Fall Edition by sanmelody


									MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                                   FALL 2009

  In Your Defense
                                                                                     Inside this issue
                                                                                     Managing Partner Leads MSPC Divisions to Multiple
                                                                                     Victories                                         1
                                                                                     MSPC Maritime Division Secures Full Recovery in
                                                                                     Large Fire Loss                                     2
                                                                                     MSPC Tracks Exponential Rise in Chinese Drywall
                                                                                     Claims and Potential Remediation Costs              2
                                                                                     Medicare’s New Reporting Requirements             3
                                                                                     Chapter 558 Amendments Examined                   3
                                                                                     Douglas McIntosh to Lead National Seminar on Best
                                                                                     Practices                                         4
                                                                                     MSPC Provides Continuing Education for Large Auto
                                                                                     and Homeowner Insurer                            4
                                                                                     McIntosh Leads DRI’s 2009 Insurance Roundtable      4
                                                                                     MSPC Partner Leads Expansion of Central Florida
                                                                                     Office                                               5
                                                                                     Miami Partner Launches Inaugural Issue of Maritime
                                                                                     Law Association Newsletter                        5
                                                                                     MSPC Attorneys Published in Nova Law Review         6

                                      The Partners from left to right, top to bottom:
                     Douglas McIntosh, Robert Peltz, Carmen Cartaya, Carol Finklehoffe, James Sawran,
                                           Terese Latham, A. Candace Marcus.

         BIG WINS!                 The trial team of Managing Partner                    fendant, was obtained. Mr. McIn-
 MANAGING PARTNER LEADS            Douglas McIntosh, Senior Associate                    tosh s expertise, gained through
MSPC DIVISIONS TO MULTIPLE         Michael Barzyk, Legal Assistant                       participation in more than 1,000
        VICTORIES                  Delle Lenzen, and Legal Nurse                         mediations, enabled him to lead his
                                   Consultant Pamela Parks, mediated                     team in early and effective media-
                                   a catastrophic brain injury case.                     tion of catastrophic injury claims.
                                   Coupled with four other claimants
                                   damages claims arising from a mul-                    In a separate matter, Mr. McIntosh,
                                   tiple impact automobile accident, the                 Senior Associate Robert Weill, Ms.
                                   case presented considerable expo-                     Lenzen and Legal Assistant Michael
                                   sure to the client and its excess car-                Damiano successfully concluded a
                                   rier. By promptly and thoroughly                      multi-million dollar insurance cover-
                                   scrutinizing all medical records and                  age dispute pending in the Federal
                                   life care plans and obtaining expe-                   Court in North Carolina. MSPC was
                                   dited expert medical review of the                    lead counsel for two excess carriers
                                   variety of injuries that would have                   in a case scheduled for a three
                                   exceeded coverages available to                       week trial. The case was litigated for
                                   the Defendant, the team mediated                      several years but resulted in a suc-
                                   the case at an early stage of the                     cessful resolution and an excellent
                                   proceedings. A complete settlement                    outcome for the MSPC clients with-
                                   of all claims, well within the avail-                 out need for prolonged trial. MSPC,
                                   able coverage afforded to the De-                     with expertise in insurance coverage

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                  FALL 2009

and significant exposure events,              MSPC MARITIME DIVISION              supporting documentation, the un-
serves its clients throughout Florida        SECURES FULL RECOVERY               derwriters accepted the owner s
and in other states as Pro Hac Vice            IN LARGE FIRE LOSS                constructive total loss claim.
                                                                                 MSPC s Admiralty and Maritime Di-
In a third matter, the trial team of Mr.                                         vision handles first-party and third-
McIntosh and Certified Legal Assis-                                               party maritime casualty claims, and
tant Pamela Lamirande succeeded                                                  is available for consultation in this
in vacating a default for a client and                                           highly skilled practice arena. Feel
its insurer. What could have been a                                              free to contact Mr. Peltz for further
significant judgment, based upon a                                                information about this article, as well
recorded default that was of record                                              as the MSPC Admiralty and Mari-
for considerable time, was avoided                                               time Division.
by immediate and aggressive court
filings upon receipt of the call to ac-                                                PRACTICETRENDS
tion. This now allows MSPC s client                                                MSPC TRACKS EXPONENTIAL
and its insurer to address the case                                                RISE IN CHINESE DRYWALL
on its merits in State Court.                                                       CLAIMS AND POTENTIAL
                                                                                      REMEDIATION COSTS
In addition, three catastrophic injury
claims arising from an explosion                                                  The avalanche of claims, litigation,
case pending in Volusia County Cir-                                               and insurance coverage disputes in
cuit Court were concluded by the                                                  the aftermath of Chinese drywall
trial team of Messrs. McIntosh and         Miami Partner Robert Peltz, head of construction in the United States
Barzyk, Ms. Lenzen and Legal               MSPC s Admiralty and Maritime Di- continues to build momentum. Ex-
Nurse Consultant Robin Brant. After        vision, together with Messrs. McIn-    perts indicate that between remedia-
two years of litigation, MSPC was          tosh and Weill, recently investi-      tion costs, litigation costs and the
substituted in as Lead Counsel in          gated, retained experts, worked up, loss of valued homes, Chinese dry-
this Insurance Defense/Products            negotiated and settled a mega yacht wall is a $15-$25 billion dollar prob-
Liability matter involving two deaths      fire damage claim in excess of $25      lem. Whether it is on a personal or
and catastrophic injuries to a third       million on behalf of the owner. The    professional basis, everyone will
Plaintiff. Through aggressive liability    161-foot ultra luxury yacht caught     somehow be impacted by the Chi-
defense and thorough analysis of           fire during the course of sea trials    nese drywall disaster that has
medical and life care plans by the         performed by contractors as part of    gripped our already vulnerable
MSPC trial team and its retained           routine scheduled maintenance.         housing market. While Chinese
experts, the case was successfully         MSPC was hired by the owner to         drywall has been used and discov-
concluded at mediation on very fa-         assure that the claim was properly     ered in 24 states, approximately 77
vorable terms for the client and its       presented to foreign underwriters.     percent of the reported cases in-
insurance carrier.                                                                volve Florida homes. Between 2004
                                           The engine room was subject to         and 2008, shipping records indicate
                                           severe fire damage, destroying both over 500 million pounds of Chinese
Mr. McIntosh, resident in the Fort
                                           engines and melting the electrical     drywall and plasterboard was im-
Lauderdale office, heads up the
                                           wires for the entire yacht. The living ported into the U.S. Eleven million
Firm s Insurance Defense/Products
                                           and recreational areas of the yacht    pounds of Chinese drywall came
Liability, Insurance Coverage/Bad
                                           sustained significant smoke dam-        through Port Canaveral, Florida in
Faith and Construction Defect Liti-
                                           age, which could not be remediated 2006 alone.
gation Divisions. To obtain further
                                           due to the resulting chemical inter-
information about this article, please
                                           action with the vessel s extensive     Unlike domestically manufactured
feel free to contact Mr. McIntosh.
                                           millwork, silk wall covering, underly- drywall, it has been reported that
His contact information, along with
                                           ing wooden frames and soft goods.      Chinese drywall contains volatile
that of all MSPC attorneys, is pro-
vided at the end of this publication.                                             sulfur compounds and fly ash, a
                                           Following the work-up of an exten-     coal byproduct. When these parti-
                                           sive proof of loss, accompanied by     cles are exposed to moisture, in-
                                           expert affidavits, reports and other    cluding humidity, the Chinese dry-

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                     FALL 2009

wall emits sulfur dioxide and other       MEDICARE’S NEW REPORTING                 and past) and non-medical benefits
gases resulting in noxious odors               REQUIREMENTS                        (e.g., lost wages).
similar to rotting eggs.
                                         Pursuant to Section 111 of the            The new reporting requirements and
Affected homeowners have alleged         Medicare, Medicaid and SCHIP Ex-          Medicare's broad right to enforce its
that the drywall defect has resulted     tension Act of 2007 (MMSEA), be-          right to reimbursement will also re-
in both structural problems in their     ginning January 1, 2010, insurers         quire RREs to protect themselves
homes and physical ailments in their     and self-insured entities will be re-     from liability to Medicare if the
families. The results of health im-      quired to report claims made by           claimant does not reimburse Medi-
pact studies analyzing exposure to       Medicare-eligible claimants to the        care. Some tools suggested by
strontium and carbon sulfide are          Centers for Medicare and Medicaid         practitioners include: (a) using multi-
due later this year. Many homeown-       Services (CMS) and will be subject        party settlement drafts which require
ers who live in large residential de-    to a $1,000 daily fine for late report-    the Medicare beneficiary, private
velopments have banded together          ing. The same entities will be sub-       payees, and Medicare to endorse
to file class action lawsuits against     ject to double damages if they fail to    the check; this should be negotiated
developers, contractors and manu-        satisfy Medicare s lien when monies       as a condition of settlement since it
facturers of defective drywall. A        are paid to a claimant through set-       may substantially delay the plaintiff
multi-district Federal class action      tlement, judgment or otherwise.           from receiving any money given
has already been certified in Louisi-                                               Medicare's processing time; (b) is-
ana. Direct litigation has, in turn,   By imposing this mandatory report-          suing multiple checks - a multi-party
spurred insurance coverage dis-        ing requirement on Responsible              check to cover the anticipated Medi-
putes wherein carriers are denying     Reporting Entities (RREs) Medicare          care recovery amount and another
coverage based on pollution exclu-     hopes to increase its ability to iden-      one to the beneficiary and his or her
sions contained within their policies. tify individuals who received Medi-         representative; (c) issuing a sepa-
                                       care payments and to recoup an              rate check to Medicare; and (d) de-
Litigation over Chinese drywall will   estimated $1.74 billion of benefits          manding that claimant agree to hold
continue for many years to come.       that RREs should have paid. While           harmless and indemnify the RRE for
Unfortunately, the financial impact of this practice has been required in           any Medicare liens as well as es-
Chinese drywall may not be limited     workers compensation matters for            crow the settlement funds until
to property damage and remediation decades, its application to civil               Medicare's lien has been satisfied
claims. If further investigation and   cases has dramatic implications.            (this may only insulate the RRE
scientific studies establish a sup-     Counsel for self-insureds, insureds,        from the single damages not the
portable link between illnesses and    and plaintiffs must remember that           double damages that can be recov-
the gases emitted by the drywall,      Medicare is a secondary payer for           ered by Medicare).
bodily injury claims may manifest      any medical care and has an abso-
themselves over the next few dec-      lute right to reimbursement from            For further information about this
ades, similar to asbestos and other    RREs that should have paid such             subject, please feel free to contact
toxic-tort litigation with which our   expenses. These new requirements            the author of this article Fort Lau-
court systems have been inundated. will complicate the consummation of             derdale Senior Associate Robert C.
We have only seen the beginning of settlements and present a possible              Weill, who oversees the Firm s
the problems we are likely to en-      risk of future liability against all par-   Appellate/Litigation Support Divi-
counter as a result of the importa-    ties, including counsel, if Medicare s      sion.
tion and use of tainted Chinese dry- lien is not satisfied.
wall in construction throughout the                                                  CHAPTER 558 AMENDMENTS
United States, and especially in       Given the new reporting require-                     EXAMINED
Florida.                               ments, discovery in liability litigation
                                       must be tailored to obtain key infor-       Florida's mandatory Construction
For more information on this topic,    mation from plaintiffs. Likewise, both      Defect Alternative Resolution Proc-
please feel free to contact Mr.        pre-trial and post-trial procedures         ess, as set forth in Florida statutes,
Barzyk, the author of this article. He must be tailored toward the new law.        Chapter 558, was significantly
is resident in the Firm s Fort Lau-    For example, verdict forms should           amended October 1, 2009. The
derdale office, and is part of its      apportion the amount of the award           amendment applies to all construc-
Construction Defect Litigation Divi-   between medical benefits (future             tion contracts executed on or after
sion, as overseen by Mr. McIntosh.                                                 that date. There was much confu-

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                  FALL 2009

sion in applying prior versions of the   direction of Mr. McIntosh. To discuss delay in payment of a viable claim,
statute insofar as whether or not the    this matter at greater length, please and may be applicable in both first
Chapter 558 Notice language was,         feel free to contact Ms. Arocha.         and third-party situations. West
in fact, “required” to be incorporated   ______________________                   Palm Senior Associate Camille
into construction contracts. The         [1] 558.005(6) Fla. Stat. (2009).        Blanton and Mr. Damiano, a former
new amendment includes a state-                                                   Claims Adjuster resident in Fort
ment that, "The failure to include in                OFSERVICE                    Lauderdale, will provide a continuing
the contract the notice provided in       DOUGLAS MCINTOSH TO LEAD education course to claims adjusters
this subsection does not subject the       NATIONAL SEMINAR ON BEST               for a large auto and homeowner
contracting Owner, contractor, or                      PRACTICES                  insurer in November. Their presen-
design professional to any penalty.                                               tation will include an update on in-
The purpose of the contractual no-       Mr. McIntosh has been selected to        surance bad faith law in Florida and
tice is to promote awareness of the      Chair the "Best Practices for Law        an interactive discussion as to how
procedure, not to be a penalty."[1]      Firm Profitability Seminar", for DRI,     claims adjusters and attorneys can
Thus, while the Notice language          The Voice of the Defense Bar, in         collaborate to prevent bad faith
remains part of the statute, the         New York City on December 3-4,           claims, protect themselves in the
amendment establishes that there         2009. The program was created in         event that litigation ensues, and bet-
are no legal consequences or inde-       response to the DRI's 2009 “Future       ter serve insureds. Blanton and
pendent action arising from the          of Litigation" report, and will seize    Damiano hope to encourage and
omission of the required statutory       upon the need identified to educate facilitate more frequent and effective
notice in construction contracts.        defense lawyers around the country communication between attorneys
                                         on developing skill sets necessary       and claims examiners and their in-
It is clear that the legislature intends for a competitive litigation practice in sureds.
that the statute apply to all construc- 2010 and beyond. The seminar will
tion defect cases, regardless of         combine speakers from defense            Ms. Blanton, the author of this arti-
whether or not the notice language       firms as well as leading panel of in-     cle, is also a member of the Firm s
is included in construction contracts. house counsel for national insurers        Insurance Coverage/Bad Faith Liti-
However, omission of the required        and businesses, with interactive         gation Division. Feel free to contact
Chapter 558 notice language from         presentations on such provocative        her for more information about this
construction contracts incurs "no        subjects as alternative fee arrange- topic and the Firm s services.
penalty" under the amendment. In         ments, requests for proposal for le-
fact, the amendment provides the         gal services, and living litigation        MCINTOSH LEADS DRI’S 2009
first "opt-out" provision, thereby                                                     INSURANCE ROUNDTABLE
                                         plans and budgets for both sides of
permitting contracting parties to        the litigation case relationship.
agree in writing not to follow the                                                Mr. McIntosh served as Chair for the
statutory scheme. Other significant                                                2009 Defense Research Institute
                                         Please feel free to contact Mr. McIn-
changes include the requirement                                                   Insurance Roundtable in Dallas,
                                         tosh for further information about
that a project reach substantial                                                  Texas, in June. DRI holds the
                                         this important seminar.
completion before the statute can be                                              Roundtable each year in order to
invoked, and the imposition of a new MSPC PROVIDES CONTINUING bring defense bar leaders together
deadline for parties to exchange all       EDUCATION FOR LARGE AUTO               with insurance carriers and risk
discoverable information.                   AND HOMEOWNER INSURER                 management leaders, from around
                                                                                  the country, to explore and develop
All recipients of a Chapter 558 No-      Insurers are beginning to notice a       common areas of interest or con-
tice under the amended statute           rise in the number of bad faith          cern between the defense bar and
should be aware of these significant      claims being filed in the State of        the insurers they represent.
changes and respond quickly to           Florida. In general, bad faith is the
preserve their entitlements.             breach of a covenant of good faith       Please feel free to contact Mr. McIn-
                                         that exists in every insurance con-      tosh for additional information about
The author of this article is Ms.        tract. With regards to insurance con- DRI, as well as its committees and
Crystal L. Arocha, an Associate in       tracts, such a breach may serve as       programs.
the Fort Lauderdale office. She           the foundation for a tort action. In
works in the Firm's Construction         Florida, insurance bad faith may be
Defect Litigation Division under the     based on denial, underpayment or

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                  FALL 2009

         WHO’SWHO?                      turned to Florida to practice law.       She is admitted to practice in the
MSPC PARTNER LEADS EXPAN-               She began her career as a prosecu-       State of Florida, as well as the U.S.
 SION OF CENTRAL FLORIDA                tor, trying a hundred cases to jury      District Court for the Northern, Mid-
          OFFICE                        verdict. Over the ensuing years, Teri    dle and Southern Districts of Florida,
                                        has handled healthcare litigation        and the U.S. Court of Appeals,
                                        throughout Florida, representing         Eleventh Circuit.
                                        hospitals, physicians, dentists, nurs-
                                        ing homes and other healthcare           Teri s vision, congruent with that of
                                        providers in medical malpractice         the Firm, is to grow and diversify the
                                        and other related areas. She also        Central Florida office by cross-
                                        handles administrative issues with       marketing with other lawyers, as
                                        healthcare professionals, including      well as those in the Firm s South
                                        licensing, medical staff and peer        Florida offices. In this fashion, Teri
                                        review matters.                          and her Partners continue to en-
                                                                                 hance service capabilities to the
                                        One of the many services that Teri       Firm s valued clients throughout
                                        provided to her clients includes         Florida, as well as in other regions
                                        Mock Trials. Teri routinely provides     of the country.
                                        these mock trial presentations at
                                        medical facilities in Central and    To discuss services in Central Flor-
                                        North Florida. The Mock Trial fo-    ida, please feel free to contact Teri
                                        cuses on the impact of medical re-   directly.
Partner Terese “Teri” Latham has        cord documentation on medical neg-
                                        ligence litigation.                     MIAMI PARTNER LAUNCHES
always maintained a vision for the                                                INAUGURAL ISSUE OF MARI-
Firm s success in Central Florida.                                                  TIME LAW ASSOCIATION
Upon her arrival in 2005, Ms.           Teri believes that team work is most
Latham opened the Orlando/              important. Team work is the epicen-
Maitland office with the support of      ter of a good trial practice. Launch-
                                                                              Mr. Peltz has recently overseen the
the Firm s Executive Committee, as      ing new strategies on her cases as
                                                                              publication of the inaugural issue of
well as the rest of her South Florida   well as innovative ways to reduce
                                                                              the Maritime Law Association Cruise
Partners. The office has enjoyed         costs for clients are most important
                                                                              Lines and Passenger Ships Com-
successful operations throughout        for her. Teri has two key business
                                                                              mittee Newsletter. He serves as
her tenure.                             lessons learned over her years of
                                                                              Chair of the Cruise Lines and Pas-
                                        practice: the business relationship
                                                                              senger Ships Committee comprised
Although geographically the farthest    and a driving perseverance.
                                                                              of some 50 members. Assistance
from the Fort Lauderdale headquar-                                            with layout and graphic design was
ters, this Central Florida office is     Teri is a member of the Florida Bar
                                                                              provided by Ms. Lamirande, who is
closely aligned to the other three      Association, Orange County Bar
                                                                              also resident in its Miami office.
offices and is equally committed to      Association, Defense Research In-
                                                                              This newsletter has been designed
the Firm s mission of providing qual-   stitute (DRI), Florida Defense Law-
                                                                              as a means of communicating to
ity legal services. Teri and her team   yers Association (FDLA), Florida
                                                                              committee members year-round and
of qualified professionals have          Academy of Healthcare Attorneys,
                                                                              throughout the country. It provides a
steadily built a practice that is ac-   and the Florida Hospital Association.
                                                                              forum for the useful discussion of
cessible, responsive and knowl-         She has lectured on all aspects of
                                                                              issues affecting the industry, as well
edgeable.                               healthcare matters to hospital risk
                                                                              as a vehicle for sharing periodic up-
                                        managers, physicians, and nurses.
                                                                              dates on maritime legal issues.
A native Floridian, Teri was born in    In addition to handling healthcare
                                                                              Through this level of synergy, com-
Fort Lauderdale and graduated from      matters, Teri has qualified as a
                                                                              mittee members are better able to
the University of Florida. She then     Proctor in Admiralty, with the Firm
                                                                              service clients by providing impor-
headed to Birmingham, Alabama,          serving as appointed defense coun-
                                                                              tant and timely information designed
and received a juris doctorate from     sel to several large cruise compa-
                                                                              to enhance communication, and
Cumberland School of Law at Sam-        nies.
                                                                              create a successful partnership be-
ford University in 1987. Teri re-                                             tween the two. The inaugural edition

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                                  FALL 2009

includes articles written by Mr. Peltz,   MSPC ATTORNEYS PUBLISHED                The article focuses on the permissi-
as well as fellow Committee Mem-             IN NOVA LAW REVIEW                   ble scope of corporate representa-
ber Carol L. Finklehoffe, a Partner in                                            tive depositions, designation of the
the Firm s Miami office, who works         Messrs. Peltz and Weill have pub-       areas of inquiry and selection of
closely with Mr. Peltz in the Admi-       lished their article entitled “Corpo-   corporate representative. Copies of
ralty and Maritime Division. Please       rate Representative Depositions: In     the article are available upon re-
feel free to contact Mr. Peltz or Ms.     Search of a Cohesive & Well-            quest. To obtain more information
Finklehoffe for more information          Defined Body of Law” in the Spring       on this subject, please feel free to
about this subject.                       2009 edition of the Nova Law Re-        contact Messrs. Peltz and Weill.

MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A.                                                     FALL 2009

                In Your Defense Newsletter

  The hiring of an attorney is an important decision and should not be based solely upon advertisements.
 Before you decide, ask us to send you free written information about our qualifications and experience.

                                                  OUR OFFICES

                  Fort Lauderdale, FL (MAIN OFFICE)                 Orlando, FL
                         McIntosh, Sawran Building                Southhall Center
                          1776 E. Sunrise Blvd.             101 Southhall Lane, Suite 190
                           Ft. Lauderdale, FL                    Maitland, FL 32751
                               33304-3067                      Phone: 407-875-0261
                        Phone: (954) 765-1001                    Fax: 407-875-0263
                          Fax: (954) 765-1005

                         Resident Attorneys:
                                                                Resident Attorneys:
                          Douglas M. McIntosh
                            James C. Sawran                       Terese M. Latham
                           Carmen Y. Cartaya                      William S. Marcisz
                           A. Candace Marcus
                              Robert C. Weill
                           Thomas M. Hartwig
                            Michael F. Barzyk
                             Aleida M. Mielke
                             James P. O’Hara
                         Donna Wilson-Sampson
                             John C. Webber
                            Crystal L. Arocha

                              Miami, FL                        West Palm Beach, FL
                           Biscayne Building                       Centurion Building
                    19 W. Flagler Street, Suite 920         1601 Forum Place, Suite 1110
                        Miami, FL 33130-4412               West Palm Beach, FL 33401-4025
                       Phone: (305) 381-8922                   Phone: (561) 682-3202
                        Fax: (305) 381-6889                      Fax: (561) 682-3206

                        Resident Attorneys:                     Resident Attorneys:
                             Robert D. Peltz                       Camille E. Blanton
                           Carol L. Finklehoffe                    Manuel R. Comras
                           Alejandra M. Masso

                          VISIT OUR WEBSITE AT WWW.MSPCESQ.COM


To top