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Brendan P. Smith

Portrait of Brendan P. Smith

Brendan is a member of the Professional Liability Department where he focuses his practice on the defense of auto manufacturers in all stages of their warranty litigation from pre-suit, arbitration and jury trials. Additionally, he represents insurance carriers in coverage disputes and alleged bad faith actions. Many of the coverage disputes involves windstorm claims, interior water damage claims, mold claims and remediation claims. 

Brendan started his career as a public defender in Miami-Dade County, where he gained extensive courtroom and trial experience. He later went on to work at a civil defense firm where he eventually became a named partner. While there, he defended many major American and European automotive companies in both state and federal court, as well as at the administrative level. Brendan has tried cases throughout the state of Florida on behalf of his clients. 

Brendan received his Juris Doctorate from Saint Thomas University and his Bachelor of Arts in English from the College of William and Mary.

    • St. Thomas University College of Law (J.D., 2006)
    • William & Mary (B.A., 1996)
    • Florida, 2006
    • U.S. District Court Southern District of Florida, 2009
    • U.S. District Court Middle District of Florida, 2012

Thought Leadership

Legal Updates for Florida Coverage and Property Litigation

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

June 11, 2026

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Legal Updates for Florida Coverage and Property Litigation

Appeals Court Reverses Trial Court Finding that Proposal for Settlement Made by Carrier to Insured was not Ambiguous

March 1, 2026

Sec. First Ins. Co. v. Cincotta, 2025 WL 3714668 (Fla. 6th DCA 2025) The Sixth District Court of Appeal reversed the trial court’s order denying Security First Insurance Company’s motion for attorney’s fees. The trial court ruled that the proposal for settlement (PFS) served by Security First on the insureds, Dominick Cincotta and Dominick Cincotta on behalf of the deceased Aurea Cincotta, was ambiguous. The appellate court reversed finding that there was no ambiguity in the PFS when it was interpreted as a whole. The Cincottas purchased home insurance from Security First in 2014 through an insurance agency, Cochran Insurance, Inc. The Cincottas reported a fire loss to their home, which Security investigated. In the course of its investigation, Security First determined that the Cincottas failed to disclose a 2013 fire loss to the property on their insurance application to Security First. The Cincottas also failed to disclose a prior non-renewal of their insurance policy based upon the 2013 fire loss. Security First then rescinded the policy and denied coverage for the loss. Cincotta proceeded to file suit against both Security First and Cochran. The claim against Cochran was abated and the lawsuit against Security First proceeded on the question of coverage. During the litigation, Security First served a PFS that included the following language: “1. The party making the proposal is Security First Insurance Company (“Security First”). The party to whom the proposal is  being made is Dominick Cincotta. 2. This proposal resolves all damages that would otherwise be awarded to Dominick Cincotta in a final judgment in this action except for attorney’s fees and costs as set forth below.” Security First obtained summary judgment in its favor and moved to enforce the PFS. The trial court held a hearing on Security First’s motion for entitlement and found that Security First was the prevailing party and entitled to costs. The trial court denied the motion as to attorney’s fees, finding that the PFS was ambiguous based upon the language in the second paragraph, stating it was “unclear whether Security First is requiring the Cincotta’s’ to give up their claims against Cochran as part of this.” In reversing the trial court’s order, the Sixth DCA stated the PFS was sufficiently clear to inform Cincotta that the claim against Cochran was not being given up. The appellate court stated that while the second paragraph in isolation could be seen as vague, when the PFS was read as a whole, it was clear that the claims were limited to Security First. The appellate court pointed out that the PFS did not require dismissal against Cochran and, in fact, did not mention Cochran anywhere. The appellate court quoted language from Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018) (citing State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006)) stating, “courts are discouraged from ‘nitpicking’ proposals for settlement to search for ambiguity.” The appellate court looked at paragraph one, which specifically identified Security First as the party making the proposal, as well as other paragraphs that identified Security First as the party that would be paying the settlement amount and being the party that would be dismissed if the proposal was accepted. Based on these factors, the appellate court found no ambiguity in the proposal for settlement and reversed the order denying Security First’s entitlement to attorney’s fees.

Firm Highlights

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.