Notable Cases

Personal Injury - Wrongful Death

Underage Sale of Alcohol -- A group of high school students purchased beer from a gas station convenience store known for not asking for ID. The teens drank at several parties and later that night got into their cars and started racing. One of the cars hit some trees and flipped over. The driver suffered injuries to his head resulting in brain damage, while his good friend and passenger, who was not wearing a seat belt, died. While philosophical arguments can be made about the arbitrariness of the drinking age and who is to blame, every state in our nation has adapted 21 as the current limit. For a company to knowingly disregard that law in the pursuit of profit is as reckless and thoughtless as the act of drinking and driving. A couple of families lost dearly that night and BP Oil and others paid 5.6 million in settlement.

Loss of Thumb at Disney World -- A 10 year old boy was a passenger in a boat at the Pirates of the Caribbean. The passengers, including the boy and his father, were instructed to keep their arms in the boat at all times. Evidently, the boy's hand was in the water when his boat bumped into the side of another boat, catching the hand between them. The thumb had to be amputated. The boy won at trial. After appeal by Disney World, the case was sent back for new trial, and settled.

Youth Tasered 17 times --  A teenager was a passenger in an automobile stopped in a routine traffic stop. The deputy made him exit the vehicle. Facts were disputed as to what happened next. But moments later he was tasered 17 times, beaten, and pepper sprayed by a number of deputies, even after being subdued and posing no threat, until unconscious. He was transported to a hospital, where he died hours later. It turned out he had sickle cell anemia. The U.S. Army has long known that sickle cell has been linked to an increased rate of death, and that a contributing factor to the increased rate of death is exertion. The combination of beating, repeated tasering and sickle cell resulted in death. The boy's family brought suit in federal court against the deputies, Collier County Sheriff's Office, and Collier County. The case withstood defense motions for summary judgment, and on the eve of trial, settled.

Cruise Ship -- In slip and fall case, cruise line was denying knowledge of dangerous condition until mediation, when plaintiff's counsel pulled out six similar accidents on their lido deck. Case then settled.

Train/FELA Action -- At Injured worker's jury trial, railroad gave
self-contradictory jury instruction on proximate cause, defense verdict ensued. Appeals court reversed for new trial because railroad's instruction had potential to confuse or mislead jury.

Automobile Accident -- Default judgment reversed where lack of diligent search and inquiry was insufficient to sustain substituted service of process.

Bad Faith - Insurance

Insured Denied Disability -- An police detective purchased a disability insurance policy which provided benefits if he became totally disabled in his occupation. He was later injured in the line of duty, receiving a concussion to the head, knee injury, and back and lower lumbar injury. Four years later he was still being treated for the knee injury and for vertigo or dizziness, and unable to continue working as a police detective. The insurer paid benefits for twenty-four months, then stopped paying. The detective filed suit and a jury heard the case. In closing argument, the insurer argued the detective could earn at least as much as he was making as a police officer, and possibly more, as a real estate agent. The jury found for the detective. The insurer appealed, arguing the evidence was insufficient. The appellate court ruled there was sufficient evidence for the jury to find the detective  totally disabled under the policy's definition, and that the twenty-four months of payments amounted to an acquiesence to his disability. The insurance company paid.

Medical Insurance -- Medical Insured won "take it to the mat" battle in trial court, and was paid. Insurer ordered to pay plaintiff’s attorney’s fees and costs in amount of $121,529, appealed. Appeals court affirmed final judgment against insurer. Insurer paid.

Subrogation -- Excess liability carrier sought reimbursement from primary liability carrier, won $651,569 final summary judgment.
On appeal, affirmed in part, reversed in part.

Declaratory Action
-- Insurer sued after settling with both companies' insured. Trial court dismissed case for failure to state cause of action. Insurer appealed, dismissal affirmed.

Failed Tender of Policy
-- Catastrophically injured jockey won $10,000,000 jury verdict and judgment against race track. During appeal that excess insurer was handling, primary insurer offered check for policy limits, but without interest accrued. The excess insurer sued the primary insurer, obtaining summary judgment ruling that because the primary insurer failed to effect valid tender of the policy limits, in correct amount and without conditions, it bore entire $8,000,000 burden of interest accrued during appeal.

Medical - Legal Malpractice

Botched Operation --  A young man was injured at work. During hip replacement surgery, a drill bit broke off, and the surgeon left the bit lodged in the young man's femur. The surgeon also removed the hip bone, but because he didn't have the right prosthesis easily accessible, failed to replace it. When the young man awoke, the surgeon didn't advise him that he had a drill bit lodged in his femur, or was missing a hip. The young man endured months of pain alone in his apartment. Finally he received an anonymous letter from a nurse present at the operation, which told him the truth. He found a new surgeon, and finally obtained an operation correcting the mishaps of the first surgery. He also found a lawyer who sued the surgeon and the hospital. The case settled prior to trial.

Uncontrolled Systemic Sepsis --  After treatment by the private university hospital and physician, a patient experienced uncontrolled systemic sepsis,resulting in multi-organ system involvement including neurologic and brain injuries and impairment of mobility. The private university hospital claimed she was not their patient, but rather an indigent patient of the Public Health Trust -- until on eve of summary judgment hearing, they settled the case.

Failure to Diagnose Breast Cancer -- A patient sued a hospital and physician for failing to diagnose her breast cancer.
The jury ruled against her. On appeal, the court reversed final judgment for defendants and remanded for new trial because the trial court could have confused the jury by giving defendant’s requested jury instructions on standard of care and failing to give plaintiff’s requested instructions on concurrent cause and aggravation of preexisting condition.

Post-surgery Staph Infection -- A 4 year old walked into a hospital for elective surgery; 6 days later she developed a staph infection, and 19 days later died of pus surrounding the heart. The trial court ruled that because none of plaintiff's expert witnesses were pediatric surgeons, they could not testify, and granted summary judgment for defendants. The appeals court  reversed and remanded for trial because of clear error in the trial court's exclusion of testimony by plaintiff's expert witnesses

Post-verdict Jury Interview
-- Plaintiff obtained verdict, defendant obtained order allowing post-verdict jury interview. Plaintiff sought and obtained certiorari. Appeals court quashed order quashed allowing post-verdict jury interview.

Assertion of Peer Review Privilege -- The trial court entered an order denying plaintiff's motion to compel physicians to answer questions regarding informal meeting called by pathologist to discuss pathology findings with treating physicians. The appeals court granted certiorari and quashed the order, holding the medical review committee privilege did not apply

Legal Malpractice
-- In federal $15-20,000,000 claim from demise of Air Florida, summary judgment granted for law firm.

Products Liability

Defective Crib -- A six month old baby alone in his crib became wedged in between the mattress and railing. Unable to crawl out, his struggles only wedged him further in. When his parents went to check on him, they found him blue and lifeless. At a jury trial, the crib manufacturer and toy store blamed the parents. The judge excluded testimony from experts, including the medical examiner, expert in motor development of young children, expert in crib design, and metallurgist, as not being qualified. The parents lost at trial. The appeals court ruled the defendant's objections to nonspecialization go to the weight rather than the admissibility of the testimony, and kept the truth from the jury. The court also erred in failing to give plaintiff’s jury instruction that negligence of user of product is not a defense. The case was remanded for a new trial, whereupon it settled for a substantial sum.

Defective Saw -- $1.5 million settlement by school board for freak accident where saw without guard hurled screw driver across shop room and wedged into boy's brain.

Crashworthiness -- During accident, motorcycle's footrest/peg punctured rider's foot when it fell; case settled.

Practice of Law

Judge Refusing to Let Attorney Participate -- A young attorney left a prestigious law firm, taking a client with him. For months, the trial court would not approve his substitution of counsel form, so he could represent the client in court. On a Petition for Writ of Mandamus, the appellate court ordered the judge to grant the motion. The attorney was finally able to move the case forward.

Fee Dispute Between Ex-Partners -- On partial summary judgment, the court ordered the attorney was entitled to $618,622 against his ex-partner.

Award of Risk Multiplier to Discharged Firm -- A firm was discharged from a medical malpractice action prior to settlement. The trial court considered a 2.0 risk multiplier in calculating the quantum meruit value of the discharged firm's services. The appeals court held it was reversible error to consider risk multiplier; an attorney representing a client under a contingency fee contract discharged without cause before the contingency occurs may only recover in quantum meruit limited by the maximum contract fee.

Inadequate Fee for Divorce Appeal -- An attorney was granted entitlement to fees for obtaining a writ of certiorari where the trial court exceeding its jurisdiction in freezing certain trust proceeds. The 3d District Court of Appeal granted the husband's motion for fees and remanded to the trial court to fix amount. The wife challenged the entitlement to fees in the trial court, and an inadequate amount was awarded. The husband moved for review in the appeals court, which not only reversed the inadequate amount and remanded with instructions to enter the amount requested, but also sua sponte awarded attorney’s fees sanctions against the wife for the appeal made necessary by frivolous claims before trial court.

Contempt Against Attorney -- In a contempt proceeding against an attorney, the trial judge erred in simultaneously dismissing the proceeding and recusing himself.

Marital - Family Law

Order Freezing Assets Quashed -- A former architect was married to a very successful local attorney for 13 years. Much of that time he stayed home to care for their two girls. Years after the divorce was final, he sold his separate residence, and the ex-wife obtained an order freezing the sale funds. She argued to the court that the funds might be needed, because he might be ordered to pay child support or attorney's fees sometime in the future -- even though he had never been ordered to pay her child support or attorney's fees. On certiorari, the appellate court granted in part, and quashed the order freezing the father's assets from sale of house without any basis in the pleadings or evidence. The former husband was able to take the funds and buy himself a new home in New Mexico.

Child Support Collection
-- A former wife sought to collect unpaid child support from her former husband, as determined by a previously entered final judgment. At the same time, he moved to terminate his obligation to pay. The trial court modified, to the husband's advantage, many of the child support obligations contained in the final judgment of dissolution of marriage. The wife appealed, and the appellate court held that modification of the husband's support obligations was erroneous, as the right to previously determined child support vests at the time payments are due. Unpaid child support arrearages are subject to a set-off only when compelling equitable considerations are present, which were not present here.

Sale of Homestead for Child Support Arrearages -- 11 years of unpaid child support resulted in a final recorded judgment of arearages. Father was ordered to sell the house, instead he refinanced. Mother was appointed receiver of father's homestead, father evicted, equitable lien for child support knocked off priority of 1st and 2nd mortgages, sale of house produced $231,597.

Equitable Distribution
-- In a divorce between two attorneys, the husband's failure to list all marital assets in his financial affidavit was not an automatic waiver of any claim.

Motion to Enforce Shared Parental Responsibility -- On father's motion to enforce shared parental responsibility, he was allowed to depose grandparents. The appeals court rejected a petition for writ of prohibition or mandamus directed at the order.

Consumer Protection

Recorded Child Support Judgment Trumps New Mortgages -- Mother recorded a Final Judgment for Child Support Arrearages in the amount of $308,986 against the defaulting payor's real property. Several years later, despite the Final Judgment clearly appearing in the county records, one bank remortgaged the property, giving the defaulting payor a new 1st mortgage, while another bank gave him a 2nd mortgage. Mother obtained rulings in accordance with Florida law that the Final Judgment had priority over both mortgages. After knocking the mortgages off the property, the court appointed Mother receiver to sell the property, and all proceeds went to the Final Judgment -- nothing to the banks.

Commercial Litigation

Against Provider of Wireless Telephone Services -- Plaintiff amended the complaint, dropping federal and state antitrust claims, but other claims remained. Defendant obtained an award of attorney's fees in the trial court as prevailing party. The appellate court reversed, holding it was premature to declare provider of wireless telephone services the prevailing party when case was ongoing. Before trial, the case settled.

For Travel Agency
-- In federal court, an international travel agency defends itself from claims of infringement of trademarks including domain names, cybersquatting, and unfair and deceptive trade practices.

Personal Injury - Wrongful Death
● BP Products N.A., Inc. v. Alvarez, 25 So. 3d 567 (Fla. 3d DCA 2010)
● BP Products N.A., Inc. v. Alvarez, 7 So.3d 1110 (Fla. 3d DCA 2009)
● Seraphin v. Parapella, 489 F. Supp. 2d 1354 (S.D. Fla. 2007)
● Walt Disney World v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)
● Fabre v. Marin, 623 So. 2d 1182 (Fla.1993)
● Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
● Phares v. Froehlich, 582 So.2d 683 (Fla. 2d DCA 1991)
● Scott v. Seaboard Sys. Railroad, Inc., 578 So.2d 499 (Fla. 2d DCA 1991)
● Royal Caribbean Cruises, Ltd. v. Pomer, 576 So. 2d 305 (Fla. 3d DCA 1991)
● Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3d DCA 1989)

Bad Faith - Insurance
● United Automobile Ins. Co. v. Otero, 39 So. 3d 563 (Fla. 3d DCA 2010)
● Kennedy v. Anthem Life Ins. Co., 656 So. 2d 1611 (Fla. 4th DCA 1995)
● Protective Nat’l. Ins. Co. of Omaha v. Aetna Cas. & Sur.Co., 631 So.2d 305 (Fla. 3d DCA 1993)
● Principal Mut. Life Ins. v. Martin, 585 So.2d 474 (Fla. 3d DCA 1991)
● Southeastern Fid. Ins. Co. v. Truck Ins. Exch., Inc., 559 So. 2d 78 (Fla. 3d DCA 1990)
● Calder Race Course, Inc. v. Ill. Union Ins. Co., 714 F. Supp. 1183 (S.D. Fla. 1989)

Medical - Legal Malpractice
● Auster v. Strax Breast Cancer Inst., 649 So. 2d 883 (Fla. 4th DCA 1995)
● Fernandes v. Barrs, 641 So. 2d 1371 (Fla. 1st DCA 1994)
● Mishler v. Zakheim, M.D., et al., 625 So.2d 81 (Fla. 3d DCA 1993)
● Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992)

Products Liability
● Cornette v. Spalding & Evenflo Co.’s, Inc., 608 So. 2d 144 (Fla. 4th DCA 1992)

Practice of Law
● Mishael v. Ferrell, et al., 606 So.2d 651 (Fla. 3d DCA 1992)
● Larson v. Grossman, 604 So.2d 1274 (Fla. 4th DCA 1992)

Marital - Family Law
● Symons v. Symons, 7 So. 3d 546 (Fla. 3d DCA 2008)
● Symons v. Symons, 4 So. 3d 30 (Fla. 3d DCA 2009)
● Young v. Hector, 851 So. 2d 762 (Fla. 3d DCA 2003)
● Prio v. Barouh, 834 So. 2d 263 (Fla. 3d DCA 2002

Commercial Litigation
● Kapila v. AT&T Wireless Services, Inc., 973 So. 2d 600 (Fla. 3d DCA 2008)
● Barnett Bank v. Tarr, 557 So. 2d 595 (Fla. 4th DCA 1990)
● Useden v. Acker, 85-0002-CIV-Ryskamp