THE FLORIDA CASUALTY CLAIM:
ACCIDENT TO APPEAL
Presented by David Abbey, Marty Deptula, and Allison Mawhinney
I. INTRODUCTION: David
J. Abbey, Esquire
J. Abbey, Esquire
A. FOCUS
OF PROGRAM:
OF PROGRAM:
1. Claims, Activities, and Practice
Helpful or Damaging
Helpful or Damaging
2. Attorney Activities: What, How, and Why
3. Ethical Parameters for Claims Personnel
and Lawyers
and Lawyers
B. PRESENTER
INTRODUCTION AND DIVISION OF PROGRAM
INTRODUCTION AND DIVISION OF PROGRAM
1. Injury to Suit: Martin G. Deptula, Esquire
2. Suit through Mediation: V. Joseph
Mueller, Esquire
Mueller, Esquire
3. Mediation Impasse through Verdict:
David J. Abbey, Esquire
David J. Abbey, Esquire
4. Verdict through Appeal: Allison G.
Mawhinney, Esquire
Mawhinney, Esquire
II. INJURY TO SUIT: Martin
G. Deptula, Esquire
G. Deptula, Esquire
A. CLAIMANT
ATTORNEY/REPRESENTED CLIENT
ATTORNEY/REPRESENTED CLIENT
1. Attorney Information
a. Website
b. Florida Bar Website
c. Other Listing
B. ETHICAL
REQUIREMENTS
REQUIREMENTS
1. Statutes Governing Adjuster Ethics
2. Rules Regulating Adjusters
3. Penalties for Violations
C. PROPERTY
DAMAGE:
DAMAGE:
1. Photos of Vehicles
a. Low Impact: Below/Behind Bumper of
Importance
Importance
b. Injured Person in Vehicle
c. Prior to and During Disassembly
d. Interior Damage and Lack Thereof
e. Seatbelt
2. Repair Estimate
D. INVESTIGATION
1. Online Investigation – Best Practices
2. Surveillance – Best Practices
3. Social Media
4. Ethical Issues
E. INJURED
PERSON: THIRD PARTY AND FIRST PARTY
PERSON: THIRD PARTY AND FIRST PARTY
1. Consensual Cooperation and Production
In Third Party Litigation
In Third Party Litigation
a. Statements
b. Medical Records
c. Employment Records
d. Films
e. Examinations
f. Authorizations
2. Insured as Claimant: Cooperation
Required
Required
a. Policy
Provisions RE:
Provisions RE:
1. Statements
2. Examination
3. Cooperation
b. Use
in Pre-suit Context:
in Pre-suit Context:
1. Examination
Under Oath
Under Oath
2. Written
Questions to Claimant
Questions to Claimant
3. Request
to Produce
to Produce
4. Authorizations
5. Request
for Examination
for Examination
3. Ethics: The Unrepresented Plaintiff
F. DEFENSE
EXPERT/CONSULTATION
EXPERT/CONSULTATION
1. Medical Bill Review/Examiner
2. Accident Reconstruction
3. Biomechanical
4. Human Factors
5. Economic/Forensic Accounting
6. Electronic
7. Ethical Concerns
III. SUIT THROUGH MEDIATION: V. Joseph Mueller, Esquire.
A. PURPOSES OF
THIS PHASE OF LITIGATION:
THIS PHASE OF LITIGATION:
1. Collect
Information Not Obtained in Pre-Suit Phase Which Allows Evaluation
Information Not Obtained in Pre-Suit Phase Which Allows Evaluation
2. Elimination of Meritless Lawsuits with
Summary Judgment
Summary Judgment
3. Activities Generally Governed By Florida
Rules of Civil Procedure
Rules of Civil Procedure
Or Federal
Rules Of Civil Procedure
Rules Of Civil Procedure
B. COURT
SELECTION AND PLEADING
SELECTION AND PLEADING
1. Federal vs. State Court
a. When Federal Court an Option
b. Why Choose Federal Court Instead of
State
State
c. Time Limitation on Removal to Federal
Court
Court
2. Pleadings and Procedures
a. Suit and Service
1. Complaint
2. Summons
3. Service
a. In Florida Defendant
b.
Outside of Florida Defendant
Outside of Florida Defendant
c. Company
d. Best Practices for Extension to Respond
b. Response to Complaint
1. Motion to Dismiss
2.
Answer and Common Defenses
Answer and Common Defenses
a. Negligence/Fault of Plaintiff and Other
b. Collateral Source Set-Offs, Write-Offs,
Mitigation of Damages
and Assignments
Mitigation of Damages
and Assignments
c. Threshold is Bar to Noneconomic
Damages in Motor Vehicle
Cases
Damages in Motor Vehicle
Cases
3. Jury Trial Demand
c. Motion for Summary Judgment
1. Device to Eliminate Claims with no
Merit
Merit
2. Standard: No Justiciable Issue
3. Uncommon in Negligence Cases to
Determine Issue of Negligence
Determine Issue of Negligence
4. Generally Useful to:
a. Resolve Issues Regarding Vicarious
Liability
Liability
b.
Partial Summary Judgment Regarding
Elements of Damages
Such as Ones That Have Been Assigned
Partial Summary Judgment Regarding
Elements of Damages
Such as Ones That Have Been Assigned
C. DISCOVERY
1. Common Devices
a. To Parties:
1. Interrogatories
2. Request to Produce
3. Request for Admissions
4. Examinations
5. Depositions
a. Request to Produce at Deposition:
Photos, Calendars, Vehicle,
Plaintiff, etc.
Photos, Calendars, Vehicle,
Plaintiff, etc.
6. Social Media
7. Ethical Issues that Arise During
Discovery
Discovery
b. Non-Parties:
1. Deposition – Compel with:
a. Subpoenas
b. Subpoenas Duces Tecum for Deposition
2. Subpoenas Duces Tecum without
Deposition
Deposition
3. Authorizations to Out-of-State
D. MEDIATION
1. Mediation – What is it?
2. Mediation – Why?
3. Mediation – Who are the Mediators?
4. Mediation – Who Must Participate and
Who Does Not Need To?
Who Does Not Need To?
5. Mediation – Where Held?
6. Mediation – What Goes on During Mediation?
7. Mediation – Ethical Issues
IV. MEDIATION THROUGH TRIAL: David J. Abbey, Esquire
A. PURPOSE:
PREPARE AND PRESENT CASE
PREPARE AND PRESENT CASE
B. POST-MEDIATION/PRE-TRIAL
ACTIVITIES
ACTIVITIES
1. Supplemental Discovery
a. Supplemental Interrogatories
b. Supplemental Request to Produce
c. Supplemental Deposition of Plaintiff
d. Depositions
1. Plaintiff’s Witnesses
a.
Healthcare Providers – When?
Healthcare Providers – When?
b. Before and After Witnesses
2. Defense Witness – When?
3. Video Depositions
e. Supplemental Subpoena Duces Tecum
without Deposition
without Deposition
2. Retention of (Additional) Experts
a. Medical Bill Review/Examiner
b. Accident Reconstruction
c. Biomechanical
d. Human Factors
e. Economic/Forensic Accounting
3. Ethical Issues in Dealing with Experts
C. TRIAL
1. General: Where, When, How Long, etc.
2. Phases to a Common Florida Circuit
Court Jury Trial Regarding a Casualty Claim
Court Jury Trial Regarding a Casualty Claim
a. Jury Instruction
b. Jury Selection
c. Jury Instruction
d. Plaintiff’s Opening Statements
e. Defendant’s Opening Statements
f. Plaintiff’s Case
g. Defendant’s Case
h. Plaintiff’s Rebuttal
i. Defendant’s Surrebuttal
j. Plaintiff’s Initial Closing Argument
k. Defendant’s Closing Argument
l. Plaintiff’s Rebuttal Closing Argument
m. Jury Instructions
n. Deliberation
o. Rendition of Verdict
2. Ethical Issues and Concerns for Trial
V. VERDICT TO APPEAL: Allison G. Mawhinney, Esquire
A. POST-TRIAL
MOTIONS CHALLENGING OUTCOME OF JURY TRIAL:
MOTIONS CHALLENGING OUTCOME OF JURY TRIAL:
1. Motion For Judgment in accordance with Motion
For Directed Verdict under 1.480:
For Directed Verdict under 1.480:
2. Whether the verdict was excessive or
inadequate – remedy may be additur, remittur, or new trial depending on
the circumstances.
inadequate – remedy may be additur, remittur, or new trial depending on
the circumstances.
3. Motions for new trial “shall be served
not later than 10 days after the return of the verdict in a jury
action….”
not later than 10 days after the return of the verdict in a jury
action….”
a. This time limit is jurisdictional;
motion served outside of this time period is a nullity.
motion served outside of this time period is a nullity.
b. This is the proper filing to argue that
the verdict was contrary to manifest weight of the
evidence—if verdict is contrary to manifest weight, remedy is new trial. Failure to move for directed verdict at the
close of evidence, and new trial following verdict, may waive appeal of
this issue. Fee v. Sullivan, 379 So. 2d 412 (Fla. 4th DCA 1980);
Southern American Fire Ins. V. Rinzler,
324 So. 2d 133 (Fla. 1st DCA
1976). Exception is if there is “plain
error”—nebulous term appellate
courts rely on to remedy significant issues arising in the trial court that were not otherwise preserved
for appellate review.
the verdict was contrary to manifest weight of the
evidence—if verdict is contrary to manifest weight, remedy is new trial. Failure to move for directed verdict at the
close of evidence, and new trial following verdict, may waive appeal of
this issue. Fee v. Sullivan, 379 So. 2d 412 (Fla. 4th DCA 1980);
Southern American Fire Ins. V. Rinzler,
324 So. 2d 133 (Fla. 1st DCA
1976). Exception is if there is “plain
error”—nebulous term appellate
courts rely on to remedy significant issues arising in the trial court that were not otherwise preserved
for appellate review.
c. Countless other, potential grounds for
a Motion For New Trial.
a Motion For New Trial.
1. Evidentiary errors (improper admission
/ rejection of evidence)
/ rejection of evidence)
2. Jury instructions
3. Jury selection
B. ONCE MORE THAN 10 DAYS HAVE PASSED
SINCE THE VERDICT WAS RETURNED THE ONLY POTENTIALLY AVAILABLE
REMEDIES FROM THE TRIAL COURT WITH RESPECT
TO THE OUTCOME OF A TRIAL ARE:
SINCE THE VERDICT WAS RETURNED THE ONLY POTENTIALLY AVAILABLE
REMEDIES FROM THE TRIAL COURT WITH RESPECT
TO THE OUTCOME OF A TRIAL ARE:
1. Motion For Relief From Judgment under
Rule 1.540 (which must be made “within a reasonable time” and under
some circumstances, not more than 1 year
after the judgment was entered)
Rule 1.540 (which must be made “within a reasonable time” and under
some circumstances, not more than 1 year
after the judgment was entered)
2. A Motion To Amend The Judgment under
1.530 (which must be “served not later than 10 days after entry of
the judgment”)
1.530 (which must be “served not later than 10 days after entry of
the judgment”)
C. WITHIN
30 DAYS OF JUDGMENT
30 DAYS OF JUDGMENT
1. Motions for Fees and Costs
a. Motions to tax trial court costs and /
or fees under 1.530
or fees under 1.530
b. Motions to tax costs and fees under
1.442
1.442
2. Notice of Appeal
a. Common
grounds for appeal
grounds for appeal
b. Preservation of appellate issues
c. Standards of review of those issues
3. Briefs
4. Request for Oral Argument must be filed
not later than the time of service of the requesting party’s
last brief
not later than the time of service of the requesting party’s
last brief
5. Motions for Appellate Costs
a. Grounds
b. Motions
6. Motions for Appellate Fees
a. Grounds
b. Motions
7. Decision and Mandate
8. Post Appeal Motions
9. Seeking Supreme Court review
D. ETHICAL
ISSUES POST-TRIAL
ISSUES POST-TRIAL
VI. CLOSING AND QUESTIONS