Vasquez v. Fletcher Supermarket

Scarborough attorneys Matthew C. Scarborough and Colin Strickland prevailed on a recent Motion to Dismiss for Fraud in Hillsborough County, Fl in front of the Honorable Robert A. Foster. The Plaintiff had two back surgeries with Dr. Nucci following a slip and fall accident at the insured’s business location and was claiming damages in excess of the insured’s policy limits.

Discovery revealed the plaintiff had prior back complaints and after an extensive evidentiary hearing, the court granted the Defendant’s motion. The Defendant’s motion for attorneys fees is pending and for a copy of the order please see the link below.

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Culpepper Kurland in the Spotlight

Culpepper Kurland law firm long on image, short on trials
By Steve Nohlgren, Times Staff Writer
In Print: Sunday, January 27, 2013

It was a minor rear-end collision with no obvious injuries. But when a Sebring jury finally had its say last month, that 3-year-old fender bender created a legal milestone. • The Tampa law firm of Culpepper Kurland at last conducted its first trial. • Created six years ago by two energetic 30-somethings, the firm has parlayed hip, edgy advertising into a thriving personal injury practice. • Where most legal commercials show earnest attorneys pontificating in front of law books, Brad Culpepper and Brett Kurland move to a hard rock beat. They walk around town in slow motion, stride up courthouse steps, address juries and reporters, creating a vibe familiar to any fan of TV legal drama.

The ads are such a hit, strangers stop by the office and ask to take a photo with the lawyers.

But the reality of Culpepper Kurland — like the legal niche they compete in — is far from the Hollywood image.

The firm specializes in auto accidents, cases that usually settle no matter who the lawyers are. Even in that crowd, Culpepper Kurland stands out. They have filed hundreds of lawsuits but taken only one, the Sebring fender bender, to a verdict. They say clients prefer the certainty of settlements over the potentially bigger — but riskier — payoffs of trials.

Competitors — including Culpepper and Kurland’s former mentor — have taken notice. Top-notch settlements occur when opponents fear your trial record, John Morgan says. And once every six years doesn’t cut it.

“If you don’t get into the arena, all of your other cases are compromised,” says Morgan, also familiar to TV viewers with his “For the People” campaign. “If the insurance company thinks you will always take the last offer, they never will offer what the case is worth.”

Clearwater’s Carey & Leisure, another heavy advertiser, might take 1 percent of its cases to trial, “but it is an important 1 percent,” Tom Carey says. Trials help lawyers predict how juries will react, Carey says. “If you never try a case, you have no reference point” while negotiating settlements.

Culpepper and Kurland insist, however, that good payouts stem from thorough preparation — ordering the right medical tests, preparing witnesses, taking depositions and plugging any holes in cases.

“We are going to medically manage that file and we are going to negotiate that file better than anybody else in town,” Culpepper says. “For my first five years, I had the umbrella of Morgan behind me, and I have seen nothing but an increase in the value of offers since I’ve been with the CK firm.”

Culpepper and Kurland spend more than $1 million dollars a year on advertising and treat it like a one-third partner, Culpepper says.

“The monster is hungry and wants to be fed,” he says. “Sometimes, he makes as much as we do.”

 

 

John Morgan usually hires experienced civil trial lawyers. But 11 years ago, a young man three years out of law school wrangled an interview and sold himself on the spot.

Brett Kurland earned MBA and law degrees from Stetson University. He rose fast in Pinellas County’s state attorney’s office, where criminal trials come along every week or so.

“I loved the adrenaline rush. I always wanted to win,” Kurland says. “If I would lose a case, I would get depressed for three days. I took it personally.”

Kurland promised John Morgan that doggedness would trump lack of civil court experience.

“He made a great appearance,” Morgan recalls. “I thought, ‘This guy, if we could harness his energies and competitiveness, could be a really good trial lawyer.’ ”

Kurland’s wife, Blair, was a Culpepper. Her grandfather was Florida’s first university chancellor. Her father led the University of Florida student body and captained the football team. Her famous brother would soon knock on Morgan’s door as well.

Brad Culpepper was a Gator All-American and dean’s list student. His 6-foot-2 frame was small for a defensive tackle, but he starred as a Tampa Bay Buccaneer.

Bored in off-seasons, he attended UF law school from January through May — possible because the Bucs were usually so terrible he didn’t have to play in January. He had swagger and a name that could attract clients.

“I loved him,” Morgan says. “He looks like a million dollars and is smart as hell.”

The brothers-in-law specialized in auto accidents — the meat and potatoes of personal injury law. They learned Morgan’s high-volume model, which they would later copy at their own firm.

Case managers collect relevant records, then lawyers “value” the case based on car repairs, medical bills, lost wages and subtle factors like potential jury sympathy. Often, lawyers on both sides value the case within a similar range, then negotiate the actual payout.

Within a few years, both Culpepper and Kurland placed consistently among Morgan’s top fee producers. Culpepper says he earned in the high six figures by 2006. Kurland declined to discuss his income, but Morgan estimated it at $600,000 a year.

Then the firm altered its pay policy — to encourage more trial work, Morgan says. Culpepper had notched one trial as lead attorney; Kurland had none.

Culpepper remembers the change as more of a pay cap. “I was going to have to work twice as hard and earn less,” he says.

Kurland says money wasn’t his biggest concern. He wanted to run his own business and had innovative ideas for legal advertising. It was time.

 

 

Two men in dark suits glide through Tampa streets. Clouds scud by, waves break on the shore. The men keep moving but say nothing. A message appears as the music crescendoes: “If you have been injured … EMPOWER YOURSELF.”

Another high-gloss Culpepper Kurland is on the air.

“It just took off. People loved that,” Kurland recalls. “We didn’t need to talk. People knew what we do. It’s branding and about being different and projecting confidence and energy.”

To critics who suggest that such pizzazz has little to do with settling cases, Kurland invokes the lizard. “You have been pounded with the gecko over and over with commercials that have nothing to do with insurance,” he says. “But people remember that, and when they need insurance, they call GEICO.”

Culpepper Kurland opened its Tampa office in March 2007. After four years, the firm averaged two new clients a day and is still growing, Culpepper says. The staff has grown from five to 13.

Both men describe their temperaments as “polar opposites,” helping define their distinct roles in the firm.

Culpepper is comfortable in the public eye, gives interviews and goes on radio shows. Big photos of his playing days decorate the conference room. But family comes first, he says. He has learned to work “smarter” — fewer hours with better results — so he can be there for Little League and piano lessons. His office is blanketed with 191 photos of his wife and three children, mostly on vacation.

Kurland manages the firm and thinks about business around the clock, he says.

“Brad is pragmatic. When he walks out that door, he doesn’t think about it,” Kurland says. “I don’t have that ability to turn it off. It’s a curse, but it’s also what makes us successful.”

Though his face graces billboards all over town, Kurland says he treasures privacy. He wears a baseball hat in public so people won’t recognize him.

 

 

Economics generally drive accident cases toward settlement.

Plaintiff legal fees usually rise from 33 to 40 percent if a case goes to trial. Depositions and expert testimony can easily cost tens of thousands of dollars.

Beyond that, Florida law penalizes clinging to unreasonable demands. If you fare poorly in court, you may have to pay the other side’s legal fees and costs.

“Many clients have a real interest in resolving cases quickly,” even at a discount, says Florida State University law professor Mark Spottswood. “Some clients don’t want to be cross-examined by a lawyer who will make you look like a liar.”

Still, a lawyer’s trial experience counts, Spottswood says. “There is a game of chicken that is going to happen,” he says. “The threat is: ‘If you don’t give me this, I will go to trial.’ If somebody doesn’t take cases to trial, that threat is not going to be as credible.”

Some high-advertising firms will accept almost any offer, while referring out difficult cases. Culpepper Kurland does not fit that pattern. The Florida Bar lists no complaints against them. Court records show they set hearings, conduct mediations, depose witnesses and schedule trials.

“This is all we have done, day in and day out, for 11 years,” Kurland says. “We have our fingers on the pulse.”

Morgan is skeptical. Going years without a trial “would have to mean that the insurance industry paid you fairly in every single case,” he says. “That is not possible. Insurance companies are not fair by business design.”

But if clients want to avoid court, Kurland counters, lawyers should not force the issue to burnish credentials.

“I will never sacrifice a current client to let everyone know that I will try cases.”

 

 

Startup firms generally do not go to court right away because cases can take several years to mature into trials. Now Culpepper Kurland’s pipeline holds hundreds of cases, so they have added a third family member, who brings significant civil trial experience to the firm.

Bruce Culpepper, 70, runs marathons and has no interest in retirement. He left a commercial practice at one of Florida’s largest firms 18 months ago to join his sons in the trenches of crashes, injuries and insurance adjustors.

He was lead attorney in the Sebring fender bender. The client underwent one operation for a herniated disc, needed another and faced $70,000 in medical bills. But the defense thought he was faking and never offered more than $10,000, Brad Culpepper says.

A defense doctor said the bad disc was an old ailment, unrelated to the accident. The client’s former boss said he bragged that a doctor’s son had hit him and he was going to make a big score.

Bruce Culpepper repeatedly caught the boss changing her story. But the jury did not award a dime and now the client may be on the hook for defense costs.

Bruce Culpepper, who once represented banks and hospitals, says injury cases are more personal. “By the time you go to trial, you love your client.”

His mouth tightened and face flushed as he left the courtroom with one brief assessment:

“This is why you are very, very careful about going to trial.”

 

Retain Copy of Release when Claims filed

In a recent decision named Alpine Fresh, the third district court of appeal determined a release of the insurance company and its “agents” signed in the underlying litigation was also a release of the independent insurance agent who provided the policy to the insured.

The insurance agents in this case were “general lines agents,” as defined in section 626.015(5)(a)-(e), Florida Statutes (2010), for various insurance companies including Zurich. As insurance agents, they had the authority to bind Zurich when writing a policy for a prospective insured. Although the agents sold other lines of insurance besides Zurich, whether a broker is an agent of the insurer or the insureddepends on the facts of the particular situation.

The release signed by the Plaintiff before they targeted the agent as a defendant released both Zurich and its agents resulting in no case against the insurance agents in this case.

Practice Tip: When an insured files a claim, request that the insurer provide you with a copy of the release and make sure agents are listed on the release as well.

Confirmation of Insurance needs is Key in Insurance Agency Cases

The general standard in most states for proving duty of an insurance agent is outlined below in Merriam:

absence of circumstances indicating the insurance agent has assumed a duty beyond the procurement of the coverage requested by the client, the insurance agent has no obligation to advise a client regarding additional coverage or risk management.

The key to a successful case is often centered on showing the special circumstances which establish a duty. Absent such circumstances, many courts will rule that an insurance agent has a duty similar to the person taking an order at a fast food restaurant–give the price for the coverage specifically requested and provide that product if ordered.

In Merriam, the customer asked about home, auto and life insurance. There was no discussion or promise by the agent to analyze workers compensation coverage. Thus, the claim that the agent failed to provide or advise regarding workers compensation insurance failed. Promises, oral or in writing, by the agent are key to establishing a definite duty. Advertisements or claims to be a specialist, expert and advisor regarding insurance perils which are related to risk management duties are very valuable in proving negligence or a breach of contract.

The circumstances relevant to proving an error or omission case:

[I]t is for the fact finder to determine, based on a consideration of all the circumstances, the agreement of the parties with respect to the service to be rendered by the insurance agent….

Some of the circumstances that may be considered by the fact finder in determining the undertaking of the insurance agent include the nature and content of the discussions between the agent and the client; the prior dealings of the parties, if any; the knowledge and sophistication of the client; whether the agent holds himself out as an insurance specialist, consultant, or counselor; and whether the agent receives compensation for additional or specialized services.

…the client bears the burden of proving an agreement to render services beyond the general duty to obtain the coverage requested.

Practice Tip:   Confirm the specific insurance needs of the insureds in writing at the application stage and delivery of policy.

 

As reported by Bloomberg, Hulk Hogan sues Laser Spine Institute

Hulk Hogan Wrestles With Laser Spine Center in Lawsuit

By David Armstrong - Jan 14, 2013

Professional wrestler Hulk Hogan claims in a medical malpractice lawsuit that a Florida-based surgery company that advertises on the Internet and television persuaded him to undergo a half-dozen “unnecessary and ineffective” spinal operations, worsening his back problems.

Hogan, whose real name is Terry G. Bollea, seeks $50 million for lost work opportunities during a 19-month period when he was a patient at Laser Spine Institute, according to the lawsuit filed today in Florida state court in Clearwater.

Professional Wrestler Hulk Hogan. Photographer: Paul Kane/Getty Images

The for-profit institute, based in Tampa, bills itself as one of the largest outpatient spine centers in the world, once touted Hogan as a success story in its marketing materials.

Hogan alleges his name was used without his permission and that in March 2011, his lawyer ordered the spine center to stop using his likeness. He said a quote attributed to him in a marketing brochure came from a photo he signed as a personal favor to a Laser Spine employee on the day of his first surgery.

In an e-mailed statement, the institute declined to discuss Hogan’s allegations. Laser Spine “cares about its patients and their outcomes, and is proud to have helped thousands of patients achieve a better quality of life,” the company said in the statement.

The wrestler said in his lawsuit that he became aware that the surgeries he underwent at Laser Spine may have been unnecessary or performed negligently after reading a 2011 Bloomberg News report that detailed complaints that the care offered at the center is expensive and ineffective.

High-Volume Centers

The Laser Spine Institute is one of a growing number of high-volume, doctor-owned surgery centers that recruit patients through sophisticated direct-marketing campaigns on Google Inc.’s search site and others. More recently, the center began a national television advertising campaign with spots on cable news operator CNN. It also conducts seminars in hotel meeting rooms across the country.

The center promises patients a less-invasive, technologically advanced option to major back surgery. It has to include outpatient facilities in Philadelphia; Scottsdale, Arizona, and Oklahoma City. Laser Spine’s website says it performs more than 400 surgeries per month and employs 450 people.

Hogan alleges he was unaware that the institute doctor who urged him to have surgery there also had a substantial ownership interest in the center. He said his health insurer was billed “multiple six figure sums” for the procedures.

Bloomberg reported the for-profit center generated a 34.3 percent profit margin from 2006 through 2009.

Stopped By

The wrestler was scheduled to have a more traditional back surgery — known as anterior inter-body fusion — at a local hospital when a friend told him he should consider the Laser Spine Institute, according to the lawsuit. The founder of the institute, James St. Louis, was a neighbor of Hogan’s on a street of multimillion-dollar homes in Belleair, Florida, near St. Petersburg.

Hogan says he stopped in at the Laser Spine Institute without an appointment and met with St. Louis. He said the doctor talked him out of getting surgery at the hospital and instead persuaded him to undergo less invasive measures at the outpatient center.

His complaint echoes the experience of several other patients interviewed by Bloomberg News as well as allegations made in more than a dozen other malpractice complaints against the facility or its doctors.

Short-Term Relief

Hogan says he underwent six procedures over the next 19 months, getting short-term relief of two to three weeks after each one. The temporary alleviation of symptoms was the result of doctors there using a laser to burn nerves that eventually regenerate, he says in the complaint.

He claims in the lawsuit that the procedures performed at Laser Spine Institute are of limited benefit and unable to correct his back problems, including scoliosis, or the abnormal curving of the spine; spondylolisthesis in which vertebrae slip out of position; and spinal stenosis, a condition in which the spinal column narrows.

Laser Spine’s marketing campaign is intended to “scare” patients away from more traditional treatments while failing to tell them that its procedures only temporarily treat symptoms, Hogan alleges in his complaint.

After his treatment at Laser Spine failed, Hogan eventually underwent the traditional fusion surgery performed by doctors at the University of South Florida. His lawsuit says he was able to return to his professional activities three months after the December 2010 fusion surgery.

The case is Terry G. Bollea v. Laser Spine Institute LLC, 13-389CI021, Circuit Court of Pinellas County (Clearwater, Florida).

 

Offers and demands MUST SPECIFICALLY BE FOLLOWED in the insurance/bodily injury world

In Lunas v. Cooperativa, 37 Fla. L. Weekly D2568, 2nd DCA, November 2, 2012, the Second District Court of appeal reversed the trial court’s order granting a motion to enforce settlement between an insurer and insured.  In this sinkhole case, the insured demanded to settle a claim requesting two checks: one payable to the insured and mortgagee and the other to the insured, insured’s attorney and public adjuster.  The carrier responded with one check, but complied with the remainder of the demand. Judge Casanueva, writing for the Second DCA determined simply their was no meeting of the minds as two checks were not written and reversed the trial’s order.
Practice Tip:  Review each and every part of a demand letter. Number the conditions to settle and completely mirror the requests.  If not you will be facing a potential bad faith action down the road.

Insurers can prevail on Declaratory Judgment actions when they have “Communicable Disease” exclusions for “bodily injury”

  1. In Clarke v. State Farm, 37 Fla. L. Weekly D2540, 4th DCA, October 31, 2012, the Fourth District Court of Appeal upheld the lower court’s order granting State Farm’s  motion for summary judgment on a coverage action.  State Farm argued its insuring agreement which defined bodily injury to exclude: ”any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person” was broad enough to allow them to prevail on the declaratory judgment action. The plaintiff in the case filed a complaint asserting bodily injury from Herpes Simplex Virus under theories of negligence, fraudulent concealment, battery, and intentional infliction of emotional distress.  The court found that event though the exclusion did not have the “arising out of” language which allows for coverage cases to be decided decisively for insurers, the court determined the plain language of the policy would not allow any other meaning to be interpreted.
Practice Tip:  The “plain language” or plain meaning argument seems to be gaining some steam in the appellant courts.  After sending the reservation of rights and filing a motion to abate and consolidate the case early with the dec action, these coverage cases can be very successful.

 

Prejudice to a Homeowner’s Insurance Carrier CAN be established to obtain a Motion for Summary Judgment on Coverage

The Fourth DCA in Slominski v. Citizens Insurance, 37 Fla. L. Weekly D2339, October 3, 2012 determined a summary judgment for the insurer was proper when they established “prejudice”.  The insured  filed a claim three and one half years post Hurricane Wilma.  Citizens denied the claim asserting the damages could not be related to the Hurricane and the policy required “prompt notice” of the loss. The insured presented expert testimony asserting the damage was indeed caused by Hurricane Wilma. The experts in deposition testified they could not determine if the loss was due to Hurricane Wilma or Francis but in affidavit asserted the loss was due solely to Hurricane Wilma.  The court held that a subsequent affidavit can’t repudiate one’s own deposition testimony and found no factual evidence  the insurer was not prejudiced affirming the trial court’s motion for summary judgment.  Practice tip: I am surprised the Plaintiff’s counsel didn’t mandate a reading and signing of this deposition testimony to change it slightly. Also this case demonstrates why depositions need to be taken – the script and movie often differ greatly.

A Defendant in a Car Accident is not Mandated to Provide Medical Records Without an “in camera” inspection to examine the relevance of the records to the accident

The Fourth DCA in James v. Veneziano, 37 Fla. L. Weekly D2338, Oct 3,2012 held that while a Defendant’a medical records showing  health problems in the form of a brain tumor causing memory issues may have to be examined by the court, they can’t be produced unless and until the court has an “in camera” inspection. The inspection is to determine and the parties to argue  the relevance of the records and to protect the Defendant’s constitutional and statutory privacy rights to the records.  Practice tip: Please carefully review any medical records of your insured/client BEFORE they are confronted with a deposition which may put them in a position to produce the same. Always file motions for protective order and objection to any subpoena issued to a client/insured.

Motion to Dismiss for Fraud Decision Upheld!

Congratulations to managing partner Matthew Scarborough on his recent victory in Robert Allen Perrine v. Robert Eugene Henderson and Swell Construction.

On appeal, Plaintiff Robert Allen Perrine sought to prove the trial court erred in issuing an Order of Dismissal in favor of Robert Eugene Henderson and Swell Construction. Mr. Perrine alleged that the trial court abused its discretion in dismissing his complaint for fraud on the court.

The Fifth District Court of Appeal affirmed the decision of the trial court, upholding the trial court’s finding of misrepresentations of medical history and current injuries on the part of Mr. Perrine; all core issues of the case. Trial courts possess an intrinsic authority to dismiss an action as sanction if the Plaintiff fraudulently misleads the court. The court should exercise this power “cautiously, sparingly and only on a clear showing of fraud”. Courts proceed with caution on this basis because the Florida Constitution guarantees court accessibility to any person to redress injury.

The Appellate Court utilized the applicable test for the determination to dismiss a case on the basis of fraud set forth by Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998). This test demands a high burden of proof in order to establish fraud upon the court stating:

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim of defense.

Inconsistency, nondisclosure, poor recollection, dissemblance and even lying are insufficient misconduct to support a dismissal on fraud.

Scarborough, Hull and Miller would like to congratulate Mr. Scarborough for prevailing in meeting the complicated rigors of this test to establish fraud and subsequently have the case dismissed.