense theory was premised on causation arguing through expert testimony that fibromyalgia is genetically based and is not brought on through trauma. The plaintiff was seeking $1-million in damages but, after 35 minutes of deliberations, the jury returned a defense verdict.
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CGL Auto Exclusion Found To Bar Coverage: In an insurance coverage case of first impression, Phil Glatzer represented Lexington Insurance Company, which was sued for contribution by Discover Property and Casualty Insurance Company. Both carriers insured supermarket company, Albertsons. Lexington provided a general liability policy and Discover provided an auto policy. This is the first published decision in any state or federal court of the United State which holds that the auto exclusion in a standard policy of commercial general liability insurance, which excludes coverage for liability of the insured arising out of the operation of “any auto” by “any insured,” is triggered when an agent of the named insured is operating any auto on behalf of the named insured. Previously, all reported decisions dealt with the operation of an auto by an actual employee of the named insured. In the underlying quadriplegic tort suit brought against Albertsons by a pedestrian struck and injured by an auto operated by an alleged agent of a dry cleaning joint venture of which Albertsons was an alleged joint venturer, Discover took the position that the auto exclusion in the general liability policy maintained for Albertsons by Lexington would not apply on the ground that the driver of the auto which struck the plaintiff was a mere agent and not an employee of Albertsons. The basis of Discover’s position was that since employees were defined as insureds in the Lexington policy, whereas agents were not, the subject auto could not have been operated by “any insured” for purposes of the auto exclusion. However, the United State District Court for the Southern District of Florida agreed with the position of Lexington that under respondeat superior, Albertsons was vicariously liable for the alleged negligent driving of its agent to the same extent it would have been vicariously liable if the driver had been an actual employee of Albertsons. Thus, Albertsons was considered to be the insured which operated the subject auto and, in granting Lexington’s motion for summary judgment, the District Court ruled that because of the standard auto exclusion in Lexington’s policy, Lexington was not required to contribute any coverage from its general liability policy toward a settlement reached between the plaintiff and Albertsons, which settlement was partially funded by Discover. The District Court also based its summary judgment for Lexington on the independent ground that the declarations of Lexington’s general liability policy did not reveal Albertsons’ side joint venture business of providing drop off and pick up dry cleaning services for customers of some of its supermarkets, as required by the declarations in order for Albertsons to be insured for liability arising out of any joint venture. Discover Property and Cas. Co. v. Lexington Ins. Co., 2009 WL 3396966 (S.D. Fla. 2009).
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Florida Appellate Court Rules Favorably On Workers’ Compensation Immunity For Employers: Representing Brink’s Inc. in state court in Miami, Rosemary Wilder obtained a summary judgment utilizing the new horizontal immunity provision of Florida’s Workers’ Compensation statute. The Plaintiff was severely injured when he was caught between a Brink’s armored car, which was backing up, and an American Airlines plane that was being unloaded. The Plaintiff recovered workers’ compensation benefits but sued Brink’s Inc. claiming he was not their employee and therefore was entitled to recover additional benefits over those he had already received from his employer. The Plaintiff, an employee of a sister corporation of the Defendant, was injured by an employee of Brink’s Inc. The Plaintiff had previously argued to the trial court that statutory employer immunity and the borrowed servant doctrine did not apply to his claim and thus the Defendant was liable as any other third party. Using the new horizontal immunity provision in Florida’s Workers’ Compensation Act, Ms. Wilder was able to demonstrate that Brink’s Inc. qualified as a subcontractor entitled to horizontal immunity, as the Plaintiff and Defendant were both working on the same contract job in spite of the fact that the Plaintiff and Defendant were employed by two different corporate entities. Ms. Wilder was also successful in overcoming the Plaintiff’s argument that he was engaged in unrelated works and therefore the new horizontal immunity provision of the Workers’ Compensation statute did not apply. Summary Judgment for Brink’s Inc. was affirmed by the Third District Court of Appeal in Sanchez v. Brink’s Inc., 19 So.3d 1140 (Fla. 3d DCA 2009) and the briefs are available upon request.
“Other Insurance” – Super Excess Language Negates Carrier’s Duty To Defend: In what is believed to be the first case of its kind in Florida, Scott Newman and Rosemary Wilder collaborated to convince the trial court to hold that a bankrupt land developer’s CGL policy with a $100,000 S.I.R. was not co-primary with an additional insured’s homeowner’s carrier and, thus, no duty to defend was triggered. Plaintiff was injured by a golf cart driven by the additional insured, who was alleged to be a volunteer worker for the named insured. The additional insured tendered his defense to his homeowner’s carrier and the named insured’s CGL carrier, which asserted it had no duty to defend based on language in the “other insurance” clause making the CGL carrier’s coverage super excess over all other coverage. Summary judgment was entered for the CGL carrier. The court also rejected the additional insured’s argument that the failure to raise the applicability of the “other insurance” clause within thirty days violated Florida’s Claims Administration statute and, therefore, the CGL carrier was not estopped to reject the tender of the defense.
Bad Faith Claim Barred By Defensive Collateral Estoppel: In a case of first impression in the United States, the plaintiff, Lynn Bankston, was prevented from pursuing her bad faith claim against Illinois National in state court to enforce a $1-million excess judgment. Rosemary Wilder, on behalf of Illinois National, argued that the application of federal defensive, non-mutual collateral estoppel barred Ms. Bankston’s claim. Summary judgment had been obtained in an earlier proceeding in federal court, and affirmed by the Eleventh Circuit Court of Appeal, in a case brought by her husband, Morris Bankston. The state court entered summary judgment against Ms. Bankston on the grounds that she was collaterally estopped from litigating her claim in state court based on the same legal theories argued against Illinois National in the federal case involving her husband. Summary judgment for Illinois National was affirmed on appeal and the briefs are available upon request. Bankston v. Illinois National, 7 So.3d 1103 (Fla. 2d DCA 2009).