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”).
Appraisal –Ripeness
HERITAGE PROPERTY & CASUALTY INS CO v SUNSET VILLAS PHASE III CONDOMINIUM ASSOCIATION,
INC , 3D23-1672 (May 15, 2024)
KK TAKEAWAY:
A trial court must hold an evidentiary hearing to determine whether appraisal is ripe.
KK TAKEAWAY:
If appraisal is ripe, the trial court controls the order in which appraisal and coverage issues proceed.
The Third District Court of Appeals reversed and remanded the order requiring the trial court to hold an evidentiary hearing regarding the Insured’s compliance with post-loss duties. If the Insured complied with their duties, then appraisal was ripe and could be compelled. However, the trial court maintains discretion to determine the order in which an appraisal and coverage determination proceed.
Summary Judgment – Weighing Evidence
MICHAEL LASSITER v CITIZENS PROPERTY INS CO ,
BACKGROUND:
Heritage appealed a trial court order compelling appraisal. During the coverage investigation, Heritage acknowledged covered damage, but found the damage fell below the policy deductible. Insured submitted an amended proof of loss claiming additional damage and demanded appraisal. After Heritage refused appraisal pending additional information, Insured filed a breach of contract action. Insured moved to compel appraisal, and Heritage opposed it, requesting an evidentiary hearing to demonstrate whether Insured complied with post-loss duties specific to the supplemental claim.
2D2022-2609 (May 29, 2024)
KK TAKEAWAY:
A trial court can only weigh conflicting or contradictive evidence.
KK TAKEAWAY:
A trial court cannot replace the jury’s role by weighing evidence.
BACKGROUND:
Insured filed a claim for wind and hail damage to her roof, resulting in interior water damage. Citizens denied the claim due to a lack of a peril-created opening. Insured filed a breach of contract action. Citizens admitted that coverage was in place but denied any
coverage for the interior loss. Citizens sought summary judgment relying on multiple depositions:
• A field adjuster found no wind or hail damage but general wear and tear. On the contrary, the Insured testified the weather event caused holes in the roof.
• The Insured’s private inspector testified to observations of impact marks, but he could not identify any holes in the roof.
• Insured’s public adjuster testified that he did not inspect the home but relied on the private inspector’s report. The Insured’s public adjuster testified that mishaps in the metal roof allowed for points of water entry.
Insured filed a response with an expert affidavit from an engineer. The engineer did not inspect the property but relied on the private inspector’s photographs. The engineer opined wind and hail created openings in the exterior walls and roof, allowing for water entry.
At the hearing, Insured’s counsel argued that although the photos did not show visible openings, they can be so small that they are not captured. The trial court found that the competing affidavits canceled each other, leaving the visible evidence. The trial court found that since there was no visible evidence of an opening, it did not think a reasonable jury could return a verdict in favor of the Insured.
judgment standard does allow the court to weigh conflicting, contradictive evidence. The general rule remains intact, which is that a trial court does not weigh evidence at summary judgment. In this instance, there are two positions which a jury should determine.
Discovery –Trade Secrets
The Second District Court of Appeals overturned summary judgment, acknowledging that the new summary
APEX ROOFING AND RESTORATION, LLC a/a/o NANCY FORDE v SECURITY FIRST INS CO
, 5d2023-2629 (May 31, 2024
KK TAKEAWAY:
When the trade secret privilege is asserted, the trial court must hold an in-camera review to determine if the trade secret.
KK TAKEAWAY:
If it is a trade secret, the seeking party must show the reasonable necessity for such information.
KK TAKEAWAY:
If the privilege objection is overruled, the trial court must specify the basis for overruling the privilege assertion.
BACKGROUND:
Apex sought a writ of certiorari after a trial court order compelled disclosures of:
a. All agreements or contracts with any subcontractor(s) for any repairs, work
and/or materials associated with the roof replacement performed by Plaintiff and/or its subcontractors at the subject property.
b. All invoices, receipts, and/or proofs of payment for any repairs and work associated with the roof replacement performed by Plaintiff and/or its subcontractors at the subject property.
3. Defendant may also take the deposition of the Plaintiff’s corporate representative to obtain Plaintiff’s responses to questions which were objected to by Plaintiff’s counsel and certified by Defendant’s counsel during the first deposition of Plaintiff’s corporate representative, and as to any matters raised by or related to the information contained in the documents to be produced per this Order.
Apex raised trade secret in response to the request for production. Apex claims on appeal the trial court erred by not holding an evidentiary hearing to determine whether the information was trade secret or not. Instead, the trial court found that the information was discoverable.
The Fifth District Court of Appeals overturned the order, holding that when a trade secret is raised, the trial court must:
1) Determine whether the materials or information is a trade secret
2) If so, the court must require the party seeking production to show reasonable necessity for the requested information and 3) If production is ordered, the trial court must set forth its findings for overruling the objection.
The trial court overruled the objections without holding an in-camera review or an evidentiary hearing. Apex claimed a review was necessary because even if the information was very limited, the information could be extrapolated to reveal commercial secrets.
The Fifth District also granted the petition and quashed the order because the trial court did not specifically set forth the basis for overruling each privilege assertion.
Fee Recovery
ALEX FINCH d/b/a FINCH LAW FIRM, and FROMANG and FINCH, P A v AUTO CLUB INS CO OF FLORIDA, 6D23-1384 (May 10, 2024)
KK TAKEAWAY:
There are two ways to collect fees once discharged: filing a lawsuit for fees or filing a lien in the case in which counsel was discharged.
BACKGROUND:
Finch filed a fee claim in Orange County, Florida, regarding its previous representation of the Insureds in a case litigated in Lee County, Florida. Initially, Finch filed a lien for fees in the same action but withdrew it before the dismissal of the lawsuit. In the Orange County case, the Defendants filed a motion to dismiss for improper venue because the operative facts originated in Lee County. The trial court dismissed the complaint, and Finch appealed.
The Sixth District Court of Appeals reversed and remanded the trial court order. The Sixth District noted that filing a separate
action is one of the two ways a discharged attorney can seek recovery for fees. The Sixth District addressed that although the previous charging lien was withdrawn, it did not preclude Finch from seeking fees through a separate action. Additionally, the Sixth District addressed the principle of priority. Under the principle of priority, the trial courts should preserve judicial resources if another action exists regarding the same or similar issues. In Florida, where sufficiently similar issues are litigated in another preexisting case, the principle of priority holds those issues should be handled in the preexisting case, and the secondary case should be stayed. However, the Sixth District held that
the issues were not the same, as Finch was a wholly separate party from the parties he represented in the preexisting case. While there was dispute over whether the principle of priority could apply under these circumstances, it was ultimately immaterial as Finch withdrew the notice of lien before the dismissal of the preexisting case.
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.
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 495 employees, 220 attorneys, and 16 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. more than with over the convenience of
LOCATIONS
FORT LAUDERDALE
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Fort Lauderdale, FL 33324
Phone: (954) 370-9970
ORLANDO
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Phone: (407) 648-9450
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