Cole Scott CSK Legal by jennyyingdi


									      In This Issue

      First-Party Bad Faith Claims Against Medical Malpractice Liability Insurers ................................................................................. 4
      Florida’s 90-days To Pay Property Claims Law .................................................................................................................................. 5
      The Medicare Secondary Payer Act and Its Affect on Tort Cases ....................................................................................................... 6
      Defending Economic Damages With Cost of Annuity Evidence .......................................................................................................... 7
      Recent Developments in Bad Faith Discovery .................................................................................................................................... 9
      Family Educational Rights and Privacy Act (FERPA): Privacy & Access to Student Educational Records ................................... 10
      It must be my agent’s fault ................................................................................................................................................................. 12
      Present Status and Florida’s Personal Injury Protection (PIP) Statute ............................................................................................ 12
      Success Stories ................................................................................................................................................................................... 14
      News & Notes .................................................................................................................................................................................... 17

      Meet Two of Our Lawyers

      Daniel J. Kissane ............................................................................................................................................................................... 18
      Luis E. Ordonez ................................................................................................................................................................................. 18

                                                                             Practice Areas
   Admiralty and Aviation                                                   Corporate, Transactional & Real Estate                                   Intellectual Property Litigation
   Appellate                                                                Criminal Military Justice
                                                                                                                                                     Nursing Home\Health Care
   Arbitration, Alternative Dispute Resolution and                          Directors and Officers
                                                                                                                                                     Premises Liability
   Mediation                                                                Education Law
   Architects and Engineers                                                                                                                          Product Liability
                                                                            Employment & Labor
   Bad Faith and Extra-Contractual Liability                                Environmental                                                            Professional Malpractice
   Civil Rights Law                                                         Equine and Recreational Sports                                           Securities
   Commercial Litigation                                                    Federal Practice                                                         SIU Insurance Fraud Defense
   Condominium & Community Association                                      Fraud Litigation                                                         Vehicle Negligence
   Construction & Surety                                                    General Civil Litigation
                                                                                                                                                     Workers’ Compensation
   Construction Defects                                                     Insurance Coverage & Carrier Representation

                                                                          Litigation Group
Janet L. Abel                    Lee M. Cohen                                Valerie Jackson                    Doris Mitchell                        Bryan A. Rotella                   Karly Spira
Greg Ackerman                    Richard P. Cole                             Michael James                      Abby Moeddel                          Brian D. Rubenstein                Shealy N. Stafford
Jeffrey Alexander                Scott A. Cole                               Dara Jebrock                       Denise P. Murray                      Genevieve Rupelli                  Clarke Sturge
Laura Alton                      John D. Coleman                             Tony Jimenez                       Michael Nullman                       Henry Salas                        Robert A. Swift
Joseph A. Arena                  Marco Commisso                              John F. Kennedy                    Robert E., O’quinn Jr.                David Salazar                      Matthew Swihart
Dania Arencibia                  Garry F. Connell                            Gene P. Kissane                    Eric Olson                            Blake S. Sando                     Ashley Sybesma
Stephanie Barr                   Dave Cornell                                Joseph T. Kissane                  Luis Ordonez                          George Saoud                       Lisa M. Szulgit
Stephanie Barr                   Lara Dabdoub                                Daniel Kissane                     Yvonne Pandolfo                       Marshall Schaap                    Ivan J. Tarasuk
Scott A. Bassman                 Temys Diaz                                  Daniel J. Klein                    Paula Parisi                          Adam R. Schloss                    Thomas W. Thompson
Rhonda Beesing                   Michelle Dover                              Beth T. Koller                     Marilyn J. Perez-Martinez             Howard L. Scholl                   Nicole R.Topper
Rachel K. Beige                  Lauren Fallick                              Julie Kornfield                    Brian Pita                            Sherry Schwartz                    Jennifer Viciedo
Allison S. Bernstein             Samuel S. Frankel Jr                        Kip O. Lassner                     Rita Rosato Pitassi                   Thomas E. Scott                    Jonathan Vine
David P. Bradley                 Vincent Gannuscio                           Yueling E. Lee                     Edward S. Polk                        Daniel A. Shapiro                  Brandon Waas
Michael E. Brand                 Thomas P. Glenz                             Jana Leichter                      Karin Posser                          Kendra Shaw                        Isaac Wannos
Monett K. Brewer                 Sheila M. Gonzales-Jonasz                   Luisa Linares                      Barry A. Postman                      Scott Shelton                      Hal Weitzerfeld
Alexis Brown-Gelb                Jami L. Gursky                              Michael E. Longo                   Trelvis D. Randolph                   Michael W. Shiver                  Ryan Williams
Jonathan Buckland                Trevor G. Hawes                             Anthony J. Maniscalco              Jennifer L. Reynolds                  Sally L. Slaybaugh                 Steven L. Worley
Ron M. Campbell                  Christopher B. Hopkins                      Bradley D. Martin                  Eric T. Rieger                        A. Lee. Smith, Jr.                 Anthony Yanez
Carly Celmer                     Tullio E. Iacono                            Aram P. Megerian                   Cheryl L. Riess                       Patrick Snyder                     Charles J. Zimmerer
Mohamed Chehab                   Elmer Ignacio                               Wolfgang V. Mertz                  Robert Rightmyer                      Justin Sorel
                                 Scott H. Jackman                            Jonathan M. Midwall                Lori Riviere                          James T. Sparkman

    Editors: Scott A. Cole ~ Scott A. Bassman ~ Eric Riger
                                                                     Providing services, throughout Florida with offices in
  MiaMi        South MiaMi              WeSt PalM Beach                    taMPa          Key WeSt              Fort lauderdale                   NaPleS           JacKSoNville             orlaNdo
                                      For Further Information, call 305.350.5325 or 1.888.831.3732 (toll free) or visit our web site at
                           To Our Clients and Friends

                                                                Richard P. Cole

         T     hank you for all of your continual support and friendship. This December marks the 10 year

               anniversary of the law firm. You, the clients, have made this possible with your encouragement to

begin, request that we expand throughout the state and your support of the entire firm which has followed since our

December, 1997 founding.

         Thanks also to the great staff who started with us with bare concrete floors and temporary $100 used desks

and who have continually helped the lawyers provide the quality legal services our clients deserve.

         Today, we have 125 lawyers in nine offices throughout the State of Florida. Our ranks include former

judges, numerous Best Lawyers in America and Florida Trend’s Legal Elite. All offices are headed by AV rated

partners and staffed by dedicated bright and ethical attorneys, who place meeting the clients’ needs at the top of their

agenda each day.

         When a few of us started this firm on December 17, 1997, none of us dreamed of what was to follow. We

knew we had a common commitment to providing high quality legal work to our clients. We shared a dedication

to hard work and ethical values. And, we had a number of clients who were our friends as well as work colleagues,

who wanted us to succeed. This remains the same today.

         The partners shared a vision that by being responsive to the clients in an efficient manner, we could attract

additional clients who were looking for a firm such as ours. Today, we represent most major insurers, many national

companies and multiple state agencies and subdivisions in their litigation matters.

         On behalf of Cole, Scott & Kissane, P.A, I wanted to tell you about this important firm milestone and again

thank you for the initial and ongoing support. We look forward to pridiving you with the high quality counseling and

ethical representation you deserve.
                                                    CSK Litigation QuarterLy 2007

   First-Party Bad Faith Claims                    resulted in the insured being unable to               of judgment, when such offer is
   Against Medical Malpractice                     obtain medical malpractice insurance. The             within the policy limits. However,
         Liability Insurers                        insured brought a first-party bad faith claim         any offer of admission of liability,
              By Brian Rubenstein                  against the insurance company, but the                settlement offer, or offer of
                                                   trial court dismissed the action. Id. The             judgment made by an insurer or

F   lorida courts have long recognized an          Florida Supreme Court upheld the trial                self-insurer shall be made in good
    insurer’s obligation to act in good faith      court’s decision to dismiss the bad faith             faith and in the best interests of
when defending claims against the insured.         claim because the policy at issue contained a         the insured.
In Boston Old Colony Ins. Co. v. Gutierrez,        “deems expedient” provision, in which both
386 So. 2d 783 (Fla. 1980), the Florida            parties agreed in writing that the insurance     § 627.4147, Fla. Stat. (2007).
Supreme Court outlined the insurer’s duty to       company could investigate and settle as it
act in good faith as follows:                      “deems expedient.” Id. As a result, insurance              Although section 627.4147 gives
                                                   companies put the insured on notice, through     the insurer the sole authority to settle a claim
     An insurer, in handling the defense           a provision in the insurance agreement, that     within the policy limits, it also requires the
     of claims against the insured, has            the insurer had exclusive authority to control   insurer to act in the best interests of the
     a duty to use the same degree of              settlement and to be guided by its own self-     insured. This language is in contrast with
     care and diligence as a person of             interest when settling the claim for amounts     Shuster, which permitted the insurer to settle
     ordinary care and prudence should             within the policy limits, even where the claim   a claim within the policy limits in its own
     exercise in the management of his             was frivolous and without consideration of       self-interest.
     own business. For when the insured            the insured’s interest. Shuster, 591 So. 2d at
     has surrendered to the insurer all            176-77. Thus, Shuster significantly limited                On May 16, 2007, the Fourth
     control over the handling of the              the insured’s ability to bring a bad faith       District Court of Appeal of Florida
     claim, including all decisions with           claim against the insurer.                       determined that insured parties could bring
     regard to litigation and settlement,                                                           a bad faith cause of action under section
     then the insurer must assume                           The above discussion addresses          627.4147 against insurers who allegedly
     a duty to exercise such control               with bad faith causes of action under            failed to act in the best interests of the
     and make such decisions in good               common law, which is created by the courts.      insured. Rogers v. Chicago Ins. Co., 2007
     faith and with due regard for the             However, insurance companies must also be        WL 1427041 (Fla. 4th DCA 2007). The
     interests of the insured. This good           weary of potential bad faith causes of action    Court went on to say that in the context of
     faith duty obligates the insurer to           created by the legislature through statutes,     a claim for medical malpractice, it may not
     advise the insured of settlement              such as section 627.4147, Fla. Sta. which        always be in the best interests of the insured
     opportunities, to advise as to the            states:                                          to concede liability, where none is present,
     probable outcome of the litigation,                                                            and settle the claim within the policy limits.
     to warn of the possibility of an                  (1) In addition to any other                 Id.
     excess judgment, and to advise                    requirements imposed by law,
     the insured of any steps he might                 each self-insurance policy as                          Rogers is a major decision in
     take to avoid same. The insurer                   authorized under s. 627.357 or               the area of medical malpractice liability
     must investigate the facts, give fair             s. 624.462 or insurance policy               insurance because insurers can no longer
     consideration to a settlement offer               providing coverage for claims                rely exclusively on the Shuster decision,
     that is not unreasonable under the                arising out of the rendering of, or          which protected insurers who inserted
     facts, and settle, if possible, where             the failure to render, medical care          “deems expedient” or “self-interest”
     a reasonably prudent person, faced                or services, including those of the          provisions into their insurance agreements.
     with the prospect of paying the                   Florida Medical Malpractice Joint            If they are not doing so already, medical
     total recovery, would do so …                     Underwriting Association, shall              malpractice liability insurers should take
     [w]here that duty is breached the                 include ... a clause authorizing the         precautionary steps to protect themselves
     insured [first-party] has a cause of              insurer or self-insurer to determine,        against potential first-party bad faith claims
     action against the insurer.                       to make, and to conclude, without            under section 627.4147. Most importantly,
                                                       the permission of the insured,               medical malpractice liability insurers may
Id. at 785, 786.                                       any offer of admission of liability          want to consider drafting and implementing
                                                       and for arbitration pursuant to s.           policies that require the insurer to keep in
           Despite the broad language of               766.106, settlement offer, or offer          close contact with the insured throughout the
Gutierrez, some insurers have been able to             of judgment, if the offer is within          settlement process and carefully document
limit their exposure to insured or “first-party”       the policy limits. It is against             all correspondence between the insurer and
bad faith claims by adding creative language           public policy for any insurance or           the insured regarding a potential settlement.
to their insurance contracts. In Shuster v.            self-insurance policy to contain
S. Broward Hosp. Dist. Physicians’ Prof’l              a clause giving the insured the
Liab. Ins. Trust, 591 So. 2d 174 (Fla. 1992),          exclusive right to veto any offer
an insurance company settled three medical             for admission of liability and for
malpractice claims against the insured                 arbitration made pursuant to s.
within the policy limits, but the settlements          766.106, settlement offer, or offer

                                                  CSK Litigation QuarterLy 2007

      Florida’s 90-days To Pay                   of coverage provided by homeowner’s,              that some of the factors used to determine
       Property Claims Law                       condominium unit owner’s, condominium             whether the right to require appraisal was
                                                 association, apartment building, and other        exercised within a reasonable amount of
             By Jonathan Buckland                similar policies.      § 627.70131 Fla. Stat.     time may be applied successfully. Courts
                                                 (2007). Section 627.70131 applies also to         have considered, in the appraisal context,

T   he Florida Legislature recently enacted      claims for structural or contents coverage        the factors of impracticality and prejudice
    Florida Statute Section 627.70131            under a commercial property insurance             when determining if a party to a property
in direct response to damages caused             policy if the insured structure is 10,000         claim dispute has waived its right to require
by Florida’s 2005 hurricane season and           square feet or less, and to claims for contents   appraisal. See Policyholder’s Response
homeowners’ desire to receive faster             coverage under commercial tenants policies        in Opposition to Insurer’s Mot. to Invoke/
benefits payments on property insurance          as long as the insured premises is 10,000         Compel Appraisal, to Delineate Scope of
claims. Section 627.70321 became effective       square feet or less. Id. The new law does         Appraisal, to Stay Litig. Or, Alternatively, to
June 11, 2007, and mandates payment or           not apply to claims under policies covering       Dismiss Count II of the Amend. Compl., and
denial of property insurance claims within       nonresidential commercial structures or           Inc. Memo. of Law, Royal Point I Condo.
90 days after receipt of notice of the claim,    contents in more than one state, and violation    Assn., Inc. v. QBE Ins. Corp., ___ F. Supp. 2d
unless failure to pay the claim was caused       of the 90-day rule to pay or deny a claim         ___, WL 1495786 (M.D. Fla. Apr. 4, 2007).
by factors beyond the carrier’s control          cannot form the sole basis for a private cause    If, for example, an insurer’s failure to pay
that reasonably prevent such payment. §          of action. Id.                                    or deny a claim pursuant to the 90-day rule
627.70131 Fla. Stat. (2007). Failure to pay                                                        was due to a change in circumstances or the
or deny a claim within 90 days shall result                Previously,       an      award    of   destruction or repair of the damaged property,
in the insurer’s obligation to pay interest      prejudgment interest from the date of loss        it may be deemed impractical to apply the
at a rate set forth in Section 55.03, Florida    following the resolution of a disputed claim      90-day requirement where the property’s
Statutes, from the date the insurer received     was contrary to Florida law. In Allstate Ins.     post-loss condition was altered by factors
notice of the claim. Id. The newly enacted       Co. v. Blanco, 791 So. 2d 515 (Fla. 3d DCA        beyond the insurer’s control. Similarly,
legislation also requires that an insurer        2001), the Third District Court of Appeal         where a premature coverage decision may
review and acknowledge receipt of a claim        reversed an award of pre-judgment interest        prejudice the insurer, such as an exposure
communication within fourteen calendar           because “prejudgment interest is awarded          to a bad faith action due to an insurer’s
days of receipt, and that an insurer initiate    from the date of the appraisal award... rather    acknowledgement of coverage when an
within ten working days of receipt of a proof    than the date of loss.” Id. at 517. See Aries     investigation could not be completed due to
of loss statement such investigation as is       Ins. Co. v. Hercas Corp., 781 So. 2d 429          factors beyond the insurer’s control, courts
reasonably necessary in light of the facts and   (Fla. 3d DCA 2001) (plaintiff was entitled        may find the prejudicial effect of applying
circumstances surrounding the claim. Id.         to pre-judgment interest from the date of the     the 90-day rule under such circumstances
                                                 appraisal award and not from the date of the      to constitute factors reasonably preventing
          Florida’s 90-day claim payment         loss). Under the new framework, insurers are      such coverage denial or benefits payments.
law applies to both hurricane and non-           subject to liability for failure to comply with
hurricane losses, and to all four coverages      Section 627.70131 unless factors beyond                      Other factors “beyond the control
categories typically afforded by property        the control of the insurer reasonably prevent     of the insurer” that would “reasonably
insurance policies – dwelling, appurtenant       the acknowledgement of a communication,           prevent” an insurer from payment or denial
structures, personal property, and additional    commencement of an investigation, or              of a claim within 90 days or commencement
living expenses. Because application of          payment or denial of a claim within 90 days       of an investigation within ten working days
the 90-day rule to additional coverages          of receipt of notice of the loss. § 627.70131     after receipt of a sworn proof of loss may be
and policy endorsements such as law              Fla. Stat. (2007). Moreover, subject to the       more easily identified, such as an insured’s
and ordinance, debris removal, and mold          foregoing exception, when a claim is not paid     refusal to cooperate with investigative
remediation may conflict with current case       or denied within 90 days after the insurer        efforts, including:       failing to provide
law and the express terms and conditions         receives notice of same, pre-judgment             requested documents necessary to adjust
of the subject policy, trial courts’ attempts    interest shall be payable from the date of        the loss alleged; refusing to timely submit
to properly apply the new legislation to the     notice of the claim. Id. If factors beyond the    to an examination under oath; and refusing
facts and circumstances of particular losses     control of the insurer reasonably prevent the     to provide the insurer access to the subject
may lack consistency until shaped and            payment or denial of a claim within 90 days       property as often as reasonably required under
further defined by appellate opinion.            of receipt, the insurer must pay or deny the      the circumstances of the claim. However,
                                                 claim within fifteen days after there are no      it seems clear that the impact of the new
          The insurer’s duty to acknowledge      longer factors beyond the insurer’s control       legislation shall be determined largely by the
communications        regarding      property    which reasonably prevented such payment.          trial courts’ application of facts to the 90-day
insurance claims and timely investigate          Id.                                               claim payment law, which will, in turn, be
reported losses shall apply to claims under                                                        influenced greatly by the effectiveness of the
all policies providing residential coverage               While Florida courts’ determination      particular trial attorneys that litigate these
as defined in Section 627.4025, including        of what constitutes a “reasonable delay”          claims.
coverage provided by both personal lines         in the investigation and payment of claims
residential coverage and commercial lines        has yet to be defined in the context of the                In light of the foregoing, it is
residential coverage that consist of the type    new 90-day claim payment law, it is likely        essential that insurers work with legal

                                                     CSK Litigation QuarterLy 2007

counsel to further develop and adapt claim          company that had a preexisting relationship                  Granting great deference to the
handling practices in order to avoid and            to the insured/Medicare beneficiary. Mason         regulations promulgated by Medicare, 42
mitigate the potential increase in claims. In       v. Amer. Tobacco Co., 346 F.3d 36, 39 (2nd         C.F.R. 411.21 and 411.50, the Eleventh
the environment of law that most adjusters          Cir. 2003) cert. denied 541 U.S. 1057 (2004).      Circuit found that Medicare adopted a
and property insurance defense advocates            An employer who simply contracts with a            broad definition of self-insurance.          Id.
agree provides undue incentives for claimants       workers’ compensation carrier to provide           Noting that mere payment to a plaintiff by a
to litigate their disputes, this new branch         coverage for its employees, without more,          tortfeasor would not constitute a plan of self-
of the bramble bush of Florida’s property           cannot be liable to repay Medicare under           insurance, the court held that “planning such
insurance law will not improve the climate          MSPA. Manning v. United Mutual Ins. Co.,           a combination of deductibles and insurance
of contention between Florida’s property            2004 WL 235256, 6 (S.D.N.Y. 2004).                 policies…” may constitute a plan of self-
insurance providers and their insureds.                                                                insurance on behalf of the insured. Id. at
                                                               The federal government has              896. Importantly, the court ruled that the
                                                    unsuccessfully attempted to assert claims          plan must exist ex ante, or prior to the claim,
                                                    directly against tortfeasors (who were not         and it need not be formal, but rather, may be
    The Medicare Secondary                          insurance companies) to recover settlement         ad hoc (informal) and may be unwritten. Id.
 Payer Act and Its Affect on Tort                   proceeds in several mass tort litigation           at 897-98.
             Cases                                  cases. Id. See In re Orthopedic Bone Screw
                                                    Prods. Liab. Littig., 202 F.R.D. 154 (E.D.Pa.                 The Fourth Circuit Court of
             By Charles J. Zimmerer                 2001); In re Diet Drugs (Phentermine,              Appeals, recognizing disagreement among
                                                    Fenfluramine, Dexfenfluramine) Prods. Liab.        the federal circuit courts of appeals in the

T    his article discusses the potential
     application of the Medicare Secondary
Payer Act (MSPA) in cases where a Medicare
                                                    Littig., 2001 WL 283163 (E.D.PA. 2001);
                                                    U.S. v. Phillip Morris, Inc., 156 F.Supp.2d
                                                    1 (D.C. 2001). The federal government has
                                                                                                       U.S., held that, “an entity that engages in
                                                                                                       a business, trade, or profession shall be
                                                                                                       deemed to have a self-insured plan if it
beneficiary is injured by a tortfeasor. MSPA        even unsuccessfully attempted to use the           carries its own risk (whether by a failure to
is a collection of statutory provisions created     provisions of MSPA to recover personally           obtain insurance, or otherwise) in whole or
in the 1980’s to help reduce federal health         against a plaintiff’s attorney. Thompson v.        in part.” Brown v. Thompson, 374 F.3d 253,
care costs. U. S. v. Baxter Int’l, 345 F.3d         Goetzman, 337 F. 3d 489, 493-94 (5th Cir.          262 (4th Cir. 2004). This ruling seemingly
866, 874 (11th Cir. 2003) cert. denied 542          2003).                                             follows the decision in Baxter.
U.S. 946 (2004). Since its creation in 1965,                   Distinguishing itself from the other
Medicare has served to be the primary payer         circuit courts of appeals, the Eleventh Circuit              The significance of the Baxter
of medical costs for its beneficiaries, with        held that a tortfeasor that plans “a combination   holding was that it appeared to be the first
the lone exception that it serves as secondary      of deductibles and insurance policies” may         instance where MSPA was successfully used
payer to workers’ compensation plans. Id.           be held liable under MSPA because this             to pursue a claim directly against a tortfeasor.
With the advent of MSPA, Congress declared          constitutes self-insurance. Baxter at 896. In      The Baxter decision seems to bridge a
that Medicare would no longer serve as the          Baxter, a class action lawsuit was initiated       distance by reasoning that self-insurance
primary payer under certain circumstances.          against several manufacturers of alleged           includes “a combination of deductibles and
Id. at 875.                                         silicon breast implants, which resulted in         insurance” while demonstrating a potential
                                                    a $4.2 Billion settlement. Id. at 872. The         trend that favors Medicare recovery against
              The law currently reads:              federal government filed suit to recover a         tortfeasors. The Baxter Court’s statement
“[Medicare] payment under this subchapter           portion of the proceeds to offset the medical      may implicate a great number of insureds.
may not be made … [when] payment has                costs that it paid on behalf of claimants
been made or can reasonably be expected to          (who were Medicare beneficiaries). Id. at                    Moreover, as healthcare costs
be made under a workers’ compensation law           874. The United States District Court for          increase and the population ages, increasing
or plan … or under an automobile or liability       the Northern District of Alabama dismissed         pressure will be placed on an already
insurance policy or plan (including a self-         the federal government’s claims, finding that      stressed Medicare system. Therefore, it
insured plan) or under no fault insurance.”         the government could not maintain a cause          is conceivable to foresee MSPA being
42 U.S.C. 1395y (b)(2)(A)(ii) (2000 &               of action against the silicon manufacturers        expanded by Congress. This would most
Supp. 2005). Medicare is authorized to              because the manufacturers were not                 certainly have a profound effect on the many
make conditional payments on behalf of its          insurance companies and had no organized,          cases handled in our local courts of law as
beneficiaries with the right to recoup those        formal written self-insurance plans. Id.           both counsel for the plaintiff and defendant
payments when the claim has been paid or                                                               alike would be required to consider the
when the litigation has ended. Baxter at                       The Eleventh Circuit Court of           potential Medicare settlement in each and
876.                                                Appeals, whose decisions are binding on            every case.
           At first glance, the statute seemingly   federal courts in Florida, Alabama, and
applies to each and every case where an             Georgia, overturned the district court’s ruling
automobile or liability insurance policy pays       finding that a common practice in business
the judgment. However, MSPA was intended            was to “self-insure,” and a deductible was
to allow the federal government (Medicare)          akin to self-insurance. Id. at 894. The court
to assert a cause of action to recover Medicare     reasoned that self-insurance was simply a
payments solely against an insurance                label for the absence of insurance. Id.

                                                     CSK Litigation QuarterLy 2007

                                                    child, the plaintiff’s economist testified that   method for a jury to determine present value,
  Defending Economic Damages                        the plaintiff’s future economic damages           the Florida Supreme Court commented that
  With Cost of Annuity Evidence                     totaled $173,925,775. Using the growth            “the [jury instruction] committee may wish
                                                    factor-discount rate method, the plaintiff’s      to prepare an additional instruction advising
              By Daniel J. Kissane                  economist was opined that the present value       a jury on how to reduce future damages
                                                    of these damages was $7,835,495. The              to present value.” In Re: Standard Jury

F   lorida Statute § 768.77 requires verdicts
    in any personal injury or wrongful death
action to be itemized and any amounts
                                                    defendant presented evidence through an
                                                    annuitist that these same damages could be
                                                    guaranteed through an annuity contract at a
                                                                                                      Instructions, 541 So. 2d 90 (Fla. 1989).

                                                                                                                Responding to this directive from
awarded for future economic losses to be            cost of $731,385 (less than 10% of plaintiff’s    the Florida Supreme Court, in 1990, the
reduced to present value. In determining            damage figure). The trial court excluded this     Committee on Standard Jury Instructions
present value, a plaintiff’s economist will         annuity evidence, and the appellate court         (Civil) drafted the following comment for
invariably use the “growth factor-discount          affirmed. Below are suggestions on how to         Standard Jury Instruction 6.10 (Reduction of
rate method” for calculating the present            build a record for a different result.            Damages to Present Value):
value of future economic damages. This
method results in a present value amount                       In determining future economic               2. The Supreme Court Opinion
that is significantly larger than it would cost     damages in Florida “the appropriate test is             approving publication of basic
to secure the same future damage payments           to permit the recovery of future economic               itemized verdict forms for
through a guaranteed annuity contract. This         damages when such damages are established               personal injury and wrongful
article addresses techniques for defending          with reasonable certainty.” Miami-Dade                  death cases states:          “The
future economic damage claims through the           County v. Cardoso, --- So. 2d ---2007 WL                committee may wish to prepare
use of cost of annuity evidence.                    225 4674 (Fla. 3rd DCA Aug. 4, 2007)(citing             an      additional     Instruction
                                                    Auto-Owners Insurance Co. v. Tompkins,                  advising a Jury on how to reduce
      As an example of the above, in utilizing      651 So. 2d 89 (Fla. 1995)). Florida Standard            future damages to present value”
the “growth factor-discount rate” method a          Jury Instruction 6.10 provides the following            [citations omitted]. Designing
plaintiff’s economist will determine present        guidance for the jury to calculate the                  a standard jury instruction is
value of future economic damages by first           “reduction of damages to present value”:                complicated by the fact that
determining the historical Consumer Price                                                                   there are several different
Index (“CPI”) in order to calculate the                   Any amount of damages which                       methods used by economists
inflation rate or growth factor. To escape the            you allow for [future medical                     and courts to arrive at a
effect of low inflation during recent history,            expenses], [loss of ability to earn               present value determination
a plaintiff’s economist will generally use the            money in the future] ... Should                   . . . Lumbe Yards v. Levine,
last 30 year (or longer) period of the CPI.               be reduced to its present money                   49 So. 2d 97 (Fla. 1950)
Although inflation is presently 2.7%, and                 value [and only the present                       (using approach similar to
core inflation (excluding food and energy)                money value of these future                       calculation of costs of annuity)
is only 1.9%, using this historical index                 economic damages should be                        . . . Lofton v. Wilson, 67 So. 2d
permits a figure of 5.5% or higher. Growing               included in your verdict] [and                    185 (Fla. 1953)
the future economic damages (either medical               both the amount of such future
expenses or wages) at this rate, a plaintiff’s            economic damages and their                        (lost stream of income
economist will then apply a “discount rate.”              present money value should                        approach) ... Seaboard Coast
The discount rate is arrived at by determining            be stated in your verdict].                       Line RR v. Garrison, 336 So.
what amount must be invested today in order                                                                 2d 423 (Fla. 2d DCA 1976)
to satisfy this damage cost in the future (what           The present money value of                        (discussing    interest   rate
interest rate will be used to grow the funds). In         future economic damages is                        discount method and inflation/
order to maximize the amount of the present               the sum of money needed now                       market rate discount method);
value figure, a plaintiff’s economist will use            which, together with what that                    and Bould v. Touchette, 349
the very conservative United States Treasury              sum will earn in the future,                      So. 2d 1181 (Fla. 1977) (even
30-year bond as the yardstick to measure                  will compensate [claimant] for                    without     evidence,   juries
the interest rate (presently returning 4.4%).             these losses as they are actually                 may consider the effects of
However, using the annuity cost method,                   experienced in future years.                      inflation).
these same future economic damages could
be satisfied for a small fraction of the present            In adopting the model verdict form              Until the Supreme Court or the
value claimed by the plaintiff.                     itemizing personal injury damages, the                  Legislature adopts one approach
                                                    Florida Supreme Court noted that there                  to the exclusion of the other
       To illustrate the above, we wil use the      are a variety of different methods under                methods of calculating present
actual figures from the case of Gold, Van &         Florida law by which a jury can calculate               money value, the Committee
White, P.A. v. DeBerry, 639 So. 2d 47 (Fla.         the reduction of future economic damages to             assumes that the present value
4th DCA 1994). In this medical malpractice          present value. Appreciating that the above              of future economic damages
case involving a catastrophically injured           standard jury instruction did not provide the           is a finding to be made by the
                                                   CSK Litigation QuarterLy 2007

      jury on the evidence; or, if                into evidence of the cost of an annuity to               However, that is the stuff that
      the parties offer no evidence               fund a plaintiff’s future medical expenses.              trials are made of. We permit the
      to control that finding, then               In affirming this ruling, the Fourth District            litigants to present competent
      the jury properly resorts to                Court of Appeal noted that “evidence of the              and relevant evidence on all
      its own common knowledge                    cost of an annuity to compute present value              sides of the issue, and leave it to
      as guided by SJI 6.10 and by                has been admitted in several Florida cases               them to convince the trier of fact
      argument.                                   involving loss of future earning capacity,               of the best means of assuring
                                                  loss of support which dependents would                   that a deserving claimant is
      As the Florida Supreme Court                have derived from the decedent, and in                   fairly compensated. We are
      and the Florida Legislature                 wrongful death actions.” Id. at 578. The                 faced with precedent that allows
      have not adopted a specific                 Court then states “however, there is no                  annuity evidence on future
      method of calculating present               Florida case which has authorized the jury to            economic losses, and I believe
      money value of future economic              utilize an annuity approach in determining               we are bound by that precedent.
      damages (to the exclusion of                future medical damages, though some out-                 Bates, dissent at 579.
      another), then the present value            of-state decisions have so held.” Id. citing
      of future economic damages is               Ramrattan v. Burger King Co., 656 F.Supp.                     The issue came before the Fourth
      a finding that is to be made by             522 (D.Md. 1987). The Fourth District              District Court of Appeal again two years later
      the jury on the evidence at trial           declined to follow Ramrattan, stating that         in Gold, Van & White, P.A. v. DeBerry, 639
      (see the Committee Note to SJI              “Ramrattan involved a Maryland statute             So. 2d 47 (Fla. 4th DCA 1994). In DeBerry,
      6.10 above).                                which specifically directed juries to itemize      the plaintiff presented the testimony of
                                                  the monetary award for “future medical             an economist who performed the present
         Guided by the above, defendants          expenses”). Id. Subsequent to the law that         value calculations using the growth factor-
should be prepared to present competent,          was controlling in Bates, Florida passed           discount rate method as aforementioned.
reliable evidence at trial to guide the jury      Florida Statute § 768.77 requiring personal        The plaintiff’s expert testified that the
in determining the present value of future        injury and wrongful death verdicts to be           future value of the medical expenses was
economic damages. There is ample support          itemized and therefore this prior case can be      $173,925,775, and reduced to present value
under Florida law that the cost of an annuity     distinguished on this basis.                       amounted to $7,835,495. The defendant
is an appropriate means to determine present                                                         attempted to call an expert annuitist at
value of future damages. For example, in                   It is further significant to note that    trial to prove that a $731,385 annuity
Bould v. Touchette, 349 So. 2d 1181, 1185         in the Bates decision, the Fourth District         would guarantee the payment of the future
(Fla. 1977). the Florida Supreme Court            Court of Appeal specifically acknowledged          medical expenses claimed by plaintiff. The
acknowledged that “courts in this country         “we do not address the question of what our        trial court made a discretionary ruling and
have generally approved a sum that would          decision would have been had the trial judge       excluded defendant annuity evidence. On
purchase an annuity equal to the value of the     admitted the annuity evidence.” Id. at 579.        appeal the plaintiff argued the annuitist’s
pecuniary aid which the dependents would                                                             testimony was speculative; the annuitist’s
have derived from the deceased; in other                    Judge Farmer’s dissent in the            testimony was based on hearsay from
words, the present worth of such an amount        Bates case is very compelling. The dissent         underwriters; and the annuitist’s testimony
as would accrue to the beneficiary based on       acknowledges that Florida law “supports            was misleading. The defendant countered
his or her life expectancy.”                      the admission of evidence of the cost of           on appeal that the annuitist’s testimony
                                                  annuities as one way to compute the present        was no more speculative than that of the
      Florida law clearly supports the cost of    value of future economic damages.” The             plaintiff’s economist, and argued that the
an annuity approach to determine the present      dissent opines that there is “no valid basis for   plaintiff’s objections concerned the weight
value of economic damages in a wrongful           allowing evidence of the cost of annuities for     of the evidence, rather than its admissibility.
death case. Bould v. Touchette, 349 So. 2d        loss of income in the future, but not allowing     Relying upon the previous decision in
1181, 1185 (Fla. 1977). The same is true          annuity evidence for covering medical              Bates, the court again held that since there
in determining the present value of future        expenses to be incurred in the future.” Id. at     is “no Florida case law which authorized
lost earning capacity. Cudahy Packing Co.         579. The dissent notes that the jury is faced      the jury to utilize an annuity approach in
v. Ellis, 140 So. 918 (Fla. 1930). However,       with the identical task under both elements        determining future medical damages;” the
for reasons that defy logic, two Florida          of future damages (calculating what sum            trial court’s discretionary ruling to exclude
courts have refused to reverse a trial court’s    of money awarded today will provide the            such evidence would be affirmed.
decision to exclude the same cost of annuity      injured person with the money to either
approach in determining future medical            replace the lost income or to pay for medical                The reason an annuity costs less
expenses. These two cases will be briefly         expenses needed in a distant year). The            than the present value method utilized
summarized, with guidance on how to try           dissent concludes:                                 by plaintiffs is largely related to the life
for a different result.                                                                              expectancy of the plaintiff (coupled with
                                                        It may well be that the cost of              the better rate of return on the investment).
          In North Broward Hospital District            annuities will not be the fairest            Underwriters can determine with statistical
v. Bates, 595 So. 2d 578 (Fla. 4th DCA                  or most reasonable way of                    precision the life expectancy, or rated age, of
1992), the trial court refused the introduction         assuring future compensation.                a particular plaintiff. However, for obvious
                                                       CSK Litigation QuarterLy 2007

strategy reasons, defendants do not want             always involves two distinct sets of claims              pertain in any way to coverage,
to be placed in the untenable position of            and defenses – (1) an underlying claim or                benefits, liability, or damages,
arguing to the jury “the plaintiff will never        action for coverage, and (2) an overarching              should also be produced in a first-
live that long.” This should be done through         bad faith claim. As a result, the manner in              party bad faith action. Further,
evidence of the cost of an annuity.                  which the insurer handled the underlying                 all such materials prepared after
                                                     claim or action becomes the factual basis of             the resolution of the underlying
        As part of Florida’s 1999 tort reform        the bad faith claim. These factual records,              disputed matter and initiation of
effort, the legislature passed Fla. Stat.§           typically reflected in the insurer’s claim file,         the bad faith action may be subject
768.78. This statute provides the trial court        are therefore the primary evidentiary focus              to production upon a showing
discretion to permit a judgment for future           of the subsequent bad faith case.                        of good cause or pursuant to an
economic losses exceeding $250,000 to either                                                                  order of the court following an
be satisfied by lump sum or “to be paid in                      Until fairly recently, Florida courts         in-camera inspection. See Fla. R.
whole or in part by periodic payments rather         had abided by two sets of rules regarding the            Civ. PRo. 1.280(b), 1.350; Fla.
than by lump-sum payment.” This does not,            production of documents from the claim file              Farm Bureau Gen. Ins. Co. v.
however, remedy the problem. Ignoring the            – one set of rules for third party actions, and          Copertino, 810 So. 2d 1076, 1079
issue of plaintiff’s attorney’s fees on the larger   another set of rules for first party actions. The        (Fla. 4th DCA 2002). However,
figure from trial, this removes the decision         justification for this distinction was found in          we caution that where the coverage
                                                     the nature of the duties that the insurer owed           and bad faith actions are initiated
from the jury and places the decision within
                                                     its insured. In a third-party action, the insurer        simultaneously, the courts should
the court’s discretion. Moreover, the jury
                                                     was held to be the fiduciary of the insured.             employ existing tools, such as
is denied from learning the truth (i.e.: that
                                                     In a first party action, it was presumed that            the abatement of actions and in-
plaintiff’s damages are really only 10% of
                                                     the insurer and the insured had an adversarial           camera inspection, to ensure full
what they are seeking), and in practice this         relationship. Consequently, the plaintiff in             and fair discovery in both causes
will generally spill over into the damages           a third party action would be allowed wide               of action . . . However, when the
beyond future economic damages (i.e.: past           latitude in obtaining the contents of the claim          underlying claim for benefits has
and future pain and suffering damages).              file on the grounds that the insurer was his             been resolved, all files pertaining
                                                     fiduciary. In such cases, an insurer would be            to the underlying dispute which
          As evidence of the cost of an annuity      required to produce the complete, original               produced the alleged bad faith
to compute present value is admissible under         claim file, including privileged and work-               are discoverable as in traditional
Florida law in cases involving loss of future        product documents, that were generated                   common law third-party bad faith
earning capacity, loss of support which              through the date of the final judgment in                cases for failure to settle third-
dependents would have derived from the               the underlying case. See Dunn v. Nat’l Sec.              party claims.
decedent, and in wrongful death actions,             and Fire Cas. Co., 631 So. 2d 1103, 1109
it should also be admissible to determine            (Fla. 5th DCA 1993); Stone v. Travelers Inc.                   In essence, the Florida Supreme
present value of future medical expenses.            Co., 326 So. 2d 241 (Fla. 3d DCA 1976). In          Court rejected the formulation outlined
There exists no valid basis for permitting           contrast, due to the adversarial nature of the      in Kujawa v. Manhattan Nat. Life Ins. Co.
evidence of the cost of annuities for loss           relationship in a first party action, an insurer    which held that the special relationship in
of income in the future, but not permitting          was not required to produce the contents of         third-party actions did not exist in first-party
the same evidence with respect to future             its claim file. Kujawa v. Manhattan Nat. Life       actions. The Ruiz court held that considering
medical expenses. To accomplish this goal,           Ins. Co., 541 So. 2d 1168, 1169 (Fla. 1989);        the relationship between insurer and insured
the defendant should be prepared to call an          Vesta Fire Ins. Co. v. Figeroa, 821 So. 2d          to be adversarial was “an outdated pre-
expert annuitist, as well as an underwriter          1233 (Fla. 5th DCA 2002).                           statutory analysis.” The duties outlined in
(to overcome any hearsay objection), at trial                                                            Fla. Stat. § 624.155 confirm that insurers owe
in defense of all future economic damage                      However, in the case of Allstate           insureds the same general duty of good faith
claims in any personal injury or wrongful            v. Ruiz, 899 So. 2d 1121 (Fla. 2005), the           and fair dealing when the insured presents
death claim.                                         Florida Supreme Court erased the distinction        his own claim as when he is sued by a third
                                                     between the scope of an insurer’s document          party. In short, the court held that “any
                                                     production required in first and third party        distinction between first- and third-party
                                                     cases. In Ruiz, the court held that:                actions with regard to discovery purposes is
   Recent Developments in Bad                                                                            unjustified.” As a result, the entire body of
        Faith Discovery                                   [W]e hold that in connection                   Florida case law restricting the production
                                                          with evaluating the obligation                 of an insurer’s claims file in first party cases
     By Joseph T. Kissane and Karin L. Posser
                                                          to process claims in good faith                appears to have been swept away.
                                                          under section 624.155, all

B     ad faith litigation presents a unique               materials, including documents,                          Although the court in Ruiz held that
      set of discovery problems. Because                  memoranda, and letters,contained               the date of final judgment in the underlying
bad faith claims only arise when an insured               in the underlying claim and                    case is the cut-off point for deciding when
has submitted a prior claim for benefits or               related litigation file material that          the work-product privilege is triggered, it
is liable to a third party following an action            was created up to and including                is not always a simple matter to identify
for damages against him, bad faith litigation             the date of resolution of the                  exactly when the work-product privilege
                                                          underlying disputed matter and                 first begins to apply. For example, in
                                                    CSK Litigation QuarterLy 2007

Florida Farm Bureau v. Copertino, 810 So.          of counsel” defense, it waives the attorney-       release a student’s educational records to
2d 1076 (Fla. 4th DCA 2002), the court held        client privilege with regard to that advice.       opposing counsel without that student’s or the
that the litigation over the bad faith dispute     Fidelity and Cas. Ins. Co. of New York v.          student’s parents’, if the student is a minor,
began before the underlying judgment was           Taylor, 525 So. 2d 908, 909-10 (Fla. 3d            prior written consent. 34 C.F.R. § 99.30
entered. The claimants had asserted bad            DCA 1987). The court’s holding in Taylor           (a) (2005). The prior written consent must
faith affirmative defenses and the civil           was considered to be implicitly overruled by       specify the records that may be disclosed,
remedy notices of violation had been served        the court in Kujawa. However, because Ruiz         state the purpose of the disclosure, and
on the insurer. Afterwards, the insurer’s          has rejected the holding of Kujawa, Taylor         identify the party or class of parties to whom
employees had prepared memos concerning            can once again be considered good law.             the disclosure may be made. 34 C.F.R. §
the likelihood of the impending bad faith                                                             99.30(b)(1)-(3) (2005).
litigation. The court held that these memos
were protected because they were prepared                                                                       However, FERPA carves out
for the specific purpose of evaluating the                                                            various exceptions to this prior consent rule
bad faith claims, and that litigation had          Family Educational Rights and                      to disclose educational records. One of
effectively already begun. Id.                     Privacy Act (FERPA): Privacy                       these exceptions to the prior consent rule is
                                                   & Access to Student Educational                    the disclosure of student educational records
          With     respect    to     attorney-                 Records                                through a subpoena or court order. 34 C.F.R.
client privileged material, in general,                                                               § 99.31(9)(i) (2005). Through subpoena
communications between appointed defense                           By Laura Alton                     or court order, the educational agency or
counsel and the insurer are not privileged                                                            institution may disclose information . . .

when they concern the underlying litigation.            he Family Educational Rights and              only if the agency or institution makes a
Although disputes are common, it is                     Privacy Act (hereinafter “FERPA”)             reasonable effort to notify the parent or
presumed that, because of the fiduciary duty       (20 U.S.C. § 1232g (2005); 34 CFR Part             eligible student of the order or subpoena in
owed by the insurer, the interests of the          99 (2005)) is a federal law that protects the      advance of compliance, so that the parent or
insured and the insurer are merged. Because        privacy of student educational records. The        eligible student may seek protective action.
of these common interests, the attorney-client     law applies to all schools that receive funds      34 C.F.R. § 99.31(9)(ii) (2005).
privilege does not attach to communications        under an applicable program of the U.S.
among the attorney, the insurer, and the           Department of Education. 20 U.S.C. § 1232g                      Every educational institution
insured. Allstate v. Am. S. Home Ins. Co.,         (a)(3) (2005); 34 C.F.R. § 99.1(a) (2005).         has an internal FERPA policy and typically
680 So. 2d 1114, 1116 (Fla. 1st DCA 1996).         FERPA promotes the privacy of educational          notifies the student of the subpoena prior to
                                                   records and protects the disclosure of             compliance therewith in accordance with the
           On the other hand, the confidential     student educational records to unauthorized        educational institution’s policy. Therefore,
communications between the insured, the            parties without the student’s prior consent or     when a student’s educational records are
insurer, and any counsel representing them         the student’s parents’ consent if the student      requested pursuant to subpoena, the student’s
regarding the matter of common interest are        is a minor. Generally, “the release of             prior written consent is not necessary
protected by the attorney-client privilege from    education records (or personally identifiable      for the educational institution to disclose
discovery by third parties. See Progressive        information contained therein other than           the records. The only action a student or
Exp. Ins. v. Scoma, 32 Fla. L. Weekly D1187        directory information) of students without         student’s parent may take with regard to the
(Fla. 2d DCA 2007). The third party will not       the written consent of their parents [if they      disclosure of educational records pursuant to
have had access to such communications             are a minor or the student if they reached the     a subpoena is to seek protective action in the
during the underlying tort litigation. The third   age of majority] to any individual, agency,        courts.
party bringing a bad faith claim, therefore, is    or organization” is not permitted. 20 U.S.C.
in a much different position than the first-       1232g (b)(1) (2005).                               What are educational records?
party insured bringing such a claim. The
first-party insured and the insurer may have                  In the context of litigation, FERPA     Educational records are defined as “those
no confidential communications with their          would most likely come into play if the            records, files, documents, and other
joint counsel to protect when the first-party      party’s educational records were somehow           materials which contain information directly
insured brings a claim against the insurer         relevant to an issue in the case. For instance,    related to a student; and are maintained by
for third-party coverage. When a third party       if the plaintiff is a student and claims his or    an educational agency or institution or by a
brings the claim for such coverage, however,       her injuries caused significant damages, the       person acting for such agency or institution.”
the insured and insurer most certainly will        plaintiff’s transcripts and/or other educational   20 U.S.C. § 1232g (a)(4)(A)(i)-(ii) (2005);
have had such privileged communications            records may become relevant to the damages         34 C.F.R. § 99.3 (2005). Educational records
and those communications will have been            element of the claim. FERPA prohibits the          do not include instructor’s records:
previously protected from disclosure.              disclosure of student educational records to             •     Records of instructional,
                                                   unauthorized entities without the student’s              supervisory, and administrative
          Communications between an                prior written consent or the student’s parents’          or educational personnel which
insurer and its in-house counsel are generally     written consent, if the student is a minor.              are in the sole possession of the
protected as attorney/client communications.       30 C.F.R. § 99.30 (a) (2005). Therefore, it              maker and which are not accessible
See Progressive Am. Ins. Co. v. Lanier,            would not be permissible under FERPA for                 or revealed to any other person
800 So. 2d 689, 691 (Fla. 1st DCA 2001).           the registrar of an educational institution to           except a substitute;      records
However, if the insurer asserts the “advice                                                                 maintained by a law enforcement
                                                     CSK Litigation QuarterLy 2007

      unit of the educational agency                height of members of athletic teams, dates of    to a subpoena or judicial order:
      or institution that were created              attendance, degrees and awards received, and
      by that law enforcement unit for              the most recent previous educational agency            Personally identifiable records
      the purpose of law enforcement;               or institution attended by the student.                or reports of a student may
      student-employment records;                   20 U.S.C. § 1232g(a)(5)(A) (2005).                     be released to the following
       • In the case of persons who                 Therefore, this type of information may                persons or organizations without
       are employed by an educational               be obtained from an educational agency or              the consent of the student or
       agency or institution but who                institution without requiring the student’s            the student’s parent: A court
       are not in attendance at such                prior consent before disclosure.                       of competent jurisdiction in
       agency or institution, records                                                                      compliance with an order of
       made and maintained in the                   Other Relevant Exceptions to the Prior                 that court or the attorney of
       normal course of business                    Consent Rule                                           record in accordance with a
       which relate exclusively to such                                                                    lawfully issued subpoena,
       person in that person’s capacity                          There are other scenarios                 upon the condition that the
       as an employee and are not                   where a subpoena and/or court order is not             student and the student’s
       available for use for any other              necessary to release the educational records           parent are notified of the
       purpose; or                                  of a student, even without the student’s prior         order or subpoena in advance
       • Records on a student who                   consent:                                               of compliance therewith by
       is eighteen years of age or                                                                         the educational institution or
       older, or is attending an                                  If an educational agency                 agency.
       institution of postsecondary                       or institution initiates legal
       education, which are made or                       action against a parent or                 Fla. Stat. § 1002.22(d) (11.a) (2007)
       maintained by a physician,                         student, the educational agency            (emphasis added).
       psychiatrist, psychologist, or                     or institution may disclose to             In fact, Fla. Stat. § 1002.22 is broader
       other recognized professional                      the court, without a court order           with regard to the definition of educational
       or paraprofessional acting in his                  or subpoena, the education                 records and is broader with respect to
       professional or paraprofessional                   records of the student that are            the entities educational records may be
       capacity, or assisting in that                     relevant for the educational               disclosed to without receiving a student’s
       capacity, and which are made,                      agency or institution to proceed           prior consent. The definition of educational
       maintained, or used only in                        with the legal action as plaintiff;        records pursuant to Fla. Stat. § 1002.22 is far
       connection with the provision                      [or], If a parent or eligible              more expansive than its federal counterpart
       of treatment to the student,                       student initiates legal action             and enumerates specific records included in
       and are not available to anyone                    against an educational agency              its definition of educational records, such
       other than persons providing                       or institution, the educational            as “scores on standardized intelligence,
       such treatment, except that                        agency or institution may                  aptitude, and psychological tests; health
       such records can be personally                     disclose to the court, without             data; family background data. . . and any
       reviewed by a physician or                         a court order or subpoena, the             other evidence, knowledge, or information
       other appropriate professional                     student’s education records that           recorded in any medium, including, but
       of the student’s choice.”                          are relevant for the educational           not limited to, handwriting, typewriting,
                                                          agency or institution to defend            print, magnetic tapes, film, microfilm and
20 U.S.C. § 1232g(a)(4)(B)(i)-(iv) (2005).                itself.                                    microfiche, and maintained and used by an
                                                          34 C.F.R. § 99.31 (9)(iii)(A) &            educational agency or institution or by a
          Further, directory information                  (B) (2005).                                person acting for such agency or institution.”
maintained by an educational agency or                                                               Fla. Stat. § 1002.22(2)(c) (2007).
institution is information that is accessible       Florida Statute § 1002.22 – Student
to the public domain, and does not require a        Records                                                   During the course of litigation,
student’s prior written consent for disclosure                                                       FERPA may arise in efforts to obtain
so long as the institution has given public                   Fla. Stat. § 1002.22, [S]tudent        educational records of parties to the action,
notice to parents of students of the type of        records and reports; rights of parents and       and pose some unexpected, but easily
information that the institution designates         students, is modeled directly after FERPA        navigated roadblocks. This article should
as directory information and provides the           and parallels all the requirements imposed       provide you with a mechanism to obtaining
student or the student’s parent with the right to   by FERPA. Fla. Stat. § 1002.22(d) enforces       educational records in compliance with all
refuse to have all or part of their information     a student’s right to privacy and makes           federal and state statutes and regulations,
included as directory information.                  impermissible the release of “personally         in order to better facilitate the discovery
                                                    identifiable records or reports of a student     process.
34 C.F.R. § 99.37 (a) (2005). Directory             without the written consent of the student’s
information relating to a student includes          parent, or of the student himself or herself.”
the following: the student’s name, address,         Fla. Stat. § 1002.22(d) (2007). Fla. Stat. §
telephone listing, date and place of birth,         1002.22 contains the same exception to the
major field of study, participation in officially   prior consent rule as FERPA with regard to
recognized activities and sports, weight and        the release of educational records pursuant
                                                  CSK Litigation QuarterLy 2007

                                                 insurer to mail the notice of cancellation                   With respect to notices of
    It Must Be My Agent’s Fault                  directly to the insured with an open copy to       cancellation, it may be advisable for the
                                                 the broker, an insurance broker is generally       broker or customer service representative
                By Blake Sando                   under no further duty to inform the insured        to verify the insured’s address on the notice
                                                 about the pending cancellation of the policy       in order to ensure that notice contains the

I n recent years, premiums for insurance
  agency Errors and Omissions policies have
increased for more than three-quarters of
                                                 after receipt of the notice of cancellation.
                                                 See Thal, 524 So. 2d at 1156-7; See also §
                                                 627.728(3) (a), Florida Statutes. Likewise,
                                                                                                    insured’s correct mailing address, as stated
                                                                                                    in the policy. If the insured’s address is
                                                                                                    correct, the insurance broker can reasonably
insurance agencies across the United States.     an insurance broker also owes no duty to           expect that the insured has received notice of
See Stephanie Jones, Insurance Journal,          the insurer to forward a defective notice of       the cancellation in accordance with Florida
What Does the Future Hold for Insurance          cancellation to the insured. See Don Slack         law. As a second step, it may be advisable
Agents’ E&O? (2006). This trend has              Ins. Inc.v. Fidelity Cas. Co. of New York, 385     for the broker to send an email or letter to
been noticeable in South Florida, in which       So. 2d 1061, 1064 (Fla. 5th DCA 1980).             the insured and attach a copy of the insurer’s
property owners have frequently attempted                                                           notice of cancellation, although Florida law
to hold their insurance brokers responsible                Although some insurance brokers          requires no such duty. However, this will
for a lapse in coverage in their homeowner’s     call their respective insured-clients after        enable the broker to prove their attempt
policies, or due to the insurer’s denial of      receipt of a cancellation notice from the          to notify the insured about the notice of
coverage. Some of these lawsuits have arisen     insurance carrier, Florida courts have found       cancellation in the event that litigation later
when coverage has lapsed or been cancelled       that proof of mailing a notice of a cancellation   arises. As a final measure, the insurance
due to the failure of a property owner to pay    to a named insured at the address stated in        broker should document all verbal decisions
the renewal premium for their homeowner’s        the policy constitutes sufficient compliance       that the insured makes with respect to the
policy in a timely manner before the arrival     with policy provisions requiring notice of         continuance or cancellation of insurance
of one of the many destructive hurricanes        cancellation to the insured. Burgos v. Indep.      coverage in a brief email or letter to the
that have blown through South Florida in         Fire Ins. Co., 371 So. 2d 539, 541 (Fla. 3d        insured so that all parties will be clear with
recent years.                                    DCA 1979). If a lawsuit does later arise,          respect to the insured’s coverage decisions.
                                                 an insurer’s proof of mailing of a notice
          As a general rule, Florida law         of cancellation to the insured prevails as a                 As hurricanes become more
provides that an insurance broker or             matter of law over the insured’s denial as         frequent in South Florida, insurance brokers
independent insurance agent acts as the          to its receipt. Ruiz v. Fortune Ins. Co., 677      can expect that unhappy homeowners may
agent of the insured. See Amstar Ins. Co. v.     So. 2d 1336, 1338 (Fla. 3d DCA 1996). If           attempt to make them the scapegoat for the
Cadet, 862 So. 2d 736, 740 (Fla. 5th DCA         cancellation does occur, an insurance broker       insurers’ denial of coverage or for the failure
2003). An insurance broker differs from a        is generally not under a duty to obtain            of the insured to timely renew their own
captive agent because an insurance broker is     replacement insurance coverage for the             policies. Although Florida law generally
not bound to work for or solicit insurance       insured unless there is an agreement to do         places the responsibility of these matters
for any particular insurance company. See        so between the broker and the insured. See         with the insurers and insureds, insurance
Amstar, 862 So. 2d at 739. In Florida, a         Burgos, 371 So. 2d at 541.                         brokers would be well advised to take
person’s acts, not words, determine whether                                                         some additional steps in order to protect
they are deemed to be an insurance broker                   Despite these apparent protections      themselves from E&O liability, litigation
or an insurance agent. See Boulton Agency,       for insurance brokers, there are still some        costs and increased E&O premiums, as well
Inc. v. Phoenix Worldwide Indus., 698 So. 2d     steps that insurance brokers may wish to           as to better serve their insured-clients.
1248, 1250 (Fla. 3d DCA 1997).                   take in order to protect themselves against
                                                 potential lawsuits arising from cancellation
          The good news for insurance            and an insurer’s denial of coverage, and in
brokers is that Florida law has generally        order to better serve their insured-clients.
placed the responsibility to timely renew and    First, the broker should meet with and discuss       Present Status and Florida’s
pay premiums on the insurers and property        with the insured the coverage requested. In        Personal Injury Protection (PIP)
owner themselves. Specifically, the Florida      this meeting, the broker should ensure that                    Statute
Supreme Court has held that an insurance         the insured completes a written insurance
                                                 application in their own handwriting in                            By Eric Rieger
broker’s employment is at an end when the
agent procures insurance for the insured.        order to avoid any transcription errors by the
See Cat’N Fiddle v. Century Ins. Co., 213
So. 2d 701, 704 (Fla. 1968). In Florida, an
                                                 insurance broker. Second, upon obtaining
                                                 a proposal from prospective insurers,
                                                 the broker should put forward a detailed
                                                                                                    P   ersonal Injury Protection (PIP) sunset
                                                                                                        on October 1, 2007. Prior to this date,
                                                                                                    PIP was mandatory and governed by statute.
insurance broker is under a duty to notify the
insured of a pending cancellation of a policy    insurance proposal for the insured’s review        After January 1, 2008, the 15 day demand
unless it is made to appear that the insured     and approval, and explain all proposed             requirement contained in the PIP statute has
knew or reasonably should have known             coverage to the insured. If the insured            been extended to 30 days.
about the cancellation from sources other        agrees with the proposed coverage, then
than the agent. See Thal v. Shiman, 524 So.      the broker should request that the insured                  Like the “old” PIP statute, under
2d 1156, 1156-7 (Fla. 3d DCA 1988).              sign the proposal so that there will be no         the “new” PIP statute, insureds or assignees
                                                 confusion regarding the coverage requested         are able to recover their attorneys’ fees.
         Since Florida law requires an           by the insured.                                    Section 627.428, Fla. Stat. (2007), still
                                                    CSK Litigation QuarterLy 2007

provides for an award of attorneys’ fees on          (ambulance,      emergency      medical    Electrodiagnostic Medicine or
behalf of “any named or omnibus insured              technicians), 200% of Medicare;            by a board recognized by the
or the named beneficiary.” Accordingly, we                                                      American Board of Medical
anticipate there will be no change in awards         	 Emergency services and care             Specialties or the American
to plaintiff lawyers for successfully litigating     provided by a hospital, 75% of the         Osteopathic Association or
these claims.                                        hospital’s usual and customary charge;     who holds diplomate status
                                                                                                with the American Chiropractic
           With these changes, Florida has           	 Emergency services and care             Neurology Board or its
shifted from a No-Fault system to a fault-           and related hospital inpatient services    predecessors shall not exceed
based or tort system, whereby the at fault           rendered by a physician, the usual and     200 percent of the allowable
driver is responsible for paying the claimant’s      customary charges in the community;        amount under the participating
medical expenses and compensating for                                                           physician fee schedule of
additional damages, such as loss of wages            	 Hospital inpatient and outpatient       Medicare Part B for year
and “pain and suffering.” In addition,               services, 200% of Medicare Part A;         2001, for the area in which
claimants are no longer required to have                                                        the treatment was rendered,
suffered a threshold “permanent” injury in           	 All other medical services, 200%        adjusted annually on August
order to recover non-economic damages,               of Medicare Part B;                        1 to reflect the prior calendar
such as pain and suffering and mental                                                           year’s changes in the annual
anguish. Again, dependent upon individual            	 If medical care is not reimbursable     Medical Care Item of the
contracts of insurance, No-Fault coverage            under Medicare, the insurer may limit      Consumer Price Index for All
may or may not be a “collateral source” and          reimbursement to 80% of the workers’       Urban Consumers in the South
may be subrogable.                                   compensation fee schedule; and,            Region as determined by the
                                                                                                Bureau of Labor Statistics of
          On October 11, 2007, Governor              	 If the medical care is not              the United States Department
Charlie Crist signed the proposed No-fault           reimbursable under either Medicare or      of Labor.
bill into law effective January 1, 2008.             workers compensation, the insurer is not
PIP will continue to pay 80% of medical              required to pay.                           4. Allowable amounts that
expenses up to $10,000.00, but the benefits                                                     may be charged to a personal
are limited to services and care provided,         The following subparagraphs, (b)f.2          injury protection insurance
lawfully supervised, ordered, or prescribed        through (b)f.5, (commonly referred to as     insurer and insured for
by: medical doctor, osteopath, physician,          the Consumer Price Index section) has been   medically necessary nerve
allopathic, physician, dentist or provided         eliminated from the new PIP statute:         conduction testing that does
by hospital or ambulatory surgical center;                                                      not meet the requirements of
emergency transportation and treatment                 2. Charges      for     medically        subparagraph 3. shall not
by an ambulance or emergency medical                   necessary cephalic thermo_               exceed the applicable fee
technician; chiropractic physician; entities           grams, peripheral thermograms,           schedule or other payment
wholly owned M.D, osteopathic physician,               spinal ultrasounds, extremity            methodology       established
allopathic physician, chiropractors, dentists,         ultrasounds, video fluoroscopy,          pursuant to s. 440.13.
or such practitioners and their spouse, parent,        and surface electromyography
child or sibling; entities wholly owned by a           shall not exceed the maximum             5. Allowable           amounts
hospital or hospitals; and, licensed health            reimbursement allowance for              that may be charged to a
care clinics that are accredited by a specified        such procedures as set forth in the      personal injury protection
accrediting organization or the health care            applicable fee schedule or other         insurance insurer and insured
clinic has a medical director that is a Florida        payment methodology established          for    magnetic      resonance
licensed physician, osteopath or chiropractor,         pursuant to s. 440.13.                   imaging services shall not
has either been continuously licensed for              3. Allowable amounts that may            exceed 175 percent of the
more than 3 years or is a publicly traded              be charged to a personal injury          allowable amount under the
corporation and provides at least four of              protection insurance insurer and         participating physician fee
the following medical specialties: general             insured for medically necessary          schedule of Medicare Part
medicine, radiography, orthopedic medicine,            nerve conduction testing when            B for year 2001, for the area
physical medicine, physical therapy, physical          done in conjunction with a needle        in which the treatment was
rehabilitation, prescribing or dispending              electromyography        procedure        rendered, adjusted annually
medication and laboratory services.                    and both are performed and               on August 1 to reflect the prior
                                                       billed solely by a physician             calendar year’s changes in the
          Additionally, the new PIP law has            licensed under chapter 458,              annual Medical Care Item of
medical fee schedules that allow insurers to           chapter 459, chapter 460, or             the Consumer Price Index for
limit reimbursement to 80% of the following            chapter 461 who is also certified        All Urban Consumers in the
schedule of maximum charges:                           by the American Board of                 South Region as determined

   	 Emergency transport and treatment
                                                    CSK Litigation QuarterLy 2007

      by the Bureau of Labor Statistics              	 All PIP claims against an insurer            negligence claim against their client, who acted
      of the United States Department                related to the same health care provider        as an insurance agent for the procurement of
      of Labor for the 12-month                      for the same injured person must be             insurance for two of the Plaintiff’s commercial
      period ending June 30 of that                  brought together in a single lawsuit,           businesses. Ultimately, the underlying
      year, except that allowable                    unless good cause is shown why such             insurance carrier denied coverage for two
      amounts that may be charged                                                                    separate losses that occurred at the plaintiffs’
                                                     claims should be brought separately;
      to a personal injury protection                                                                businesses. Initially, the Plaintiff had sought
      insurance insurer and insured                                                                  damages of $15,000.00 from the client for
                                                     	 Increases       15    day    demand
                                                                                                     the failure to renew and procure insurance
      for magnetic resonance imaging                 requirement to 30 days before a provider
                                                                                                     for the Plaintiffs’ businesses, which would
      services provided in facilities                can file suit;
                                                                                                     have provided coverage for the losses. After
      accredited by the Accreditation
                                                                                                     the defense prevailed on a motion to dismiss
      Association for Ambulatory                     	 The Death benefit is modified                the complaint for the failure to state a cause
      Health Care, the American                      to $5,000 or the remainder of the PIP           of action, the Plaintiffs ultimately abandoned
      College of Radiology, or the Joint             benefits, whichever is less; and,               their claims when the defense pursued a motion
      Commission on Accreditation                                                                    for sanctions and fees against the Plaintiffs’
      of Healthcare Organizations                    	 Makes it an unfair trade practice            attorneys for filing a frivolous lawsuit.
      shall not exceed 200 percent                   for an insurer to refuse to pay valid claims
      of the allowable amount under                  as a general business practice, and allows      Richard Cole and Blake Sando successfully
      the participating physician                    the Attorney General to investigate and         dismissed a legal malpractice claim against
      fee schedule of Medicare Part                  initiate actions, in addition to the Office     their client, who was a Plaintiff’s attorney
      B for year 2001, for the area                  of Insurance Regulation.                        in the underlying suit. The underlying suit
      in which the treatment was                                                                     related to a divorce proceeding in New York,
      rendered, adjusted annually                 We will keep you informed of any new               in which the Plaintiff alleged that the client-
      on August 1 to reflect the prior            developments, legislative or otherwise, on         attorney had committed legal malpractice
      calendar year’s changes in the              Florida’s PIP law.                                 by over-billing the Plaintiff for their legal
      annual Medical Care Item of                                                                    services. After the defense filed a motion to
      the Consumer Price Index for                                                                   dismiss due to forum non conveniens, the
      All Urban Consumers in the                                                                     defense successfully negotiated with the
      South Region as determined by                            Success Stories                       Plaintiff to dismiss the lawsuit with prejudice
      the Bureau of Labor Statistics of                                                              without any contribution from the client.
      the United States Department of
      Labor for the 12-month period               Richard Cole, Gene Kissane and John                Richard Cole and Blake Sando obtained a
      ending June 30 of that year. This           Coleman successfully tried a nursing home          complete defense verdict in a trip and fall trial
      paragraph does not apply to                 case in the State of Pennsylvania which            in Key West. The Plaintiff claimed injuries
      charges for magnetic resonance              resulted in a highly favorable verdict on          including an operated knee, torn rotator cuff
      imaging services and nerve                  behalf of our client.                              in the shoulder and permanent tremors in her
                                                                                                     neck. The jury was out for one hour, including
      conduction testing for inpatients
                                                  Richard Cole, Thomas Scott, Gene                   lunch.
      and emergency services and
      care as defined in chapter 395              Kissane and Scott Bassman were successful
                                                  in having a federal court in Florida rule          Christopher Hopkins and Allison Bernstein
      rendered by facilities licensed
                                                  that     a    ‘follow-the-fortunes/follow-the-     received a defense decision in a wrongful
      under chapter 395.                                                                             death Assisted Living Facility arbitration. The
                                                  settlements’ provision should not be implied
                                                  into a reinsurance agreement absent express        Resident’s Estate sued both the Administrator
The PIP fee schedule referenced above                                                                and the Facility claiming: that the Resident
                                                  agreement by the contracting parties. A
would apply instead.                                                                                 was inappropriate for placement and continued
                                                  ‘follow-the-fortunes’       clause     typically
                                                  describes a reinsurer’s obligation to follow       placement, development of tunneling ulcers,
If the PIP insurer receives notice of an          a reinsured’s underwriting fortunes, whereas       dehydration, malnutrition, that the Facility
accident, the insurer must reserve $5,000.00      ‘follow-the-settlements’ refers to the duty to     failed to timely transfer the Resident to the
of PIP benefits for payment to physicians         follow the actions of the reinsured in adjusting   hospital, and death. Christopher and Allison
or dentists rendering emergency care or           and settling claims. The federal court agreed      previously defeated the Plaintiff’s Motion for
inpatient care in the hospital for 30 days.       that there was simply no express provision(s)      Leave to Assert Punitive Damages.
After the 30 day period, the unclaimed            within the subject reinsurance certificate, and
amount of the reserve may be used to pay          it could not go outside the laws of contract       Christopher Hopkins and Allison Bernstein
claims from other providers. The required         construction to add a clause that was not          won an appeal on behalf of a homeowners’
time to pay claims to other providers is tolled   bargained for by the parties. This is the first    association involving the question of
for the time period the insurer is required to    published decision in Florida on this issue and    whether the homeowners’ association could
hold such claims due to this requirement.         one of the few throughout the entire country.      amend their declaration to require future
                                                                                                     property owners to join a local country club.
The important remaining highlights are:           Richard Cole and Blake Sando successfully          Additionally, the appellate court granted our
                                                  received a dismissal in a professional             Motion To Tax Attorney’s Fees And Costs.

                                                      CSK Litigation QuarterLy 2007

The underlying case was tried to a defense          and told a very believable story.                    negligence and violation of nursing home
verdict by John Kennedy.                                                                                 residents’ rights alleging that the Defendant
                                                    Jonathan Midwall and Lee Cohen received              nurse picked up the decedent and threw her
 Christopher Hopkins and Allison Bernstein          a defense verdict in a case concerning the           on the bed breaking her leg. She required
prevailed in an appeal of a defense verdict         alleged failure of a day care facility in taking     surgery and passed away approximately one
involving a dispute between a condominium           care of a seven year old boy who received            month later. The defense of this case revolved
owner and the association over a board of           personal injuries as the result of an accident at    around misidentification of the Defendant
director’s determination that there was a           the Facility. The jury was out for 40 minutes,       nurse and the subsequent investigation of the
nuisance. Additionally, the appellate court         including lunch, and returned a complete             roommate’s statements including her ability
granted our Motion To Tax Attorney’s Fees           defense verdict.                                     to identify the Defendant.
And Costs. Barry Postman and Lee Cohen
won at the trial level.                             Barry Postman and Sherry Schwartz were               Allison Bernstein prevailed in an appeal
                                                    successful in compelling the dismissal of            of an order granting a 2.5 multiplier in
Christopher Hopkins, Lisa Szulgit, and              two cases involving a title/closing agency’s         a personal injury protection case. On
Allison Bernstein prevailed on a Motion for         alleged breach of fiduciary duty with regard to      appeal, Allison argued that the award of the
Summary Judgment in a trip and fall case that       the closings of two residential sale contracts.      multiplier by the lower court was an abuse
occurred in a nursing home. The Plaintiff, who      After lengthy negotiations, and pursuing all         of discretion. The appellate court agreed and
was not a resident of the nursing home, tripped     remedies afforded by Section 57.105, Fla.            threw out the multiplier.
on an area rug which she claimed should have        Stats. Plaintiff’s counsel ultimately agreed to
been secured to the floor. She testified during     voluntarily dismiss one case, with prejudice,        Allison Bernstein successfully negotiated
her deposition that she had been to the nursing     and is currently seeking leave of court to           a settlement for $100,000 in a wrongful
home numerous times in the past and that she        amend the second lawsuit, in order avoid             death case three days before trial where the
had seen the area rug, which had been there for     being forced to suffer the sanctions associated      Defendant was alleged to have choked the
a very long time. The Motion for Summary            with the filing of two frivolous lawsuits.           Plaintiff/decedent while at work resulting in
Judgment argued that the area rug was open                                                               his suffering a stroke one weak later which
and obvious and the Court agreed.                   Barry Postman and Michael Shiver                     caused his death. The Plaintiff proceeded to
                                                    succeeded in securing a voluntary dismissal          trial against the Defendant’s alleged employer
Aram Megerian and Scott Shelton obtained            of a breach of fiduciary duty complaint filed        alleging that it was responsible for the actions
a defense verdict in a case where the plaintiff     against an automobile insurance brokerage.           of its agent/apparent agent. The jury returned
alleged that he fell over a loose plank on our      By aggressively taking the position that the         a verdict for $4,400,000 for the actions of the
client’s dock striking his head on an illegally     Plaintiff had affirmatively and independently        Defendant.
parked boat. The plaintiff alleged that the         sought to reduce and then eliminate her
boat had been illegally parked over two years       uninsured motorist coverage, and indicating an       Ron Campbell and Justin Sorel obtained
and constituted an unreasonably dangerous           intent to seek sanctions pursuant to Fla. Stat.      a Recommended Order in a discrimination
condition. As a result of the fall, the plaintiff   ss. 57.105, Barry and Michael convinced              case declaring that the Plaintiff was not
claimed that he sustained a herniated disk          opposing counsel and the Plaintiff that any          discriminated against based on her gender
and severe post concussion syndrome and             cause of action against her insurance broker         or familial status. The Plaintiff alleged that
requested an award exceeding $750,000.00.           would be subject to estoppel, due to multiple        she was not allowed to serve on the Board of
The defense argued that the condition,              signed statements by the Plaintiff indicating        Directors and received notices of violations of
although dangerous, was an open and obvious         her intent to limit her automobile insurance         the Association’s documents due to her gender
condition and questioned whether the plaintiff      policy.                                              and her status as a single mother of two minor
actually fell on the dock. The jury returned                                                             children. The Florida Commission on Human
a verdict in less than 30 minutes, including        Barry Postman and Jonathan Vine received             Relations initially found “no cause” relative
lunch.                                              a directed verdict in a failure to disclose/fraud/   to violations of any statutes, which the
                                                    nuisance case after a two week trial. Prior to       Plaintiff appealed. At the final hearing, both
Aram Megerian and Robert Swift recently             trial, the Defendant offered over $500,000           parties presented witness testimony as well as
obtained a defense verdict in a liability case      to settle, which was rejected by the Plaintiff.      other forms of evidence. The Administrative
where the carrier had served a $200,000             Additionally, as the Plaintiff was seeking           Law Judge issued a Recommended Order
Proposal for Settlement on the plaintiff. The       relief pursuant to the Florida Deceptive and         consistent with all of Defendant’s arguments,
issue was whether the client moved a ladder         Unfair Trade Practices Act, our client is now        finding no evidence of discrimination.
that the plaintiff was standing on, or whether      entitled to its attorney’s fees as the prevailing
the plaintiff slipped and fell from the roof.       party.                                               Lee Cohen obtained a complete defense
Plaintiff’s case was based upon our client’s                                                             verdict in a nursing home negligence trial.
numerous versions of the events. Ultimately,        Janet Abel obtained a dismissal with prejudice       The Plaintiff claimed that the nursing home staff
our client testified that he and the plaintiff      prior to trial due to the Plaintiff’s attorney       failed to respond to complaints of shortness of
had concocted the story about the ladder since      realizing our investigation was building a           breath. The Plaintiff alleged that the failure of
the plaintiff was seriously injured and had no      strong case of misidentification. The Plaintiff/     the staff to timely provide treatment resulted
medical or disability coverage. After trial, a      decedent resided at a nursing home and the           in injuries requiring hospitalization.
juror advised Aram and Robert that the case         Defendants were a healthcare temporary
was won upon the convincing testimony of            staffing agency and employed nurse. The              Scott A. Cole recently obtained final summary
our client, who made excellent eye contact          Plaintiff filed a two-count complaint for            judgment on four cases arising under Florida’s
                                                                                                         Personal Injury Protection statute. Acting
                                                      CSK Litigation QuarterLy 2007
under an assignment of benefits, a chiropractic      and redacted bills. He further argued that the
clinic filed four lawsuits against an insurance      Defendant was entitled to fees and costs for                      News & Notes
company seeking to obtain payment for all            seeking entitlement as well as the costs of
medical treatments allegedly rendered. Scott         the fees and costs expert. The Court granted
was successful in proving that the plaintiff did     the Defendant 100% of the fees and costs           Awards
not possess the required licenses to lawfully        associated with his defense and the full costs
render treatments at the facility. Scott was         of the expert witness.                             Cole, Scott and Kissane, P.A. was listed
also successful in proving that the plaintiff                                                           as one of this years Top Ranked Law Firms
knowingly employed and utilized medical              David Salazar successfully convinced a             within the state by Florida Trend.
personnel who were not authorized by the             Plaintiff to file a Voluntary Dismissal in a
Florida Department of Health to work for             serious personal injury matter with medical        Christopher Hopkins received the “Douglas
the plaintiff. As such, the court held in all        expenses in excess of $100,000.00. The             Lawless Alternative Dispute Resolution
four cases that no payment was owed by               Plaintiff alleged that the Defendant failed to     Award” at the Florida Defense Lawyers’
the insurance company on the basis that the          maintain a safe walkway in his gas station         Association Annual Meeting in Ft. Lauderdale
treatments were unlawful.                            which caused the Plaintiff to fall and suffer      in August 2007.
                                                     a fractured hip. However, David argued that,
Thomas P. Glenz recently prevailed on a              based upon Florida law, if the Plaintiff was not   Positions
Motion for Summary Judgment on a case of             patronizing the Defendant’s gas station and if
first impression arising out of Florida’s No-        the Plaintiff did not have reason to believe       David Salazar was named co-chair of the
Fault statute. Acting under an assignment of         that the area where he fell was a designated       Young Lawyers Division of the Florida
benefits, a medical clinic filed a lawsuit against   walkway, the Plaintiff’s case was meritless.       Defense Lawyers Association
an insurer seeking payment of bills for medical      Accordingly, upon serving the Plaintiff’s
treatment to a named insured. However, at            attorney with a proper § 57.105 letter, the        Speaking Engagements
the time of the treatment, the provider was          Plaintiff’s counsel voluntarily dismissed the
not aware of the insurers identity; hence, did       case.                                              Christopher Hopkins has been invited to
not submit any bills that complied with the                                                             speak at the February 2008 Southern Trial
statute to any entity. The defense argued that:      Robert Swift obtained a voluntary dismissal        Lawyers Association Annual Meeting in a
a) the provider could not be dilatory in its         with prejudice due to Plaintiff’s realization      “debate style” session with plaintiff lawyer,
efforts to be paid; and b) must strictly follow      that they had not complied with pre-suit           Frank Petosa, regarding enforcement and
the billing guidelines outlined in the statute.      requirements and that the trial in this            fairness of arbitration.
Since the provider failed to follow the billing      matter could take upwards of 3 weeks. The
guidelines, the Court agreed that it was not         Plaintiff’s son/decedent, was a Resident at the    On October 19, Christopher Hopkins sat
entitled to payment. The defense has recently        Defendant’s nursing home. Plaintiff alleged        on the “IME’s Across the State” panel at
completed its Motion to Tax Fees and Costs to        medical malpractice, nursing home residents’       the Florida Defense Lawyers Association &
recover approximately $25,000.00.                    rights violations and general negligence. The      Jacksonville Association of Defense Counsel
                                                     decedent had an extremely rare and complex         Regional Seminar “The Independent Medical
David Salazar prevailed on a Motion for              medical condition for which the Defendant          Exam - Where Do We Stand.”
Final Summary Judgment in a personal injury          was rendering care. While at the Defendant’s
matter in Monroe County. The Plaintiff               Facility, the decedent suffered numerous           On October 29, Christopher Hopkins and
claimed that, while riding a bicycle, he slipped     seizures and died. The successful defense was      Allison Bernstein conducted a presentation
and fell on a transient foreign substance            predicated on Plaintiff’s failure to participate   titled The Internet Evolution: Savvy Research
suffering serious injuries. The Plaintiff’s          in pre-suit discovery and lack of causation.       Strategies for Paralegals in West Palm Beach.
case was riddled with questions of credibility.
Additionally, the Plaintiff failed to respond to     Nicole Topper prevailed on a Motion for            On June 6, 2008, Christopher Hopkins and
Requests for Admission, answer Supplemental          Summary Judgment in a case alleging that           Allison Bernstein will be conducting a CLE
Interrogatories, or attend his deposition which      a faulty roof installation led to a leak. The      titled Legal Ethics in Florida in West Palm
was properly noticed. The court found that,          Plaintiff was a visitor in the hospital when the   Beach.
together with Plaintiff’s failure to respond to      roof caved in and she was severely injured.
Requests for Admissions, Plaintiff’s failure         The co-defendants, which were additional           Publications
to participate in discovery warranted final          contractors on the roof/drain area, did not
summary judgment.                                    succeed on their motions to dismiss/motions        Christopher Hopkins and Allison Bernstein
                                                     for summary judgment.                              are editing the Pro Se Appellate Handbook for
David Salazar obtained summary judgment on                                                              the Appellate Section of the Florida Bar.
a defamation matter and prevailed on seeking                                                            Christopher Hopkins authored an article for
attorneys’ fees and costs based upon a proposal                                                         the Trial Advocate Quarterly titled Curiosity
for settlement. After prevailing on the issue                                                           Killed The Cat: Top Ten Internet Searches For
of entitlement to attorneys’ fees and costs,                                                            Florida Lawyers.
the Plaintiff contested the reasonableness of
the fees and costs. At the evidentiary hearing                                                          Christopher Hopkins authored an article for
on the issues of reasonableness, David put                                                              the Trial Advocate Quarterly titled Computer
forth evidence by way of an expert witness                                                              Tips For Lawyers.

                                                  CSK Litigation QuarterLy 2007

Volunteer Work                                   discrimination faced by the diverse members
                                                 of the Palm Beach County Community. Ms.
Cole, Scott & Kissane, P.A. participates in      Rosato Pitassi is also a Host Committee
the Voices for Children’s annual toy drive,      Member of the newly established Palm Beach
which obtains and delivers toys to children in   County Chapter for Equality Florida, holding
the dependency system.                           its first event on November 6, 2007.

Cole, Scott & Kissane, P.A. sponsors the         Ed Polk volunteers as a coach for girls
Jupiter Mustangs pee wee football team,          basketball teams in the Temple Beth Am
which is coached by Jeff Alexander, an           Basketball League, which he has done for the
associated in the West Palm Beach office.        past twelve years, eight of which he served
                                                 on the League’s management committee as a
Gene Kissane regularly serves as a guardian      commissioner of one of the six divisions.
in the Miami-Dade County Guardian at Litem
Program. He also volunteers his time as a        Brian Rubenstein participates in the Big
volunteer coach for Youth Athletics at the       Brothers Big Sisters program of Tampa Bay
Miami YMCA.                                      where he volunteers his time to serve as a
                                                 mentor for an underprivileged child.
Janet Abel volunteers with American
Bullmastiff Association Rescue.                  Ashley N. Sybesma and Brandon Waas
                                                 participated in the Dade County Bar
Alexis Brown-Gelb volunteers with the            Association Mentoring Program designed
Florida Breast Health Initiative which is a      for attorneys to serve as mentors to students
program that helps underprivileged people and    in the legal magnet programs at Miami high
woman without health insurance obtain free       schools.
mammograms and other information relating
to Breast Cancer. She also ran in the Susan
G. Komen Race for the Cure on October 20th
raising money for Breast Cancer.

Lara Dabdoub volunteers with the State
of Florida Guardian Ad Litem Program in
Hillsborough County serving as an Attorney
Ad Litem for children in foster care.

Samuel Frankel just got off six months
active duty with the United States Marine
Corps in a volunteer assignment providing
funeral and honor guard detail for the Lake
Worth National Cemetery. Between April
23, 2007 and October 1, 2007, Mr. Frankel
rendered funeral honors for over 100 veterans
and about a dozen color guard and community

Jami Gursky serves as an Attorney Ad
Litem with Lawyers for Children of America
providing a well-needed voice in court for
children who are abandoned, abused and

Christopher Hopkins has volunteered to
serve as a juror in the Earl Zehmer annual
mock trial competition sponsored by the
education foundation of the Florida Justice

Rita Rosato Pitassi is one of the founding
members of the COMPASS, INC., Marc B.
Tesh Foundation, providing legal consultation
and    referral    information relative    to

                                               Meet one of our LawyerS

                                                    Daniel J. Kissane

                         D    aniel J. Kissane, is a partner in the Jacksonville office. His areas of expertise include: product
                              liability defense litigation with an emphasis on motor vehicles (including automobiles, motorcycles,
                         forklifts, ATV’s, and personal watercraft), cosmetics, and pharmaceuticals; personal injury defense;
                         commercial litigation; and insurance coverage issues.

                         Mr. Kissane is a 1984 graduate of the University of Miami (B.A.) and received his Juris Doctorate
                         degree in 1988 from St. Thomas University (Magna Cum Laude). He is a member of The Florida Bar
                         (1988), the United States District Court for the Southern District of Florida, the United States District
                         Court for the Middle District of Florida and the United States District Court for the Northern District
                         of Florida. Mr. Kissane is also a member of the Bar of the United States Circuit Court of Appeals,
                         Eleventh Circuit. Mr. Kissane interned for the Honorable Thomas Scott, United States District Court
                         for the Southern District of Florida. He is AV rated by Martindale-Hubbell.

Mr. Kissane is a member of the Automobile Products Subcommittee of the Products Liability Committee of the American Bar
Association, and a Prime Member of the Association of Defense Trial Attorneys. He is a frequent contributor to the Trends
Report and other publications prepared by the Automobile Products Subcommittee of the ABA. University of Miami, Florida
Treasurer, Phi Alpha Delta.

In addition, he has recently co-authored the Florida Personal Injury Practice Guide that is published by LexisNexis and Matthew

Mr. Kissane has represented, among others, Procter & Gamble; Deere & Company ; American Honda Motor Co., Inc.; Yamaha
Motor Corporation, U.S.A.; Kawasaki Motors Corp., U.S.A.; Isuzu Motors Ltd., Mitsubishi Motors North America, Toyota
Motor Company, Porsche Cars North America, John Deere Insurance Company, Sentry Insurance Co., Sumitomo Marine and
Fire Insurance Company, the Underwriters at Lloyd’s; and various other insurance companies.

                                                     Luis E. Ordonez

                       L   uis E. Ordonez practices in the areas of professional liability, medical malpractice,
                           premises liability, automobile negligence, construction litigation and product liability

                       He received a B.S. in Business from Eastern Illinois University in 1978 and a law degree from
                       the University of Illinois College of Law in 1981.

                       Mr. Ordonez is admitted to practice in the Federal District Court for the Northern District of
                       Illinois and all state courts in Illinois. He is also admitted in the Federal District Court for the
                       Southern District of Florida and all state courts in Florida.

                       He is AV rated by Martindale-Hubbell and is a member of the Florida Defense Lawyers

Cole Scott & Kissane is pleased to offer to its valued colleagues, throughout the country, the following seminars
which typically afford CEU credits to the claims representatives in attendance. We are happy to provide these
seminars in your office. We have provided each of these seminars on multiple occasions to insurance carriers
throughout the country and the feedback has been tremendous and we would be delighted to host one or more of
these seminars for you and your colleagues:
1. How To Avoid Bad Faith In Florida – A Must For Every Claims Representative
2. How To Effectively Deal With And Understand Liens In The State Of Florida
3. Medical Malpractice Seminar With An Emphasis On Florida‘s Tort Reform
4. Products Liability Seminar And How To Defend These Claims In Florida
5. Arbitration And How To Effectively Utilize Arbitration In Florida
6. Appellate Seminar – Taking Cases To The Next Level
7. How To Effectively Use Surveillance – Using The Skeleton In Someone’s Closet To Your Advantage
8. How To Recognize Fraudulent Claims And How To Effectively Deal With Such Claims
9. Current Trends In PIP Litigation
10. Frye And Daubert Challenges – What To Do To Exclude The Other Side’s Expert Witnesses
11. How To Effectively Handle Automobile Claims And The Strategies To Be Utilized
12. Handling Property Claims With An Emphasis On Hurricane Claims
13. Offers Of Judgment/Proposals Of Settlement – How To Avoid The Mine Fields
14. How To Effectively Handle Nursing Home And ALF Claims And Understanding The Plaintiff’s Litigation Model
15. How To Defend Negligent Security Claims And The Defenses To Be Effectively Asserted
16. How To Defend Premises Liability Claims
17. How To Defend Trucking Accident Claims
18. Litigation 101 An Overview – From the First Notice Of A Claim Through An Opinion By The Florida Supreme Court
19. How To Defend Legal Malpractice Claims And Practical Issues In Defending These Claims
20. When Is An Insurance Broker Acting As A Statutory, Actual Or Parent Agent Under Florida Law?
21. Rights And Duties Of The Insured, The Attorney And The Insurer In The Tripartite Relationship
22. How To Defend A Catastrophic Personal Injury Case Which May Include Paralysis, Loss Of Limbs, Burns And Other Catastrophic Injuries
23. Do’s And Don’ts In The Work Place And How To Avoid Being Sued – An Overview Of Employment Litigation
24. Legal Malpractice – The Case Within A Case – What To Do When A Lawyer In On The Wrong Side Of A Lawsuit
25. Home Is Not Always Where The Heart Is – How to Handle Condominium Claims
26. Fraud And Misrepresentation In Workers’ Compensation Claims
27. Psychiatric Claims In Workers’ Compensation Claims Under The New Law
28. Enforcement of Settlements in Workers’ Compensation
29. Workers’ Compensation and Employer Immunity
30. Mediations in Workers’ Compensation
31.  Indemnity Benefits in Workers’ Compensation/Permanent Total Disability
32. Workers’ Compensation Adjuster Ethics
33. Internet Legal Research … Tricks Of The Trade

                         If you have an interest in one or more of these seminars, please contact:
                                                               Scott Cole
                                                            (305) 350-5346
                                                              Henry Salas
                                                            (305) 663-7047
                                                             Daniel Shapiro
                                                            (813) 289-9333
                                                           Michael Brand
                                                           (305) 350-5380
                                                            Daniel Kissane
                                                            (904) 253-6091
                                                           Aram Megerian
                                                           (813) 289-9373

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