Colodny Fass Attorneys Successfully Obtain Orders Striking Complaints Based on Discovery Abuses
Feb 27, 2020
February 2020
Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.
ABOUT THE AUTHOR
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.
For more information about Ms. Koltnow, click here.
Public Adjuster Cannot Serve as a “Disinterested” Appraiser
The Fifth District aligned with the Fourth District’s recent opinion in State Farm Fla. Ins. Co. v. Valenti, and held an insured’s public adjuster could not serve as the insured’s “disinterested” appraiser. While the Fourth District refused to issue a blanket prohibition, the Fifth District held an appraiser is not disinterested in an insurance claim if the appraiser is entitled to a percentage of the recovery from the same insurance claim. The court emphasized that a person with a direct financial interest in the outcome is not “disinterested”. State Farm v. Crispin, 5th DCA (Feb. 7, 2020).
- A public adjuster’s direct financial interest in the amount of the insured’s recovery should be an important focus of cross-examination.
- The court based its holding on the plain and unambiguous policy language and noted that the terms “independent” and “disinterested” carried legally significantly different meanings.
Colodny Fass Attorneys Successfully Obtain Orders Striking Complaints Based on Discovery Abuses
Shareholder Matthew Scarfone successfully argued a dismissal was warranted in a case pending for years, with a long history of delays by the plaintiffs and their counsel. The trial court made specific findings that the plaintiffs and their counsel willfully and deliberately provided incomplete and false or misleading responses to discovery, presented verified interrogatory answers by a party who never reviewed the answers, delayed and evaded depositions, failed to appear for hearings, and repeatedly failed to comply with the court’s trial order. The trial court referenced numerous similar cases where the plaintiffs’ attorneys had been sanctioned. The court held the plaintiffs and their counsel engaged in bad faith litigation tactics warranting the imposition of the severest sanction, a dismissal of the lawsuit with prejudice. Click here to view the order.
Partner Carolyn Epstein also obtained a court-ordered dismissal in another case with a long history of delays after the trial judge made findings that the insureds repeatedly failed to abide by multiple discovery orders, failed to file verified interrogatory responses after multiple orders, and failed to coordinate court-ordered depositions. The court found the plaintiffs and their counsel engaged in bad faith litigation tactics warranting the striking of the plaintiffs’ complaint. Click here to view the order.
While we are all too familiar with these abusive tactics, it is cause to celebrate when the trial judge recognizes enough is enough. We congratulate Matt and Carolyn on these hard-fought battles and their dogged perseverance and unrelenting advocacy. Feel free to give them a call if you’d like to hear more about it.