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”).
Pre-Suit Notice – The Interdistrict Conflict Continues GARRETT BUIS AND MISTY BUIS
2D2023-0655 (SEPT. 6, 2024)
Emergency Rule AlertRule 69BER24-4,
F.A.C.
This emergency rule, effective October 9, 2024, creates subsection (m) to rule 69B 220.201 Ethical Requirements for All Adjusters and Public Adjusters Apprentices. Please review this rule as it directly impacts disclosure requirements pertaining to initial estimates and estimate modifications. Read more about Rule 69BER24-4, click here.
Pre-Suit Notice –
Denial of motion to dismiss is reviewable
CITIZENS PROPERTY INS. CORP.
V. CEHERIA WALDEN, 3D24-196 (SEPT. 4, 2024)
KK TAKEAWAY:
The denial of a motion to dismiss for failure to comply with the pre-suit notice requirements of section 627.70152, Florida Statutes, is reviewable via a petition for writ of certiorari.
KK TAKEAWAY:
A thinly veiled breach of contract action within a petition for declaratory relief is subject to section 627.70152, Florida Statutes.
BACKGROUND:
The trial court denied Citizens’ motion to dismiss the amended complaint because it found the amended complaint sought declaratory relief. The Third District quashed the order, holding the declaratory action was a thinly veiled breach of contract action which sought damages because Walden’s amended complaint only contained two actions for declaratory relief, one sought damages of $4,929.82, regarding the application ordinance and law limits to the claim. Due to this, the Third District expressly held its holding was not on the issue of whether section 627.70152, Florida Statutes, applied to petitions for declaratory relief.
Pre-Suit Notice –The Interdistrict Conflict Continues
GARRETT BUIS AND MISTY
BUIS V. UNIVERSAL PROPERTY & CASUALTY INS. CO., 2D20230655 (SEPT. 6, 2024)
KK TAKEAWAY:
The Second District Court of Appeals agrees with the Sixth District Court of Appeals, holding that section 627.70152, the presuit notice requirement, cannot apply retroactively.
KK TAKEAWAY:
The Second District held no clear retroactive intent within the statute in conflict with the Third and Fourth District Courts of Appeal.
KK TAKEAWAY:
Conflict exists between the Second and Sixth Districts, holding no retroactive application compared to the Third and Fourth, holding the notice requirement can be applied retroactively.
BACKGROUND:
The Second District Court of Appeals rejects the position that the statute’s effective date indicates an intent to apply retroactively.
The Second District rejected the Third and Fourth District’s interpretation of “all suits” as retroactive intent, limiting such interpretation and ignoring the express language applying to the exclusivity, not the lawsuit’s timing.
Application of Policy Exclusions –Burden of Proof
CIARA GOMEZ V. CITIZENS
PROPERTY INS. CORP., 3D230328 (SEPT. 4, 2024)
KK TAKEAWAY:
The insured initially has the burden of showing that the property suffered a loss while the policy was in effect. The burden then transitions to the carrier to show loss was excluded.
KK TAKEAWAY:
If the carrier presents competent substantial evidence of exclusion, the burden shifts back to the Insured to show some evidence the loss was not excluded. If the Insured does not, there is no genuine issue of material fact.
BACKGROUND:
The Third District Court of Appeals affirmed the judgment in favor of Citizens. While the Insured demonstrated her property suffered a loss, she failed to provide any competing evidence the loss was not excluded as preexisting damage.
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 19 220
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 510 employees, 220 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) 306-7870
