Insurance Defense Blog – Automobile Liability, Trucking & Transportation, Bad Faith, Property, Insurance Coverage, Premises Liability, Construction Defect

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.

Ladies and Gentlemen:

The bane of our mutual existence, public adjusters, have been regulated in the past by statutes involving conduct of licensed Florida adjusters.  With the advent of Florida Statute Section 626.854, a new era of public adjuster regulation has begun.  I strongly recommend EUO’s where appropriate of public adjusters as their admissions (or lack thereof) often lead to dismissal or quick resolution of property related matters.  The important provisions of this new statute are:

1. A public adjuster can solicit business between 8am – and 8pm Monday through Friday;
2. A public adjuster must wait 48 hours after an event to solicit business;
3. It is an actionable unfair business practice for a public adjuster to provide materials regarding an insurer which are untrue, misleading or deceptive;
4. A public adjuster must be given 48 hours notice for inspection of the insured property;
5. A public adjuster can not prevent an  insurer from reasonable access at reasonable times to the insured property or to the insured himself(herself);

As always should you have any questions or thoughts regarding this development on Florida law, do not hesitate to call.

Regards,

Matthew C. Scarborough
 
2012 Public Adjuster Regulations

Scarborough, Hull & Miller prevailed in a decision handed down by the Second District Court of Appeal in Earl R. Crowley v. Home Building Materials, Inc., and Stephen Padar, M.D., which was appealed in a writ of certiorari to prevent the trial court from ordering a physician to attend a deposition with the records of compulsory medical examination reports prepared for other insurers.

The same trial court judge previously ordered an insurer to produce compulsory medical examination reports in USAA Casualty Insurance Co. v. Callery, 66 So. 3d 315 (Fla. 2nd DCA 2011) which we reported on our firm blog while our case was still pending before the same court of appeal.

In Callery, the trial court ordered the production of compulsory medical examination reports for the last twenty “CMEs” performed by the CME physician who examined him in hopes of “impeach[ing] the physician by showing that his reports routinely and uniformly supported insurers.” The trial court ordered production with all patient-identifying information redacted. The trial court also directed that “only the physician’s conclusions/impressions, the physician’s signature, the date of report, and the name and address of the receiving attorney be provided.”

In our case, the same judge ordered that the examining physician to answer questions for the dates of the past CME’s, the name of the entity who hired the physician, the alleged injury, the doctor’s opinion regarding permanency, and the doctor’s opinion regarding the need for future medical care provided that the doctor did not reveal the names of those were examined.

The Second District Court of Appeal reversed holding that the trial court “departed from the essential requirements of law by compelling disclosure of medical examination reports without notice to the patients as required by section 456.057(7)(a)” when there was no showing that the prior notice required by that section was impossible.

The issue in our case differed slightly on its facts from the Callery case. In Callery, the examining physician was ordered to produce the reports themselves with the names of the people who were examined redacted. In our case, the examining physician was ordered to bring reports with him and to answer question about the medical conditions and his opinions without mentioning their names.

The Second District Court of Appeal called the trial judge’s ruling in our case “a creative attempt.” What is disturbing to us is that the trial court’s orders in Callery and our case were only days apart with two different reasons both of which were appealed within days of each other and both of which were reversed. Creativity in approaching the same rule to impeach defense doctors was improper according to the Second District Court of Appeal in our case, and the decision in our case is reported at Earl R. Crowley v. Home Building Materials, Inc., and Stephen Padar, M.D., 66 So. 3d 355 (Fla. 2nd DCA 2011).

If you would like a copy of the Callery and Crowley opinions, please contact Liva Rivera at liva@shmlegal.com

Mr. Matthew Scarborough was recently awarded the Golden Gavel award by Westfield Insurance Company for his obtainment of a Dismissal for Fraud in a highly contested commercial liability matter.  The Plaintiff in the suit was claiming to be permanently and totally disabled and claimed damages in excess of 2 million dollars because of an automobile accident. The Plaintiff denied previous injury.  Discovery in the form of depositions led to obtainment of medical records showing this plaintiff had the same complaints just prior to our accident resulting in the ultimate dismissal of the case for fraud upon the court.

Here is a link to a New York Times article that provides confirmation that MRIs are overused and not clinically important unless correlated with symptoms.

Click here to view article

SHM would like to congratulate Matthew Scarborough on his recent trial victory in Polk County, FL. Faced with clear liability, horrific property damage photos of the Plaintiff’s automobile and 180,000 in outstanding medical bills, the jury returned a verdict of $24,000.00. The Plaintiffs rejected proposals for settlement totaling $135,000 (the remaining policy limits of the insurance policy). Motions for attorneys fees and costs against both Plaintiffs are pending.

Page 16 of the August 17, 2011 edition of the Tampa Bay Times (TBT) has some persuading statistics and commentary about the issued of staged car accidents throughout Florida. It is certainly worth a read.

Click here to open article in new window

The Second District Court of Appeal held in USAA Casualty Insurance Company v. Callery, 36 Fla. Law Weekly D1230a (Fla.2nd DCA June 10, 2011) that a trial court’s order limiting the production of the last 20 compulsory examination reports of an IME doctor with the patient-identifying information redacted was error. The trial court’s order directed that only the physician’s conclusion/impressions, signature, the date of the report, and the name and address of the receiving attorney were to be be provided. Mr. Callery hoped to impeach the IME physician by showing that his reports routinely and uniformly supported insurers. The Second DCA refused the trial court’s order on the grounds that section 456.057 (7) (a) Florida Statutes prevents a health care practitioner from discussing a patient’s medical records without the patient’s written authorization. According to the Second DCA, the trial court did not provide “alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.”
Click here to read more »

The Tampa police busted these clinics for staging accidents in Hillsborough County:

Doctor Florida Rehabilitation located on 2123 W. Dr. MLK;
Injury Health Care Therapy located on 5537 Sheldon Road;
Recovery Rehabilitation Services located on 7025 W. Hillsborough Ave.; and
Healing Touch located on 6821 W. Hillsborough Ave.

We will continue to keep you posted on these developments.

Click here for more information: http://www2.tbo.com/news/news/2011/may/13/MENEWSO3-staged-crash-crackdown-ar-207043/

Insurance Adjusters Beware—Read the Subpoena Duces Tecum
In Cartaya vs. Sanchez-Arias, the Hillsborough County Court entered sanctions against the defending insurance company after the insurance company failed to schedule a hearing on its Motion for Protective Order to be heard prior to the deposition of the company’s adjuster.  The Court also sanctioned the insurance company because the adjuster appeared at the deposition without his claim file or claim notes, which the Plaintiff requested in its subpoena duces tecum.  Based on this ruling, defending insurers should read subpoena duces tecums carefully, and prepare and set for hearing before their depositions any Motions for Protective.

Questionable Clinics That Should Be On Your Radar
As many adjusters adjusting claims in Florida know, there is certainly no shortage of clinics that will say anything to support a claimant and/or plaintiff’s claim—that is, diagnose and “allegedly” treat non-existent injuries, and even commit fraud by generating false medical records.  Insurance companies have also routinely observed these clinics get away with this sometimes illegal activity with little or no interference from law enforcement.

Despite the fact the State rarely enforces its laws against insurance fraud as much as those in the insurance industry would like, many of these clinics perform another criminal act that exposes their fraudulent nature—drug dealing.

For approximately the last two years Hillsborough law enforcement has been working vigorously to shut down these so-called “pill mills,” which are clinics who supply prescription pain medications to addicts.  The clinics in Hillsborough County the authorities have already closed include Superior Injury Center of Tampa, Habana Spine and Medical Center, and 1^st Medical Group.

Based on this information, this firm recommends adjusters revisit their Hillsborough County claims in order to determine if any of the claimants treated for their injuries at any of these clinics.  If so, then the adjuster will have additional ammunition for the defense of the claim.

SHM Wins Another Motion to Dismiss for Fraud Upon the Court
When a defendant moves to dismiss a lawsuit because the plaintiff has committed a fraud upon the court, the defendant is basically asking the judge to sit in the shoes of the jury in order to pass judgment on the plaintiff’s credibility.  Since such a motion contradicts the long line of jurisprudence in which our legal system delegates the judging of a plaintiff’s credibility to the trier of fact (who in most circumstances is a jury), most judges are reluctant to grant such motions.

Despite the obstacles standing in the way of obtaining an Order dismissing a case for fraud upon the court, Scarborough Hull & Miller has been extremely successful in obtaining such Orders.  In fact, in April of 2011, Kevin M. Davis of Scarborough Hull & Miller not only obtained a dismissal based on the plaintiff’s fraud, but even an Order permitting the firm’s client to pursue fees and costs against the plaintiff pursuant to Section 57.105, Florida Statutes.

In the Hillsborough County case of Burns vs. Mitchell, the Plaintiff alleged to have suffered a knee injury after being stuck by a taxicab driven by the Defendant.  Vigorous investigation, however, uncovered two witnesses, who attested under oath the Plaintiff struck himself in the knee with a crowbar in order to “invent” a claim against the Defendant.

The Defendant then sought dismissal for fraud and for sanctions upon learning this material.  The Plaintiff’s attorney subsequently withdrew—leaving the Plaintiff unrepresented for the hearing.  Since the Plaintiff neither filed any response, nor appeared for the hearing, the Pinellas County Court dismissed the action for fraud, and issued an order entitling the Defendant to fees and costs.