E DITO R:
IN THIS ISSUE Dear Clients & Friends,
Medicare Super-Liens 2009 marked a significant milestone
What Every Claims
Professional Should Know in Kubicki Draper’s history. After 47
4 Laurie J. Adams years, Kubicki Draper evolved from a Harold A. Saul
Caryn L. Bellus firm founded and led by one attorney
to one led by several. Ten of the
Preclusion of firm’s own have risen to the challenge
“Stigma” Damages in
Construction Defect Cases and proudly taken the helm. We look
Helping Someone forward to continuing the core values
on which the firm was founded and
operates -- commitment, integrity and
Michael J. Carney Jane C. Rankin
New Partners Named
& New Additions
to the KD Family
We hope to exceed your expectations
KD Announcements and serve you for many years to
Save The Date!
All the best for 2010!
Earleen H. Cote Greg J. Prusak
Friday, November 5, 2010
More information Rolando A. Diaz Brad J. McCormick Peter H. Murphy Kenneth M. Oliver
will be available at
Don’t Miss Out! Of Special Interest to Our Clients...
See Page 2-3 for Part I of a II Part Special Series on Medicare Super-Liens
PA R T I O F A I I PA R T S E R I E S
Medicare Super-Liens, Set Asides and Notice Provisions:
What Every Claims Professional Should Know
by Jorge Santeiro, Jr., Esq.
ONE REASON TO SETTLE A CASE IS TO ACHIEVE FINALITY. authorized to seek recovery from anybody, including the claimant’s
Every settlement should strive to resolve all aspects of a claim, attorney, who receives payment from the primary plan.
including claims of medical providers, insurers or government
agencies providing medical benefits to claimants. The ability of In a recent West Virginia case, a plaintiff’s attorney, who distributed
tortfeasors and liability insurers to “buy their peace” is becoming funds from a settlement, was held personally liable for the
more complicated as a result of the federal government’s recent payment of Medicare’s super-lien. In U.S. v. Harris, 2009 WL
efforts to recover sums paid to Medicare recipients under the 891931 ( N.D.W.Va March 26, 2009), the defendant was a
Medicare Secondary Payor Act (“MSPA”). plaintiff’s lawyer, who represented a client that pursued a
liability claim against a retailer of an allegedly defective ladder. A
In the past, both claims professionals and attorneys paid little $25,000.00 settlement was reached. Medicare paid a total of
attention to the MSPA because the agency running Medicare did $22,549.00 for medical services on behalf of the injured plaintiff.
almost nothing to enforce it. Personal injury claims have, until After the attorney provided Medicare with the details of the
recently, been largely spared because the settlement payment, Medicare calculated
Center for Medicare and Medicaid Services that it should be paid $10,253.59 of the
(“CMS”) focused its attention on workers’ The purpose of this article is to settlement amount. The plaintiff’s lawyer
compensation claims. In light of new then distributed the settlement funds to his
attention being paid to cost overruns and
introduce the front-line claims
client without retaining the funds for
inefficiencies in the Medicare program, the professional to the minefield of Medicare or paying it from the client’s
government is turning to the MSPA to help Medicare notice and reimburse- funds out of the payout. Because the
recoup its costs from personal injury claims. amount was not paid within the 60-day
ment statutes and regulations
statutory deadline, CMS sought a total of
The Medicare, Medicaid and SCHIP Exten- and, in a follow up article, to $11,367.78, including interest. The plaintiff
sion Act of 2007 (MMSEA), which becomes offer some practical approaches never paid the Medicare lien, so CMS filed
effective this year, requires disclosure of a declaratory judgment action against the
information and provides for penalties that to help settle claims where
plaintiff’s lawyer for the damages owed to
will allow CMS to expand enforcement of Medicare is a payor. CMS. The Harris court denied the lawyer’s
MSPA and MSA rules to liability cases. motion to dismiss, citing to the section of
the MSPA stating that the government may
recover payment from “any entity that has received payment
The Super-Lien: An Overview. from a payment plan.”
Medicare is a federal health insurance program for the elderly
and disabled. It was first established as a “primary payor for Also, on December 1, 2009, the Department of Justice (“DOJ”)
medical services supplied to a beneficiary,” regardless of the filed suit against a group of plaintiff attorneys, corporate defen-
existence of other insurance. In the 1980s, with federal health- dants, and insurers to recover conditional Medicare payments
care costs rising, Congress enacted legislation defining Medicare and double damages in a case that had settled six years earlier in
as a “secondary payor” where other sources of payment exist. September of 2003 with an Alabama state court approving of a
$300 million settlement in a toxic exposure case. About 907 of
the settling plaintiffs were Medicare beneficiaries that received
Reimbursement for Past Medical Care. settlement proceeds including compensation for medical
Medicare is not primary medical insurance like a health expenses related to the exposure. CMS made conditional
insurance plan. It is a secondary insurance plan, which means it payments on behalf of these Medicare beneficiaries for illness
conditionally pays for medical treatment subject to reimbursement and injuries related to the incident. Neither the defendants,
by the “primary plan” including third-party tortfeasors and defendants’ insurers, plaintiffs or plaintiffs’ counsel made any
liability insurance. As a result, Medicare is entitled to reimburse- payments to CMS as reimbursement for Medicare's conditional
ment any time it pays Medicare benefits and a case is resolved payments.
either by settlement or judgment. The U.S. Code requires a
The DOJ brought suit against the plaintiffs’ counsel, the corporate
Medicare beneficiary, receiving a payment from a “primary plan”
defendants and the defendant insurers, Travelers and AIG, for
or “primary payor,” to reimburse Medicare within 60 days of
failure to comply with the MSP statute. The federal government
receipt of payment.
has alleged that each defendant knew or should have known that
However, if a Medicare beneficiary claimant does not repay one or more of the plaintiffs were Medicare eligible individuals on
Medicare within 60 days from receipt of the settlement proceeds, whose behalf the U.S. was entitled to recover Medicare conditional
federal regulation obligates the insurance company for the payments. The DOJ has further alleged that neither plaintiffs’
defendant to reimburse Medicare “even though it has already counsel, the corporate defendants or the insurers ascertained
reimbursed the beneficiary or other party.” Further, Medicare is
whether any settling plaintiff was a Medicare beneficiary, nor did the attorneys’ fees and expenses to the total recovery. If
anyone identify the amounts owing to the U.S. as reimbursement Medicare’s lien equals or exceeds the amount of the settlement,
for Medicare conditional payments, prior to making payment the regulations provide that Medicare will recover the full
according to the terms of the settlement agreement. As a result, amount of the lien less the attorneys’ fees and expenses.
the federal government is seeking reimbursement for all
conditional payments made on behalf of the settling plaintiffs plus Medicare may also reduce or waive its recovery if either “the
interest, and has also demanded double damages because it was probability of recovery, or the amount involved, does not warrant
necessary to initiate legal action against the named defendants. pursuit of the claim.” Medicare may decide to compromise a
Medicare has a direct right of action against entities responsible claim because the Medicare beneficiary is unable “to pay the full
for making payments (insurers) and entities receiving proceeds amount within a reasonable time,” the federal government is
from the primary payor (claimants, attorneys, consultants, and unable “to collect ... in full within a reasonable time,” “the cost of
medical providers). Medicare is entitled to double damages plus collecting ... does not justify the enforced collection of the full
interest if the primary payor knew or should have known of amount,” or “there is significant doubt concerning the [g]overn-
Medicare’s interest and paid the claimant anyway. ment’s ability to prove its case in court.” The amount accepted in
compromise “may reflect an appropriate discount for the
administrative and litigative costs of collection, with consideration
Set-Asides for Future Medical Care. given to the time it will take” to collect.
Future medical care payments, however, can be more complicated.
Medicare may waive its recovery completely when the beneficiary
The MSPA provides that to the extent that a claimant recovers
was not at fault and recovery would defeat the purposes of the
from a tortfeasor for future medical expenses that are within
Medicare Act or be against “equity and good conscience.” The
Medicare coverage categories (for example, hospitals, doctors,
regulations explain that the purposes of the Medicare Act would
and diagnostics), the recovery must be used to pay the post-set-
be defeated if recovery would deprive a person of income
tlement accident-related medical expenses of the claimant until it
required for ordinary and necessary expenses. An individual’s
is exhausted. Only then will Medicare coverage be available to
“ordinary and necessary expenses” include: “[f]ixed living
the claimant. Here, the law is largely undeveloped, and, often,
expenses, such as food and clothing, rent, mortgage payments,
the amount of money involved is significant.
utilities, maintenance, insurance ... taxes, installment payments,
The portion of the MSPA, which has been in effect since 1980, etc. . . . [m]edical, hospitalization, and other similar expenses . .
that permits CMS to pursue payments for estimated future . [e]xpenses for the support of others for whom the individual is
medical care is: legally responsible; [and] . . . [o]ther miscellaneous expenses
which may reasonably be considered as part of the individual’s
Payment under [Medicare] may not be made . . . with respect standard of living.”
to any item or service to the extent that. . . .
A party who does not agree with CMS’s determination of the
(ii) payment has been made or can reasonably be expected to
amount of reimbursement has recourse through an administra-
be made under a workmen's compensation law or plan of
tive appeals process. The party has 120 days after receiving
the United States or a State or under an automobile or liability
CMS’s initial determination to appeal.
insurance policy or plan (including a self-insured plan) or under
no fault insurance.
42 U.S.C. §1395y(b)(2)(A)(ii) (emphasis added). Notice Provisions Under the Medicare,
Medicaid and SCHIP Extension Act.
While the existing guidance and enforcement continues to be
By January 1, 2011, liability and no-fault insurers will be required
only in the workers’ compensation arena, the new mandatory
to report a potential recovery to Medicare. Section 111 of the
notice provisions addressed below foreshadow the requirement
MMSEA, which was originally slated to become effective on July
of set-asides for the estimated cost of future medical care in
1, 2009, will require liability insurers to determine whether or
liability cases. Thus, it is advisable to consider a Medicare
not plaintiffs are entitled to Medicare benefits. The MMSEA will
Set-Aside Account (“MSA”) in the future settlement of any
require liability insurers to determine whether a claimant is
liability case that falls within the current parameters set by
entitled to Medicare benefits regardless of whether the claim
Medicare for workers’ compensation cases.1
against the defendant is resolved. If the claimant is determined to
be entitled to Medicare benefits, the insurer will then be required
Waiver & Compromise and Challenging CMS to notify Medicare of its right to a possible recovery against the
Federal regulations allow for a reduction or waiver of a Medicare The insurer will be required to provide other information to
recovery under certain circumstances. Medicare is required to Medicare, including the identity of the Medicare beneficiary
reduce its recovery “to take account of the cost of procuring the whose injury or accident is at issue, as well as other information
judgment or settlement ... if: (i)[p]rocurement costs are incurred specified by Medicare to assist in recovering the amount that
because the claim is disputed; and (ii)[t]hose costs are borne by Medicare previously paid. The MMSEA imposes a $1,000.00
the party against which [Medicare] seeks to recover.” If the per day penalty upon an insurer for failure to comply with the
Medicare lien is less than the amount of the settlement, the notification requirement.
reduction for attorneys’ fees and expenses is equal to the ratio of
continued on page 4
1The follow up article in the next edition of the KD Quarterly will discuss in
detail the specifics of an MSA and provide guidance on when such an
account will be appropriate.
SPOTLIGHT ON: AV rated by Martindale Hubbell, Caryn has received much
recognition as a top Florida appellate lawyer. Every year
since 2006, Caryn has been named a Florida "Super Lawyer"
Caryn L. Bellus in Appellate Practice by Law & Politics Magazine, which is
a recognition given to only the top five percent of attorneys
in Florida. For the past four years she has also been
recognized as a Top Lawyer in South Florida in appellate
Caryn L. Bellus, a shareholder in the and insurance coverage by the South Florida Legal Guide
Miami office, has been a member of and in 2009, Florida Trend Magazine named Caryn as one
the firm and an integral part of the of its Florida Legal Elite in the area of appellate practice.
firm’s appellate and insurance Caryn’s recognition is well-deserved. In addition to her
coverage group for over fourteen years. A Florida Bar board regular law practice, Caryn has been the Chair of the Florida
certified appellate lawyer, Caryn routinely appears before the Bar’s Appellate Practice Section’s Publications Committee
state and federal appellate courts in Florida and has extensive since 2006, where she oversees all publications of the state
experience in the areas of insurance coverage, claims bar’s Appellate Practice Section. Additionally, Caryn serves
administration and bad faith. as the Chair of the Florida Defense
Caryn describes her role – and the role Lawyer Association’s (FDLA) Amicus
of all of the lawyers in the firm’s appel- “I never get bored with my Curiae Committee, where she screens
late practice group – as the "firefighters cases that are before the state and
work because every file raises federal appellate courts to determine
of the firm." Both outside clients and
lawyers within the firm rely on Caryn something different; it is a whether the issues involved are ones
to find answers "when they run into that would justify the submission of an
problems and unresolved issues." She
daily learning experience.” amicus ("friend of the court") brief by
the FDLA. For her efforts, Caryn was
explains, "If an issue is well-settled, it Most satisfying, according to honored with the FDLA’s 2009 Annual
won’t end up on our desks." Appellate
practice by its nature, "runs the gamut" Caryn, is the opportunity to Amicus Award.
of law; Caryn stated, "we see it all." play a part in shaping the Outside of her commitments to the
This, according to Caryn, keeps her job practice of law, Caryn enjoys spending
interesting. law for the future. time with her family which includes her
Caryn was born and raised near husband, her twelve year old daughter,
Chicago, Illinois. Caryn decided she and her two dogs. Of interest, Caryn’s
wanted to be a lawyer when she was five years old. Caryn husband is John Elliott Leighton, a plaintiff’s lawyer. Many
earned her Bachelor’s degree at the University of Central people find the pairing of a prominent plaintiff’s lawyer
Florida and her J.D. at the University of Florida College of with a top defense lawyer to be an odd couple. According
Law. Caryn briefly served as a law clerk for the Honorable to Caryn, it is not, although (she admits) their union does
Gisela Cardone-Ely at the Eleventh Judicial Circuit Court lead to some interesting dinner time conversations. Some
for Miami-Dade County, Florida, prior to joining Kubicki of Caryn’s favorite family activities include traveling and
Draper in 1995. skiing. She also enjoys exercising, cooking and has recently
taken up surfing.
continued from page 3
Although originally slated to start on July 1, 2009 for liability, no 4. 04/01/2010 - 06/30/2010 All liability insurance (including
fault, and workers’ compensation insurers, CMS announced a self-insurance), no-fault insurance, and workers’ compensa-
new implementation timeline for the reporting requirements, as tion RREs submit their first Section 111 production Claim
follows: Input Files based upon a predetermined schedule with the
1. 05/01/2009 - 09/30/2009 Electronic registration via the
5. 07/01/2010 All liability insurance (including self-insurance),
COBSW for all liability insurance (including self-insurance),
no-fault insurance, and workers’ compensation RREs will be
no-fault insurance, and workers’ compensation RREs
submitting their Section 111 production Claim Input Files
(“Responsible Reporting Entities”).
by this date.
2. 07/01/2009 Test and production Query Function will be The reporting deadline was recently pushed back again. On
available for those RREs who have completed registration February 16, 2010, CMS advised all Non-Group Health Plan
and are in testing status (the RRE’s signed Profile Report has Responsible Reporting Entities that the date for first production Input
been received by CMS’ Coordination of Benefits Contractor Files was changed from April 1, 2010 to January 1, 2011. See CMS
(COBC)). website, MMSEA 111 What’s New, at: https://www.cms.hhs.gov/
3. 01/01/2010 - 03/31/2010 Claim Input File testing period for MandatoryInsRep/04_Whats_New.asp#TopOfP
all liability insurance (including self-insurance), no-fault For additional guidance regarding the Medicare notice requirement,
insurance, and workers’ compensation RREs. CMS has posted its MMSEA 111 User Guide for Liability
Insurance No-Fault Insurance and Workers' Compensation at
Preclusion of The law continued to develop in Orkin Exterminating Co.,
v. Delguidice, 790 So.2d 1158 (Fla. 5th DCA 2001), rev.
“Stigma” Damages in denied, 821 So. 2d 294 (Fla. 2002). There, Orkin provided
termite treatment to the homeowner and provided a termite
Construction Defect Cases protection plan. Despite the treatment, the house was infested
with termites every year for several consecutive years. Among
the elements of damages awarded were “stigma” damages.
by Michelle Krone, Esq. On appeal, the court held that the homeowner was limited
to the remedy that he agreed to in the contract, which was
In construction defect litigation, the typical plaintiff is a
retreatment of the house. Relying on the supreme court’s
homeowner or a condominium association seeking damages
decision in Grossman, the Orkin court explained that in
for alleged defects in construction of a property. Plaintiffs often
order for the plaintiff to present “stigma” damages to the jury,
seek cost of repair, consequential damages, and sometimes
and avoid the exclusive remedy of repair/retreatment that was
personal injury-related damages allegedly caused by exposure
agreed to in the Orkin contract, he would have had to present
to mold. When mold litigation became prevalent in Florida,
evidence that the cost of repairing the property would be
plaintiffs also began seeking "stigma" damages, sometimes
impractical or result in economic waste.
called damages for “diminution in value.” The theory behind
these damages is that the property owner can only be made Other cases in Florida, unrelated to construction, have
whole by permitting an award of "stigma" damages when the followed these courts in their view of "diminution in value"
property will still suffer a “diminution in value” after remediation. damages. In Rezevskis v. Aries Insurance Co., 784 So.2d
As will be discussed below, there are arguments available under 472 (Fla. 3d DCA 2001), a policy holder was involved in a
Florida law to preclude “stigma”damages from being permitted. motor vehicle accident and accepted the cost to repair her car.
The car was repaired and returned to its pre-accident
The Restatement (First) of Contracts actually provides for two
condition. Thereafter, the owner sought damages related to
alternate measures of damages in construction defect cases. The
diminution in value based on the notion that a car that had
first is "diminution in value" where the property owner is
been in an accident, whether repaired or not, was not as
compensated for the difference in the value of the property
valuable as a car that had not been in an accident. The court
before and after the injury or damage. The second is "restora-
rejected this notion and refused to award damages based on
tion" where the property owner is compensated for the cost of
"market psychology" or public perception about a vehicle that
repairing the property and restoring it to its pre-injury or
had been in an accident. See also Siegle v. Progressive
predamage condition. These are alternate theories of recovery
Consumers Ins. Co., 788 So.2d 355 (Fla. 4th DCA 2001),
and the Florida courts have typically allowed diminution or re-
rev. denied, 819 So. 2d 732 (Fla. 2002).
pair, whichever is less, but not both.
In support of their claim for “stigma” damages, plaintiffs
Although no case involving the precise issue of mold and
typically try to argue legal opinions from eminent domain
“stigma” damages has been reported in Florida, there is
cases. These cases uphold presenting this type of damage
sufficient guidance under Florida law for the courts
because the whole concept behind
to preclude “stigma” damages in
eminent domain is property
certain circumstances in construc-
valuation. To the contrary, in the
tion defect cases. The Florida
context of construction cases, the
Supreme Court adopted the
subject matter is breach of
Restatement (First) of Contracts
contract and construction defects,
for damage arising out of con-
which is typically measured by
struction defects in a case where a
repair and/or replacement. The
home was built facing the
eminent domain cases simply
opposite exposure than provided
elaborate on what can be consid-
for in the contract. In Grossman
ered when land is taken for public
Holdings, Ltd. v. Hourihan, 414
use and includes "any factor,
So.2d 1037 (Fla. 1982), a home
therefore, including public fear,
was constructed identical in every
which impacts on the market
way to the plans except that it was
value of the land..." The distinction
constructed to the west instead of
is that the plaintiffs in eminent
the east. The supreme court held that the plaintiff was entitled
domain cases are already entitled to this type of damage based
to the cost of repair or diminution in value, if the cost of repair
on the type of litigation.
would result in economic waste.
Fraz Ahmed, an associate in our Jacksonville office, recently represented a 64 year-old woman who
Helping had lost her paratransit service from the Jacksonville Transportation Authority (JTA). The service
provides door-to-door transportation for those unable to ride the traditional fixed-route buses. The
client had undergone two total knee replacements, suffered from degenerative disease in both hips
Someone and had arthritis “in more joints than most people could bear,” explains Fraz.
Without her door-to-door service, the woman would have had to walk more than 10 blocks to the
In Need... nearest bus stop every time she needed to go to the pharmacy, grocery store or bank. Prior to Fraz
being called in on the case, JTA had already denied one appeal by the client. After Fraz proceeded
to file suit, however, JTA reevaluated the case and restored the client’s paratransit service.
recent trial results
Stuart C. Poage of our Jacksonville office obtained a
T RIAL complete defense verdict in an auto negligence case tried in
federal court. The primary issue at trial was whether the
motor vehicle accident caused a permanent aggravation to
plaintiff’s pre-existing cervical condition. After considering
the evidence, the jury found that it did not. Plaintiff had
asked the jury for damages totalling $950,000.00. Defendant
Monty Warren and Barry Heisler of our West Palm Beach
will be seeking attorney’s fees under an offer of judgment
office obtained a final summary judgment in a medical
and prevailing party costs.
malpractice case. The plaintiff suffered a foot injury that
became infected. Subsequent to her wound treatment, she
Michael Balducci of our West Palm Beach office obtained
developed a thrombosis in her leg that migrated to her lungs
a very favorable result in an auto negligence case with
and eventually caused her death. The plaintiff alleged that
admitted liability. The primary issues at trial were causation
the defendant deviated from the standard of care by failing
of plaintiff’s injuries, permanency, necessity of medical
to diagnose her deep vein thrombosis. However, the defense
treatments and the reasonableness of plaintiff’s medical
successfully established that the decedent’s thrombosis did
expenses. Plaintiff had undergone two surgeries including a
not exist at the time that she was tested by the defendant.
disc decompression/percutaneous discectomy. Plaintiff’s
Although this issue is ordinarily one of fact to be tried
medicals were over $166,000.00. The plaintiff asked the jury
before a jury, we successfully demonstrated that there was
for between $1.3 million and $1.9 million. The jury found
such an absence of evidence to support the plaintiff’s theory
no permanent injury as a result of the accident and awarded
of recovery, that a summary judgment was granted.
only $22,000.00 for past medicals and $3,000.00 for lost
earnings. Defendant had filed a proposal of settlement for
Charles Watkins and Nicole Ellis of our Miami office ob-
her $100,000.00 policy limits and will be seeking attorney’s
tained a very favorable result in a hotly contested attorney’s
fees and costs.
fee evidentiary hearing, where over $1,000,000.00 in attorney’s
fees and costs were at stake. Plaintiff sought attorney’s
Monty R. Warren of our West Palm Beach office obtained
fees pursuant to denied requests for admission as well as a
a dismissal with prejudice of his client, a consulting neurol-
proposal for settlement. The court's ultimate ruling saved the
ogist, in a medical malpractice action. The plaintiff, an
client over $850,000.00 in fee exposure. A full blown non-jury
evolving stroke patient, claimed the defendant failed to
trial on attorney’s fees such as that at issue here, seems to be
timely respond to a consult and failed to timely initiate
a new trend with respect to post-trial attorney’s fee issues.
appropriate care and treatment which allegedly would have
Daniel Draper of our Miami office obtained a complete included thrombolytic therapy (tissue plasminary activator -
defense verdict in a medical malpractice case. The claim was TPA). Notwithstanding the fact that our client failed to
that the ophthalmologist failed to properly follow-up respond to multiple pages and calls to his answering service,
plaintiff’s vision complaints and advise of possible retinal in addition to his failure to directly encounter the plaintiff
detachment, which occurred. Three attempted retinal for more than a 24-hour period, Mr. Warren was able to
re-attachments followed, but were unsuccessful, resulting in obtain a dismissal with prejudice, based upon the anticipated
blindness in the eye, and ultimately the plaintiff had her eye testimony of the defense expert.
removed. Plaintiff had asked the jury for damages in excess
Peter S. Baumberger of our Miami office obtained a
of $1.5 million.
complete defense verdict in a case where a husband and wife
filed a first-party claim against their carrier for underinsured
Earleen Cote and Scott M. Rosso of our Fort Lauderdale
motorist benefits arising from a 2001 rear-end accident in
office obtained a complete defense verdict in an insurance
Puerto Rico in which liability and causation of injuries was
coverage case. The plaintiff claimed that the camshaft variator
uncontested. Both Plaintiffs were transported to the hospital
of his Ferrari 360 Modena broke due to a milled and/or resur-
from the scene. The husband had no less than two dozen
faced roadway creating a 4" drop on the road. The primary
various complaints, including head, neck and back pain, as
defense was that the camshaft failed due to a mechanical
well as neurological damage. In addition to his medical
fatigue failure, which fell within an exclusion under the
damages, the husband, a successful insurance broker, was
plaintiff’s policy. Expert metallurgists testified for both
seeking hundreds of thousands of dollars for past and future
parties regarding the cause of the engine failure. The
lost wages and even brought in several ex clients to testify
mechanics who repaired the plaintiff’s vehicle would not
that he lost their business as a direct result of the physical
support the plaintiff’s position. Notwithstanding, the damage
and mental injuries he sustained in the accident. Following a
to the plaintiff’s vehicle was $20,000.00, and there was a
week long trial, after the defense identified and focused on
significant attorney’s fee and bad faith exposure at issue. The
every inconsistency in the Plaintiffs’ case, the jury decided
insurer will be seeking attorney’s fees and costs under a
to award the Plaintiffs zero damages.
proposal of settlement.
r e c en t a p p el l at e r e s ult s
Sharon C. Degnan of our Fort Lauderdale office obtained
a favorable opinion from the Fifth District Court of Appeal
in Andrews v. McPartland, 2010 WL 198458 (Fla. 5th DCA
January 22, 2010). In that case, the appellate court affirmed
the trial court’s denial of attorney’s fees to the plaintiff on
grounds that the plaintiff had served an undifferentiated
proposal for settlement to two defendants, one of whom
was vicariously liable for the negligence of the other. Betsy E. Gallagher and Amy L. Miles of our Tampa office
obtained a favorable opinion in Tampa Trauma Med. Ctr.,
Betsy E. Gallagher of our Tampa office obtained a Inc., a/a/o Carlos O. Gonzalez v. State Farm, 13th
favorable opinion in Rhodes & Anderson, D.C., P.A. v. Jud. Cir. for Hillsborough County, Appeal No. 08-28255
Progressive Am. Ins. Co., 12th Jud. Cir. for Sarasota (October 26, 2009). The appellate court affirmed a summary
County, Appeal No. 2008 CA 3409NC (December 9, 2009). judgment for State Farm based on the exhaustion of bene-
There, the appellate court affirmed a summary judgment fits defense. The court rejected Appellant's multiple grounds
in an action for PIP benefits based on the exhaustion of on appeal including improper exhaustion of benefits while
benefits defense. the Appellant's claims were under investigation and State
Farm's alleged violation of §§ 627.736(4)(b) and (6)(b), Fla.
Caryn L. Bellus of our Miami office obtained an affirmance Stat. when it did not provide an Explanation of Benefits
of a final summary judgment in a premises liability case, in (EOB) and did not seek additional information.
Kurzbard v. Mecca Multimedia, Inc., 23 So. 3d 122 (Fla. 3d
DCA 2009). The defendant, the owner of an entertainment Angela C. Flowers of our Ocala office obtained a favorable
production facility, was found not liable for the plaintiff's result from the Third District Court of Appeal in Segundo
injuries because, pursuant to industry standards, it had v. Reid, 20 So. 3d 933 (Fla. 3d DCA 2009). In that case, the
turned over complete control and possession of the appellate court reversed an attorney’s fees award to the
property to the renter, who was filming a television show plaintiff in an auto negligence case concluding that,
on the property. although the proposal for settlement had been made in
good faith, the unusual facts in the case made it an abuse of
Betsy E. Gallagher and Amy L. Miles of our Tampa discretion for the trial court to have awarded attorney’s fees
office obtained a favorable opinion from the Fifth District under the proposal since at the time the proposal was made,
Court of Appeal in Heathrow Master Assoc. v. Girard the plaintiff was not seeking damages for her shoulder
Environmental Servs., Inc, 2009 WL 4793298 (Fla. 5th injury and therefore such damages should not have been
DCA November 10, 2009). In this negligent maintenance considered when determining whether the judgment ob-
case, the appellate court affirmed a summary judgment in tained was sufficient to entitle the plaintiff to attorney’s fees.
favor of the defendant. Plaintiff claimed she sustained
substantial injuries when she fell into a hole concealed by
overgrown grass on the common grounds where she lived.
KUBICKI DRAPER NAMES NEW PARTNERS
Kubicki Draper wishes to congratulate, and is pleased to announce, its newest
shareholders and equity partners, who are spread among its offices state-wide.
Yvette M. Pace has been named a shareholder in the Orlando office.
Jorge Santiero, Jr. has been named a shareholder in our Tampa office.
Additionally, Gregory J. Prusak, of our Orlando office and Michael J. Carney,
of our Fort Lauderdale office, have been made equity partners in the firm.
NEW ADDITIONS TO KUBICKI DRAPER FAMILY
Kubicki Draper wishes to announce the addition of several new attorneys,
who have joined the firm in the past few months:
In the Tampa office: Elizabeth C. Tosh, who joins the firm as an associate.
In the West Palm Beach office: Frank P. Delia, who joins the firm as an associate.
In the Miami office: Wendy M. Weiner, who joins the firm as an associate.
In the Orlando office: Eric V. Tourian, who joins the firm as an associate.
Betsy E. Gallagher of our Tampa office was appointed Vice-Chairman for
the Career Placement Committee on the Board of Trustees, University of
Florida College of Law.
The Kubicki Draper West Palm Beach Office was proud to give back to the
community, this past holiday season to honor our soldiers overseas, and
to show that it is truly better to give than to receive. The attorneys and
staff purchased Christmas gifts for needy children via The Salvation Army,
sent care packages to soldiers in Iraq and Afghanistan, and threw a pizza
party for children at St. Mary’s Hospital.
Michelle Krone of our Fort Myers office is featured in an article in the
February issue of Gulf Shore Life Business Magazine as a local attorney,
who is board certified in the area of construction law.
Amy L. Miles of our Tampa office is a member of the Outreach
Committee for the Appellate Practice Section of the Florida Bar.
Betsy E. Gallagher of our Tampa office was appointed to serve on the
Editorial Board of the Florida Bar Journal.
A number of Kubicki Draper attorneys have been listed as top up and
comers in the South Florida Legal Guide:
Caryn L. Bellus, of our Miami office is listed in the area of appellate and
insurance coverage. Rolando A. Diaz and Peter S. Baumberger, both
of our Miami office were listed in the area of personal injury, product
liability and wrongful death and Scott M. Rosso of our Fort Lauderdale
office is listed in the area of commercial litigation and insurance defense.
Betsy E. Gallagher of our Tampa office was recently included in Tampa
Bay Business Journal’s section of Top Lawyers.
C O N T A C T I N F O R M A T I O N
Brad McCormick 305.982.6707..........email@example.com
Sharon Christy 305.982.6732..........firstname.lastname@example.org
Rosemarie Silva 305.982.6619..........email@example.com
Statewide Coverage in Florida from 12 Offices
MIAMI key west FORT LAUDERDALE WEST PALM BEACH FORT MYERS NAPLES TAMPA
OCALA ORLANDO JACKSONVILLE TALLAHASSEE PENSACOLA