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KDQuarterly KD

VIEWS: 9 PAGES: 8

									                            THe
                              KD
                              KDQuarterly
                                                                                                             WINTER 2010

       E DITO R:
    Sharon Degnan

    IN THIS ISSUE                                          Dear Clients & Friends,
           2-3
 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
     Spotlight on
    Caryn L. Bellus                                        firm founded and led by one attorney
                                                           to one led by several. Ten of the
             5
       Preclusion of                                       firm’s own have risen to the challenge
  “Stigma” Damages in
Construction Defect Cases                                  and proudly taken the helm. We look
             I
   Helping Someone                                         forward to continuing the core values
       in Need
                                                           on which the firm was founded and
           6-7
 Trial/Appellate Results
                                                           operates -- commitment, integrity and
                                  Michael J. Carney                                                               Jane C. Rankin
             I                                             excellence.
 New Partners Named
  & New Additions
  to the KD Family
                                                           We hope to exceed your expectations
             8
  KD Announcements                                         and serve you for many years to
                                                           come.
   Save The Date!
                                                                    All the best for 2010!
  FOURTH ANNUAL
                                  Earleen H. Cote                                                                  Greg J. Prusak
   CLAIMS
 MANAGEMENT
 CONFERENCE


 2010
Friday, November 5, 2010
       JW Marriott
     Orlando, Florida

    More information              Rolando A. Diaz          Brad J. McCormick            Peter H. Murphy        Kenneth M. Oliver
    will be available at
  kubickidraper.com

   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




                                                                      2
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
                                                                                     claimant.
Reimbursement Determinations.
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.

                                                                                 3
                          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
                                                                                COBC.
  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
                                                                            http://www.cms.hhs.gov/MandatoryInsRep/Downloads/NGH-
                                                                            PUserGuide2ndRev082009.pdf.
                                                                        4
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.

                                                                        5
                                           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.




                                                                   6
                                     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
                                                                             APPELLATE
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.


                                                                  7
 ANNOUNCEMENTS
                       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

                                             New Assignments
                       Brad McCormick        305.982.6707..........bmc@kubickidraper.com
                       Sharon Christy        305.982.6732..........sharon.christy@kubickidraper.com
                                             Firm Administrator
                       Rosemarie Silva        305.982.6619..........rls@kubickidraper.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

                                         www.kubickidraper.com


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