APRIL 2016

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recognized as the 2014 Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

About the Author

Matthew C. Scarfone, a senior attorney in the Colodny Fass Insurance Litigation Division, represents clients on a variety of insurance matters including property and casualty coverage disputes, fraud prevention, bad faith, and best practices.

Contact Mr. Scarfone at (954) 492-4010 or mscarfone@colodnyfass.com.

For more information about Mr. Scarfone, click here.

Public Adjuster Fees Not “Taxable Costs”; Fee Multiplier Not Proper Unless “True” Contingency Fee

The Second DCA held that public adjuster fees and property management fees are not litigation costs, and thus, could not be awarded to the prevailing party as taxable costs in a sinkhole case. The court also reversed the circuit court’s application of a fee multiplier where the fee agreement did not provide for a “true contingency fee.” Because the agreement guaranteed payment to the plaintiff’s attorney–who was in fact paid–there was no risk of non-payment sufficient to justify a fee multiplier.

Citizens Property Ins. Corp. v. River Oaks Condo. II Assoc., Inc. (Fla. 2d DCA March 30, 2016).

When faced with a fee claim, request and analyze fee agreements between the plaintiffs and their counsel to determine whether they constitute “true contingency fee” agreements.
Challenge claims for tax pre-litigation costs. A party is only entitled to tax certain costs outlined by the applicable rules and guidelines, which were incurred during litigation.

Money Judgment Improper When Policy Requires Contract For Sinkhole Repairs Before Payment is Due

In a sinkhole case involving a dispute over the method of subsurface repairs, the Second DCA reversed a money judgment for the plaintiff, where the judgment did not recognize that the insurer had a right to withhold payment until the insured entered into a contract for subsurface repairs. The court, however, found that factual issues existed regarding whether the contract entered into by the plaintiff “substantially complied” with the repair recommendations prepared by the insurer’s engineers.

Citizens Property Ins. Corp. v. Blaha (Fla. 2d DCA April 8, 2016).

• Analyze your policy to determine whether a contract is a pre-condition to payment for subsurface repairs, and request any appropriate jury instructions and verdict forms.
• Analyze any contracts submitted by insureds to determine whether the repairs contemplated in the contract comply with the recommendations of the insurer’s engineers.

PIP Deductible Applies to Claims For Emergency Services

The Fifth DCA reversed a trial court order declining to apply the deductible to PIP benefits claimed under the $5,000 reserve for emergency services imposed by section 627.736(4), Florida Statutes (2011). The appellate court held the plain language of the statute requires the deductible “must be applied to 100 percent of the expenses and losses.” The insurer, therefore, was not obligated to make any payment since the amount claimed for emergency services was less than the deductible.

Progressive Express Ins. Co. v. Emergency Physicians of Central Florida (Fla. 5th DCA April 8, 2016)

• All claims should be applied to the PIP deductible in the order they are received.
• If the amount claimed for emergency services is less than the policy deductible, you might not owe any benefits for the claim.

Colodny Fass EUO Successfully Ferrets Out Fraud

Colodny Fass litigator Chelsea Johnson obtained a great result for our client while taking an insured’s EUO in a case involving suspected fraud. Chelsea’s calculated questioning coaxed the insured into giving damaging testimony revealing misrepresentations made in the policy application. Before Chelsea could conclude the examination, the insured’s attorney terminated the EUO and withdrew as counsel, obviously anticipating the policy would be rescinded.

Chelsea Johnson joined Colodny Fass in 2015, and focuses her practice on property and casualty insurance defense matters. As a former Certified Legal Intern at the 6th Judicial Circuit Office of the State Attorney, she tried misdemeanor and domestic battery cases. Chelsea earned her Juris Doctor from Stetson University College of Law with a concentration in advocacy. At Stetson, she won various honors for trial advocacy and held several leadership roles in student organizations.

Contact Chelsea at cjohnson@colodnyfass.com.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the 2014 Insurance Litigation Department of the Year in South Florida.

About Matthew C. Scarfone

Matthew C. Scarfone, a Colodny Fass senior attorney, represents clients on a variety of insurance matters including property and casualty coverage disputes, fraud prevention, bad faith, and best practices. Mr. Scarfone assists clients in all stages of the legal process, from pre-suit investigations to trials and appeals. He has also represented industry trade groups as amici curiae in several appellate matters involving issues affecting the insurance industry.

To view Matthew C. Scarfone’s complete professional biography, click here.