Defending Your Future

Issue 3: December 2023

ICYMI - all the news from the past month!

I. Protecting Your Interests: Verdicts, Dismissals and Judgments

Summary Judgment: Hernando County, FL (Premises Liability)

Tampa Associate, Kate Zucco Gaset, obtained a summary judgment in favor of Publix Super Markets, Inc., in a premises liability case in Hernando County, Florida. The Plaintiff alleged she slipped on liquid within the store, injuring her back, and incurred over $55,000 in medical bills and made a claim for lost wages. Plaintiff alleged Publix should have been aware of the liquid because employees were in the vicinity of the fall before it occurred. Ultimately, the Court found that Publix was entitled to summary judgment, as it had no actual or constructive notice of any liquid on the ground. Due to the rejection of a Proposal for Settlement almost two years ago, Publix will be entitled to recover attorneys’ fees and costs.

Defense Verdict: Orange County, FL (Automobile Negligence)

Orlando Partners, Kurt Spengler and Bryan Yasinsac, J.D., obtained a defense verdict in an automobile negligence case in Orange County, Florida. Plaintiff in this case claimed that he was cut off in traffic by a driver who then braked suddenly, causing an accident. Plaintiff sued his own underinsured motorist carrier, claiming the accident caused him to undergo surgeries to his shoulder, knee and low back. Plaintiff treated under letters of protection, and claimed past medical bills of $400,000. The black box data from the accident did not support Plaintiff’s claim that there was a sudden stop. Furthermore, Plaintiff had extensive pre-existing conditions and the defense was able to show the bias of the LOP medical providers when they tried to link the need for their treatment to the accident. Plaintiff asked for $2 million in closing arguments. The jury returned a complete defense verdict.

Case Dismissed: Volusia County, FL (First Party Property)

Orlando Associate, Michael Stone, prevailed in a first-party property bad-faith case in Volusia County, Florida. This case involved a disputed homeowner’s insurance claim resulting in a breach of contract allegation. In April 2023, Plaintiffs accepted a Proposal for Settlement related to claims of property damage, but then filed a new lawsuit claiming bad faith and breach of fiduciary duty against the insurance company. At the hearing, we argued that since Plaintiffs had accepted the Proposal for Settlement in April 2023, they were bound by Florida Statute Section 624.1551, which changed in December 2022 to exclude an acceptance of a Proposal for Settlement to establish breach of contract. We further argued that there is no fiduciary duty between the insurer and insured in first party property case, because there is no obligation to defend the Insured like there is in a third-party suit. The court agreed, and dismissed all counts with prejudice.

Ruling Affirmed: Florida First District Court of Appeal (Legal Malpractice)

Orlando Partner, Michael D'Lugo, prevailed in an appellate matter heard by the Florida First District Court of Appeal. The underlying case was a legal malpractice matter involving a claim of conflict wherein our clients represented both sides of a real estate conflict at different times. In the subject case, handled by Orlando Partner, Richards Ford, and Orlando Associate, Devin Harvey, we moved to dismiss Plaintiff’s Complaint on the grounds that it did not contain a plain statement of facts or a legal cause of action. The trial court agreed, and dismissed the case without prejudice, affording Plaintiff the opportunity to amend their Complaint. Plaintiff did so, but the Amended Complaint did not address any of the deficiencies pointed out by the Court. Accordingly, we moved to dismiss again, and this time the Court dismissed the matter with prejudice. Plaintiff appealed shortly thereafter. The 1st DCA issued a Per Curiam Affirmance upholding the lower court’s rulings based on their reading of the appellate briefs alone.

Defense Verdict: Spokane County, WA (Medical Malpractice)

Nashville partner, John Floyd, Sr., obtained a defense verdict in a medical malpractice case in Spokane County, Washington. John was called in by the carrier to serve as national counsel in the representation of a foot and ankle surgeon. The case involved a below-the-knee amputation and the patient’s subsequent death. The trial lasted two weeks. Notably, over the objections of defense counsel, Plaintiff called 10 lay witnesses over a two-day period to testify as to damages and how the amputation affected the decedent’s quality of life prior to his death. Plaintiff’s counsel asked for $1.5 million at closing, plus an additional $500,000 in loss of consortium for the decedent’s wife. The jury returned a complete defense verdict.

Summary Judgment: Osceola County, FL (Slip and Fall)

Orlando Partner, Patrick Mixson, obtained summary judgment on behalf of Publix Super Markets in a trip and fall case in Osceola County, Florida. Plaintiff claimed she sustained a hip injury when she tripped and fell at the entrance to a Publix store. She alleged that the store’s automatic doors were malfunctioning and, when the doors did not open, she tripped and fell over a sign near the entrance. The court concluded that there was no evidence that Publix acted negligently or that any negligence caused the Plaintiff’s claimed injuries. Accordingly, summary judgment was granted in Publix’s favor.

Ruling Affirmed: Florida Second District Court of Appeal (Legal Malpractice)

Fort Lauderdale Partner, Alyssa Reiter, and Tampa Partner, Lindsay Brigman, recently prevailed in an appellate matter heard by the Florida Second District Court of Appeal. The underlying case was a legal malpractice matter in which we represented an attorney and his law firm facing a $535 million claim. Summary judgment was sought and subsequently granted by the trial court, and the case was dismissed. Plaintiff appealed, and on October 27, the 2d DCA affirmed the lower court’s summary judgment ruling. 

Defense Verdict: Miami-Dade County, FL (Automobile Negligence)

Miami Partners, Jaime Baca, Jacob Liro, and Nick Prudenzano, secured a complete defense verdict on a hard-fought alleged TBI and spine surgery case in Miami-Dade County. Plaintiff was rear-ended by the Defendant at high speed while distracted on his phone. Liability was admitted, but the court allowed testimony about the cell phone use. Plaintiff was a construction supervisor at the time of the accident and treated non-stop ever since. He had over $600,000 in past medical expenses and stopped working in 2019. Plaintiff presented a life care plan exceeding three million dollars, and asked for five million in past pain and suffering, five million in future pain and suffering, and an additional one million for his wife in a consortium claim, for a total demand exceeding $15 million. To complicate matters, the defendant's orthopedic IME admitted that the back surgery was related to the accident and found a permanency. The defense presented their neurologist, neuropsychologist and radiologist, to rebut the TBI and spinal claims. The defense argued that all of Plaintiff’s claims pre-existed the accident, including a prior TBI 25 years prior, which was the reason for his ongoing issues. The jury found there was no legal cause, and returned a complete defense verdict.

Ruling Affirmed: Florida Sixth District Court of Appeal (Medical Malpractice)

Orlando Partner, Michael D'Lugo, Naples Partner, Ashley Withers, and Naples Associate, Lindsey Bergholz Grossman, prevailed in an appellate matter heard by the Florida Sixth District Court of Appeal. The underlying case was a medical malpractice matter involving an alleged error in administering spinal anesthesia, resulting in permanent nerve damage to the patient’s bladder. We represented the hospital, who was alleged to be vicariously liable for the anesthesiologist under theories of actual and apparent agency. Plaintiff testified in her deposition, and record evidence showed, that over the course of two separate consults with the anesthesia team, the patient signed two separate consent forms confirming she understood that the anesthesiologist was not an employee of the hospital, nor acting at the behest of the hospital. Summary judgment was sought on these grounds, and argued by Lindsey Grossman at the hearing. The trial court found that Plaintiff did not meet the burden to establish actual or apparent agency, and summary judgment was granted in favor of the hospital.  Plaintiff appealed to the 6th DCA. Michael D’Lugo wrote the Answer Brief and participated in oral arguments before the Court in early November. On November 21, the Court issued a Per Curium Affirmance upholding the lower court’s summary judgment ruling. Notably, the consent forms in question were originally drafted by Ashley Withers in her capacity as legal counsel to the hospital. Due to the rejection of a non-binding arbitration award, the hospital is entitled to seek fees and costs.

Defense Verdict: Lake County, FL (Automobile Negligence)

Fort Lauderdale Partner, Theresa Strub Caccippio, and Associate, Brandon Polsky, obtained a defense verdict in an automobile negligence case in Lake County, Florida. This was an admitted liability case involving a 61 year old Plaintiff claiming neck and low back injuries. Plaintiff had four herniated disks and underwent a lumbar laminectomy, with medical bills totaling $134,000. After a four day trial, Plaintiff asked the jury for past medical bills, and to use their discretion for a pain and suffering award. The jury deliberated for two hours before returning a verdict of no permanent injury, zero for pain and suffering, and $8,036 in past medicals. The jury award will be reduced to zero after setoffs.

Summary Judgment: Broward County, FL (Premises Liability)

Fort Lauderdale partners Jonathon Miller and Todd Barron obtained summary judgment on behalf of Publix Super Markets in a premises liability case in Broward County, Florida. This case arose from a trip and fall in the dairy aisle. Plaintiff alleged that a transitory substance on the floor caused her fall, and claimed she sustained injuries to her left shoulder, left hip and right knee as a result. Throughout the litigation, Plaintiff’s explanation of the incident changed no fewer than three times. In her deposition, she testified that she did not see any substance on the floor that may have caused her fall, and that she could not provide any description of what actually caused her fall or from where it may have originated. Internal incident reports showed that there was no report made of a spill, and that when store employees came to Plaintiff’s aid, there was no substance on the floor of any variety. Ultimately, CCTV footage of the incident showed that Plaintiff tripped on her own flip flops, which caused her fall. Summary judgment was sought on the grounds that Publix received neither actual nor constructive notice of any dangerous condition, and that Plaintiff could not testify to the origin or nature of such condition. We further argued that Publix could not be found liable for the incident, given the video footage showing that the actual cause of Plaintiff’s fall was her own footwear. The Court agreed, and summary judgment was granted. Due to the rejection of a Proposal for Settlement, Publix will be entitled to seek fees and costs.

II. We Are Wicker: Announcements, Recognition and Honors

Join Our Team in 2024

If a new job is on your wish list in 2024, apply with us today. We are accepting applications for 2-5 year associate attorneys in all 16 offices nationwide. Interested parties may submit a cover letter and resume to HR Director Allyson Adams at abisland@wickersmith.com.

Jacksonville Office Participates in Community Outreach Event

Team members in our Jacksonville office participated in the “Humble for the Hungry, Feed the Soul” event held in downtown Jacksonville on Saturday, December 2, where they helped distribute food, clothing and toiletries to the homeless and needy. Multiple community and religious organizations came together at this event to provide basic necessities, friendship and hope to those in need.

We are so proud of their efforts and happy to support such a worthy cause.

Pictured left to right are Renee Mctaw , Courtney Cargill, Esq. , Ericka Hernandez, Chris Brown , Amanda Phillips and Hayden Hurlbut

Naples Partner Named Attorney of the Year

Naples Partner, Ashley Withers, was recognized as Attorney of the Year at the Southwest Florida Chapter of ABOTA Foundation's annual Judicial Appreciation Dinner on November 2. “Founded in 1958, ABOTA is a national association of experienced trial lawyers and judges... ABOTA membership consists of more than 7,300 lawyers—equally balanced between plaintiff and defense—and judges spread among 96 chapters in all 50 states and the District of Columbia. ABOTA is an invitation-only organization. Members must have at least five years of active experience as trial lawyers, have tried at least 10 civil jury trials to conclusion and possess additional litigation experience. Members must also exhibit the virtues of civility, integrity and professionalism by following the Code of Professionalism and Principles of Civility.” (abota.org)

Ashley is a frequent lecturer at ABOTA events, including this past summer at the Florida Chapter’s 25th Annual Conference in Orlando, where she presented “Proposed Civil Procedure Changes and FLABOTA’s Response.” At the awards ceremony on November 3, she spoke on the importance of civility and professionalism for trial attorneys.

Congratulations Ashley on this well-deserved award! 

Nashville Lawyers Named to 2023 Mid-South Super Lawyers

Congratulations to the lawyers from our Nashville office who were named to the 2023 Mid-South Super Lawyers list:

▶ John Floyd, Jr., Rising Star, Personal Injury Medical Malpractice Defense

▶ Anne Hamer, Super Lawyer, Family Law

Naples Associate Admitted to U.S. Supreme Court Bar

Naples Associate, David C. Merrill, Esq., was recently admitted to practice before the United States Supreme Court. 

In March of this year, David’s alma mater, Ave Maria Law School, invited a select number of qualified alumni to seek admission to the Supreme Court Bar. David was one of twelve applicants who was selected for this honor. 

David traveled to Washington, D.C., with his mother as his invited guest, for the swearing in ceremony. On the day of admission, Tuesday, November 28, they attended a welcome breakfast hosted by Chief Justice John Roberts. The admittees were then ushered into the courtroom, where they were announced by name in front of all nine Justices, and Chief Justice Roberts granted their motions for admission. After they took the oath, they were allowed to stay to watch the Court hear the day’s arguments.

“I sought the admission to the Supreme Court Bar because it is really the pinnacle of the legal profession. Being a member of the Supreme Court Bar adds me to a member roster of esteemed and highly regarded lawyers and jurists. I really can’t put into words what it was like to sit in front of the most powerful and influential judges in the United States. It was a memory of a lifetime.”

We couldn’t agree more, David. We are so proud of you, and happy to have you as part of the Naples team. Congratulations!

Wishing a warm and wonderful holiday season to all of our clients, colleagues, business partners and friends, and all best wishes for a happy and healthy new year!

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