Tom Berger and Steven Hollis recently tried an intersection accident. The defendant stopped at a stop sign. Her intent was to go across the main street into the development. At this same time, the Plaintiff came around a slight bend in the road and saw the defendant slowing. His eyes then went to two women, who were walking their dogs, across the street from the defendant. There was conflicting evidence from the eyewitnesses as to whether the defendant actually stopped at the stop sign. Both eyewitnesses claimed that the plaintiff was not speeding. The defendant did not see the plaintiff and pulled out and was T-Boned by the plaintiff.

The plaintiff would undergo several medial blocks to his neck and back and two facet ablations to his neck and one to his back with a second one being planned. The plaintiff claimed that he would need additional ablations every two years for the rest of his life (he was 45 years old).

The defense was essentially that his condition was degenerative and that his complaint was an exacerbation. Due to the facts of the accident, defendant also felt that comparative fault could be placed on the plaintiff as he did not act cautiously with all the hazards at the intersection.

The jury found plaintiff 75% at fault for the accident and defendant 25%. The jury awarded all of the past medicals (which would receive significant set-offs but the full amounts were boarded) and future medical expenses for one additional ablation. The jury did not find a permanent impairment. After set-offs and comparative fault, the verdict was for just slightly more than $11,000.

Drew W. Peeler and Kevin D. Franz represent an insurer in a uninsured/underinsured motorist (UM) action brought for personal injuries from an auto accident. Plaintiff obtained a verdict of $1,700,000 and moved the trial court to (1) enter a judgment in the full amount of the verdict with execution limited to the insurer’s policy limits; (2) grant leave for Plaintiff to bring a statutory bad faith action against the insurer; and (3) have the judgment provide that the amount of the verdict is the amount recoverable in a subsequent bad faith action.

Through effective legal arguments, the trial court was persuaded to (1) limit the judgment, in total, to the policy limits based on the 2024 2^nd District Court of Appeals case State Farm Mut. Auto. Ins. Co. v. Finson; (2) deny Plaintiff’s motion for leave to amend; and (3) decline Plaintiff’s invitation to have the judgment provide that the amount of bad faith damages equals the verdict given that section 624.155, Florida Statutes, now allows a jury in a bad faith action to apportion fault.

Kevin D. Franz successfully obtained a decision from the Fifth District Court of Appeal reversing a $1.6 million verdict in an auto accident case.  Plaintiff brought a negligence action seeking damages arising out of a September 6, 2019, auto accident with the Defendant who disputed liability, causation, permanency, and damages.  Plaintiff had been involved in prior auto accidents in 2009 and 2017.  There was also evidence that she suffered from an underlying chronic degenerative spinal condition.  At the close of evidence, Plaintiff moved for a partial directed verdict arguing the evidence was undisputed that she sustained at least “some” injury from the 2019 accident; specifically, a sprain/strain.  The trial court granted the motion, removed causation from the verdict form, and left it to the jury to determine damages.

We appealed on Defendant’s behalf arguing that the evidence in the light most favorable to the Defendant would allow the jury to find that all of Plaintiff’s claimed damages were caused by something other than the 2019 accident (e.g., preexisting injuries or degeneration).  We relied heavily on a case called Lancheros v. Burke, 375 So. 3d 927 (Fla. 6th DCA 2023), which involved similar facts resulting in a directed verdict on causation ultimately reversed by the appellate court.  The Fifth District Court of Appeal determined that Lancheros included “remarkably similar facts” as in our case, and that the trial court erred in directed a partial verdict in favor of the Plaintiff on causation.  The Fifth District Court of Appeal reversed the judgment and remanded the case back to the trial court.

About Kevin D. Franz

Kevin D. Franz is a partner and Practice Group Leader of the firm’s Appellate Practice division. Mr. Franz has been Board Certified in Appellate Practice by The Florida Bar since 2019. He has received the Martindale-Hubbell AV Preeminent® Peer Review Rating and has 20 years of experience handling all types of civil appellate proceedings. Mr. Franz has handled appeals and petitions in the Supreme Court of Florida, the six District Courts of Appeal for the State of Florida, and the United States Court of Appeals for the Eleventh Circuit.

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Lara Edelstein prevailed in an appeal of a fee judgment in a personal injury protection ("P.I.P.") case. The medical provider filed suit against the insurance company to recover amounts due and owing under Florida’s No-Fault Law, section 627.736, Florida Statutes, and sought an award of attorney’s fees under section 627.428, Florida Statutes. After the insurance company conceded that it had underpaid the statutory interest, the trial court entered summary judgment for $104.55 in statutory interest.

The insurance company objected to an award of attorney’s fees, but the trial court found that the medical provider was entitled to them pursuant to section 627.428(1), Florida Statutes. The parties stipulated to the amount of fees, but the insurance company reserved the right to appeal the entitlement award.

On appeal, the Third District Court reversed the fee judgment holding that under section 627.736(10)(d), Florida Statutes, an overdue “claim” relates only to the overdue medical bills, and not the interest and statutory penalty. Thus, because the medical provider here obtained only an award of interest and the insurance company paid the overdue medical bills within thirty days of receipt of the pre-suit demand letter, the insurance company was not liable for attorney’s fees.

About Lara J. Edelstein

Lara J. Edelstein is a partner with the firm’s Appellate Practice department based in the Boca Raton office. Ms. Edelstein has extensive experience in appellate law, having argued hundreds of cases in the appellate courts throughout Florida, including the Supreme Court of Florida. Ms. Edelstein is also admitted to practice law in Georgia, where she has handled several appeals.

Lara began her career as an Assistant Attorney General representing the State of Florida in criminal appellate proceedings. Ms. Edelstein also spent ten years as in-house appellate counsel to an automobile insurer where she handled No Fault/Personal Injury Protection appeals and provided litigation support to the staff attorneys. Lara also has experience in first party property cases, bad faith litigation, personal injury and premises liability matters, as well as Workers’ Compensation appeals.

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Boyd & Jenerette would like to congratulate Sherry Lambson-Eisele and Pam Nelson for being recognized as Legal Elite NOTABLE - Women Leaders in Law:

Sherry Lambson-Eisele and Pam Nelson were recently recognized in the 2024 Florida Trend Legal Elite NOTABLE – Women Leaders in Law special section. As recognized leaders within their industry, these peer nominated Women Leaders in Law are regarded for their leadership, vision, and ability to effect growth in the professional and civic organizations they serve.

Florida Trend invited peer nominations from across the state to recommend women leaders in law who met specific methodology and criteria parameters. Nominations were vetted by Florida Trend and the most noteworthy candidates were selected based on their outstanding leadership, mentorship, vision for change and growth.

The Florida Bar congratulates those members who were selected for this honor, which reflects their commitment to leadership, excellence and professionalism,” notes Florida Bar President Roland Sanchez-Medina, Jr.

“We are honored to present this section of Legal Elite NOTABLE – Women Leaders in Law, published in Florida Trend's December issue. This honor distinguishes and recognizes this select group of women for their outstanding contribution to their organization and industry. The section presents a short profile on each recognized leader, highlighting the impact they've made to their organization, the legal profession, and the community at large,” says Publisher David Denor.

View the entire Legal Elite NOTABLE – Women Leaders in Law roster, at www.FloridaTrend.com/Notable.

About Florida Trend

Florida Trend business magazine is read by 292,000 influential business executives, civic leaders and government officials each month. Its award-winning reporting covers regional and statewide business news, industry executives and the business sectors they represent, as well as information on Florida's lifestyle, arts and culture scene. FloridaTrend.com offers eNews alerts, covering daily morning and afternoon breaking news; Business Beat, a weekly video newscast highlighting Florida’s top business news stories; and weekly eNewsletters providing information, insight and details on Florida's growing industry sectors including health care, education, real estate, small business and movers and influencers. FloridaTrend.com attracts nearly a million pageviews and over 140,000 unique visitors each month.

Kevin D. Franz successfully obtained an Opinion from the United States Court of Appeals for the Eleventh Circuit holding that a Transportation Network Company (“TNC”) Commercial Auto Policy issued by an insurer to a ride share platform did not owe uninsured/underinsured motorist ("UM") coverage to a ride share platform driver injured while engaged in a prearranged ride.

The driver suffered injuries while dropping off a passenger who used the ride share app to secure a ride. The insurance policy did not include UM coverage, which had been rejected in writing by the ride share platform. The driver’s car, a 2022 Honda, was not specifically identified in the insurance policy. The driver sued the alleged UM tortfeasor for bodily injury damages, the insurance company for UM benefits, and the ride share platform for negligent misrepresentation. The insurer brought a declaratory judgment action in federal court seeking a declaration that there was no UM coverage under the Policy.

At issue was the following language in Florida’s TNC Statute: “The following automobile insurance requirements apply while a TNC driver is engaged in a prearranged ride: Automobile insurance that provides . . . Uninsured and underinsured vehicle coverage as required by s. 627.727.”

The insurer and the ride share platform argued that the plain language of the TNC Statute only requires UM coverage “as required by s. 627.727.”  And Section 627.727 did not require UM coverage in this instance.

The District Court Judge granted summary judgment in favor of the insurance company and the ride share platform. It found that the TNC statute did not require the insurance company to provide the ride share platform UM coverage under 672.727 because subsection (1) only requires UM coverage for policies covering a “specifically insured or identified motor vehicle.” Because the insurance policy did not specifically identify the driver’s Honda, there was no requirement to provide UM coverage.

The driver appealed, and the 11th Circuit affirmed based on the plain language of the TNC and UM statutes. It also recognized that the ride share platform expressly rejected UM coverage in writing, which is permitted under Florida’s UM statute.

This Opinion on an issue of first impression is important because it alerts carriers, TNCs, and TNC drivers on how to interpret the interplay between Florida’s TNC and UM statutes.

About Kevin D. Franz

Kevin D. Franz is a partner with the firm’s Appellate Practice division. Mr. Franz is Board Certified in Appellate Practice by The Florida Bar. He has received the Martindale-Hubbell AV Preeminent® Peer Review Rating, and has more than 15 years of experience handling all types of civil appellate proceedings. Mr. Franz has handled appeals and petitions in all five district courts of appeal for the State of Florida, the Supreme Court of Florida, and the United States Court of Appeals for the Eleventh Circuit. He has presented oral argument before all five district courts of appeal and the United States Court of Appeals for the Eleventh Circuit.

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Jennifer L. Aybar recently received a decision from the 4th DCA to reverse and remand an order granting leave to amend to allege punitive damages against our insured. At the trial level, plaintiffs alleged that our insured was reading a text message while driving when his vehicle collided with the plaintiffs' golf cart. According to plaintiffs, reading a text message in violation of section 316.305, Florida Statutes, along with the circumstances surrounding the accident (heavy pedestrian traffic) warranted punitive damages.

However, the evidentiary proffer plaintiffs provided showed that the insured testified that he heard his phone chime and glanced down, noticing that he received a text message from his wife. He did not actually testify that he read the text message he received.

Noting this distinction, the appellate agreed with Ms. Aybar's position that mere use of a cell phone, without more is not "outrageous and reprehensible enough to merit punishment." Indeed, for phone use while driving to constitute outrageous and reprehensible conduct sufficient to plead punitive damages, there must be some “additional act” “suggesting that the cell phone usage was reckless.” The Court went as far as to say that our insured’s actions in glancing down at his phone in reaction to his phone chiming “might be arguably negligent” and certainly do not “rise to the level of gross negligence or intentional misconduct needed to assert a claim for punitive damages.” Because there was no evidence that our Insured actually read the text message he received, the Court did not address the issue of whether reading a text message would constitute the necessary “additional act” that may rise to the level of gross negligence or intentional misconduct.

About Jennifer L. Aybar

Jennifer Aybar is a senior associate attorney with the firm’s Appellate Practice Division, working remotely from Orlando, Florida.  Ms. Aybar joined the firm with an array of experience.  Immediately prior to joining Boyd & Jenerette, she served as Senior Trial Counsel for a personal injury firm for four years.  Prior to that, she served as a felony prosecutor in Brevard County, Florida, and as a staff attorney in the Ninth Judicial Circuit Court as well as at both the trial and appellate levels in Maryland.  Not only does Ms. Aybar have extensive trial experience, but she also has experience behind the scenes, working alongside judges at the trial and appellate levels.  Ms. Aybar’s experience is vast and affords her a unique perspective when analyzing legal issues.

In her free time, Ms. Aybar competes in the National Physique Committee (NPC) and enjoys training hard for competitions.  She also enjoys Latin ballroom dance, horror movies, reading, and spending time with her friends and family.

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Amanda L. Kidd recently represented a small third-party adjusting company that was hired by a Louisiana-based auto insurer to adjust a Florida multi-vehicle accident and multiple competing claims. There was no contract between the two companies or written scope of assignment. Two of the three competing claimants were represented by the same attorney (husband and wife claimants) who presented a time-limited demand to the carrier for the full policy limits, with a check in hand requirement. After ruling out the third claim, the carrier agreed to offer the full policy limits but insisted on executed releases prior to sending the settlement checks. At several points during their relationship, our client gave the carrier advice about how to adjust a claim under Florida law, but never suggested to the carrier that it was not meeting its obligations to act in good faith, nor warned that not strictly complying with the time-limited demands could expose the carrier to liability exceeding the policy limits.

The carrier eventually entered into a settlement agreement with the two claimants for $220,000 above the policy limits, without a lawsuit having ever been filed against the insured or the carrier. The carrier then sued our client, the independent adjusting company, for negligent misrepresentation, professional negligence, and breach of fiduciary duty for their mishandling of the claim. The court ruled that the Plaintiff could not succeed on any of its claims without showing that Defendant proximately caused damages. The damages were the bad faith settlement and related attorneys’ fees. Plaintiff conceded that the only way Defendant could have proximately caused the damages were if Plaintiff acted in bad faith. We argued that this was speculative, at best, under Florida bad faith law and the court agreed. In its order, the court made a quasi-summary judgment finding of no bad faith on the part of the carrier through its excellent analysis of Florida bad faith law.

About Amanda L. Kidd

Amanda Kidd is a partner who works for the firm in Pensacola, FL. She focuses her practice in the areas of first and third-party bad faith insurance litigation, insurance coverage disputes, and automobile liability defense. Amanda has significant jury trial practice, including experience in both state and federal courts on multimillion dollar bad faith and coverage lawsuits on behalf of major insurance carriers.

Amanda also has significant experience in the areas of Personal Injury Protection (“PIP”) / No-Fault litigation, as well as in workers’ compensation defense. She is admitted to practice law in both Florida and Kentucky.

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Lara Edelstein recently defended a Final Summary Judgment on appeal in a first-party property case. The insured’s property sustained damages allegedly caused by Hurricane Irma in 2017. However, the claim was not reported to the carrier until June of 2020 after numerous repairs were completed. The carrier denied the claim based on prejudice resulting from late notice of the claim. A company that repaired the property filed suit as an assignee of the insured. The carrier moved for summary judgment arguing that it was prejudiced by the late notice. The trial court agreed with the carrier and entered summary judgment because the plaintiff’s affidavit in opposition to the motion was conclusory and contradicted the insured’s statements regarding the status of the property. The trial court also denied the plaintiff’s motion for rehearing.

On appeal, the Appellant argued that the trial court erred because there was record evidence that the Insured did not immediately discover the damage and arguably gave prompt notice upon being informed by professionals that he needed a roof replacement. The Appellant claimed that there were genuine issues of fact as to whether the carrier was prejudiced based on an allegedly inadequate investigation and that the Appellant’s expert was able to find evidence of wind damage. It also argued that the motion for rehearing should have been granted.

The Second District Court rejected the Appellant’s arguments and issued a decision affirming the final judgment without a written opinion.

About Lara J. Edelstein

Lara J. Edelstein is a partner with the firm’s Appellate Practice department based in the Boca Raton office. Ms. Edelstein has extensive experience in appellate law, having argued hundreds of cases in the appellate courts throughout Florida, including the Supreme Court of Florida. Ms. Edelstein is also admitted to practice law in Georgia, where she has handled several appeals.

Lara began her career as an Assistant Attorney General representing the State of Florida in criminal appellate proceedings. Ms. Edelstein also spent ten years as in-house appellate counsel to an automobile insurer where she handled No Fault/Personal Injury Protection appeals and provided litigation support to the staff attorneys. Lara also has experience in first party property cases, bad faith litigation, personal injury and premises liability matters, as well as Workers’ Compensation appeals.

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Payton D. Bramlett was recently inducted into the Hon. Marion T. Pope Jr. American Inn of Court as a Barrister. Bramlett's induction came after his nomination was approved by judges and senior trial attorneys serving on the Inn’s Executive Committee.

The Hon. Marion T. Pope Jr. American Inn of Court, consisting of approximately 50 judges, lawyers and law students, is an active chapter of the American Inns of Court, a national organization dedicated to improving the quality and professionalism of trial practice. As a Barrister, Bramlett will have the opportunity to learn from and collaborate with Inn Masters and to mentor Pupils.

About Payton D. Bramlett

Payton D. Bramlett is an experienced, outcome-oriented attorney in the Savannah office of Boyd & Jenerette, P.A.  Throughout his career, Mr. Bramlett has obtained favorable results for clients in both bench and jury trials in some of the most plaintiff-friendly jurisdictions in Georgia.

Mr. Bramlett handles all phases of litigation in state and federal trial and appellate courts, and when possible, resolves cases pre-trial in a cost-effective manner through negotiation, mediation, and other forms of alternative dispute resolution.  Mr. Bramlett also assists insurers in navigating time-limited, pre-answer demands and frequently serves as bad faith / excess oversight counsel in complex, high-value claims where extracontractual exposure is likely for insurers.

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