Florida Supreme Court Does 180-Degree Turn on "Daubert"

In Curiam, 2019 Fla. LEXIS 818 (Fla. May 23, 2019), the Florida Supreme Court reversed its course made in its earlier ruling that the ”grave constitutional concerns” were at play if the Daubert  standard were adopted in the State of Florida. See DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018).  In a nutshell, the ruling now finds that those “grave constitutional concerns” over adopting the more stringent Daubert  standard used in federal court now “appear unfounded.” The ruling made Florida the latest state (now the 37th state to do so) to adopt the Daubert  standard and reject Frye.

Daubert  (Daubert v. Merrell Down Pharm, Inc., 509 U.S. 579 (1993)) stems from a 1993 U.S. Supreme Court decision and includes a five-prong test to weigh the scientific validity of expert witness testimony. It creates a higher bar for experts, who, if challenged, may have to attend a hearing and pass judicial muster before they are permitted to testify at trial. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, not necessarily repeatable or peer-reviewed.

The Florida Legislature passed the Daubert  standard as law in 2013, but the justices had previously ruled in Delisle that separation of powers invalidated that move because only the Court had the power to make it. But now, this apparently sudden “flip” has those of us taking cases to trial in the near future considering whether we now move to strike opposing parties’ experts for failing to meet the more stringent Daubert  standard.

The decision is still being editorially reviewed by the reporters, but we have the decision “hot off the presses.” If you wish a copy of the decision or wish to understand how this important ruling can affect a case you may have, please feel free to write us at blog@miamimaritimelaw.co.

Bad Faith Cure Period Begins to Run When CRN is Electronically Filed

The Second District Court of Appeals in Harper v. Geico Gen. Ins. Co., 2019 Fed. App. LEXIS 3211 (Fla. 2d Cir. Mar. 1, 2019) has essentially shorted the time an insurer can avoid a bad faith action. The Court held that the plain language of Florida’s bad faith statute, Section 624.155(3)(d) “states that no action shall lie if the damages are paid or corrective action is taken within sixty days after the insured files the CRN.” Here, “files” was interpreted by the Court to include the moment when a CRN is electronically filed and not printed, mailed and ultimately received by the insurer. In other words, once the CRN is filed by the insured, the sixty-day cure period begins to run. It is important to note that when the statute was originally enacted, the insured seeking to file a CRN would complete a paper form and mailed copies to both the Department of Financial Services and the insurance company.

The insurance company in Harper argued that it made payment to the insured person within the cure period, based on the date it actually received a physical copy of the CRN by mail. However, under the Court’s interpretation of the word “filed”, the insurance company made the payment sixty five days after the CRN was electronically filed, exposing itself to a bad faith action by the insured.

This case is a wake-up call to all insurers to be very mindful of the date the CRN is filed and to diary the 60-day cure period to take place from that date, not any other date. If you are interested in receiving a copy of this decision, please contact us at blog@miamimaritimelaw.co.

Fla Supreme Court Rejects Daubert Evidence Standard

The Florida Supreme Court rejected a 2013 law intended to bring the state’s expert witness standard in line with most others states—this is otherwise known as the Daubert standard. The change in standard was backed by the Republican-controlled Legislature and business groups but opposed by plaintiffs’ attorneys. Supporters of the Daubert standard maintain switching to it would keep “junk science” out of court cases, while opponents argue a change in standard would make cases more expensive and time-consuming.

Writing for the majority, Justice Peggy Quince noted Florida’s adherence to the Frye standard set by the 1923 U.S. Supreme Court decision and the Legislature’s attempt to impose the Daubert standard followed in federal courts and 41 states. Quince noted that “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Justices Barbara Pariente, R. Fred Lewis and Jorge Labarga concurred.

Justice Quince further noted that the Florida Legislature has authority over substantive law while the Court is responsible for procedural standards, and the question of standards was one for the Court alone to decide under the separation of powers, Quince said in the 39-page opinion. This  4-3 decision overturned a ruling by the Fourth District Court of Appeal and ordered reinstatement of an $8 million verdict for Richard DeLisle, who blamed his mesothelioma on exposure to asbestos in cigarette filters and in workplaces.

If you are interested in obtaining a copy of this decision or wish to contact us to discuss this case further, you may contact us at blog@miamimaritimelaw.co.

Justice Peggy Quince, author of the opinion

Picture provided by florida-issues.blogspot.com

Rogue Insurance Adjusters in MIA Scammed Their Employer

If you have ever handled an auto insurance claim, made an insurance claim or worked for an auto insurance claims department, a call-in of a new claim is routine--in this instance, a Lexus GS350 was reportedly involved in a fender bender with a Chrysler 320 in North Miami-Dade. Within days, adjusters from a team that covers the area, reported inspecting the Lexus and authorizing a series of payments totaling over $16,000.

But according to the Miami Herald, the accident never actually happened. In fact, the exact same Lexus had been used to file at least 10 claims for phantom crashes, all signed off on by the same adjusters. The body shop that reaped most of the payouts for these claims is not real — according to Miami-Dade prosecutors, one of the companies that lists its address is, in actuality, a vacant lot in Little Haiti.

The fake crash report in September 2016 was but one of dozens of sham claims that cost GEICO more than half a million dollars and led to a series of arrests. Among those arrested: two GEICO insurance adjusters, Juan Carlos Diaz and Cesar Santiago Tapanes, who prosecutors allege got cash kickbacks for helping defraud their own company; Sepp Lewis Tevini, a mechanic who arranged the bogus claims on cars he was supposed to be servicing; and Estevenson "Skull" Dorval, who represented two auto body shops that did not exist.

It is reported that 14 people were charged in the investigation conducted by Florida's Bureau of Insurance Fraud and the State Attorney's Office. The others charged are believed to have allowed their policies to be used, or made phone calls to GEICO while impersonating crash victims. The group faces charges including grand theft, insurance fraud and racketeering. In all, at least 45 bogus claims were made, most of them on high-end cars. Some luxury car owners had no idea that their policies were being abused, primarily by their local repairers that had access to their insurance information.

This case is a warning to policyholders--check your invoices from your insurers. If your policy has increased in cost but you have not had any accidents or claims, ask why. You may be surprised by the answer.

If you wish to reach me, you may do so at blog@miamimaritimelaw.co.