.

Kimberly Kanoff Berman

Shareholder

KKBerman@mdwcg.com

Portrait of Kimberly Kanoff Berman

Kimberly is a shareholder in the firm's Appellate Advocacy and Post-Trial Practice Group in the Professional Liability Department and is Board-certified in Appellate Practice by the Florida Bar. She has litigated numerous appeals in Florida state and federal appellate courts across a wide variety of subject matters in cases including but not limited to cases involving, medical malpractice, construction defect, condominium and homeowner association matters, insurance coverage, bad faith, maritime, aviation and premises liability. Kimberly handles the brief writing, motion practice and oral arguments. In addition to her extensive appellate practice, Kimberly provides litigation support in insurance coverage, construction defect, premises liability, casualty, professional malpractice and bad faith cases.

Kimberly has an AV Preeminent rating by Martindale-Hubbell, the highest rating for professional competence. From 2015-2020, Kimberly was recognized as a Super Lawyers Rising Star, a designation given each year to only 2.5 percent of lawyers in the state of Florida. She has also been recognized as a Top Lawyer for Appellate Law by the South Florida Legal Guide. Kimberly was selected to Florida Trend Legal Elite Notable Women Leaders in Law.

Kimberly is actively involved in bar association and related legal societies. She is a member of the Board of Trustees of the Florida Supreme Court Historical Society and currently serves as Treasurer and Communications Chair.  An active member of the Florida Bar, she is Vice Chair (Live Programs) of the Appellate Practice Section's CLE Committee and past chair of the Pro Bono and Programs Committees. She has been a member of the Broward County Bar Association, the Dade County Bar Association, the Defense Research Institute, the Florida Defense Lawyers' Association, the Third District Court of Appeal Historical Society and the Rosemary Barkett American Appellate Inn of Court. She has served as the president of the Third District Court of Appeal Historical Society and as co-chair of the Dade County Bar Association's Appellate Practice Section.

She has spoken on appellate and litigation support topics and written multiple articles on important issues impacting appellate and trial lawyers. Kimberly has also served as adjunct faculty at three law schools: Nova Southeastern Shepard Broad College of Law in Davie, Florida; Ave Maria School of Law in Naples, Florida; and St. Thomas University Benjamin L. Crump College of Law in Miami Gardens, Florida.

Prior to joining the firm, Kimberly was the head of the appellate division at a local defense firm. Before entering private practice, Kimberly served as a Career Research Attorney for the Honorable David M. Gersten of the Third District Court of Appeal in Miami, Florida. She also interned at the Third District and at the Florida Supreme Court in Tallahassee, Florida, while in law school.

Kimberly graduated from the University of Florida, Gainesville, with a Bachelor of Science in Public Relations with high honors. She subsequently attended the University of Miami School of Law in Coral Gables, Florida, where she obtained her juris doctor.

    • University of Miami School of Law (J.D., 2005)
    • University of Florida (B.S., 2002)
    • Florida, 2005
    • U.S. District Court Southern District of Florida, 2006
    • U.S. District Court Middle District of Florida, 2011
    • U.S. Court of Appeals 11th Circuit, 2011
    • U.S. District Court Northern District of Florida, 2013
    • U.S. Court of Appeals 3rd Circuit, 2019
    • Succeeded in obtaining an affirmance by the Second District Court of Appeal of a final judgment in a slip-and-fall premises liability matter, for a business establishment and property owner. The plaintiff was a business invitee who sued the property owner for negligence after she fell while riding her electric bicycle through its landscaped parking lot. During discovery, the plaintiff claimed the fall occurred while she was traversing through a section “covered heavily in leaves.”  The plaintiff, however, could not identify how she fell nor whether there were any objects or foreign substances causing her fall. The property owner moved for summary judgment, asserting the accumulation of leaves on the parking lot was an open and obvious, naturally occurring condition that could not constitute a dangerous condition to impose liability on a property owner. The court granted summary judgment in the property owner’s favor. After oral argument, the Second District Court affirmed per curiam the final judgment in the property owner’s favor. Carrie Collier v. Cars MTI-4 L.P. d/b/a Lazydays RV Resort, No. 2D2025-1980 (Fla. 2d DCA May 13, 2026).
    • Succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final judgment entered in favor of a law firm and managing lawyer. The law firm and lawyer issued an opinion letter on behalf of his clients as part of a commercial loan transaction for $7.5 million. After the client defaulted on the loan, the plaintiffs, sophisticated lenders, sued 20 different named defendants involved in the transaction. They sued the law firm and lawyer for negligent misrepresentation and breach of fiduciary duty for its role in issuing the third-party opinion letter. The trial court granted summary judgment in the law firm and lawyer’s favor, finding in an arm’s length transaction, there is no duty owed to nonclients. The lender appealed, phrasing the issue as a pure legal question of an attorney’s professional responsibility: “When an attorney issues an opinion letter – (i) knowing that the letter is attendant to a transaction in which a non-client party to that transaction will necessarily rely on the letter (as a condition precedent to the transaction); and (ii) invites reliance on the letter without qualification—does that attorney owe any duty of care to the intended non-client recipient? After oral argument, the Fourth District rejected the lender’s arguments attempting to extend a duty in these circumstances and affirmed the final judgment. FVP Opportunity Fund III, LP v. Graner Law Group, P.A., --So. 3d--, 2026 WL 172694 (Fla. 4th DCA Jan. 22, 2026).
    • Succeeded in obtaining an affirmance by the Second District Court of Appeal of a final judgment on a cross-claim for defense and indemnity in a construction defect matter for a window and door subcontractor. The plaintiffs were residential homeowners who sued the general contractor for construction defects following the construction of their luxury home. They also sued the window and door subcontractor for negligent misrepresentation in its recommendation to install windows and doors manufactured by a German manufacturer. The general contractor filed a cross claim against the window and door subcontractor and third-party claims against the other subcontractors involved in the construction for defense and indemnification. During litigation, the case was referred to nonbinding arbitration, where the arbitrator found that the general contractor was not negligent but that it breached the contract and warranties. The arbitrator also found there was no negligent misrepresentation on behalf of the window and door subcontractor. The arbitrator awarded the plaintiffs $3.1 million in damages. The general contractor moved for trial de novo on the cross claim and third-party claims only, accepting the $3.1 million award entered against it. Thereafter, the window and door subcontractor moved for summary judgment on the cross claim, asserting there was no obligation to defend or indemnify based on the express terms of the indemnification clause in the subcontract. The court granted summary judgment in the window and door subcontractor’s favor. After oral argument, the Second affirmed the final judgment in the window and door subcontractor’s favor. Monogram Builders, Inc. v. Architectural Products Sales, Inc., --So. 3d--, 2026 WL 391003 (Fla. 2d DCA Feb. 11, 2026).
    • Obtained an affirmance by the Sixth District Court of Appeal of a final judgment in a premises liability claim, stemming from a slip and fall on Main Street in Disney’s Magic Kingdom. The appeal attempted to conflate the burdens of proof on summary judgment. The court rejected the appellants’ arguments and affirmed the final judgment entered in favor of Disney without oral argument. Cote v. Walt Disney World Parks and Resorts, Inc., 6D2023-4212 (Fla. 6th DCA November 10, 2025).
    • Obtained summary judgment in a foodborne-illness wrongful death case. The plaintiff brought a wrongful death action against multiple parties, including the seafood supplier, asserting that the Decedent died after consuming raw oysters containing vibrio vulnificus. Our attorneys represented the supplier and argued that there was no evidence the oysters were defective when they left the supplier’s control. Their expert provided an affidavit outlining the applicable harvesting, processing, and transportation standards and confirmed that the supplier met all relevant duties. Faced with this record, plaintiff’s counsel ultimately conceded that the evidence did not support a claim against the supplier. The Court granted summary judgment in the supplier’s favor. The case continues against the remaining defendants, who face multimillion-dollar demands.
    • Succeeded in obtaining a reversal of a nonfinal order granting leave to amend to an estate to assert a claim for punitive damages and gross negligence against a dive captain, dive master, and the corporate entity dive companies. Duff v. Racine, 2025 WL 1646730 (Fla. 4th DCA June 11, 2025).
    • Succeeded in convincing the Fifth District Court of Appeal to quash an amended discovery order to compel a church to identify church members and produce membership lists in a suit for exploitation, theft, conversion, declaratory relief, and other causes of action brought by a church member against the church. The court agreed with the church’s arguments that the trial court’s order was deficient in that it failed to address the church’s claims of associational privilege under the First Amendment and that there was a disputed issue below as it related to the incorporation status of the church. St. Paul’s Catholic Church v. Hilt, 5D23-0955 (Fla. 5th DCA Mar. 1, 2024).
    • Obtained a per curiam affirmance in the Fifth District Court of Appeal of an order declaring the children dependent due to their father’s drug use and overdose in front of his children. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program to represent the interests of the child as part of the Defending Best Interests Project. S.M. v. Dep’t of Children & Families, 5D23-3142 (Fla. 5th DCA February 1, 2024).
    • Obtained an affirmance by the Fifth District Court of Appeal for the firm’s client in an appeal of a nonfinal order denying plaintiff’s motion to disqualify counsel. Plaintiff’s counsel moved to disqualify our firm and defense counsel for their communications with a post-incident treating physician employee/agent of the client’s owner during the course of a premises liability lawsuit. Our client argued there was no conflict of interest and no violation of the patient-physician privilege to communicate with a post-incident treating physician, who was also an employee/agent of our client. The trial court agreed and denied the motion, and the Fifth District affirmed the denial of the nonfinal order on appeal and granted our client’s motion for appellate attorney’s fees on a provisional basis. Figueroa v. OHRI, LLC, 5D22-1894 (Fla. 5th DCA Jan. 16, 2024).
    • Obtained an affirmance by the Fourth District Court of Appeal of a venue order obtained by our client, a school board member. Plaintiff/Petitioner/Appellant, a convicted felon had run for a seat on a school board before his rights had been restored and won the election but refused to be sworn in with the other newly elected board members. Since he failed to qualify and refused to accept the seat within thirty days, the Governor issued an executive order that declared a vacancy and appointed our client to the school board instead. The Plaintiff filed a writ of quo warranto and a declaratory judgment action in Broward County urging the trial court to void the executive order and order that the Plaintiff take and hold the office of the school board immediately. The Governor and our client moved to transfer the case to Leon County based on the home venue privilege. The trial court granted the motion, and the Fourth District affirmed the nonfinal order on appeal. Velez v. DeSantis, 2023 WL 8636899 (Fla. 4th DCA Dec. 14, 2023).
    • Obtained a per curiam affirmance by the Sixth District Court of Appeal of a motion for summary judgment entered in favor of a rental manager. In granting summary judgment, the trial court found that the rental manager, which did not own the premises, did not owe the Plaintiff a non-delegable duty and had no duty to maintain the exterior of the premises pursuant to the owner agreement with the homeowner. The trial court also found that the guest failed to establish any genuine issue as to any material fact regarding an insufficiency or issue with the operation of the lighting of the porch on the property which would give rise to a breach of any possible duty. The Court also provisionally granted the rental manager attorney’s fees upon the determination of the trial court at the conclusion of the case, pursuant to a proposal for settlement.  Janice Dillard v. VHC Hospitality LLC d/b/a Vacation Home Collection, Luciana Pinto, and Terra Resort Villa Homeowners Association Inc., No. 6D23-1256 (Fla. 6th DCA May 16, 2023).  
    • Obtained an affirmance by the Third District Court of Appeal of a nonfinal order dissolving a temporary injunction initially entered against a multi-condominium association following the erroneous entry of a temporary injunction. Three unit owners contended the Association improperly passed a special assessment to be used toward reconstruction of one of the buildings following a fire. The unit owners obtained a preliminary injunction invalidating the special assessment, halting construction, and mandating the Association convene a membership meeting and community-wide vote. The Association swiftly moved to dissolve the injunction, which the trial court granted, recognizing that it committed clear legal error and a misapprehension of the facts when it entered the injunction. In affirming the order below, Judge Miller commended the trial judge for acknowledging its error and found there was a sufficient basis in law and fact for the dissolution and that allowing the injunction to stand would have been incompatible with equity principles. The Court also granted the Association entitlement to a conditional award of appellate attorney’s fees should it prevail below. Lecorps v. Star Lakes Association, Inc., No. 3D21-2195 (Fla. 3d DCA May 25, 2022).
    • Obtained an affirmance by the First District Court of Appeal of a termination of parental rights judgment entered against a father who refused to acknowledge he was the father and instead wanted to wait 5 years until he was released from prison to establish paternity and have a relationship with the child. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program to represent the interests of the child as part of the Defending Best Interests Project. In affirming the order below, Judge Tanenbaum gave an in-depth analysis for the least restrictive means prong in TPR cases. P.B., Natural Father of J.C.T., Minor Child v. Fla. Dep’t of Children & Families & Guardian ad Litem for J.C.T., No. 1D21-3420 (Fla. 1st DCA March 29, 2022).
    • Obtained an affirmance by the Fifth District Court of Appeal of a final summary judgment in a premises liability action arising from a slip and fall in the bathroom of a renter’s own residential unit. The trial court ruled that there were no genuine issues of material fact as to actual or constructive notice concerning the transitory foreign substance found or negligent maintenance of the bathroom.  The Fifth District agreed and affirmed. Foreman v. Grep Southeast, LLC & Sabal Club Holdings, LLC, LLC , No. 5D21-1724 (Fla. 5th DCA March 22, 2022). 
    • Obtained an affirmance in the Fourth District Court of Appeal of a final dismissal order of third party claims for tortious interference with an advantageous business relationship, civil conspiracy to commit tortious interference with a contract, aiding and abetting tortious interference with a contract, and vicarious liability, against a law firm and its lawyers who filed the underlying lawsuit against the appellant. Jallali v. Zhou, 4D20-5 (Fla. 4th DCA April 22, 2021).
    • Obtained an affirmance of a final summary judgment by the First District Court of Appeal in a slip and fall case. The appellant argued that a restaurant/bar owner should have warned a patron about the bar stool being a dangerous condition and of the slippery dance floor, but presented no evidence that the owner was in a superior condition than the appellant. The Court rejected the appellant’s arguments and affirmed the final judgment in favor of the owner. Aljuni v. Blackfinn Jax, LLC, No. 1D20-946 (Fla. 1st DCA April 20, 2021). 
    • Succeeded in obtaining an affirmance in the Fifth District Court of Appeal of a final dismissal order of a wrongful death products liability action. The Estate had filed the lawsuit two years after the statute of limitations expired, and claimed the limitations period was tolled due to the alleged adverse interest of the child’s mother who had been abused by the deceased prior to the accident on an agricultural production site. The trial court dismissed the case with prejudice after giving the Estate five attempts to amend. The Fifth District affirmed the dismissal and dispensed with oral argument that same day.  Rude v. Morbark, Inc., Case No. 5D20-976 (Fla. 5th DCA April 20, 2021).
    • Succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final judgment entered in favor of an insurance carrier in a case involving an alleged assignment of benefits for a water loss. The county court granted final summary judgment in favor of the insurer, finding the plaintiff lacked standing to sue. The case sat in limbo in the circuit court appellate division and then was transferred to the Fourth District Court of Appeal after the jurisdictional changes took place. Four months later, the Fourth District issued a written opinion citing to one of the cases that the insurance carrier relied on in its Answer Brief.  Empire v. United Property & Casualty Company, No. 4D21-65 (Fla. 4th DCA April 14, 2021). 
    • Obtained a dismissal by the Fourth District Court of Appeal of an appeal of an order denying emergency relief in our  client’s action to foreclose a claim of lien and for damages and breach of contract against a former unit owner. The appellant attempted to revive an untimely appeal of a prior order by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of that most recent order. The Fourth District dismissed the appeal and granted the association its motion for entitlement to appellate attorney’s fees. Sawyers v. Lakeside Manor North Association, No. 4D21-225 (Fla. 4th DCA April 7, 2021).
    • Obtained an affirmance by the Fourth District Court of Appeal of the dismissal with prejudice of a listing real estate agent and his broker, in an alleged negligence and fraud case. The Fourth District rejected the plaintiffs’ arguments that the trial court abused its discretion in dismissing their pleadings due to their attorney’s conduct and detailed how the plaintiff’s attorney dropped the ball in litigating the case, in a separate opinion reversing the plaintiffs’ attorney’s contempt conviction. Arnoul v. Perlstein, No. 4D20-67 (Fla. 4th DCA Feb. 3, 2021).
    • Obtained an affirmance by the Second District Court of Appeal of a directed verdict entered at trial in an action to hold a welfare agency vicariously liable for an alleged assault and battery by an employee who was terminated for forgery of the victim’s signature. The Second District rejected the plaintiff’s arguments, and affirmed the final judgment in favor of the defendant.  Fields v. The Devereux Foundation, Inc., No. 2D19-2947 (Fla. 2d DCA Jan. 6, 2021).  
    • Obtained an affirmance by the First District Court of Appeal of a defense verdict obtained for client, an owner of a commercial retail center and parking lot, in a negligent security action. A chef was taking garbage outside a restaurant, when he was shot and killed. The Estate sued the owner of the building and the parking lot as well as defendants involved in the development, design, and maintenance of the retail center.  The jury returned a defense verdict in favor of all defendants. The Estate appealed, arguing that the trial court abused its discretion in excluding subsequent remedial measure evidence of the installation of lighting, signs, and cameras in the parking lot after the shooting.  The First District rejected the Estate’s argument, and affirmed the final judgments in favor of the defendants.  Rowe v. Rowin, No. 1D19-2637 (Fla. 1st DCA Nov. 25, 2020). 
    • The Fifth District Court of Appeal affirmed the final judgment entered in favor of a hospital and three of its trauma/critical care physicians, where the Plaintiff’s sole expert on liability and causation was a retired internal medicine physician, and the trial court found that the Plaintiff’s expert lacked the requisite qualifications under Florida law to render opinions against the hospital and its three specialist physicians.  Pisano v. Orlando Health, Inc. d/b/a Orlando Regional Medical Center, 5D19-524 (Fla. 5th DCA 2019).
    • The First District Court of Appeal affirmed final judgment entered in favor of the Association in a dispute over the use of a condominium unit as a full-service restaurant.  Fehrman v. Gateway Commons II Condominium Association, Inc., 1D17-4555 (Fla. 1st DCA 2018). 
    • The Fifth District Court of Appeal affirmed final summary judgment entered in favor of the insurer in a claim for post-arbitration interest and bad faith, stemming from an underlying uninsured motorist claim.  Huffman v. Commerce West Ins. Co., No. 5D16-4692 (Fla. 5th DCA 2018).
    • The Fourth District Court of Appeal affirmed the trial court's finding of defense and indemnity and an award of attorney's fees to a contractor.  Blok Builders, LLC v. Katryniok, No. 4D16-1811 (Fla. 4th DCA 2018).
    • The Third District Court of Appeal reversed and remanded an adverse final judgment entered against the insurer in an uninsured motorist case. The Court found that the insurer was either entitled to a summary judgment or a directed verdict because coverage was a legal and not a factual question, and the insurer was entitled to judgment as a matter of law. Zurich American Insurance Company v. Cernogorsky, No. 3D16-689 (Fla. 3d DCA 2017).
    • The Southern District Court of Florida, acting in its appellate capacity, affirmed a bankruptcy court's order denying a motion to reopen the case for action effecting discharge of debtor.  Verdecia v. Valentine, No. 17-CV-60723-WPD (S.D. Fla. 2017).
    • The Third District Court of Appeal affirmed the trial court's denial of a non-final order granting the defendants' motion to transfer venue based on forum nonconveniens in an aviation case.  Theobald v. Piper Aircraft, Inc., No. 3D16-1504 (Fla. 3d DCA 2016).
    • The Fourth District Court of Appeal reversed in part an adverse final judgment entered in favor of an insurance agent, finding that the contract between the agent and the agency was divisible so that the statute of limitations for each commission began to run when a comission was received by the agency.  Access Ins. Planners, Inc. v. Gee, No. 4D14-1883, 4D14-2706 (Fla. 4th DCA 2015).
    • The Fourth District Court of Appeal affirmed the entry of summary judgment in favor of a shopping center owner who was sued after a motorcycle patron was injured in an accident on the roadway outside of the shopping center. Ball v. Black, No. 4D14-276 (Fla. 4th DCA 2015).
    • The Second District Court of Appeal denied the plaintiff's petition for certiorari challenging the trial court's discovery order on attorney-client privilege issues in a bad faith case. Mabie v. Universal Underwriters Ins. Co., No. 2D14-847 (Fla. 2d DCA 2014).
    • The Eleventh Circuit Court of Appeals affirmed a final summary judgment entered in favor of an excess carrier, finding that its insured breached the policy by failing to notify the excess insurer of the occurrence, claim, and suit until almost four years after the occurrence and claim and several months after final judgment was entered against the insured. American Guarantee & Liability Insurance Co. v. Simon Roofting & Sheet Metal Corp., No. 13-11685 (11th Cir. 2014).
    • The Third District Court of Appeal affirmed the trial court's entry of post-trial directed verdict in favor of a cruise line in a slip in fall case, where the plaintiff failed to prove negligence. Deutsch v. Celebrity Cruises, Inc., No. 3D12-1710 (Fla. 3d DCA 2013).
    • The Third District Court of Appeal affirmed a final summary judgment entered in favor of a spa servicer on a cruise ship. The trial court found that the spa did not have a legal duty to the cruise patron to provide CPR or defibrillation after a patron collapsed while exercising on a treadmill in the cruise ship's gym. Amaran v. Royal Carribean Cruises, Ltd., (Fla. 3d DCA 2013).
    • The Third District Court of Appeal reversed the trial court's order denying the spa operator's motion to dimiss based on a contractual forum selection clause.  Steiner Transocean Limited v. Efremova, No. 3D12-2390 (Fla. 3d DCA 2013).
    • Chambers USA, Litigation: Appellate, Florida, Band 3 (2026)
    • AV® Preeminent™ by Martindale-Hubbell®
    • The Best Lawyers in America©, Appellate Practice (2026)
    • Florida Trend, Legal Elite, 2023 Notable Women Leaders in Law
    • South Florida Legal Guide, Top Lawyer, Appellate Law (2021)
    • Florida Super Lawyers Rising Star (2015-2020)
    • South Florida Legal Guide, Top Up and Comers, 2020
    • Broward County Bar Association
    • Dade County Bar Association
    • Florida Association of Women Lawyers, 2009-2013
    • Florida Bar, Appellate Practice Section Vice Chair (Live Programs), CLE Committee, 2023; Pro Bono Committee Chair, 2021; Executive Council, 2016-Present; Legislative Committee Vice Chair, 2018-2020; Programs Committee Chair, 2015-2018
    • Florida Bar, Board Certified in Appellate Practice, 2020
    • Florida Supreme Court Historical Society, Treasurer & Communications Chair, 2024
    • Florida Supreme Court Historical Society, Secretary, 2023
    • Rosemary Barkett American Appellate Inn of Court
    • Third District Court of Appeal Historical Society
    • Obtaining Evidence from Electronic Devices in Florida, National Business Institute Seminar, November 26, 2024 
    • Advanced Brief Writing - Tips, Tools, and Technology for Improving Your Appellate Brief, Miami-Dade Bar's Appellate Court Committee CLE, October 31, 2024 
    • A Not-So- “Little” Problem with Precedent: Intra-District Conflicts in Florida’s District Court of Appeals, The Florida Bar Appellate Practice Section's Audio Webcast, August 15, 2023 
    • Insurer Malpractice Claims Against Defense Counsel: Recognizing, Defending, and Preventing Potential Claims - Common Errors and Strategies for Avoiding Them, Panelist, Strafford CLE Webinar, January 24, 2023
    • Brief Writing for the Third DCA, Moderator, Florida Bar's Appellate Practice Section's Practicing Before the Florida Third District Court of Appeal 2022 CLE Seminar, Miami, FL, October 28, 2022
    • Preventing Defective Jury Instructions In Personal Injury Trials: Leveraging Errors on Appeal - Part III Common Objections, Panelist, Strafford CLE Webinar, September 7, 2022
    • UNprecedented, Summarily: A Podcast for Busy Lawyers, June 23, 2022
    • Punitive Damages and Interlocutory Appeals, Panelist, Miami-Dade Bar Miami Law Con, April 22, 2022
    • Everything Old is New Again Series - A Conversation with the Judiciary: Challenges and Opportunities in the Changing Landscape of Appellate Practice, Co-Host/Moderator, Florida Bar Winter Meeting Virtual CLE, Guardian ad Litem Program and Florida Bar Appellate Practice Section, January 26, 2022
    • 56 Feds are Coming: Strategies Using the Upcoming Florida Summary Judgment Standard, Marshall Dennehey Client Webinar, January 15, 2021
    • The Great Font Debate, Issues on Appeal Podcast, January 2021 
    • Hidden Essentials of Appellate Law, Co-Chair, Florida Bar Appellate Practice Section, West Palm Beach, FL, February 2019
    • Understanding Hearsay and Keeping Evidence Out (Pre and Post Trial), The Rules of Evidence: A Practical Toolkit, National Business Institute, Fort Lauderdale 2017
    • "Appellate Pro Bono Attorneys Step Up to Defend Children," The Florida Bar News, February 16, 2023
    • Adjunct Faculty, Nova Southeastern Shepard Broad College of Law, Davie, FL (2014-2015)
    • Adjunct Faculty, Ave Maria School of Law, Naples, FL (2009-2013)
    • Adjunct Faculty/Mock Trial Team Coach, St. Thomas University School of Law, Miami Gardens, FL (2008-2011)
    • Florida Guardian Ad Litem Office, Defending Best Interests (DBI) program
    • Board Certified, Appellate Practice, The Florida Bar

Results

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Summary Judgment Secured in a Foodborne Illness Wrongful Death Matter

We won summary judgment in a foodborne illness wrongful death case. The plaintiff filed a wrongful death action against multiple parties, including the seafood supplier, distributors, transporters and the restaurant that served the decedent. The plaintiff alleged the decedent died as a result of eating raw oysters that contained vibrio vulnificus. We represented the supplier and argued there was no evidence the oysters were defective when they left the supplier’s hands. An expert was retained to support our motion for summary judgment. The expert prepared an affidavit citing the applicable duties pertaining to the harvesting, processing, and transportation of the oysters and stated the supplier did not breach any of the applicable duties. Utilizing calculated pressure tactics in a long-term strategy execution, plaintiff’s counsel eventually conceded that the record evidence did not support a finding that the supplier breached its duties, resulting in the court granting summary judgment. The case remains ongoing with multimillion dollar demands against the remaining defendants.

Obtained Reversal of Non-Final Order in a Wrongful Death Case

We obtained reversal of a non-final order in a wrongful death case against a dive captain, dive master and the corporate entity dive companies. A woman drowned while scuba diving on a chartered tour. Following her death, the toxicology report revealed high levels of illicit drugs and alcohol. During the course of litigation, her estate moved for leave to amend their complaint to add a claim for gross negligence and punitive damages, claiming the defendants were grossly negligent for failing to use the buddy system and for allowing the decedent to dive when they knew or should have known she was intoxicated. The estate also claimed gross negligence against the dive master for allowing the decedent out of his eyesight for four to ten minutes during the dive, despite having identified the decedent as requiring “special assistance.” In support of their motion, the estate relied on the police statements, deposition testimony and an expert report. The defendants argued the evidence was insufficient to support the amendment and contended that none of the witnesses knew that the decedent was intoxicated before she dove. In granting the motion, the trial court did not make an affirmative finding that the estate had made a reasonable showing by evidence, which would provide a reasonable evidentiary basis to recover punitive damages. On appeal, the Fourth District agreed with our arguments and reversed on several grounds. First, the Fourth District concluded the trial court applied the wrong legal standard. Second, the court found the estate failed to present sufficient evidence to establish a reasonable basis for recovery of punitive damages against the dive captain and dive master. Third, the estate’s proposed amended complaint did not properly allege a claim against the corporate entity defendants. 

Thought Leadership

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Florida Appellate Court Affords Lyft Broad Immunity Under Section 627.748(18), Florida Statutes (2022), for the Actions of One of its Drivers

May 15, 2026

Florida’s Fourth District Court of Appeal affirmed the dismissal of negligent and fraudulent misrepresentation claims against transportation network company (TNC), Lyft Florida, Inc., concluding such claims are barred by the plain text of section 627.748(18), Florida Statutes (2022). In Haddad v. Lyft Florida, Inc., 4D2025-017 (Fla. 4th DCA May 13, 2026), a rideshare passenger alleged she was assaulted by her Lyft driver. She sued for negligent and fraudulent misrepresentation, alleging statements on Lyft’s website led her to believe that her ride would be safe and that she would not suffer personal injuries at the hands of a Lyft driver. Lyft moved to dismiss, contending that section 627.748(18) provided it with immunity against such claims. Subsection 18 provides that “[a] TNC is not liable under general law by reason of owning, operating, or maintaining the digital network accessed by a TNC driver or rider…for harm to persons or property which results or arises out of the use, operation, or possession of a motor vehicle operating as a TNC vehicle while the driver is logged on to the digital network” under three circumstances if: (1) there is no negligence under this section or criminal wrongdoing under the federal or Florida criminal code on the part of the TNC; (2) the TNC has fulfilled all of its obligations under this section with respect to the TNC driver; and (3) the TNC is not the owner or bailee of the motor vehicle that caused harm to persons or property. The trial court agreed that subsection 18 provided Lyft with immunity and dismissed the complaint. With the benefit of oral argument, the Fourth District affirmed the dismissal. In doing so, the court concluded that subsection 18’s plain text makes clear that the immunity conferred under section 627.748(18) is much broader than traditional vicarious liability. Thus, the passenger’s claims for negligent and fraudulent misrepresentations, which arose out of the use, operation, or possession of the vehicle operating as a TNC vehicle while the driver was logged on to the network, were barred. It did not matter that the complaint purported to plead negligence by Lyft rather than a traditional vicarious liability theory. The negligent act asserted against the TNC had to relate to a negligent failure to meet the statute’s requirements for rideshare companies. This is a favorable decision for TNC companies. Plaintiffs will need to carefully tailor their allegations to overcome the broad immunity set forth in the statute. Otherwise, their claims will be subject to dismissal out of the gate. TNC companies should look to dismiss Plaintiff’s complaints from the outset. The immunity is not a traditional affirmative defense. Thus, trial courts can rule on the immunity at the motion to dismiss stage.

Daily Business Review

The ‘Sunshine’ State: New Comparative Negligence Jury Instructions Following the Adoption of House Bill 837

September 20, 2024

The Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases has proposed and now adopted new jury instructions to address the changes made to the modified comparative fault scheme.

News

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Firm Highlights

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

News

Tiere J. Phillips Elected to the Judicial Committee of the Allegheny County Bar Association

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial