What is an Examination Under Oath?

Examinations Under Oath

Almost every insurance policy (“policy”) requires an insured to comply with certain requirements if there is any loss or damage to property which is covered by the policy. These requirements are usually identified as “Duties After Loss.” One of the most important Duties After Loss is an Examination Under Oath (“EUO”).

An EUO is a formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company representative regarding the issues related to the insurance claim. An insurance company representative can be an insurance company adjuster, an independent adjuster, an attorney who represents the insurance company or any other representative. The purpose of the court reporter is to transcribe all of the questions and answers during the EUO and then prepare a transcript of the EUO. The EUO transcript is then given to the insured and any other persons questioned during the EUO for their review. Each person who testified during the Examination Under Oath will be asked to read the Examination Under Oath transcript and make any necessary changes to their testimony so that the transcript is true and correct. Each person who testified during the EUO will then be asked sign the EUO to verify the truthfulness of their testimony and any changes made to the EUO transcript.

Examination Under Oath

Examination Under Oath 

The requirement that an insured submit to an Examination Under Oath is a contractual obligation that is based on policy language. This language normally requires an insured to: “submit to an EUO while not in the presence of another insured …and to sign the same.” An EUO can be one of the most useful tools available to an insurance company in determining whether a loss is covered under the policy and the amount of the loss covered by the policy.

Generally, the policy language will allow the insurance company to take an EUO of the named insured, any insured seeking coverage under the policy, and any persons assisting the insured in submitting the claim. Under this provision, if a public adjuster has assisted the insured in submitting a claim, then the public adjuster may be requested to submit to an EUO. The specific policy language will normally determine the persons who are required to submit to an Examination Under Oath.

While an Examination Under Oath is similar to a Deposition, one of the significant differences is that the insured’s attorney should not object to a question and instruct the insured not to answer that question. If the question relates to material information regarding the claim, then the insured’s refusal to answer the question can be sufficient grounds for the insurance company to deny the claim.

Another issue which is sometimes raised regarding an Examination Under Oath is whether an insured must submit to an EUO if the insured has already given a recorded statement to a representative of the insurance company. Most courts hold that a recorded statement is not a substitute for an EUO. Consequently, if an insured, who has previously given a recorded statement, is asked to submit to an EUO, the better choice would be for the insured to submit to an Examination Under Oath.

In conclusion, an Examination Under Oath can be a very useful tool for an insurance company to use in investigating an insurance claim. Most courts have held that an insured’s refusal to submit to an EUO is an absolute bar to coverage. Therefore, it is in the best interest of the insured to comply with a request from the insured company to submit to an Examination Under Oath.

If you need assistance with an Examination Under Oath please contact Max Factor.

Insurance Duties After Loss for Storm Claims

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Insurance Issues Related To Storm Claims

With Hurricane Season now upon us, it is important to be aware of some of the basic issues which can arise from the insurance coverage applicable to storm damages. Look for the duties after loss requirements in the insurance policy.

Duties After Loss:

Most insurance policies have a section which requires an insured to comply with certain requirements if there is any loss or damage to property which is covered by the insurance policy. These requirements are usually identified as “Duties After Loss.” While each insurance policy may contain a different list of “Duties After Loss”, the requirement for an insured to comply with these “Duties” is usually the same. Most insurance policies will contain language which states that a legal action cannot be brought against the insurance company unless there has been full compliance with all of the “Duties After Loss”.

Typical Duties After Loss:

The following is a list of some of the “Duties After Loss” which may create problems for an insured claiming storm damage:

1. Prompt Notice of the Loss. This duty requires an insured to give notice to the insurance company within a reasonable time after the insured is aware of damage to the property insured by the insurance policy. The reason for this duty is so that the insurance company can inspect the loss and take the necessary action to repair the damages and prevent additional damage to the insured property. For example, if a windstorm causes damage to the roof of a house, prompt notice will allow the insurance company to make temporary or final repairs to the roof which will prevent or limit any interior damage from water leaking into the interior of the building due to the roof damage. If the insured fails to give prompt notice of the loss, then the insurance company may deny a claim for some or all of the interior water damage.

2. Sworn Proof of Loss. This duty requires the insured to submit a sworn document (“Proof of Loss”) containing the information requested by the insurance company. Normally the insurance policy will give a time limit for the insured to submit the sworn proof of loss, such as 60 days. This means that the insured will have 60 days after the insurance company request that a POL be produced to submit a signed and sworn document. The insurance company will normally provide the insured with the forms which need to be filled out, signed and sworn to.

3. Examination Under Oath. An Examination Under Oath (EUO) requires the insured to appear before a representative of the insurance company (usually the insurance company’s attorney) to answer questions under oath about any matter related to the loss or claim, including any records or documents related to the loss or claim. A court reporter will normally be present to record each question and answer during the EUO. After the EUO is completed and transcribed by the court reporter, then the insured will have the opportunity to review the transcript and make any corrections which are necessary to make the transcript true and correct.

Failure To Comply With Duties After Loss:

Most insurance policies contain a provision which states no one may bring a legal action against the insurance company unless there has been full compliance with all of the policy’s Duties After Loss. For example, this requirement means that if an insured is requested to submit a Sworn Proof of Loss and fails to do so, or is requested to submit to an Examination Under Oath and fails to do so, then the insured will probably not be allowed to file a lawsuit against the insurance company until these duties are satisfied. Another issue which may arise from an insured’s failure to comply with the Duties After Loss, is whether the insurance company was prejudiced by the insured’s failure to timely perform the Duties After Loss. For example, if the insurance company can show that the insured’s delay in performing its Duties After Loss resulted in the insurance company being unable to determine the type and amount of damage caused by the storm and the cost of repairing those damages, then the insured may be prevent from filing a lawsuit to collect the damages caused by the storm. Consequently, the insured should be diligent in complying with the Duties After Loss. Contact Max Factor for more information.

Gov. Scott Vetoes Alimony / Time-Sharing Bill

Alimony

Alimony

On April 15, 2016, Governor Rick Scott vetoed a bill which would revise Florida’s alimony and child sharing laws. The Florida Governor quickly made his decision after many supporters and protestors spent time at the capitol in order to make their views known. The bill greatly affected the family law community due to its major changes in alimony calculation and child-sharing guidelines. The majority of the parties were in agreement with the section on alimony but greatly disapproved of the new child time-sharing policy.

The bill (SB 668) would change how alimony is determined, getting rid of bridge-the-gap, durational, rehabilitative, and permanent alimony all together. The new policy would require judges to use a calculation guideline based on the length of a marriage and the income of the parties involved. For marriages lasting less than twenty years, the alimony would be calculated by multiplying the amount of years of the marriage by the difference in the monthly gross income and then by 0.015. For marriages lasting twenty years or longer, alimony would be calculated by the amount of years of the marriage by the difference in the monthly gross income and by 0.020. For the shorter marriages (less than 20 years), the alimony would only last a fourth of the time that the marriage did. For the longer marriages (20 years or more), the alimony would last for three quarters of the length of the marriage.

The bill also contained changes to child time-sharing guidelines. It created a policy that assumed that 50/50 time sharing custody would be best for the child regardless of the circumstances.

Gov. Scott cited in his veto statement “This bill’s proposed revisions to Florida’s alimony and child custody laws have evoked passionate reactions from thousands of Floridians because divorce affects families in many different ways. The one constant, though, is that when a divorce involves a minor child, the needs of the child must come before all others. Current law directs a judge to consider the needs and interests of the children first when determining a parenting plan and time-sharing schedule. This bill has the potential to upend that policy in favor of putting the wants of a parent before the child’s best interest by creating a premise of equal time-sharing. Our judges must consider each family’s unique situation and abilities and put the best interests of the child above all else.”

We will see if the alimony and time-sharing issues will return in the upcoming 2017 session.

Florida Family Law Legislative Update – Alimony

Alimony in Florida

Alimony in Florida

Florida alimony changes are again on the desk of Governor Rick Scott, awaiting his signature. If Governor Scott signs the bill passed by the both the House and Senate, permanent alimony will be a thing of the past. The bill will require judges to use a calculation guideline when determining alimony based on the length of a marriage and the income of the parties. The bill also requires the judge to provide an explanation in writing, if the judge deviates from the formula.

The bill (SB 668) also contains child time-sharing language that calls on the courts to presume that 50/50 custody is in the best interest of the child.

Changes in Alimony and child-sharing laws have been the hot topic in the legislature for several years. All that is left is to wait to see whether Governor Scott will sign the new bill making it law. As a reminder, ,n 2013 he vetoed an alimony reform bill opposing a clause making it retroactive to existing alimony awards; a provision which was not included in this year’s bill.

Florida Alimony Law May Change

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The Florida law regarding alimony is up for consideration again this year by the Florida Legislature. A House bill aimed at effectively ending permanent alimony is heading to the House floor after clearing its final committee of reference on Thursday.The Judiciary Committee approved the measure (HB 455), sponsored by Republican state Rep. Colleen Burton of Lakeland, by a 14-3 vote.

Chiefly, the measure limits judges’ discretion in awarding alimony by providing guidelines for how much an ex-spouse should get and for how long. The idea is that “no matter where you live, you can anticipate you will receive equal treatment,” Burton said. Her bill picked up a key Democratic supporter in state Rep. Jared Moskowitz of Coral Springs, a self-described “child of divorce. He said he knows from first-hand experience that “an indefinite financial relationship between two divorced parents is bad for the children.”

Lawmakers heard from Tarie MacMillan of Wimauma, a 65-year-old woman paying permanent alimony for 16 years. Her husband, a former insurance executive, decided to stop working and lives on 65 percent of her income, she said. Alimony “needs to be a formula,” said MacMillan, a jewelry dealer. “It’s so wrong for one adult to live off another for so long.”

Others continued to insist that the changes will be at the cost of mothers who opted to leave the workforce and raise children. After a breakup, they have trouble finding jobs and depend on alimony, some as their sole support. “There’s no consideration for a stay-at-home mom who has no work experience,” activist Cynthia Wheeler of Palm Beach County said. Wheeler’s recent appearance in Tallahassee resulted in her being ejected from a Senate committee when she refused to leave the lectern. On Thursday, she again spoke over her allotted one minute and until two sergeants-at-arms turned off her microphone.

It’s the third time in recent years the Legislature has attempted to change Florida’s alimony law. A companion bill, sponsored by Republican Kelli Stargel of Lakeland, has not yet been heard in the Senate. Another family-law bill moving this session is SB 250, sponsored by Brandon Republican Tom Lee, that would change state law on child-sharing. It would create an assumption that equal time-sharing for both parents after a divorce is in the best interest of a child.

What To Expect At My Family Law Mediation?

Clients often ask what to expect at a family law mediation. Family law mediations can involve many issues, including: dissolution or divorce; child sharing; child support; divisions of assets and liabilities; as well as, other family law issues that arise.

Family Law Mediaiton

Family Law Mediation

Family Law Mediation

What is mediation?
Mediation is a process where a neutral third party, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal, non-adversarial, confidential process that gives decision making authority to the parties. The role of the mediator includes, but is not limited to, assisting the parties with identifying issues, fostering joint problem solving, giving information and suggestions, and exploring settlement alternatives. The objective of mediation is to help disputing parties reach a mutually acceptable and voluntary agreement.

What are the benefits of a family law mediation?
There are many benefits of mediation.
• Mediation is a confidential process; therefore, nothing said from the time the order of referral is signed until the mediation ends may be disclosed, except where disclosure is required or permitted by law.
• Mediation empowers the parties. It is a process that encourages and facilitates the resolution of a dispute between two or more parties and gives decision making authority to the parties.
• Mediation is an informal and non-adversarial process.
• Mediation may resolve all of the issues in your case and can be more efficient and economical.

Who may serve as a family law mediator?
For general information about the qualifications for a mediator in Florida please go to http://www.flcourts.org/resources-and-services/alternative-dispute-resolution/. All mediators provided by the Second Judicial Circuit ADR Unit are certified as family, dependency or county civil mediators.

How to schedule a family law mediation through the Second Judicial Circuit ADR Unit?
Your attorney will schedule the mediation with opposing counsel. Mediations ordered in all six counties of the Second Judicial Circuit (Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla) are scheduled by emailing Mediations@leoncountyfl.gov.

Do I have to attend family law mediation?
For county civil, ($5,000-$15,000 in dispute), family and dependency cases, you must be physically present for all mediations unless you have obtained the written consent of the other party, or a court order allowing you to appear by telephone. You will be responsible for obtaining the court order if the other party objects to your attendance by telephone.
In all cases the lawyer or non-lawyer must have full authority to settle the case on behalf of the party they are representing.

Who else can attend a family law mediation?
If you have hired an attorney, the attorney may attend, but is not required to do so. However, attorneys can be beneficial to the mediation process. Mediators are not allowed to give legal advice; therefore, the parties may wish to have an attorney present for that purpose.
Other interested parties (e.g., family members or friends) may attend the mediation only if consent is given by the other party.
CHILDREN MAY NOT ATTEND MEDIATION, unless they are specified in the order of referral to mediation. The Second Judicial Circuit ADR Unit does not have child care facilities.

How long does a family law mediation take?
One session of family court mediation is scheduled to last three hours. Parties attending mediation must be prepared to spend the full three hours at the session, but often the session does not last for three hours. Normally, the mediation takes between two and three hours to complete. If the mediation is not completed within that timeframe, you must pay an additional fee for another session.
If the parties reach a settlement, the mediator will prepare the agreement. This will take additional time. All parties must remain throughout the entire session, including the preparation and execution of the agreement.

How much do I pay for family law mediation?
For family court mediation, the cost depends on the combined gross incomes of both parties in a family case. If the combined gross income (before taxes) is less than $50,000, the fee is $60 per party, per 3-hour session.
If the combined gross income is greater than $50,000 but less than $100,000 the fee is $120 per party, per 3-hour session.
If the combined gross income exceeds $100,000 then your case does not qualify for the Second Judicial Circuit ADR Unit. You must select a private mediator. In all cases mediation fees must be paid before the mediation begins.

When must the fees for the family law mediation be paid?
All mediation fees must be paid prior to the mediation session beginning. You must obtain an invoice from the Second Judicial Circuit ADR Unit or the Mediator prior to paying the fee with the Clerk of Court. All fees are paid to the Clerk of the Court in the county in which the case is pending.
If the court has approved your motion to appear by phone or you have received consent from the other party to appear by phone you must contact the Second Judicial Circuit ADR Unit immediately to receive instructions on how to pay your mediation fee.

What is a parent coordinator?
A parenting coordinator is an impartial third person whose role is to assist the parents in successfully creating or implementing a parenting plan.

What if I have a family law mediation question not covered by this discussion?
If you have any unanswered questions we welcome you to contact our office at (850) 577-1699 or email.

What Can I Expect In My Divorce Case?

Clients often ask me, “what can I expect in my divorce case?” It is a good idea to explain the process of a dissolution case during one of the first meetings with the client, so he/she will know what to expect as the process unfolds. Although many clients make the comment, “my divorce case is different,” there are many aspects of the process that will be common in almost all cases.

My Divorce Case

What Pleadings Can I Expect In My Divorce Case?

Petition for Dissolution – A divorce case in Florida is begun by filing a “Petition for Dissolution of Marriage” with the Clerk of the Circuit Court. The Respondent, the person served with the divorce petition,  must file an Answer within 20 days.

All divorce cases in Florida are heard by a judge, not a jury (unless paternity or personal injury is involved, those issues can be tried by a jury). Judges do not want excessive emotion brought into their courtrooms. Therefore, a good attorney will make sure the client will be calm in the courtroom. The demeanor of a client in court, whether testifying or not, will be observed by the judge. Many divorce cases are heard in a judge’s chambers, except for trials and hearings involving numerous witnesses.

Answer/Counter-Petition – In responding to the Petition, the Respondent will file an Answer. The Answer often includes a “Counter-petition for Dissolution of Marriage.” If the Respondent is requesting relief not addressed in the original Petition it is recommended that a Counter-petition be filed to allow the Court authority to award the affirmative relief to the Respondent.

What Discovery Can I Expect In My Divorce Case?

Discovery – During the case, each attorney has the right to obtain “discovery” (i.e., information and documents, often financially related) from the other attorney. There are five types of discovery in Florida: 1. Mandatory Disclosures, 2. Request for Admissions, 3. Interrogatories, 4. Request for Production of Documents, and 5. Depositions. The Respondent has 45 days to respond to discovery requests served with the Petition. Thereafter, either party who receives a discovery request must respond within 30 days.

Mandatory Disclosures – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. The documents which need to be produced are as follows:

Financial Affidavit
-Tax Returns for prior 3 years
-Pay Stubs (evidence of income) for 3 months prior to Financial Affidavit
-Loan Apps/Financial Statements for 12 months prior to the Financial Affidavit
-All deeds, promissory notes and leases
-Checking, Savings, Money Market CD statement (3 months)
-Brokerage Account statements for last 12 months
-Pension, Def Comp, IRA, 401(k) etc, most recent statement
-Dec Page, last statement for life ins policy
-Health and Dental cards for self/spouse/children
-Corp/Partnership/trust tax returns last 3 years(over 30% int)
-Credit card statements, promissory notes, prior 3 months
-Premarital/marital agreements

The “mandatory disclosure” can be waived by the parties, but should not be waived in cases involving significant assets and/or liabilities. However, the filing of a “Financial Affidavit,” which is part of mandatory disclosure, cannot be waived. A Financial Affidavit is the most important financial document filed by each party in a divorce case. It contains detailed information about one’s income, monthly expenses, assets, and liabilities. Florida law permits a final judgment of divorce to be reopened at any time if a spouse filed a significantly inaccurate Financial Affidavit.

Request for Admissions – A request for admissions, sometimes also called a request to admit, are a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admissions are part of the discovery process in a civil case. If admitted, the statement is considered to be true for all purposes of the current case. Parties may also use this discovery device to request that other parties verify that documents are genuine. Requests for admission are generally used toward the end of the discovery process to settle uncontested issues and simply the trial.

Interrogatories – Interrogatories are written questions submitted to the opposing party during the divorce process. Interrogatories must be answered, truthfully, under penalty of perjury within 30 days. The opposing party may object to answering the questions if they feel they are arduous in nature and have no bearing on the case. Interrogatories should be straightforward, asking for information that would be readily available. Florida law permits divorce lawyers to add up to ten additional questions to the form Standard Family Law Interrogatories, most attorneys surprisingly do not do so.

Request for Production – A Request for Production is a request for documents from the opposing party that relate to issues in your divorce case. The “request for production” of documents must set forth the items to be inspected. You must describe the documents by individual item or by category. Below are samples of information or documents you can ask for:
•All written reports of each person whom you expect to call as an expert witness at trial.
•All documents upon which any expert witness you intend to call at trial relied to form an opinion.
•All written, recorded, or signed statements of any party, including both parties to the divorce, witnesses, investigators, friends, family members or employer of the parties concerning the subject matter of this divorce action.
•All photographs, videotapes or audio tapes, emails, surveys or other graphic representations of information concerning the subject matter of this divorce action.

Depositions – A deposition is, “An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney’s office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on a witness’s contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place — for example, if he or she has died — the deposition may be read to the judge in place of live testimony.”

Florida Mandated Court Submissions – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. Those documents include, but are not limited to, the following:
Notice of Social Security Number
Certificate of Mandatory Disclosures
Certificate of Completion of Child Parenting Class
UCCJEA
Child Support Worksheet
Marital Settlement Agreement
Parenting Plan

Resolution of My Divorce Case

Mediation – Meditation during divorce is a way of finding solutions to issues such as child custody and spousal support. It is an alternative to formal process of divorce court. During mediation, both parties to the divorce and their attorneys meet with a third party. This third party, the “mediator” assists the parties in negotiating a resolution to their divorce. Parties have the opportunity to discuss the issues, clear up any disagreements and come to an agreement that they both agree to. The mediator is an objective party. It is not his/her job to resolve problems or force an agreement on the parties. He/She helps the parties come to an agreement by acting as an intermediary. He/she may offer an opinion or make suggestions but, at no time are they allowed to force an agreement upon the parties. A mediator has no power and the sole function of a mediator is to facilitate settlement if possible. Proceedings are confidential. Mediation is required in Florida divorce cases before any hearing for temporary relief or trial. The benefits of settlement, with or without mediation, is saving substantial attorney fees and costs, eliminating the time and emotion of trial, and having a certain result of a settlement agreement, and not relying on the judge to make all decisions for both parties.

Trial – If mediation is unsuccessful, then trial is the only remaining option, unless the parties settle before trial. The problem with a late settlement is the cost of additional attorney fees and litigation costs. The judge will schedule a Pretrial Conference. Each attorney, under Florida law, is required to file a Pretrial Conference Statement which lists the lay witnesses, expert witnesses, documents anticipated to be introduced at trial, the stipulations (attorney agreements) to reduce unnecessary issues at trial, the estimated length of trial, etc. The judge will schedule the trial date (often 60-90 days after the Pretrial Conference). Typically, attorney fees for trial, including the preparation and attendance at trial, will be three to four times more than the attorney fees previously incurred.

A divorce trial is not to air all the dirty linen. It’s not a “She did, he did” drama, like a daytime soap. It is the standard legal way that contracts are examined, broken, changed, or ended, when the two parties to that contract can’t come to a decision. Marriage is a legally binding contract over which the State retains the right to rule whether or not it can be dissolved. It is a legal process.

The process is for each side to present to the court their demands, backed up by their documents and reasons for their demands. Of course there are “arguments” on both sides, i.e. reasons for the demands, presented both in writing and then orally by the attorneys representing the parties. But here is the most important point: A trial can be your best friend because the decisions made by the Judge are not arbitrary. He makes his decisions based on (A) The facts presented (B) The supporting documents provided, and (C) Case law that is already on the books, i.e. cases that have already happened over the years on which judges have ruled. At the completion of the trial, the judge will issue an Order on all of the issues of the case.

For more information on what I can expect in my divorce case, click here.

Appeals Court Rejects Lawsuit Sparked by Governor Scott

By: Associated Press
February 23, 2015

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TALLAHASSEE, Fla. (AP) — A Florida appeals court is throwing out a lawsuit challenging a law that lets elected officials place their assets in a blind trust.

The court did not rule on whether the law is constitutional. Instead the three judges with the 1st District Court of Appeal concluded that there was no “controversy” that required a ruling now.

Jim Apthorp, a former aide to the late Democratic Gov. Reubin Askew, filed the lawsuit. He says letting politicians use a blind trust violates constitutional requirements of full financial disclosure.

Florida Gov. Rick Scott has used a blind trust. He dissolved it last summer and disclosed his finances before qualifying for the ballot.

The appeals court said since no one had a blind trust, there was no legal reason to consider the lawsuit.

WILL A HOMEOWNERS POLICY COVER ARSON OF A VACANT HOUSE?

The Florida Fifth District Court of Appeal recently issued an opinion on this issue. In Botee v. Southern Fidelity Insurance Company, the court was faced with the question, “will a homeowners policy cover arson of a vacant house?” The court’s opinion regarding the arson of a vacant house was filed on February 6, 2015.

Arson of a vacant house

Arson of a vacant house

The Court made the following holdings: 1.Where the insured home was destroyed by an intentionally set fire, arson was encompassed within the “vandalism and malicious mischief” provision to exclude coverage under the insurance policy; 2. The policy exclusion was unambiguous; and 3. The plain and ordinary meanings of “vandalism” and “malicious mischief” include “arson.” Therefore, arson of a vacant house was not covered by the insurance in this case.

Homeowner’s policy’s vacancy exclusion, excluding from all-risk coverage to the structure losses caused by “vandalism and malicious mischief,” included “arson.”
A homeowner’s insurance policy’s vacancy exclusion, excluding from all-risk coverage to the structure losses caused by “vandalism and malicious mischief” if the structure had been vacant or unoccupied for more than 30 days prior to the loss included “arson.” Thus, there was no coverage for the loss to the insured’s home caused by an intentionally set fire after it had been vacant for more than 30 days prior to the fire. This was true even though the policy provided named perils coverage for loss to personal property caused by “fire or lightning.” The all-risk and named perils coverage were contained in two distinct sections of the policy, and it was only necessary to consider the all- risk section and the general conditions and definitions applicable to the entire policy to determine coverage since the loss was only to the structure and not to any personal property. The issue was one of first impression for this Court.

Although no Florida appellate decision has squarely addressed the issue presented in this case, other jurisdictions have addressed similar policies and found that “vandalism,” included arson in all-risk policies that did not distinguish between “fire” and “vandalism,” as is the case here. In Battishill v. Farmers Alliance Ins. Co., 2006 – NMSC – 004, 139 N.M. 24, 127 P.3d 1111, 1115 (N.M. 2006), the Supreme Court of New Mexico was asked to address a similar question with terms and policy provisions like those of the instant case. As here, in Battishill, a home, damaged by an intentionally set fire, had been vacant for more than thirty consecutive days prior to the fire, and did not contain any personal property. Id. at 1112. The policy in Battishill provided for all-risk coverage (subject to various exclusions) on the structure and named perils coverage on personal property caused by specific perils [7] such as “fire or lightning” and “vandalism or malicious mischief.” The structure coverage contained an exclusion for loss resulting from “[v]andalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss.” Id. at 1114-15. Based on its determination of the common and ordinary meaning of the terms used in the exclusion provision, the Battishill court held that arson was a form of vandalism and malicious mischief. Id. at 1115. Since the court found that the exclusion was clear and unambiguous, it was unnecessary to read both the all-risk (structure) provision and the named perils (personal property) provision together, as the loss was only to the structure. The court concluded that coverage was excluded under the policy. Id. The Fifth DCA agreed with the analysis in Battishill.

Likewise, Costabile v. Metropolitan Property & Casualty Insurance Co., 193 F. Supp. 2d 465, 478 (D. Conn. 2002), held that “vandalism” was unambiguous and included “arson.” The policy in Costabile provided all-risk coverage for the structure, and did not list vandalism and fire as separate causes of loss. The personal property coverage was for named perils, including fire. Id. at 474. The court noted that “damage to the dwelling or private structures and damage to personal property are separate and distinct types of coverage contained in a single policy.” Id. The court determined that “vandalism” included “arson” based on the clear and plain meaning of the terms within the context of the distinct provisions of the policy. Id. at 476-77; see also Durrence, 872 F.2d at 379 (finding that, based on common sense interpretation of vandalism provision in vacancy exclusion, exclusion would apply to arson fire); Estes v. St. Paul Fire & Marine Ins. Co., 45 F. Supp. 2d 1227, 1229 (D. Kan. 1999) (finding that “vandalism” exclusion included arson); Potomac Ins. Co., of Ill. v. NCUA a/k/a Nat’l Credit Union Ass’n, No. 96 C 1044, 1996 U.S. Dist. LEXIS 9844, 1996 WL 396100, at *4 (N.D. Ill. July 12, 1996) (holding that ordinary meaning of “vandalism” in all-risk policy included arson); Bear River Mut. Ins. Co. v. Williams, 2006 UT App 500, 153 P. 3d 798, 801 (Utah Ct. App. 2006) (determining that vandalism and malicious mischief exclusion encompassed arson).

Here, the Policy provides all-risk coverage against direct physical loss to the structure under Coverage A, the structure provision, and named perils coverage for direct physical loss to the contents of the structure under Coverage C, a separate personal property provision. There is no reason to consider Coverage C in order to determine the meaning of Coverage A. Each are separate and distinct provisions, though common policy definitions and general conditions and provisions would control both. Although arson could be included within “fire or lightning,” these terms appear only in Coverage C, the personal property provision, not Coverage A, the structure provision. As the loss in the instant case was only to the structure and not to any personal property, it is only necessary to read Coverage A and the general conditions and definitions applicable to the entire Policy. In that context, the Court concluded that the plain and ordinary meanings of “vandalism” and “malicious mischief” include “arson.” Therefore, it need not read Coverage C to create an ambiguity when the vacancy exclusion in Coverage A is clear on its face. The Court affirmed the trial court’s final summary judgment.

 

Attorney Advertising Rule is Unconstitutional

Florida Attorney Advertising Rule is Unconstitutional.

Lawyer Advertising

On December 8, 2014, the United States District Court for the Southern District of Florida, decided that Florida Bar Rules  4-7.13 and 4-7.14 are Unconstitutional.  Rules 4-7.13 and 4-7.14 as restated in the Guidelines completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media. (Rubenstein v. Florida Bar, 2014 U.S. Dist. LEXIS 170133).

In this case, the Plaintiffs (Robert Rubenstein and Rubenstein Law, P.A.) challenged on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar. Florida attorneys are required to submit all non-exempt advertisements to the Bar for evaluation as to rule-compliance. Rule 4-7.19, Rules Reg. Fla. Bar (2013). An attorney may obtain an advisory opinion from the Bar concerning the compliance of a contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory opinions “are advisory only and are not the basis for action by [the Bar’s] grievance committees.” Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation § 1 (2002) (“Opinion Procedures”). The Bar must advise the attorney as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of Noncompliance. Rule 4-7.19. The Bar may subsequently change its finding of compliance and must then provide Notification of Noncompliance.  A finding of compliance by the Bar is binding on the Bar in any subsequent grievance proceeding, such that a favorable opinion serves as a safe harbor, protecting the advertising attorney from discipline arising out of dissemination of the subject advertisement. By contrast, the Rules provide that “[a] lawyer will be subject to discipline as provided in these rules for . . . dissemination of a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar.” The Rules further provide that where a Notice of Noncompliance is issued, the Bar is required to “advise the lawyer that dissemination or continued dissemination of the advertisement may result in professional discipline.”

Relying on the newly amended Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. Id.  Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words “COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.”  Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against “false and misleading” attorney advertising.

In early 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” . The Guidelines were issued “to assist lawyers in complying with these requirements when advertising past results.” The Guidelines provide that:

The inclusion of past results in advertising carries a particularly high risk of being misleading. Such advertising will require the inclusion of more information than most types of advertising in order to comply with Rules 4-7.13(a)(2) and 4-7.14(a). Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results.

The Guidelines also contain specific restrictions and instructions regarding, for example, advertising dollar amounts and aggregating past results.

Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had withdrawn its prior approval of multiple advertisements. The Withdrawal Letter explained that “subsequent to the issuance to you [Plaintiffs] of the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule 4-7.13(b)(2) regarding past results.” Id. at 1. The Bar then stated that:

The Board of Governors has directed staff to withdraw the Florida Bar staff’s advisory advertising opinion that was previously issued . . . only as to past results. The remainder of the prior Florida Bar staff advisory advertising opinion remains in effect. The Florida Bar staff advisory advertising opinion is that the advertisement(s) do not comply with the new past results guidelines adopted by The Florida Bar Board of Governors and therefore do not comply with Rule 4-7.13(b)(2) . . . .

The Withdrawal Letter further instructed that “references to past results generally may not be advertised in indoor and outdoor display media (billboards and other signs) or in television and radio advertisements. You may not include the reference to past results in the advertisement(s) as they appear in your submission in these media.” It advised that “[u]se of an advertisement that does not comply with the lawyer advertising rules past the time period noted above [of thirty days] may result in disciplinary action,” but explained that “[t]his letter does not constitute disciplinary action, nor does it mean that the bar has opened an investigation.”

Plaintiffs filed their lawsuit against the Florida Bar in March 2014. Plaintiffs have continued to disseminate the subject advertisements.

The Court granted summary judgment in favor of Plaintiffs. Stating there are no factual issues in dispute regarding the Bar’s blanket prohibition on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest. The Court Ordered that Plaintiffs’ Motion for Summary Judgment, is GRANTED and the the Guidelines’ interpretation of the Rules to completely prohibit the use of past results in attorney advertising in indoor and outdoor display, television and radio media, contained in the section of the Guidelines titled “Unacceptable Media”, is UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution. Further the Court enjoined the Bar from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.