Monday, June 30, 2014

Workers' Compensation: Alleged Employee Misconduct Or Wrongful Termination?

By Anthony V. Cortese

In the recent decision of the First District Court of Appeals in Southeast Milk v. Fisher, Case No. 1D13-4411 (1st DCA, April 14, 2014), the court ruled that an employee’s misconduct may be the basis of denial of temporary partial benefits. The facts of the case are particularly interesting and raise other legal questions for workers’ compensation and labor law practitioners, particularly considering the recent Second District ruling in Hornfischer v. Manatee County, Case No. 2D13-374 (2nd DCA, February 12, 2014).

In Southeast Milk, the claimant was a truck driver injured on November 9, 2012. He was restricted to light-duty work, and the employer offered him regular hours and regular pay to come into the office to watch safety videos. He came to work on two days and then did not, and he was fired by the employer for unauthorized absences, which the employer asserted constituted employee misconduct. The JCC awarded temporary partial and stated in the order that the award would be the same whether or not there had been employee misconduct. The First District reversed, stating that if misconduct was found, the statute precludes an award of temporary partial benefits under Fla. Stat. § 440.15(4)(e)(2012).

Misconduct is defined in Section 440.02(18) of the act as willful and wanton or intentional and substantial disregard of an employer’s interests or of the employee’s duties. The employer argued that an unexcused absence is in disregard of the employer’s interest and employee’s duties. The employer in Southeast Milk didn’t bother to find productive, light-duty work for the injured worker to do, the employer told him to sit in a room and watch safety videos, which the employee will likely say was a humiliating waste of time. The employer advanced no productive need for this artificial job, and it is clear that this was an effort very soon after the injury to terminate indemnity to an unrepresented injured worker. Does the employer have a valid interest in having an injured employee sit around and watch safety videos day after day? If not, an artificial job cannot be used to terminate indemnity benefits.

In the background is the law against coercing and firing an employee for making a valid workers’ compensation claim under Fla. Stat. § 440.205. Employers who offer these types of artificial, sheltered jobs typically only offer these jobs to employees injured on the job. The artificial job offer, and the termination that follows, occur because the claimant made a valid workers’ compensation claim, which can be the basis of a wrongful termination claim. Hornfischer v. Manatee County, Case No. 2D13-374 (2nd DCA, February 12, 2014). A claim for wrongful termination can be made for compensatory and punitive damages in circuit court, which may in some cases be the best method and forum for an injured worker to be fairly compensated for the loss of earnings that follows a job injury.

Workers’ compensation and labor lawyers will have to consider both methods of recovery for their clients in these situations.

Friday, June 27, 2014

McCall: Limited Decision Or Harbinger Of The End Of All Medical Malpractice Caps?

By Charles T. Moore

The Florida Supreme Court recently issued its eagerly anticipated decision on caps on noneconomic damages in medical malpractice cases. In Estate of McCall v. U.S., 2014 WL 959180, —So. 3d— (Fla. March 13, 2014), the court held the statutory cap on wrongful death noneconomic damages under Fla. Stat. § 766.118 violates the Florida Constitution’s Equal Protection Clause. Let the argument begin: Is McCall limited to wrongful death, or has it laid the groundwork for unconstitutionality of all § 766.118 caps?

This decision will invite much dissent as to surviving sections of § 766.118 because of the opinions’ piecemeal nature. The decision was announced in an opinion written by Justice Fred Lewis in which Justice Jorge Labarga concurred. The opinion focused on the part of § 766.118 that limits all noneconomic damages in wrongful death and catastrophic injury cases against doctors to $1 million, no matter how many claimants. Justice Lewis ruled the law’s disparate treatment of multiple survivors/claimants, like a large family, versus a single survivor/claimant violates fundamental notions of equal protection. He also reasoned the Legislature failed to establish a legitimate relationship between caps and the goal of reducing medical malpractice insurance premiums.

Justice Barbara Pariente refused to endorse Justice Lewis’ “independent evaluation and reweighing” of the Legislature’s factual findings as to a medical malpractice crisis. She instead wrote a concurring opinion joined by Justices Peggy Quince and James Perry. The concurring opinion agreed that capping noneconomic damages in wrongful death cases lacks a rational relationship to the goal of reducing medical malpractice premiums. Might that same lack of rational relationship apply to personal injury medical malpractice cases? 

Justice Lewis noted the analyses for personal injury damages and wrongful death damages are different. He limited his analysis to wrongful death, rewording the certified question. He then declined to answer the other certified questions, such as whether the caps on damages violate the Florida Constitution’s Access to Courts and Right to Jury Trial protections. Answering those questions could have put to rest whether caps on damages in personal injury medical malpractice cases are also unconstitutional. The court left those questions for another day to avoid the charge of issuing an advisory opinion.

The plurality and concurring opinions give plenty of hints as to whether the analysis applies to all § 766.118 caps. The most striking example arises from the opinions’ illustration of the unfair and illogical impact resulting when caps are applied to cases with multiple “claimants/survivors” as compared with cases involving only one claimant. The same analysis used to strike down caps in wrongful death cases would apply to catastrophic cases. Imagine a catastrophic injury to a minor child in a medical malpractice case against a doctor that renders that minor child quadriplegic. The catastrophically injured child would have to share the limit of $1 million with her parent claimants. Compare that to a case where a single adult is similarly rendered quadriplegic.  She would be entitled to the full $1 million. Why is her injury worth more than the catastrophically injured child? This reflects the same unfair and illogical incongruity among claimants that led five justices to hold the cap unconstitutional in wrongful death cases. The cap in such a catastrophic injury case seems ripe for the challenge and could lead to § 766.118 being struck down in its entirety.     

Wednesday, June 25, 2014

Is Collaborative Law Right For Your Probate Practice?

By Kerry Raleigh Tipton

At the end of a protracted litigation, whether by trial or late-stage settlement, have you ever thought: There has got to be a better way to resolve disputes? Have your clients? If you answered yes to either of these questions, then it is time for you to consider adding collaborative law as a dispute resolution service you offer your clients.

Collaborative law is an alternative dispute resolution process in which the parties, their lawyers, and the collaborative facilitator all agree that should the dispute not settle, the lawyers and collaborative facilitator will not represent the parties in any subsequent court proceeding or lawsuit. Throughout the collaborative law process, the parties agree to exchange information, may bring in trained third parties (expert witnesses, mediators, etc.) to help the parties evaluate the value of the case, and ultimately settle the matter. Although collaborative law has its roots in family law, it is expanding to civil matters. 

Collaborative law is well-suited for probate litigation. Probate disputes often arise between family members who have an interest in preserving the familial relationship. The Ohio State Bar Association noted, “Few probate matters are completely decided in court, and settlements are often reached only when the parties’ emotional and financial resources are exhausted. Collaborative law settlements tend to be more satisfactory to the parties, and thus more stable and enduring, and the process generally is less stressful and less expensive.” See the OSBA 7/29/2012 issue of the “Law You Can Use” prepared by Columbus attorney Tom H. Nagel. Sherrie Abney and Melanie Atha are two attorneys using their collaborative law training in probate cases. (I would like to express my gratitude with Ms. Abney and Ms. Atha. They were very generous with their time and insights on collaborative law.)   

Abney, author of “Civil Collaborative Law: The Road Less Traveled” and “Avoiding Litigation,” is an attorney in Texas and one of the founding members of the Global Collaborative Law Council.  Abney attributes the collaborative process as creating an environment of empathy, which then paved the way toward win-win settlements. Although there are different collaborative models, Abney uses the model (or a modified model) that best fits the needs of the case at hand.  

Atha is an attorney with the firm of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP in Alabama. In her probate litigation, Atha attributes her ability to help the parties move through their emotional baggage toward resolution on her collaborative law training. In cases where the parties have a goal in preserving their relationship going forward, Atha advises that collaborative law gives the attorneys a chance at achieving this goal.

Although Abney, Atha, and all those practicing collaborative law are innovators and pioneers, they are not alone. The Uniform Collaborative Law Act has been enacted in seven states plus the District of Columbia and has been introduced in eight other states, including Florida. See Uniform Law Commission website. (Florida’s pending bill is focused on family law matters, but nothing precludes the use of collaborative law to other matters.) The American Bar Association and our local Hillsborough County Bar Association have Collaborative Law Sections. The Global Collaborative Law Council and the International Academy of Collaborative Professionals (IACP) are professional organizations with worldwide reach. For instance, the IACP has 5,000 members internationally. 

For more information on collaborative law, consider joining the HCBA Collaborative Law Section.

Thursday, June 19, 2014

Editor's Message: Is It That Time Already?

By Rena Upshaw-Frazier

It is hard to believe that the summer months are already here. With the beginning of the wonderfully ― or unbearably, depending on your perspective ― hot days, lemonade, and “summer blockbuster” movies, I conclude my year as the editor of this great publication. I have thoroughly enjoyed working with the Hillsborough County Bar Association employees and volunteers, chatting with the dedicated section chairs, and spending time with the members. I have also enjoyed reading the thoughtful and insightful articles submitted for the Lawyer magazine and assisting with putting together what I hope you found to be seven phenomenal issues. It is impossible to hold this position without being enriched by the experience and reflecting on the lessons learned along the way. As I bid you adieu as editor, I want to share a few of those lessons with you:

1. Even when you think you have nothing to say, you have something to say. I usually have an opinion, or at least a defined point of view, on most topics that pertain to or affect my law practice. So when I began this year as editor, I thought that the easiest of all of my responsibilities would be to write the Editor’s Message for each publication. It was not. Between my career as a private practice real estate litigator, my children and family, and life in general, the creativity did not always flow as easily as I would have liked. In fact, there were times when I thought that I had nothing to say or write about. I was always wrong. In talking with the HCBA’s public relations and communications coordinator, spending time with colleagues, or reading the news, an interesting and relevant topic would always appear. Your inner creativity is there; sometimes you just have to find alternative ways to bring it out. This rings just as true for writing legal briefs as it is does for writing editor’s messages.

2. Diversity is a great teaching tool. As editor, I had the opportunity to critically read the thoughts of attorneys and students from different practice areas and careers, to interact with professionals from all different walks of life, and to work closely with people with vastly different perspectives and talents. I loved every minute of it, but most important, I learned so much. Variety is the spice of life. I held this belief long before becoming editor, but it was greatly reinforced during my time in this position.

3. It is great to be a member of the HCBA. I have been a member of the HCBA for as long as I can remember, and even served as co-chair of the HCBA Real Property, Probate and Trust Law Section. As editor of the Lawyer magazine, I experienced firsthand all of the hard work that goes into making this Bar association as beneficial and informative to its members as possible. It has been a pleasure being a part of the team. Thank you for the experience.

I hope that you enjoy this year's last issue and savor the Florida summer!

Tuesday, June 17, 2014

Solo And Small Firm – Representing Clients With Adverse Interests

By James A. Schmidt

If the ambitious plans of the Solo/Small Firms Section have been accomplished, by now you should be sitting back in your chaise lounge chair, with the only care in your world being trying to remember whether you ordered a Mai-Tai or Pina Colada. We hope.

This year the section carried out its ambitious plan to help its members become more efficient through using the vast resource of non-lawyers at their fingertips. The theory is that we, solo and small firm lawyers, need to use our external resources more than any other stripe of lawyer, in order to maintain a competitive edge against larger, more sophisticated organizations. And we figured that non-lawyers, in their many versions, would be a great resource to start with.

Over the course of our four lunch meetings, we heard from an auditor, a certified fraud examiner, a panel of three valuation experts (each with their own specialty), and a panel of three business coaches. We almost made it through the year with only non-lawyer speakers, but in full disclosure, this last panel included two lawyers. But one of them is a full-time business consultant, and the other wore his coaching hat for the afternoon.

Let us recognize and give thanks to this year’s brave speakers. First, Patrick Dougherty, an MBA, CPA, and auditor with The Florida Bar, gave us a terrific presentation on law firm accounting. We co-produced this program with the Real Property, Probate and Trust Law and Marital & Family Law Sections. (Thank you for all of your cooperation and support!) Secondly, Laura Krueger-Brock, CPA, CFE, and shareholder with CBIZ Mayor Hoffman Mann, spoke to our group about the scope of services that fraud examiners get into. This interesting discussion included several examples of family and business law cases where she was engaged to assist attorneys in sleuthing out the facts.

Our panel of valuation experts gave us a valuable hour of their services, each sharing with us a slice of how they approach the tricky question of making the valuations that so often we rely on in our litigation and transactions. Matthew Griffith, MAI and principal with Whitewater Realty Advisors, gave us his perspective on the real estate market and his business of valuing commercial real estate. Joni Herndon, a state-certified residential real estate appraiser, shared her thoughts on the residential market. And Tammy Blackburn gave us a primer on how she values personal property (inventory, equipment, etc.).

And our last lunch, themed on attorney entrepreneurship, was led by Sherida Ferguson, a certified financial planner and owner of SL Ferguson Wealth Management Services, who discussed financing basics. Bill Yanger, attorney and self-taught online marketer, shared his secrets on law firm marketing. With persuasion, Yanger explained the importance of having an online presence and the law firm’s webpage. He cited how his own efforts have led him to develop a practice that includes many clients outside of Florida and the United States who have matters pending in our local courts. Michael Marget, attorney turned business consultant and owner of 4 Law Firm Services, explained the benefits of outsourcing resource-draining tasks such as managing your own accounting and IT needs.

In all, it was a productive and educational year. We hope this effort has helped you learn something that benefited you in your practice and perhaps achieved that goal of giving you the edge you need. If so, then even if you are not reading this from your lounge chair, with only trifles for concerns, you must be on your way.

Saturday, June 14, 2014

Local Professionalism Panels in Practice

By Caroline Johnson Levine

The Thirteenth Judicial Circuit is working diligently to ensure that the practice of law is accomplished with professionalism and civility. On November 1, Administrative Order S-2013-071 established a Local Professionalism Panel (LPP). The LPP is a wonderful method to address an attorney’s unprofessional conduct in a confidential and non-punitive manner before the attorney’s conduct rises to the level that may necessitate an investigation by The Florida Bar.      

Any member of the public may file a complaint with the LPP regarding an attorney (respondent) who has engaged in unprofessional behavior. Subsequently, the LPP may simply appoint one of its members to informally contact the respondent in order to resolve the unprofessional behavior. For more egregious behaviors, the LPP will meet with the respondent in order to provide counsel and advise a better course of conduct or provide information and training resources to the respondent. Gently informing lawyers that incivility is actually not an acceptable practice can be incredibly effective, as The Florida Bar’s “Hawkins Commission of Review of the Discipline System” reported that 90 percent of lawyers who had been referred to practicing with professionalism programs had no subsequent disciplinary history.

William Kalish, of Akerman LLP, is the chair, and Edward Waller, of Buchanan Ingersoll & Rooney/Fowler White Boggs, is the training coordinator for the LPP subcommittee.  Each LPP will consist of one judge and two attorneys who have been thoroughly trained to conduct LPP’s in a consistent and effective manner. Please contact Kalish at to begin an LPP referral or learn more about the program.

Importantly, the LPP will not conduct a disciplinary hearing. Rather, the real benefit of the LPP is its intent to conduct an interactive non-punitive discussion between the parties. This can provide an attorney with an opportunity to receive mentoring from experienced attorneys who wish to provide guidance and information as to a better method of presenting oneself in the courtroom and in the public arena. Lawyers who would like to utilize the benefits of the LPP should view the panel as a career development opportunity for the respondent, where LPP members can provide suggestions to help educate and mentor the respondent that there exist better methods to handle stressful situations.

Professionalism and civility issues are becoming more important to the legal community, as Supreme Court Justice R. Fred Lewis recently spoke about professionalism at the Lawton Chiles Middle Academy, and it was apparent how important he felt that unprofessional behavior is damaging the practice of law and the reputation of lawyers in society. Justice Lewis made it clear that when he began practicing law, it was considered a gallant profession where practitioners balanced advocacy with polite rhetoric. It is the hope of many lawyers that there can be a brighter future where practicing with professionalism is of paramount importance. 

Friday, June 13, 2014

Lincoln, Legal Ethics, And Success In Mediation

By Thomas Newcomb Hyde

Abraham Lincoln wrote, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.” The Preamble to the Florida Rules of Professional Conduct, consistent with Lincoln’s words, counsels the lawyer as a negotiator to seek an advantageous result for the client consistent with requirements of honest dealing with others. The Florida Rules of Professional Conduct also give direction on how the application of legal ethics can lead to success at mediation. 

Be prepared. Lawyers often arrive at the mediation unprepared, not ready to competently and diligently represent their clients. The lawyer’s first duty under Rule 4-1.1 is competence. That is, the lawyer must have the knowledge, skill, thoroughness, and preparation reasonably necessary to provide competent representation. Florida Rules of Professional Conduct, Rule 4-1.1. The successful lawyer prepares for mediation as if preparing for trial. Competent handling of a particular matter at mediation includes inquiry into and analysis of the factual and legal elements of the problem. Ibid. Rule 4-1.1 Comment. The successful lawyer must unearth all of the facts that can be admitted into evidence, prepare a detailed analysis of the case, and create a persuasive theory on how to reach a settlement agreement.

Communicate. Properly communicating with clients increases the chances of success at mediation. Under Rule 4-1.4, a lawyer must promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required, and the lawyer must reasonably consult with the client about the means of negotiating a settlement. Ibid. Rule 4-1.4. A lawyer must provide a client with a professional assessment of the advantages and disadvantages of a proposed settlement so the client can make a fully informed decision. When meeting with the client, the lawyer discusses the negotiation strategy, starting points, concessions, and aims for the settlement zone. This enables the lawyer to act with commitment to the interests of the client at mediation. Remember, the decision on whether to pursue settlement discussions belongs to the client who needs the information in order to make that decision. In fact, in accordance with Rule 4-1.2, a lawyer must abide by the client’s decision whether to settle a matter. Ibid. Rule 4-1.2.

Truthfulness in Statements to Others
Tell the truth. Under Rule 4-4.1, a lawyer must not knowingly make a false statement of material fact or law. Nevertheless, an attorney is under no obligation to tell what the client will accept to settle, either to the opposing party or to the mediator. Ibid. Rule 4-4.1. The comment explains that under the generally accepted conventions in negotiation, certain types of statements such as a party’s intentions as to an acceptable settlement are not taken as statements of material fact.

Applying legal ethical principles can lead to successful compromises at mediation if we are thoroughly prepared, properly communicate, and are committed to telling the truth.

Wednesday, June 11, 2014

Intellectual Property Law: Understanding Covered Business Method Review

By Kristin Shusko

The American Invents Act was recently enacted, and it created another way to challenge a patent’s validity through its Transitional Program for Covered Business Method Patents, which allows for Covered Business Method Review. The CBM Review, implemented in September 2012, is an administrative trial before the Patent Trial and Appeal Board and is scheduled to sunset in September 2020.

Unlike an ex parte re-examination, a CBM Review is an adversarial proceeding that allows the alleged infringer to participate. Instead of restricting challenges to prior-art, the patent can be challenged on any ground that is a condition for patentability. A petition for CBM Review can be filed at any time except during the time that a post-grant review petition can be filed, and the board must reach a decision within a year after the proceedings are instituted. The CBM Review is only available to those who have been sued or charged with infringement, and it is restricted to covered business method patents. 

In considering whether to evaluate a petition for CBM Review, the board determines whether it is “more likely than not” that at least one challenged claim is unpatentable. If the petition is granted for review, the petitioner bears the burden of establishing unpatentability by a preponderance of the evidence as opposed to the clear and convincing standard applied in district court. Additionally, unlike in district court, there is no presumption of validity.

If the board comes to a final decision, the petitioner is estopped from challenging the validity of the patent on the grounds raised in the CBM Review in a subsequent district court action and is estopped from raising any grounds in a subsequent USPTO proceeding that “reasonably could have been raised.”

The limitation that the patent be a covered business method patent is still not clear. A covered business method patent is “a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.” 37 C.F.R. § 42.301(a).

Since implementation of the CBM Review, the board has applied a broader interpretation of financial product and a narrow interpretation of the technological invention exception.  Specifically, in a decision from October 2013, the board concluded that the act does not require a “nexus” to a “financial business” and that “financial product or service” is to be interpreted broadly. Consequently, it is not limited to the products or services of the “financial services industry.” In fact, the board held that “a patent need not be used by a financial services company or involve a traditional financial services business to qualify as a covered business method patent.” As a result, the scope of the CBM Review could subject a large number of patents that are tangentially related to financial services to further validity challenges.

Monday, June 9, 2014

Eminent Domain: Necessity For A Taking - Actual Or Engineered?

By Blake H. Gaylord

Florida law unquestionably favors a condemnor’s discretion to identify and select parcels necessary for condemnation. A condemnor’s discretion is broad, but it is not unbridled. To establish the necessity for selecting a parcel for condemnation, a condemnor must prove that it reasonably considered five factors outlined in Hillsborough County v. Sapp, 280 So. 2d 443 (Fla. 1973). The factors identified in Sapp are alternative routes, costs, environmental impacts, planning, and safety of the proposed right of way. Id. 

A condemnor’s evaluation of costs and alternative routes can be bitterly contested when a property owner feels that its property is the subject of “engineered necessity.” Engineered necessity is the condemnation of an entire parcel in order to avoid payment of business damages to an owner for which it would be entitled if only a portion of the property were condemned. This concept is borne out of Florida law that only allows for the recovery of business damages in cases of a partial taking. See Fla. Stat. §73.071(3)(b), (2014). 

The controversy surrounding engineered necessity is the result of since-repealed Florida Statute § 337.27(2) (1997), which allowed the Florida Department of Transportation to condemn an entire parcel of property in order to save costs by avoiding payment of business and severance damages that would result from a partial taking. Takings under this statute became known as Fortune Federal takings after the Florida Supreme Court found § 337.27(2) to be constitutional in the case of FDOT v. Fortune Federal Sav. & Loan, 532 So. 2d 1267 (Fla. 1988). Eleven years later, in 1999, the Florida Legislature expressly repealed § 337.27(2) through House Bill No. 591 and Laws of Florida Chapter 99-385. 

Rather than killing the idea behind engineered necessity, the repeal of § 337.27(2) birthed a new era of it. After 1999, takings designed to avoid business damages that were once accomplished in the open through Fortune Federal takings are now accomplished surreptitiously through an evaluation of the Sapp cost factor with the same purpose of eliminating business damages. Regardless of the process, the Florida Legislature has been clear that avoidance of business damages alone cannot be justification for a taking. 

Landowner attorneys should take care to examine a condemnor’s cost justification for the selection of a parcel for a whole taking if there is a question as to whether a partial taking would be more appropriate. A blatant example of engineered necessity will show itself in a cost analysis of a parcel that solely evaluates the acquisition cost of a partial verses whole taking of that particular parcel. A proper analysis will show an evaluation of multiple cost items between alternative routes or sites rather than the evaluation of just the acquisition cost of one parcel against itself. By the same token, condemning authority attorneys are smart to review decisions by right-of-way personnel in order to make sure that parcels were selected based on proper criteria and analysis. Failure to make such a review can result in contentious and expensive litigation for condemnors. 

Saturday, June 7, 2014

Criminal Law: The Evolution Of Cellphone Evidence

By Matt Luka

Nearly everyone carries a cellphone these days, and most phones contain vast amounts of information about a person’s life. Not surprisingly, cellphones have become important sources of evidence in the investigation of criminal activity. Cellphones not only contain the information entered by the user but also emit or store data unknown to the user that has evidentiary value. As the technology of cellphones evolves, courts will face new issues of evidentiary reliability and constitutional protections.

Last fall, in Gosciminski v. State, 132 So. 3d 678 (Fla. 2013), the Florida Supreme Court considered the admissibility of evidence of a defendant’s location based on cell tower signals to prove that a defendant was in certain locations at certain times during the morning of a murder. The state’s expert testified about a diagram indicating the area in which the defendant was located based on signals between the phone and nearby cell towers. In concluding that any challenge to the testimony went to weight rather than admissibility of the evidence, the court noted that cellphone records and cell tower site information have been routinely admitted in Florida for years. 

Although cell tower information has been admitted in Florida courts for some time, the Gosciminski court did not address how Florida’s recent adoption of the Daubert standard may impact the admissibility of such evidence in the future. In United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012), the court found a particular cell site methodology unreliable under Daubert. Conversely, United States v. Machado-Erazo, 950 F. Supp. 2d 49 (D.D.C. 2013), recognized that other cell site methodologies have “clear[ed] the hurdle imposed by Daubert.” Whether offering or challenging this evidence, these cases teach that we must pay close attention to the purpose for which the evidence is offered and whether the methodology employed supports that purpose. Michael Cherry, a Virginia-based consultant, and Edward Imwinkelried, a law professor at the University of California at Davis, are good resources for further research on this topic.   

In addition to cell site evidence, information obtained from the search of a suspect’s cellphone is also an emerging topic. The U.S. Supreme Court heard oral argument in Riley v. California and United States v. Wurie in April. Both cases center on the authority of law enforcement, without a search warrant, to search a suspect’s cellphone at the time of arrest. Interestingly, Wurie involves an outdated flip phone. The Riley case involves a more current smartphone with the capability of storing more data. The evolution of technology may play a role in the Fourth Amendment analysis of these cases. Also, the court will only consider the relatively limited issue of whether the specific evidence obtained from the cellphones in those cases violated Fourth Amendment rights. The court’s ultimate decision may leave open the possibility for future litigation based on new technology or different types of evidence. At the time of the submission of this article for publication, the court had not decided Riley and Wurie. If the court issues the decisions in the meantime, look them up as I am sure they will be a good read.

Thursday, June 5, 2014

Construction Law: Looking Beyond The Four Corners To Evaluate A CGL Carrier’s Duty To Defend

By Erik P. Raines

One of the most important aspects of construction defect litigation is the participation of the parties’ commercial general liability (CGL) insurance carriers. Indeed, many (if not a majority of) cases are settled using CGL dollars. 

Therefore, savvy parties will typically frame their pleadings to trigger a CGL carrier’s duty to defend. Under Florida law, “[i]t is well settled that an insurer’s duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage.” Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005) (further providing that “the insurer must defend even if the allegations in the complaint are factually incorrect or meritless.”). Therefore, simply by alleging facts in a complaint’s “four corners” that implicate an insured party’s CGL policy, an insurer will typically be required to provide a defense until it is established that there is no indemnity obligation (e.g., via a declaratory judgment action). In a recent unpublished decision, the Eleventh Circuit Court of Appeals in Composite Structures, Inc. v. Continental Insurance Company, 2014 WL 1069253 (11th Cir. 2014), chipped away at this longstanding general rule. In doing so, it has provided insurance carriers with additional ammunition to avoid defense obligations.

In Composite Structures, an insured sought to obtain a declaratory judgment holding that its CGL insurer had a duty to defend the insured against personal injury claims in an underlying litigation.  In the underlying case, two people sued the insured for damages flowing from alleged excessive carbon monoxide exposure. The insured did not dispute that its policy’s pollution exclusion applied; however, there was an exception to the pollution exclusion that could have applied under certain circumstances that were not evident from the underlying complaint (i.e., the insured’s timely notice to the carrier). Applying Florida law, the Eleventh Circuit recognized that “an insurance company’s duty to defend an insured is determined solely from the allegations in the complaint against the insured[.]” Id. at *3 (citing Lawyers Title Ins. Corp. v. JDC (America) Corp., 52 F. 3d 1575, 1580-81 (11th Cir. 1995)). Notwithstanding this general rule, the court noted an exception “where an insurer’s claim that there is no duty to defend is based on factual issues that would not normally be alleged in the complaint.” Id. (quoting Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5, 10 at n. 2 (Fla. 2005)). The Eleventh Circuit affirmed the Middle District’s order of summary judgment in favor of the insurer, noting that “because the date of written notice to the insurance company is not a fact that would normally be alleged in the complaint,” the court was permitted to consider that fact in assessing the insurer’s duty to defend.  

Undoubtedly, carriers will be advocating for published opinions consistent with Composite Structures — both in federal and state courts. Attorneys should therefore be aware that the four corners of a complaint may not always define the field on which an insurer’s duty to defend is determined.

Wednesday, June 4, 2014

Thank You To All Who Helped The Amazing Children At A Kid’s Place

By Lara M. LaVoie and Lisa Esposito

A Kid’s Place in Brandon is a nonprofit center for abused, neglected, and abandoned children that is designed to resemble a true neighborhood street (five houses built in a semicircle). It is an amazing place where kids can relax, refocus, and heal after suffering abuse, neglect, and abandonment.  Twelve kids live in each house, and the focus is to keep siblings together in the same home. 

To help these amazing children feel like kids for a day, the Community Services Committee (CSC), in conjunction with A Kid’s Place, threw them their very own Pirate Party on May 3. This was the CSC’s most challenging but deserving event to date, and it was a resounding success thanks to all who donated or came out to help! We had some amazing activities, and everyone had a blast — kids and the CSC’s volunteers included.

We played pirate games such as Pirate Balloon Burst, Find a Pirate Ducky, and Poke the Pirate Corn-Hole, and we allowed every little scallywag to pick prizes out of our treasure chest after “winning” each game. We dressed the little buccaneers as pirates (hats, eye-patches, sashes, swords, tattoos, etc.) and let them make their very own pirate treasure chests in our craft section.  Bouncy houses were donated by Jungle Jim’s Party Rentals and StimuLite-LED. Smokey Bones of Brandon served up the grub, and Outrageous Cakes created smashing pirate cupcakes and cookies. We had a face painter and balloon artist, and each child received a swag bag! Sixty little swashbucklers and 45 adult pirates were seen laughing throughout the day. In fact, laughter was heard throughout A Kid’s Place, and it was heard often!

The CSC is humbled and overwhelmed by the amount of donations and volunteer support that we received for this event. This party was a great success due to the support and generosity of our volunteers and donors. The CSC would like to thank all our volunteers and the Hillsborough County Bar Association, as well as the following donors: Friedman Law Associates, PL/FL Legal Group (especially Melissa Gonzalez); Law Offices of Lisa Esposito, P.A.; Jungle Jim's Party Rentals; StimuLite-LED; Smokey Bones Bar & Fire Grill of Brandon, and General Manager Tishara Griffis; Outrageous Cakes; Hill Ward Henderson; Larson & Johnson PL, Mary Simmons/CPA-TPA; Olsen Law Firm, PA; Ron Christaldi and Shumaker Loop & Kendrick LLP; Older & Lundy; Anton Castro Law; Maria Maranda and State Farm Insurance; AJ’s Bikes & Boards, LLC; Arturo & Vienna Fuente; Tampa Sweet Hearts Cigar Company; Fernando Llop and PLSS Paving; Attorney Ashley Taylor; Meddin Law Firm; Krista Marie Sellars Memorial Foundation; Kevin and Jane Sigl; Doreen Blessing; The Greens Family of Tennessee; Fran Reiter; Kelli Link; Elizabeth Belcher; and Damien Rodriguez and family. We hope we didn’t forget anyone!

Please consider helping these amazing kids in any way you can!  For more information about A Kid’s Place, please visit:

For more information about joining the CSC or to volunteer, please contact CSC Chairs Lisa Esposito, (813) 223-6037 or, or Lara LaVoie, (813) 638-1357 or

Monday, June 2, 2014

President's Message: In The Blink Of An Eye

By Susan Johnson-Velez

“I sit at my desk and listen
I sit and start to think
That time is such a silly thing
It passes in a blink”

Such is one verse of a poem my son recently penned for Jesuit High School’s literary magazine. Of late we have been traveling parallel paths, he and I, as we both contemplate the end of a certain memorable period in our lives and the beginning of a new chapter. To be sure, his near future is a bit more certain than mine – he will soon be graduating from high school and embarking on all the adventures Gainesville has to offer. Meanwhile, back in Tampa, I face the life of relative leisure lived by the HCBA’s immediate past president coupled with the life of an empty nester. 

Someone less adventurous than I might be apprehensive about the concurrency of these two events. Indeed, I find myself answering the rather nervously asked question, “What are you going to do with yourself next year?” with much greater frequency these past few months. And my daughter has suggested that I consider bringing a chaperone with me when I move Julian in August – apparently she thinks that, in what is sure to be my distraught state, I will drive off one of the many cliffs between Gainesville and Tampa, Thelma and Louise-style. I want all of you to rest assured that your anxiety on my behalf, though much appreciated, is nevertheless unwarranted … more on that shortly.

Before I speak more about new adventures, I must expend a few words thanking those who played such an important role in the ones that are quickly drawing to a close. I do not know exactly who it was, but many thanks to the person who fifteen years ago thought to ask me to serve as co-chair of the Gender, Ethnic and Racial Equality (now Diversity) Committee. Serving in that role is what caused me to catch the HCBA “bug,” which continues to “infect” me to this day. To all of the recent past HCBA presidents, especially John Bales, Mike Hooker, Lanse Scriven, Bill Schifino, Tom Bopp, Caroline Black, Amy Farrior, Pedro Bajo, and Bob Nader, who kept me involved in so many different ways all these years. It was their examples that inspired me to pursue this office, and even in retrospect, I couldn’t be happier that I did. To the many friends and colleagues who answered my plea to become or remain involved in the HCBA as chairs of our many sections and committees during my term at the helm ― we could not have had such a successful year without your commitment and dedication. And, to the entire HCBA staff whose tireless work throughout the Bar year made all things possible.

Many tend to focus on all the demands this office places on one’s life. But the opportunity to face those demands with the support of those above, and many more who are too numerous to list, made my term far more enjoyable than you might think possible.

Finally, and most notably, to the two most important people in my life: my children. Ten years ago, in my farewell article as editor of this publication, I described them as my daily joy and inspiration, and they continue to be today. So I must again say thank you to Catalina and Julian for all that you are and all that you do. Being your mom has been my best job and greatest adventure … so far.

So what am I going to do with myself next year?  I’m excited to say that I have absolutely no idea. Luckily, I’m not the type of person who has to know exactly what’s going to happen next. I’m generally content with following the path that lays itself out in front of me.  That approach seems to have worked well to this point. Certainly it has led to more surprises and better things than I could have ever planned. 

So, as I bid farewell to the “blink” that has been this Bar year, and open my eyes to the young adults that Cat and Julian have become, what I see are the endless possibilities that await me. And who wouldn’t be thrilled about that? Allons-y!