Plus, jury discretion and the no-estimate AOB
A plaintiff law firm is ordered to pay-up for its misconduct and bad faith litigation tactics, a federal appeals court affirms juries have latitude on damage awards, and the case of one Assignment of Benefits (AOB) claim that didn’t require an itemized estimate for payment. It’s all in this week’s Legal Briefs.
Sanctions for Concealing Evidence: Florida’s 11th Circuit Court for Miami-Dade County has granted a Motion for Sanctions requested by Universal Property & Casualty Insurance Company against the South Florida law firm of Perry & Neblett. The firm was representing a condo owner who suffered water damage and wasn’t satisfied with Universal’s undisputed settlement payment. Although the public adjuster took 98 photos of the alleged loss and cause of loss, the photos were never disclosed to Universal, despite its numerous requests for any photos. That led to a mistrial, during which law partner David Neblett testified that he and partner James Mahaffey made a deliberate choice not to reveal the photos since they didn’t attempt to use them themselves during trial and felt no obligation to disclose their existence to the court.
Fast forward 18 months, during which efforts to schedule evidentiary hearings on the Motion were met with various delays and multiple rescheduling required by Perry & Neblett. Only when the court threatened sanctions against them was a hearing finally held last month and even then, the plaintiff attorney inaccurately represented to a new judge in the case that the mistrial was the result of defense conduct. Judge Lisa Walsh ordered Perry & Neblett to pay Universal’s costs and fees for the 2021 trial, its filing and prosecution of this motion, and for post-mistrial mediation. The judge also ordered that should plaintiff prevail at retrial, Perry & Neblett will likewise not be entitled to recover its own attorney fees and costs in the 2021 trial nor the sanctions proceedings. The court also ordered further mediation in the case with Perry & Neblett paying its own costs.
Jury Discretion: The U.S. 11th Circuit Court of Appeal has upheld a jury’s $9.28 million verdict in a lawsuit brought by a Miami Lakes assisted living facility against Rockhill Insurance Company. The dispute was over Hurricane Irma damage to the complex’s five buildings. The facility wanted all five roofs replaced and asked for the policy limit of $15.1 million. Rockhill said only one roof suffered storm damage and estimated the claim at about $235,000, which was under the policy deductible. The jury hearing the case came up with the $9.28 million, even though it didn’t match any of the estimates from experts testifying at trial. Rockhill appealed, saying the jury’s verdict was excessive and based on “speculation and conjecture.” The appellate court disagreed.
“Given the conflicting evidence at trial about the extent of the damage to each building individually and whether Hurricane Irma was the cause of the damage, the jury, as factfinder, was free to find that some, but not all, of the buildings sustained damage from the hurricane and to determine the extent of the damage to each building,” reads the opinion.
No AOB Estimate Needed: The Florida Legislature’s 2019 reforms passed under HB 7065 require that an Assignment of Benefits (AOB) contract between an insurance policyholder and a repair vendor contain a written, itemized, per-unit cost estimate of services. In MVP Plumbing v. Citizens Property Insurance, Florida’s Third District Court of Appeal reversed the trial court decision dismissing MVP’s claim seeking $750 for a single service pipe inspection. The 3rd DCA ruled that given it was a single-item bill, it met the legal standard of HB 7065. You can read more about this and other case updates in Kelley Kronenberg’s First-Party Property Appellate Division’s “In The Know” latest monthly newsletter..
LMA Newsletter of 6-26-23
