November 22, 2021
Subrogating a claim with diverse parties and over $75,000 in controversy – going to federal court right? “Not so fast!” as the inimitable Lee Corso would say. While federal jurisdiction may not affect your case’s merits or deter your filing of a given case – if you or your clients prefer to file in state court, you still may have an option.
The key lies in whether your client is a reciprocal exchange as opposed to a traditional insurance company. Unlike conventional insurance companies, which are either owned by shareholders for stock companies or policyholders for mutual companies, reciprocal insurance companies are owned by its subscribers or “members”. A reciprocal insurance exchange is a “web of contractual relationships” whereby several persons, corporations, partnerships, acting through a common attorney, undertake to insure each other against certain kinds of losses by means of a mutual exchange of insurance contracts. Arbuthnot v. State Auto. Ins., Ass’n., 264 F. 2d 260 (10th Cir. 1959). They insure each other, in a reciprocal arrangement, by exchanging indemnity contracts among themselves. In this type of exchange, each policyholder covers the others, pooling together resources if a subscriber faces perils. The effective and practical results of a reciprocal exchange place the members as both the insurer and the insureds. 94 A.l.R. 836; 131 A.l.R. 765; 145 A.L.R. 1121; Abuthnot v. State Auto Ins. Ass’n., 264 F. 2d 260 (10th Cir. 1959).
Reciprocal insurance exchanges got their start in 1881 when six dry-good merchants in New York agreed to indemnify each other because of their shared discontent with insurance companies.
This group’s members all had buildings of superior construction and maintained them well, but they were all charged premiums that did not correspond to the potential losses for similar commercial buildings.
At the time, insurance companies applied broad strokes in their classification of risk; modern rate-setting techniques hadn’t quite been developed yet. Able to absorb certain losses, the merchants had the incentive and ability to “self-insure” to lower their costs.
Examples of reciprocal exchanges or “reciprocal inter-insurance exchanges” include:
- AAA (American Automobile Insurance Association)
- Erie Insurance Group • PURE Insurance
- USAA (United Services Automobile Association)
It is typical for a prospective Defendant to move for Removal to federal jurisdiction when the case in controversy exceeds $75,000 and ostensibly includes diverse parties. With reciprocal exchanges, however, the diversity requirement can simply and effectively be countered – and the case Remanded back to state court – by arguing that the reciprocal exchange has customers in all or virtually all jurisdictions, and complete diversity cannot exist with the Plaintiff’s corporate structure. Dasilva at 397. See James River Ins. Co. v. AIG Propr. Cas. Co., Privilege Underwriters Reciprocal, Exchange Inc., a/s/o Joesph Insalaco, and Molly O’Neill, 2016 WL 8783213 (S.D. Fla. 2016 (granting defendants’ motions to dismiss for lack of subject matter jurisdiction for diversity jurisdiction because PURE, an indispensable party, is an unincorporated association with members in Ohio, and therefore is deemed a citizen of the State of Ohio, which is the same state of citizenship of the Plaintiff). If complete diversity of citizenship cannot be established between the parties then Removal cannot be sustained a Motion to Remand should be granted.
So cancel that hotel reservation and get some extra rest, because if your subrogation claim being Removed to federal jurisdiction involves a reciprocal exchange, you can lay your weary head on decades of comfortable case precedent and Remand this case back home where it belongs. Helpful Precedent for Remanding Reciprocal Exchange Cases Back to State Court:
- Arbuthnot v. State Auto. Ins., Ass’n., 264 F. 2d 260 (10th Cir. 1959)
- True v. Robles, 571 F. 3d 412 (5th Cir. 2009)
- Tran. v. Farmers, 104 Cal. App. 4th 1202 (2012)
- Tuck v. United Servs. Auto. Ass’n, 859 F. 2d 842 (10th Cir. 1988)
- James River Ins. Co. v. Farmers Ins. Exchange, 2012 WL 1190886 (D. Ariz. 2012)
November 11, 2021
Here ye! Here ye! Calling all lovers of humans! Calling all haters of cancer! The “No Shave November” Committee of the Palm Beach County Bar Association Young Lawyer Section is holding its annual “No Shave November” event to raise money for a charity – Cancer Alliance of Help & Hope – and we want your help!
CAHH is a local, non-profit organization that provides financial assistance to those in Palm Beach County who are suffering from terminal cancer and/or who are undergoing cancer treatment. Each Fall, the Committee sets up a group of men – “Headliners” – each of whom voluntarily agree to not shave their beards during the entire month of November and seek donations throughout the month to help financially support local men who are battling the dreaded “c”. None of the funds raised by the Headliners go to any overhead costs for the event or towards any other organizational costs. 100% of the money raised by the Headliners goes exactly where it needs to go – to support those men in our community who need it the most.
At the end of November, the fundraiser culminates in an amazing, one-of-a-kind, in-person event where each of the Headliners has their beard shaved off by the talented barbers of Barber’s Edge, LIVE in front of hundreds of attendees and the Committee reveals how much was raised by the Headliners for CAHH. The Headliner who raises the most in donations wins a hot shave with a straight-edge razor. At the last event, over $50,000 was raised for some unfortunate, but very deserving, individuals and winning Headliner Cameron Neth left with a remarkably clean shave. We hope to crush that amount this year – and can do so with your help!
Our esteemed Headliners this year include: Jack Scarola, Ryan Boylston, Paul Shalhoub, Sean Denyse, Neil Schiller, Stanton Collemer, Trent Swift, Dean Xenick, Bobby Gonz, David Zide, Stephen Grant, Jeff Johnson and Corey Brown. If you happen to see any of these gentlemen in the near future, please commend them on their fantastic facial hair and, more importantly, their valiant effort of stepping up to help others in need and growing awareness for men’s cancer issues.
This year’s in-person event will be at the Palm Beach Gardens Marriott (4400 RCA Boulevard, Palm Beach Gardens, FL) on November 30, starting at 5:30pm. In addition to the live shave-off, the event will also include a silent raffle for various items (raffle tickets are available for purchase; proceeds go to CAHH), while drink tickets can be purchased and hors-d’oeuvres will be provided to attendees. In the past, items such as Salvador Dali artwork, Miami Dolphins game tickets, rounds of golf at PGA National and gift certificates to spas have been raffled off.
Derrevere Stevens Black & Cozad is proudly serving as a food sponsor for the event this year and DSB&C’s very own David Miller serves on the “No Shave November” Committee. Event sponsorship opportunities are still available for purchase. Each sponsorship level comes with varying types of marketing/advertisement opportunities and various amounts of drink tickets and raffle tickets (the bigger the sponsorship level, the more marketing/advertisement opportunities and the more drink and raffle tickets). If you are interested in sponsoring the event, please reach out to David Miller at 561.684.3222 or firstname.lastname@example.org.
Even though David is not a headliner this year, he has voluntarily agreed to grow out his beard and get shaved at the event to raise more funds for CAHH. David has been growing a beard for several months now. It is to the point that most barely recognize him. At the event, the Committee will auction David off to the highest bidder, who will get to choose a style for the barbers to shave David’s beard, and David has agreed to wear that style all day on the day after the event. There is a caveat though – nothing offensive. Last time David was brave enough to do this, Sam Cohen could not pass up the opportunity to bid. Sam won the auction, David left the event with muttonchops and a Fu Manchu, and everyone who saw David the day after got to hear about the wonderful reason why he looked like…. well, here are the before and after photos:
Sponsorship aside, everyone is encouraged and welcome to support this cause, so come attend the event. Better yet, donate to one (or more) of the headliners and purchase raffle tickets – every cent you spend goes directly to keep a roof over someone’s head, food in their fridge and the lights on at home while they put up the good fight!
October 25, 2021
Derrevere Stevens Black & Cozad Hires Partner Meghan Wilson to Spearhead its First-Party Insurance Defense Division
October 25, 2021 – (West Palm Beach, Florida) —- Derrevere Stevens Black & Cozad (“DSB&C”) announced today that it has brought on Meghan Wilson, Esq. as a Partner to take over the helm of DSB&C’s First-Party Defense Division. Meghan was admitted to the Florida Bar in 2007 and has since focused her practice almost exclusively in the areas of insurance defense, commercial and residential contracts, and bad-faith litigation. She has represented numerous insurance companies in various stages – from pre-suit investigations, conducting examinations under oath, and providing coverage opinions, through litigation and trial. A lifelong Floridian, Meghan is a double Gator, having obtained her Bachelor of Arts degree in English and her Juris Doctorate degree from the University of Florida. Outside of work, Meghan enjoys watching episodes of “Bluey” with her niece, going to the movies, and cooking.
September 30, 2021
In Urena v. Target Corp., Plaintiffs, as parents and natural guardians of their minor child, claimed their daughter sustained physical injuries when she struck an end cap in Target’s Palm Beach Lakes store while shopping with her mother and grandmother.
August 23, 2021
Most Massachusetts attorneys have likely heard other attorneys, or have themselves bemoaned one of many Massachusetts-specific rules or requirements that tend to frustrate practicing attorneys: the need for blue ink signatures; the need for original summonses to file with the court; or the dreaded 9C conference—the list goes on.
However, few rules are as frustrating to many as Superior Court Rule 9A. While I have admittedly had my duels with the somewhat onerous requirements of this rule, over time my once sworn enemy has become my dear friend.
The predictability and routine nature of Superior Court Rule 9A can be a boon to any attorney so long as they break down the rule and make it a mechanical process that everyone can follow. In the next few steps, I am going to walk through the basic requirements for the rule and outline a few additional helpful tips. This is ONLY applicable in Superior Court so don’t go filing 9A Packages in district court or risk the ire of district court attorneys, clerks, and judges alike.
A few caveats before I begin: (1) do yourself a favor and download the PDF if you have not reviewed the rule before, it is far easier to read…at least for me; (2) this is not an exhaustive breakdown of Superior Court Rule 9A…this is an eight (8) page rule, review it, double-check it, triple-check it, until you are comfortable with its ins and outs; (3) I am not going to outline the requirements under 9A for dispositive motions or Summary Judgment Motions—be sure to review those specific requirements…there are a number of them… I may cover these in a separate post; and (4) make sure you check the rules often—Rule 9A is one of the more frequently updated rules, do not get your motion rejected because you failed to comply with a new requirement or update.
- Step 1: Determine if you need to talk to opposing counsel first
- Per the updated and fairly in-depth requirements under Superior Court Rule 9C, many motions filed in Superior Court now require attorneys to “confer” with opposing counsel in advance to filing a Motion. Be sure to review Superior Court Rule 9C closely. If all else fails, it is never a bad idea to talk to opposing counsel. If you do confer, draft a 9C Certificate and include it with your 9A Package…it never hurts. Also, you can confer after you have drafted the Motion/Memorandum discussed in Step 2.
- Step 2: Draft your Motion AND Memorandum!
- Yes, that is right, you need both. Per Superior Court Rule 9A(1) you need both a Motion and then a separate Memorandum of Law stating the reasons why said Motion should be granted. I know what everyone will say, “but I have filed a Motion without a Memorandum and it was granted.” And you are not wrong, but what works and what are best practices will always be two different animals. As they say, “thems the rules.” My personal recommendation, if you must file a Motion without a Memorandum—make sure it is either unopposed or a joint motion.
- Step 3: Serve your Motion, Memorandum, and Certificate of Service
- When you send your Motion and Memorandum to opposing counsel, be sure to include a Certificate of Service—you will need this later for the 9A Package. Per 9A(b)(1)(iii), Electronic Service, which is my preferred method, is permitted. Make sure to include in said Certificates of Service “served via email” so that scanned signatures can be accepted by the Court.
- Step 4: Waiting Game (give it 13 days)
- For typical Motions (i.e. NOT discovery or dispositive motions) you have ten (10) days after serving the motion/memo to withdraw or file the same, but an additional three (3) business days is permitted for service of the Opposition. This portion is somewhat convoluted and confusing. Simplified, just wait thirteen (13) days for opposing counsel to serve you with their opposition and you should not have any issues.
- Step 5: 9A Package (two potential options)
- Option 1 (No Opposition): If opposing counsel doesn’t serve you with an opposition within thirteen (13) days, you can now get your 9A package ready for filing. You will need to include the following in the 9A package (1) Motion; (2) Memorandum; (3) Original Certificate of Service—from Step 3; (4) Notice of Filing; (5) Affidavit of Compliance with 9A; (6) NEW Certificate of Service which serves Opposing Counsel with your Notice of Filing and Affidavit of Compliance with 9A. Send it to the Clerk and wait for the court to grant the same…unless you failed to follow the rule!
- Option 2 (Opposition – “to reply, or not reply”): So you got an opposition. You can either choose to draft a reply or get your 9A package ready. Per the rule, a Reply should only address NEWLY raised issues in the Opposition. Do not be that attorney that always files a Reply, though it is a crime we have all been guilty of. If new issues are raised, then draft one, otherwise get that 9A Package ready! In this instance your 9A Package will include the following: (1) Motion; (2) Memorandum; (3) Original Certificate of Service—from Step 3; (4) Opposition; (5) Notice of Filing; (6) Affidavit of Compliance with 9A; and (7) NEW Certificate of Service which serves Opposing Counsel with your Notice of Filing and Affidavit of Compliance with 9A.
- Step 6: Additional Helpful Tips
- Always, always, always, send the 9A Package with a letter that outlines in order the documents included therein. This will make the job of the clerks easier, and anything you can do to make their lives easier will come back tenfold.
- IF, you are filing/serving hard copies, i.e. not exchanging the Motion documents electronically, and the documents are physically signed with a pen. Make sure to sign them in blue ink and retain the originals. Serve opposing counsel with copies of everything. This is needed so you can then file the originals with the court in your 9A package.
- If you are served with a Motion and opposing counsel fails to comply with 9A, do not expect that to kill their motion. Prepare as if the court will hear arguments, and get your opposition into the court. I have seen so many cases get muddied because someone failed to comply with 9A, the court didn’t notice, the court granted the motion and here you are trying to wind the clock back.
- Finally, if you have a good grasp of Rule 9A, be sure to educate others, paralegals, new associates, legal secretaries, etc. This can be helpful to both make your life easier when it comes to serving and filing motions, and a good way to familiarize yourself further with the rules.
Well, there you have it. In my effort to break down the rule, I wrote another 1,000+ words about it. C’est la vie. Take your time. Check the rules. Have some fun, and at the end of the day, I am sure 9A will grow on you…like some strange legal fungus.
If you have any questions or the desire to chat about the wild world of Massachusetts Rules please feel free to click HERE and reach out.
August 12, 2021
Subrogation and workers compensation, together, normally are not a topic of conversation at many events or family gatherings. However mundane as it sounds, if you are a workers’ compensation carrier or injured worker, you may want to learn more as Florida law allows for other parties, not just the injured worker, to recover from the third-party who caused the injury.
July 19, 2021
Michael B. Stevens to Speak on the Implied Co-Insured Doctrine at the 2021 National Association for Subrogation Professionals’ Annual Conference on November 7-8
DSB&C’s Managing Partner, Michael B. Stevens, has been selected by the National Association for Subrogation Professionals to speak at this year’s annual conference. Michael will be speaking on the topic of the Implied Co-Insured Doctrine which he has litigated in various states and in Florida all the way to the Florida Supreme Court. The conference will be virtual this year.
Click here for more information about attending the conference.
July 2, 2021
As the court system seeks to return to its new post-pandemic normal, DSB&C remains committed to legal excellence in representing clients. The goal in litigated cases is to obtain the fair and just determination in every case. In Federal Court, consent to a magistrate judge may be a tactical advantage to consider. 28 U.S.C. Chapter 43 sets forth the qualifications, training, and jurisdiction of a magistrate judge. Appointment of a magistrate judge is made without regard to political affiliation and must be confirmed by the district court judges. The statute ensures only the most experienced and highest caliber are selected. Consenting to a magistrate judge allows all issues of the case to be developed and determined by one judge rather than the usual practice of proceeding before the magistrate judge for discovery issues and the district judge for trial.
Because magistrate judges do not preside over felony criminal trials, they have greater flexibility in scheduling deadlines and trial. This affords greater opportunity to uncover complex factual issues and delve into the intricacies of legal causation and damages. Consent to the magistrate judge helps the court system to utilize its resources as efficiently as possible while ensuring proficient and highly qualified judgeship from inception to resolution of a case. The attorneys at DSB&C are experienced in all aspects of federal court litigation. Our attorneys consider the client’s right to proceed before a magistrate judge and provide thoughtful recommendations on a case-specific basis.
Click here to email me anytime if you have additional questions.
June 14, 2021
The premises liability team of DSB&C of our West Palm Beach office successfully defended an appeal in the Eleventh Circuit Court of an Order granting Final Summary Judgment. In Espinoza v. Target Corp., 843 F. App’x 168, (11th Cir. 2021), Plaintiff claimed physical injuries to her head, neck, back, and shoulder; she also claimed damages for psychological injuries and memory loss related to a fall in a large puddle of milk in the stationary department of the Boynton Beach store. The central issue on appeal was whether the evidence supported an inference of constructive notice under Fla. Stat. 768.0755 (2010).
The Per Curiam Opinion affirmed summary judgment in favor of Target as Plaintiff’s inferences regards the size of the puddle, the temperature of the milk, and the policy and timing of a last inspection did not establish how long the puddle had been on the floor to charge Target with constructive notice of its existence. The Court ruled as a matter of law Target was not liable for any of Plaintiff’s claimed injuries. A proposal for settlement was filed early in the case which provided the client the opportunity to recover costs and fees for successful defense of this lawsuit. Our team is well prepared to handle all aspects of the premises liability lawsuit including summary judgment, appeals, and trials.
You can read the opinion by clicking here.
June 1, 2021
Derrevere Stevens Black & Cozad Taps Michael B. Stevens as its New Managing Partner as the Firm Continues its Technological and Geographical Expansion Beyond Florida and into New England
June 1, 2021 – (West Palm Beach, Florida) —- Derrevere Stevens Black & Cozad (“DSB&C”) announced today that Michael B. Stevens has been appointed Managing Partner of the firm, effective June 1, 2021. Michael is the firm’s first Managing Partner to succeed the founding and outgoing Managing Partner, Jon D. Derrevere.
Having made Partner at DSB&C before the age of 30, Michael is no stranger to seizing upon opportunities whenever they are presented. Five years ago, Michael shook the firm from its quiet and content comfort zone in Florida when he slowly began expanding the firm’s practice into New England. Convinced that there were opportunities being missed and prospective clients in need of the firm’s services, Michael began splitting time between South Florida, Vermont, and Massachusetts to explore growth to the north. Within four short years, the firm now boasts four full time attorneys in Vermont and Massachusetts focusing on insurance subrogation to complement the 19 attorneys on its roster in South Florida. Demand continues to outpace supply which has the firm looking to continue its hiring spree well into the summer.
Serendipitously, it was Michael’s push into the north that positioned DSB&C to come through the pandemic stronger than it went into it. When Michael arrived in Vermont at the beginning of 2017, the technological infrastructure did not exist at the firm to allow one of its attorneys to interface with the firm’s database and personnel in a meaningful way. Long before the terms “Zoom” and “Teams” were commonplace in everyone’s daily routines, Michael created new process to allow employees to communicate with one another when they were not in the office. Cameras were provided to everyone on Michael’s team to allow for visual interaction on a daily basis, regardless of where the person was located. The firm shifted the majority of its case management practice to the cloud which untethered the employees from the brick-and-mortar server in West Palm Beach and allowed for unlimited scalability.
In March of 2020 when the pandemic hit the world hard and everyone pivoted to remote platforms, DSB&C was unphased. “It wasn’t as easy as flipping a switch, but we were ready. One partner meeting over the March 13th weekend and two moving days with a dedicated staff the following week made the transition seamless. But for hearing the laughter of children or a dog letting everyone know that the mailperson had arrived in the background of a phone call, our clients were no wiser that anything had changed on our end. We got lucky on the timing. Had the pandemic struck even one year earlier, I am not sure what would have happened,” said Michael. “As they say, better to be lucky than good.”
Over the past year, the firm has seen tremendous growth in all areas. While its insurance defense roots have continued to be the steady heartbeat of the firm, insurance subrogation is on pace to take over as the firm’s number one revenue sector in the next year. Having taken the firm’s subrogation division from a two-person team in West Palm Beach to one boasting 15 employees in four different states, Michael’s partners are looking to him to help nurture the firm’s continued long-term growth. “I am excited for this new opportunity and the faith my partners have placed in me.”
With this new role, Michael will be overseeing the day-to-day management of DSB&C with an emphasis towards leveraging the firm’s talent and technological prowess. “Anyone who thinks the legal industry is going back to the days of 30 lawyers gathering in a room for 5 minutes with a Judge on motion calendar hasn’t been paying attention this past year. Everyone benefits from virtual appearances. Clients pay less in fees and costs, and attorneys are less stressed by not needing to spend hours on the road to appear in person. Most people won’t admit it, but I know it’s not just me that loves getting to use my own bathroom most days – and let’s not forget how much we are helping the environment by leveraging this technology. Less car rides, and less plane rides means less carbon footprint. You don’t have to want to embrace a tree in Vermont to know that every little bit helps,” says Michael. “Beyond being good for the environment and business, helping the firm leverage technology also means more time with your family and doing the things that you love. There is no point in working this hard to not be able to enjoy the fruits of your labor with those that are important to you.”
With the overwhelmingly positive success of the firm’s work from home program this past year, DSB&C made the decision to make the program permanent. “If you want to work from home and can do so as a productive member of our firm, then you shall have that privilege,” said Michael. “Our employees are happier working from home. Why would we want to mess with that?”
Michael recently relocated to South Burlington, Vermont with his wife Amanda, and their two children. When he isn’t fighting the good fight for his clients in a courtroom, he enjoys identifying and testing out the best food in the cities he visits, hiking, skiing, and being the only Florida Panthers’ fan in all of New England.