Disciplined in Sophisticated Defense and Insurance Litigation

May 01, 2015 | Publication| Defining Structual Damage: The Eleventh Circuit Rules

William B. Collum

The following article was originally published in the HCBA magazine, The Lawyer, May - June 2015.

Section 627.706, Florida Statutes, has not always required "structural damage" as part of a "sinkhole loss." Until 2005, the statute required "actual physical damage to the property." The 2005 amendment to section 627.706 narrowed the damage requirement to "structural damage to the building" but left "structural damage" undefined. In 2011, the legislature codified five criteria that individually define "structural damage." See § 627.706(2)(k),
Fla. Stat.
 

September 08, 2015 PublicationJudge John Badalamenti Joins the Second District

As a boy, Judge Badalamenti occasionally took the train from his home in Brooklyn to lunch with his mother, a bookkeeper working in the Southern District of New York courthouse.

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January 01, 2015 PublicationA Legacy That Lasts: George E. Edgecomb

In Florida, one becomes accustomed to the sight of bridges. Indeed, bridges are everywhere across our fair state, allowing travelers to cross expanses of water, vast or small, to arrive at our intended destination. Rarely noticed or noted are those who came before to build the bridge, across which so many have traveled. Every so often, however, a bridge is built so exceedingly well that its builder must be etched in history. Such is the case of the late Honorable George E. Edgecomb.

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November 01, 2014 PublicationStopping the Clock: Getting an Extension for Your Brief

Traditionally, parties seek briefing extensions in Florida state courts by motion  pursuant to Florida Rule of Appellate Procedure 9.300. However, four of the five District Courts of Appeal have recently adopted an alternative procedure — extension by "notice" — that supplants the motion process in certain circumstances.

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November 01, 2013 PublicationPleading Requirements For Fees In Original Proceedings

Florida Rule of Appellate Procedure 9.400(b) governs the procedure for seeking attorneys' fees on appeal. It requires the party seeking fees to file a motion no later than the time for filing a reply brief. There is no rule that expressly states a different procedure for original proceedings, such as petitions for writ of certiorari.

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February 01, 2013 PublicationJames Birkhold, the Second District's Clerk

In addition to establishing the district courts of appeal, Article V, Section 4 of the Florida Constitution establishes the constitutional office of the Clerk of Court. The Florida Constitution states only that the clerk shall "hold office during the pleasure of the court and perform such duties as the court directs." Florida Rule of Judicial Administration 2.210 lists the district court clerks' duties: to maintain records of proceedings, to collect filing fees, to issue mandates and furnish copies of orders and opinions to attorneys of record, and to maintain and transmit documents and records on appeal as is necessary. 

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September 30, 2012 PublicationThe High Hurdle to a Spoliation Claim: Is the Evidence Crucial?

From moldy lunch boxes to deformed 2x4s, determining what paper, electronic data, materials, tools, and equipment might be relevant to a pending construction-related claim, and require preservation, is a daunting task. The problem is compounded once construction is completed and the project is turned over to the owner while a claim related to the project is pending (or in some instances, contemplated). In the midst of cleaning the job site, evidence related to the claim can oftentimes be discarded and forever lost.

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September 06, 2019 PublicationAs Florida Goes

One of the most challenging topics in first-party property insurance over the last decade has been the increase in assigned claims. They are often called “assignments of benefits” or just AOBs...

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September 04, 2019 PublicationThe Challenges of Adjusting Pipe Breaks and Sewer Back-ups

In January of this year, we published an article entitled "The Challenges of Adjusting Long-Term Water Losses." That article focused on the "constant or repeated leakage or seepage" exclusion that appears in many insurance policies. The article chronicled three court decisions named Hoey, Price, and Hicks and how they affect coverage determinations.

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February 04, 2019 PublicationThe Challenges of Adjusting Long-Term Water Losses

Partner Timothy Engelbrecht, Esq. was featured in the latest edition of the Southern Loss Association newsletter! His article "The Challenges of Adjusting Long-Term Water Losses" discusses important exclusions in residential and commercial property insurance policies.

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August 21, 2018 PublicationJohn Garaffa "Business Interruption and Damage Claims"

Partner John Garaffa wrote a chapter titled "Business Interruption and Damage Claims" for the 5th Edition of The Complete Guide to Economic Damages.

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June 20, 2018 PublicationPerspectives on the ALI Restatement: The Plain Meaning Rule or Presumption?

The American Law Institute (ALI) voted to approve the Restatement of the Law of Liability Insurance (Restatement) at its annual meeting on Tuesday, May 22, 2018, with sections of the Restatement being debated until the final vote. The debate had resulted in many different drafts of the Restatement, with the Council of Advisors to the Restatement Reporters approving Proposed Final Draft No. 2 on April 13, 2018. This was the version ultimately approved by the ALI Members during the annual meeting.

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June 13, 2018 PublicationGood-Faith Claim Handling in Florida - Part II

This article is a continuation of the "Good-Faith Claim Handling in Florida" article that appeared in the Southern Loss Association Newsletter in February 2018. That article discussed the history and background of Florida Statute § 624.155, which is commonly referred to as Florida's bad-faith statute. The statute provides the exclusive remedy for people who believe they have been damaged by bad-faith claim handling practices in the first-party insurance context in Florida.

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April 30, 2018 PublicationAllocating Responsibility for Defense and Indemnity Costs Among Multiple Insurers

It is not necessary that the policies provide identical coverage in all respects in order for … each insurer [to be] entitled to contribution from the other; as long as the particular risk actually involved in the case is covered by both policies, the coverage is duplicate, and contribution will be allowed.

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March 20, 2018 PublicationIdentity Restoration Insurance: Why Would I Need That?

When retired nurse Helen Anderson flew to visit her sick daughter, she let her niece, Samantha, housesit. Though she had instructed her niece that no friends were allowed over, Helen found Samantha in the house with her friend, Alice Lipski, when she returned. After asking Alice to leave, Helen didn’t think more about her friend being in her house.

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February 01, 2018 PublicationA Theoretical Safety on the Trigger of the Duty to Defend

The Eleventh Circuit of the United States Court of Appeals recently decided Selective Insurance Company of the Southeast v. William P. White Racing Stables, Inc., et al., 2017 WL 6368843 (December 13, 2017), a case addressing limits upon what facts and legal theories may give rise to a duty to defend. In an unpublished opinion,[1] the court held the district court erred in finding a duty to defend based upon a theory of liability which was not pled, even though it agreed the facts alleged in the complaint could support a claim apparently within the scope of coverage provided by the liability policy.

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July 14, 2017 PublicationFlorida Water Loss Claims: What's Owed, And When?

Water loss lawsuits have spiked dramatically in Florida during the past few years. Insurers simply cannot resolve the unusually large differences in water damage estimates. Scope of estimated matching work usually explains the disparity. And litigation ensues over this hypothetical question: Can the water-damaged or tear out items be replaced and then matched to undamaged adjoining items; and if not, what is the proper scope of the matching work?
 

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November 23, 2016 PublicationAwash in AOBs

Hurricane Matthew lashed Florida’s eastern coast in early October causing significant damage to both residential and commercial property.  While Hurricane Matthew is gone, Florida insurers are now bracing for another type of storm, namely a flood of assigned insurance claims in the wake of Hurricane Matthew’s destruction.  Over the past few years, assigned insurance claims – often referred to assignments of benefits or AOBs – have been particularly challenging for first-party property insurers in Florida.  AOBs raise unique issues, including fraud concerns.

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October 18, 2016 PublicationFollow Up on Assignment of Benefits Litigation in Florida

In the summer of 2016, SLA published an article titled "Assignment of Benefit Litigation in Florida." The article was an introduction to the topic of assignments of benefits ("AOB") in Florida and how they are being used in insurance claims and litigation. Many readers asked for a follow up article that would provide some additional information and analysis on certain AOB topics. This article will spotlight four of those topics and give the reader some additional information and analysis on each of them.

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June 24, 2016 PublicationAssignment of Benefits Litigation in Florida

Over the past five years, first-party property insurers in Florida have been experiencing a wave of claims and lawsuits by contractors who obtain insurance rights from insureds through document called an assignment of benefits ("AOB"). This article is intended to introduce the reader to this topic and explain some of the challenges facing insurers in dealing with AOBs in Florida. The reader is welcome to contact the author to learn more.

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November 24, 2014 PublicationThe Coverage Action 'Fixed' Bad Faith Damages: Are The Total Damages Binding?

Florida state and federal courts struggle with excess damage verdicts in first-party bad-faith actions arising out of uninsured motorist/underinsured motorist (UM) coverage. Recent case decisions produce mixed results for insurers. But mention UM coverage, bad faith, and total damages, and Florida Statute Section 627.727(10) immediately comes to mind. Comments by two judges framed the Section 10 debate.

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June 26, 2014 PublicationUninsured Motorist Bad-Faith Claims: Separate Action, Separate Trial, Separate Damages

First-party bad-faith claims arising from uninsured motorist (UM) coverage are separate and independent actions, too. If the uninsured motorist coverage action is truly separate and distinct from bad faith, one naturally expects a separate trial on bad-faith liability and extracontractual damages. However, there is a unique problem confronting first-party bad-faith claims arising from uninsured motorist coverage under Florida Statute Section 627.727(10). One decision characterizes the problem as a ‘‘conundrum'' created by Florida law.

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