Verdict for the Defense

As a trial recap, the plaintiff, Danais Santana, asserted that she has $17,000 in medical bills as a result of an October 2009 accident. The Plaintiff filed, years ago, and before any of these people were involved, a proposal for settlement for $4,250. Therefore, if this plaintiff received a verdict totaling roughly $5,500, our insured would be exposed to approximately $200,000 in attorneys’ fees.

The Plaintiff presented her own testimony at trial, which went very poorly, as this plaintiff was involved in three prior accidents. The plaintiffs then just simply read the previous testimony of Dr. Robert Martinez, our expert. The plaintiffs then called Dr. Freed, Chiropractor who had seen the plaintiff after this motor vehicle accident. The cross examination of Dr. Freed went  well,  Dr. Freed had to admit that he didn’t have knowledge of the plaintiff’s three previous accidents, or the extent of the injuries that she sustained in these accidents. Despite this, he did not change his opinion.

 To finish the case we played the deposition of Dr. Ravipati, treating physician, whose testimony was confusing, but in any event, established that because of the inaccurate medical history the plaintiff had given him, he could not determine within a reasonable degree of medical probability that there was any injury caused by the October 2009 accident.

 The jury determined there was no causation of any damage as a result of the October 2009 accident, and came back with a defense verdict in approximately 20 minutes.

 In my opinion, any time that we can get a plaintiff or a claimant lying, it is devastating to their case.

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.”

 

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.

 

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.

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.

Florida Statute 626.854 Rings in Era of Public Adjuster Regulation

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

Article in Latest TBT Declares Tampa “Epicenter of Staged Car Accidents in Florida”

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

 

SECOND DCA AGAIN REJECTS LIMITED DISCOVERY OF PRIOR COMPULSORY EXAMINATIONS TO IMPEACH IME PHYSICIANS

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 »

Staged Crash Crackdown

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/