Thought Leadership

Kimberly Berman (Fort Lauderdale, FL) and Brad Blystone (recently retired) successfully obtained an affirmance by the Sixth District Court of Appeal in a premises liability claim, stemming from a slip and fall. 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 our client without oral argument.

Kimberly Berman and Jonathan Kanov (both of Fort Lauderdale, FL) convinced the Fifth District Court of Appeal to affirm a dismissal on behalf of our clients, a well-regarded personal injury law firm and two lawyers who had handled a personal injury. The plaintiff sued the law firm and lawyers for legal malpractice. Our client moved to compel arbitration based on the unambiguous language in the retainer agreement, where the parties agreed to resolve all disputes, including legal malpractice claims, in arbitration and not in court. The trial court granted the motion to compel arbitration, and the plaintiff appealed. The Fifth District dispensed with oral argument and affirmed the dismissal order, sending the plaintiff’s claim to arbitration in accordance with the retainer agreement.

Kimberly Berman (Fort Lauderdale, FL) and Heather Carbone (Jacksonville, FL) obtained an affirmance of a final order by the Judge of Compensation Claims (JCC), upheld by the First District Court of Appeal. The order determined an employer/employee relationship and found the statute of limitations barred the claimant’s allegation against his lone statutory employer. The appeal involved the interpretation of section 440.10, Florida Statutes, and a question of whether all employees of a contractor and subcontractors “shall be deemed to be employed in one and the same business’ for purposes of workers’ compensation benefits.” The claimant presented a novel theory that the general contractor and its subcontractor are “unified employers” jointly responsible for the payment of benefits. The JCC rejected the theory, and the First District dispensed with oral argument, affirming the final order in favor of the employers and carriers.

Patricia Monahan (Pittsburgh, PA) and Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Supreme Court to reverse the Superior Court’s en banc decision and reinstate summary judgment in favor of the defendant. The plaintiff brought a promissory estoppel claim against our client as the subrogee of its insureds, the owners of motor vehicles and property destroyed in a garage fire caused by a BMW that our client insured. The plaintiff alleged that our client broke a promise to preserve the BMW for future testing, preventing a product liability claim from being filed. The court granted review to consider (1) whether the Superior Court’s decision was inconsistent with the Supreme Court’s decision in Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011), or with (2) Pennsylvania law on subrogation. The three-Justice majority did not reach the first issue, but held that the subrogation claim failed as a matter of law because the plaintiff’s subrogation rights were limited to recovery against any party liable for the direct or accidental loss or damage to covered property. As a result, the plaintiff lacked standing for its promissory estoppel claim against our client, as they did not cause the property damage. One Justice dissented in part, opining that the plaintiff’s self-designation as subrogee was not fatal and that they had pleaded a promissory estoppel claim, however, he concurred in the majority decision, reasoning that the plaintiff’s claim failed as a matter of law for the same reasons that precluded a negligent spoliation claim in Pyeritz. Another Justice dissented to the extent he would hold that the plaintiff had standing; however, he disagreed that Pyeritz foreclosed the plaintiff’s promissory estoppel claim.

*Results do not guarantee a similar result.