FIRST- PARTY PROPERTY APPELLATE EDITION
FIRST-PARTY PROPERTY APPELLATE TEAM
Kimberly J. Fernandes Partner
Tallahassee | Atlanta
T: (850) 577-1301
kfernandes@kklaw.com
Daniel Montgomery Partner
Jacksonville
T: (904) 549-7700
dmontgomery@kklaw.com
ADMISSIONS
For any questions, please contact:
Jeffrey M. Wank
Chair, First-Party Property and Insurance Coverage Division
Fort Lauderdale
T: (954) 370-9970
jwank@kklaw.com
Florida • Georgia • United States Court of Appeal, Eleventh Circuit
SELECTED OPINIONS
w Expert Inspections, LLC d/b/a ITest d/b/a Moldexpert.com a/a/o Pat Beckford v. United Property & Casualty Insurance Company, 333 So.3d 200 (Fla. 4th DCA 2022) (holding that an insurer cannot be required to follow the terms of an AOB contract where the insurer is not a party to that contract).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Maria Amadio v. Olympus Insurance Company, Case No. 5D21-2955 (Fla. 5th DCA July 22, 2022) (interpreting section 627.7152, F.S., as applying to AOB contracts executed after the enactment of the statute, finding the policy inception date irrelevant to the analysis).
w Saunders v. Florida Peninsula Insurance Company, 314 So.3d 592 (Fla. 3d DCA 2020) (interpreting the “faulty workmanship” policy exclusion to include the workmanship process as well as the finished product in affirming the insurer’s denial of a property damage claim).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Benjamin Kivovitz, Case No. 4D21 2843 (Fla. 4th DCA June 15, 2022) (enforcing the new section 627.7152, F.S., requirement of including a line-item estimate with an AOB contract at the time of execution)
ADMISSIONS
Florida • U.S. District Court, Northern District of Florida • U.S. District Court, Middle District of Florida
SELECTED OPINIONS
w Progressive American Insurance Company v. Glassmetics, LLC, No. 2D21-488, 2022 WL 1592154 (Fla. 2d DCA 2022) (“we reverse the trial court’s order and its conclusions (1) that the appraisal provision was against the public policy underlying section 627.428; (2) that the appraisal provision failed to provide sufficient procedures and methodologies; (3) that Progressive waived its appraisal right; (4) that the appraisal provision was unenforceable because Progressive failed to prove that the insured knowingly, voluntarily, and intelligently waived his rights of access to courts, to a jury trial, and to due process; and (5) that the appraisal provision contains an ambiguity.”).
w All Auto Glass v. Progressive American Ins. Co., Case No. 2018-SC-3126, 2019-33-AP (Fla. Seminole Cnty. Appellate Division.) (“reversing trial court, holding ruling of district court of appeal in jurisdiction other than where trial court is located is binding upon trial court absent conflict with another district court of appeal. )
w Progressive Am. Ins. Co. v Broward Ins. Recovery Ctr., LLC, 322 So. 3d 103 (Fla. 4th DCA 2021) (“reversing trial court, holding prohibitive cost doctrine inapplicable to appraisal”).
Board Certified in Appellate Law
ADMISSIONS
Florida • Massachusetts • New York • New Jersey • Pennsylvania • U.S. District Court, Northern District of Florida • United States District Court for the District of Massachusetts
SELECTED OPINIONS
w Universal Prop. & Cas. Ins. Co. v. True Builders a/a/o Joiner, 6D2023-2498 (Fla. 6th DCA 2024) (Plaintiff originally filed suit in the wrong court then, after years of litigation, voluntarily dismissed and filed in the correct court. In ruling on entitlement to fees in the second lawsuit the trial court awarded fees incurred in the dismissed action. Appellate court reversed holding no entitlement to fees for the dismissed action under 627.428 as no recovery was had).
w Restore & More, LLC v. Homeowners Choice Prop. & Cas. Ins. Co., 4D2023-1560 (Fla. 4th DCA 2024) (affirming summary judgment finding no breach of policy based on AOB company’s claim that including the insureds and mortgage company on claim payments and mailing check directly to the insured violated the AOB).
w Universal Property & Casualty Insurance Company v. Tsirnikas, 386 So. 3d 233 (Fla. 2d DCA 2024) (holding that trial court erred in entering judgment in favor of the insured where jury made a finding of no liability but also entered an amount for damages)
w Juravin v. DCS Real Estate Investments, LLC, 338 So. 3d 1089 (Fla. 5th DCA 2022) (granting petition for writ of prohibition and requiring trial court to stay proceedings under Fla. Stat. section 631.67 where insurer providing defense to insured was declared insolvent)
w Homeowners Choice Prop. & Cas. Ins. Co. v. Swift, 4D20-2750 (Fla. 4th DCA 2021) (granting petition for writ of certiorari and finding trial court departed from essential requirements of law by finding a waiver of work product privilege and ordering deposition of expert who was originally disclosed as a trial expert but subsequently removed and identified as a non-testifying consultant expert)
Boston | Tampa, | Short Hills (By Appointment Only) | New York City T: (866) 643-9734 alabbe@kklaw.com Amy L. Koltnow
T: (407) 648-9450 akoltnow@kklaw.com
ADMISSIONS
Florida • U.S. District Court, Southern District of Florida • U.S. District Court, Middle District of Florida
SELECTED OPINIONS
w Security First Ins. Co. v. Czelusniak, 305 So. 3d 717 (Fla. 3d DCA 2020), rev. den., 2020 WL 6708664 (Nov. 16, 2020) (established legal precedent for the interpretation and enforcement of anti-concurrent exclusionary provisions in Florida).
w De la Rosa v. Florida Peninsula Ins. Co., 246 So. 3d 438 (Fla. 4th DCA 2018) (set new precedent for late-reported claims when an insurer is prejudiced in its ability to investigate the extent of the damage).
w Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016) (amicus curiae brief for insurance association groups in high-profile Florida Supreme Court case contemplating the constitutionality of Florida law governing claimants’ attorney’s fees in workers’ compensation claims).
Kelley Kronenberg Wins Complex Hurricane Insurance Case with $1M Exposure
Kelley Kronenberg Secures Dismissal After Uncovering Overlooked Evidence
Kelley Kronenberg Secures Dismissal with Prejudice in Western District of Louisiana
Andrew A. Labbe Partner/Business Unit Leader
Jeanne S. Arceneaux Partner
Michael O. Colgan Partner
Kathrine Conroy Partner
AOB – Motion to Dismiss Challenges
APEX ROOFING AND RESTORATION, LLC A/A/O MONICA WILLIAMS V. UNITED SERVICES AUTOMOBILE ASSOCIATION, 1D2022-3990 (OCT. 2, 2024)
KK TAKEAWAY:
Arguments of waiver can create issues of fact to prevail against a motion to dismiss.
BACKGROUND:
Apex Roofing appealed the trial court’s order granting a motion to dismiss for failure to include an estimate in the assignment pursuant to section 627.7152(2)(a), Florida Statutes. While Apex raised multiple arguments, the material argument was whether USAA waived any challenge to the assignment by not advising Apex of any dispute regarding its assignment and subsequent payments to Apex.
Florida’s First District Court of Appeals reversed the dismissal, finding that waiver was a factual question beyond the 4-corners of the complaint and could not be resolved via motion to dismiss. The First District expressly stated it was not disputing The Fourth District’s holding from Kidwell Group v. United Prop. & Cas. Ins. Co., 343 So. 3d 97 (Fla. 4th DCA 2022), because its decision was limited to the issue of waiver, not the validity of the assignment.
Fraud on the Court – Sufficiency
PRO CHOICE REMEDIATION, INC.
V. ST. JAMES AME CHURCH OF TRUSTEES, 1D2022-2393 (NOV. 27, 2024)
KK TAKEAWAY: Misrepresentations alone are not sufficient to warrant dismissal.
KK TAKEAWAY: Misrepresentations must demonstrate an ongoing scheme to subvert the judicial process.
KK TAKEAWAY:
A misrepresentation and subsequent admission of the same is not enough.
BACKGROUND:
The trial court entered an order dismissing the case for fraud on the court. The underlying facts revealed that Pro Choice doubled billed Old Dominion. In response to interrogatories, Pro Choice claimed damages of $400,000.00 meanwhile, the original estimate was $197,326.23. The corporate representative for Pro Choice admitted the bill was doubled and amended its response.
The First District Court of Appeals did not take any issue with the trial court’s factual findings as substantial evidence demonstrated that Pro Choice double billed, but it found error in use of dismissal as a sanction as a discovery sanction would have been sufficient as there was no evidence that the misrepresentation subverted the judicial process.
The First District held that Pro Choice acknowledged its mistake and revised its responses. There was no evidence to support an ongoing scheme to interfere with the judicial system’s ability to impartially adjudicate the case. The First District clarified there must be ongoing conduct to demonstrate a goal to subvert the judicial process.
Closing Arguments – Golden Rule
HOMEOWNER’S CHOICE PROPERTY & CASUALTY INS. CO. V. DEBORAH ALBURY, 3D23-1890
(OCT. 16, 2024)
KK TAKEAWAY:
The golden rule precludes arguments that suggest a jury place themselves in one of the parties’ shoes or ask a jury to decide the case on their personal bias.
KK TAKEAWAY:
Requesting a jury to use their personal experience and common sense is proper.
BACKGROUND:
During the closing argument, Albury’s counsel requested the jury to “use common sense and recall the destruction caused by Hurricane Irma” while considering the persuasiveness of Homeowner’s Choice’s expert. Homeowner’s choice sought an appeal after a verdict in favor of the insured. The Third District Court of Appeals held that requesting the jury to use their common sense and personal experience when evaluating a witness is not a request to ask the jury to determine the case based on their personal feelings.
The Interdistrict Conflict Continues
GARY SMITH AND NADINE SMITH V. UNIVERSAL PROPERTY & CASUALTY INS. CO., 5D2023-3381
(NOV. 8, 2024)
The Fifth District Court of Appeals agrees with the Second District Court of Appeals and Sixth District Court of Appeals, holding that section 627.70152, the pre-suit notice requirement, cannot apply retroactively. This makes conflict with the Third and Fourth Districts for retroactive application and the Second, Fifth and Sixth for only prospective application. Universal has petitioned the Florida Supreme Court to accept jurisdiction of the case to resolve the conflict.
ACCOLADES AWARDS AND FIRM AWARDS
Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:
MEET THE
CONTRIBUTORS
Jeffrey M. Wank Chair, First-Party Property and Insurance Coverage Division
Email Jeffrey M. Wank
Jeffrey Wank is Chair of First-Party Property and Insurance Coverage focusing his practice on first-party property insurance Defense, including coverage and bad faith litigation. Jeffrey also handles the defense of a wide array of third-party insurance defense claims.
Jeffrey assists insurers in all aspects of coverage disputes, including responses to civil remedy notices of insurer violations, pre-suit investigations and coverage evaluations, declaratory judgment and bad faith litigation. He defends property insurers throughout Florida in first-party coverage matters, where many of the claims involve sinkhole, windstorm, fire, mold, theft and water losses.
In addition, Jeffrey serves as coverage and bad faith counsel in third-party actions, including monitoring the defense of litigation. As part of this role, he is often asked to draft detailed coverage opinions, reservation of rights letters, declinations, and prosecute declaratory relief actions.
Jeffrey also has experience in handling complex civil and commercial matters, including the defense of personal injury, premises liability, employment discrimination, medical malpractice, nursing home liability, homeowner and condominium association claims, and construction defect cases.
Jeffrey has been named a Florida Super Lawyer Rising Star since 2014. In 2011, he was elected to the Broward Bar Association Young Lawyers Section Board of Directors, where he served as Secretary on the organization’s Executive Board and moved up to President in June 2015. Jeffrey was also named the Chair on the Board of Directors of Legal Aid Service of Broward County & Coast to Coast Legal Aid of South Florida for the 2019 term and previously served as the Vice Chair for the 2018 term.
Jeffrey earned his Bachelor of Science in Political Science from Florida State University and went on to earn his Juris Doctor degree from Nova Southeastern University Shepard Broad Law Center.
Daniel Montgomery Partner
Email Daniel Montgomery
Daniel Montgomery is a Partner at Kelley Kronenberg where he assists in handling matters related to first-party property insurance defense. Daniel handles all aspects of first-party property defense, including coverage disputes, pre-suit investigations, fraud investigations, and CRN responses. Additionally, our clients frequently engage Daniel to assist with the development of claims processes and procedures. Daniel’s practice is also focused on the highly-specialized areas of first-party property appeals and auto glass defense.
Prior to joining Kelley Kronenberg, Daniel worked as an Associate Attorney with an Am Law 200 firm, focusing his practice on first-party auto coverage and litigation, general liability litigation, and appellate law. Daniel also practiced as an Assistant State Attorney for Florida’s Fourth Judicial Circuit, in Jacksonville, where he litigated a variety of criminal proceedings through trial and served as a liaison for UVISA Certifications.
Daniel received his Bachelor of Science degree in Criminal Justice, summa cum laude, with a Certificate of Crime Scene Investigation, from Colorado Technical University. He then went on to earn his Juris Doctor degree from Florida Coastal School of Law, graduating cum laude.
Since Law School, Daniel continued his education by obtaining a Master of Science, summa cum laude, from Florida State University, with a Certificate in U.S. Intelligence. Daniel acquired an additional LL.M. in Executive Litigation Management from Baylor Law School.
During Daniel’s career he has served on several committees and groups continually working to develop awareness, knowledge, and best practices in a variety of areas including mental health, utilizing technology to drive efficiencies, special investigations, and litigation management best practices.
more than with over the convenience of
510 19 235
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 510 employees, 235 attorneys, and 19 locations throughout Florida and the United States.
We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.
LOCATIONS
FORT LAUDERDALE
10360 W. State Road 84
Fort Lauderdale, FL 33324
Phone: (954) 370-9970
ORLANDO
20 North Orange Avenue, Suite 704
Orlando, FL 32801
Phone: (407) 648-9450
TAMPA
1511 North Westshore Blvd., Suite 400
Tampa, FL 33607
Phone: (813) 223-1697
DAYTONA
128 Orange Avenue, Unit 306
Daytona Beach, FL 32114
Phone: (754) 888-5437
BOSTON
90 Canal Street
Boston, MA 02114
Phone: (866) 643-9734
NEW YORK CITY
250 Park Avenue,7th Floor
New York, NY 10177
Phone: (845) 306-7867
CHICAGO
20 N. Clark Street, Suite 1150
Chicago, IL 60602
Phone: (312) 216-8828
JACKSONVILLE
10245 Centurion Parkway N, Suite 100
Jacksonville, FL 32256
Phone: (904) 549-7700
MERRILLVILLE
233 E. 84th Drive, Suite 200
Merrillville, IN 46410
Phone: (317) 731-6243
MIAMI
220 Alhambra Circle, Suite 410
Coral Gables, FL 33134
Phone: (305) 503-0850
NEW ORLEANS
400 Poydras Street, Suite 2400
New Orleans, Louisiana 70130
Phone: (504) 208-9055
TALLAHASSEE
6267 Old Water Oak Road, Suite 250
Tallahassee, FL 32312
Phone: (850) 577-1301
DALLAS
5956 Sherry Lane, 20th Floor
Dallas, TX 75225
Phone: (983) 999-4640
BY APPOINTMENT ONLY
SHORT HILLS
51 John F. Kennedy Parkway
First Floor West
Short Hills, NJ 07078
Phone: (908) 403-8174
ATLANTA
1100 Peachtree Street NE, Suite 200
Atlanta, GA 30309
Phone: (404) 990-4972
WEST PALM BEACH
1475 Centrepark Blvd., Suite 275
West Palm Beach, FL 33401
Phone: (561) 684-5956
INDIANAPOLIS
10475 Crosspoint Blvd., Suite 218
Indianapolis, IN 46256
Phone: (317) 731-6243
NAPLES
1570 Shadowlawn Drive
Naples, FL 34104
Phone: (239) 990-6490
ALBANY
401 New Karner Road. Suite 301
Albany, NY 12205
Phone: (845) 306-7867
