August 12, 2021

Hurry Up and Wait

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

Federal Court Litigation and Considerations for Proceeding with a Magistrate Judge

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

Jon D. Derrevere scores another victory for Target at the 11th Circuit Court of Appeal

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.

April 14, 2021

Bryan W. Black Obtains Final Summary Judgment in Personal Injury and Property Damage Case involving Certified Mold Assessor and Indoor Air Quality Testing.

April 13, 2021 – Haskett, et. al. v. Hibiscus Springs Rental Homes, et. al. This action arises out of claims asserted by four (4) Plaintiffs against a Rental Home company, Property Management company, various individual employees and a Certified Mold Assessor & Air Quality Testing Company (“Defendant”). Plaintiffs filed their initial complaint in February 2020 asserting that a window at the Subject Rental Residence was leaking and despite pleas to the rental complex, continued to leak for a two year period. A mother, adult daughter and the daughter’s two boys allegedly developed health conditions as a result of exposure to toxic mold. Sometime in 2018, Plaintiffs noticed that the paint was bubbling and coming off the wall under the front bedroom window, revealing what appeared to be mold. Plaintiffs testified that they attempted to clean the mold but ultimately hired a mold testing company to test the conditions. After the mold testing company inspected and tested the conditions of the Subject Residence, they concluded that there were high levels of mold present in the Subject Residence. Upon receiving this information, Plaintiffs left the residence and moved into a hotel. Plaintiffs also left many of their personal belongings in the home, as they were under the impression that their personal effects were contaminated by mold. Thereafter, Plaintiffs only returned to the Subject Residence once to remove limited items from the garage and return the keys for the Subject Residence to the rental complex.

 

It was not until after Plaintiffs left the Subject Residence and returned the keys to the Management Company for the rental complex, that Defendant Certified Mold Assessor & Air Quality Testing Company was asked by the rental complex to perform Indoor Air Quality Testing at the Subject Residence. Defendant set up its equipment, turned it on, sampled the air at the Subject Residence and then left the property. Thereafter, Defendant provided the rental complex a copy of its report and lab results. Defendant had absolutely no communications with Plaintiffs before, during or after visiting the Subject Residence.

 

During litigation of the case, Defendant served all the Plaintiffs with requests for admissions and deposed the two (2) primary Plaintiffs (mother and adult daughter). Both testified that the Plaintiff did not contract, pay, rent, communicate, retain, or rely upon any representations made by the Defendant. Further, Plaintiffs testified that they did not know who Defendant was or what Defendant did with regard to the Subject Residence. Plaintiffs solely relied upon their own mold testing company when deciding to leave the Subject Residence and abandon their personal property, all of which occurred prior to Defendant’s first and only visit to the Subject Residence.

 

After a review of the record evidence, pleadings, answers to interrogatories and testimony, the Trial Court ruled that there was no genuine issue of material fact and Defendant was entitled to Final Summary Judgment as a matter of law. The duty element of negligence is a threshold legal question; if no legal duty exists, no action for negligence may lie. Florida courts have consistently held that the issue of whether a defendant owes a duty to a plaintiff is a question of law for the courts to decide. The Court also found that the Plaintiffs third-party beneficiary claim likewise failed as the record evidence unrefutably established there was no contract, no breach of a non-existent contract and no resulting damages. Nothing Defendant did, or did not do, would have, as a matter of law, created a duty between Defendant and Plaintiffs; nor could anything Defendant did, or did not do, be deemed the proximate cause of Plaintiffs’ alleged damages.

The matter is not final, and subject to change, until the expiration of the relevant periods for any motion for rehearing and/or the time for appeal has concluded.

December 13, 2019

Fourth District Court of Appeals Affirms Summary Judgment in Construction Defect Case.

January 15, 2021 Update – Bryan W. Black, Esq.
In June 2020, at the Fourth District Court of Appeals, Appellant/Plaintiff sought plenary review of the final “Order on Defendant’s Motion for Final Summary Judgment”. Appellant argued that (1) the lower court erred in granting final summary judgment in favor of Appellee/Defendant since failure to comply with the notice requirement of Fla. Stat. 558.004 is not dispositive of an action requiring dismissal with prejudice and (2) that the lower court erred in granting final summary judgment in favor of Appellee since Appellant substantially complied with the notice requirement of Fla. Stat. 558.004. Appellee/Defendant timely responded with its Answer Brief describing how “Plaintiff has no evidentiary basis for a claim for damages and has no disputed issues of fact to be determined by the jury” pursuant to Fla. Stat. 558.004(11).
On January 14, 2021, the Fourth District Court of Appeals Affirmed Per Curiam the Trial Court’s ruling. The Fourth District also granted Appellee’s Motion for attorney fees conditioned on the Trial Court’s determination that Appellee is entitled to fees under section Fla. Stat. 768.79. The ruling is not final until disposition of timely filed motion for rehearing.
Case Description:
Boca Raton, Florida Homeowner alleged in a Complaint that Defendant Roofer’s Stone-Coated Steel Roof and flat deck TPO installation was defective, violated Florida Building Code, violated workmanship standards and breached its Contract. The defective installation allegedly resulted in significant water and mold damage to the home’s interior. Homeowner allegedly suffered compensatory damages in excess of $100,000, incidental and consequential damages, and sought attorney’s fees.
Defendant moved for Final Summary Judgment arguing that Plaintiff failed to provide Defendant with the mandatory statutory Notice and Opportunity to Repair/Cure, as required by Florida Statute §558.004 and, therefore, pursuant to Florida Statute §558.004(11), Plaintiff was prohibited from going to trial against Defendant on any “unnoticed” defects. After hearing argument, the Court found that Plaintiff failed to comply with Fla. Stat. §558.004(1)(a), and pursuant to Fla. Stat. §558.004(11) the court shall allow the action to proceed to trial only as to alleged construction defects that were noticed and for which the claimant has complied with this chapter and as to construction defects reasonably related to, or caused by, the construction defects previously noticed. As a result of Plaintiff’s failure to comply with the mandatory requirements, Plaintiff had no evidentiary basis for a claim for damages and had no disputed issue of fact to be determined by the jury. Therefore, Final Judgment in favor of Defendant was granted.

December 2, 2019

A Win for Subro in a Florida Commercial Landlord/Tenant Dispute

On February 7, 2015, a fire ripped through a 5 Napkins Restaurant on South Florida’s popular outdoor retail strip on Lincoln Road in South Beach. The damages to the building were extensive and ultimately caused the restaurant to close. Michael B. Stevens, Esq., and Mary Grecz, Esq., from Derrevere Stevens Black & Cozad filed a subrogation lawsuit on behalf of the landlord’s carrier, Zurich American Insurance Company, against a number of contractors involved with the maintenance and installation of the hood system, fire suppression system, and its insured’s tenant, Puccini, LLC. The tenant immediately moved to dismiss the Complaint on the basis that, while not a named insured under Zurich’s insurance policy, they should be considered an implied co-insured and, therefore, Zurich should be barred from subrogating against them. The trial court ultimately agreed with the tenant and dismissed Zurich’s lawsuit with prejudice. An appeal was then taken by Zurich to the Third-District Court of Appeal.

 

On appeal, Zurich’s primary argument was that the trial court had used the wrong standard to evaluate whether the tenant should be considered an implied co-insured under the Zurich policy. In dismissing the Complaint, the trial court had relied heavily on the fact that part of the tenant’s rent was used to pay a portion of the premiums for the Zurich policy. The trial court all but ignored the remainder of the lease which placed the risk of loss for a fire on the tenant and never shifted it back to the landlord. The Third-District Court of Appeal, in reversing the trial court, utilized the “Case-By-Case” approach, and found that when looking at the lease as a whole, even though a portion of the premium was paid for with the tenant’s rent, it was clear that the intent of the parties was for the tenant to bear the risk of loss in the event of a fire. The tenant thereafter sought review by the Florida Supreme Court which ultimately declined jurisdiction on September 10, 2019, thereby sending the case back down to the trial court for Zurich to continue its pursuit of the tenant. 

April 30, 2019

Michael B. Stevens to speak at the National Association of Subrogation Professionals 2019 Annual Conference in Washington, D.C.

Michael B. Stevens has been selected to speak at the upcoming NASP Annual Conference in Washington, D.C., on October 28, 2019. Michael will be discussing Florida Statute §440.39 and the different mechanisms for recovering in worker’s compensation cases in Florida. The statute provides unique procedures with strict deadlines that, when complied with properly, allows a carrier to move from that back of the line with its lien, to the front of the line for dollar one. The presentation will provide both a comprehensive analysis of the statute along with real case examples of how each scenario plays out. The majority of the attorneys representing claimants in Florida have not come up against a carrier attempting to enforce their dollar one rights during the second year. Our presentation will give carriers and attorneys clarity and greater confidence when flexing this rarely used statutory muscle.

August 24, 2018

Michael Stevens and Mary Grecz to Present at 2018 NASP Annual Conference

Michael Stevens and Mary Grecz will both be presenting at the 2018 National Association of Subrogation Professionals’ (“NASP”) Annual Conference in Orlando, Florida.

Mr. Stevens will be presenting on the topic of Ethical Management, which will cover managing employees on both the insurance carrier and law firm sides.

Mrs. Grecz will be presenting on the topic of Marine Subrogation Claims, which will focus on best practices for marine loss investigations and avoiding potential legal pitfalls.

 

Additional detail can be found on the NASP website here.