On the Pulse…Recent Appellate Victories*

Kimberly Kanoff Berman (Fort Lauderdale, FL) and James Hanratty and Sean Reeves (both in Jacksonville, FL) succeeded in obtaining a per curiam affirmance in the First District Court of Appeal of a final summary judgment order entered in a negligent security case. Following oral argument before Chief Judge Osterhaus and Judges Bilbrey and Nordby, the court affirmed the trial court’s finding that our client had no duty to maintain the premises in a reasonably safe condition or to warn employees of an unforeseeable criminal attack by a third party in the parking lot. The court issued a citation opinion, relying on the seminal case of McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992) and the Florida’s Supreme Court’s decision in United States v. Stevens, 994 So. 2d 1062, 1066–67 (Fla. 2008), reaffirming McCain. Thompson v. Hillside Building, LLC, 386 So.3d 612 (Mem) (Fla. 1st DCA April 24, 2024). 

Also, Kimberly, along with co-counsel, C. Ryan Jones and Scot Samis of Traub Liberman Straus & Strewsberry, LLP, succeeded in obtaining a per curiam affirmance in the Fourth District Court of Appeal of a non-final order denying the plaintiffs’ motion for leave to amend the complaint to add a claim for punitive damages in a bad faith case. Kimberly and Michael Packer (Fort Lauderdale, FL) successfully convinced the trial court that the plaintiffs’ proffer fell short of the standard in bad faith cases where punitive damages are allowed. Section 624.155, Florida Statutes, requires a showing that the acts giving rise to the bad faith violation occurred with such frequency to indicate a general business practice. The appellate court rejected the plaintiffs’ arguments on appeal and affirmed the order denying leave to amend. 

Audrey Copeland and Tony Natale (both in King of Prussia, PA) obtained the Commonwealth Court’s affirmance of the workers’ compensation judge’s and the Appeal Board’s decisions denying a fatal claim petition in a workers’ compensation matter. The court found the denial to be supported by substantial evidence. The workers’ compensation judge had accepted the opinion of the employer’s expert, that the decedent’s death was not work-related. The claimant’s expert’s opinion, that the fatal heart attack was caused by the decedent driving a heavier tractor trailer for the first time for more than two days, was rejected by the judge as unsubstantiated and in direct contradiction to the evidence, which included the decedent’s pre-existing risk factors, a severely compromised cardiovascular condition, and a history of silent heart attack. 

Audrey, along with Judd Woytek (both in King of Prussia, PA) convinced the Commonwealth Court to reverse the grant of a sole proprietor claimant’s claim petition. The claimant did not give the workers’ compensation insurer notice of his injury within the statutorily required period under Section 311. The insurance carrier was notified approximately 18 months after the injury. The court held that, where a claimant is both the injured employee and the sole proprietor/employer, the particular “employer” whom the claimant must notify of a work-related injury is the insurer bearing the ultimate liability for the claim. The court’s reasoning included an examination of the two definitions of “employer” in the Act, one of which includes the insurer, which was found to be applicable here. Allowing the claimant to pursue a claim after only notifying himself would result in an absurdity and put the insurer at a disadvantage in the investigation of the claim. 

*Results do not guarantee a similar result. 

_{Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}