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BMS Walks and Raises Money for The Friendship Circle [2015-02-08]

On February 8, 2015, members of BMS participated in Walking 4 Friendship, a 3K walk and Community Carnival event to raise funds for the programs and services offered by the Friendship Circle of Miami.The Friendship Circle program in Miami is a non-profit organization that works with children, teens, and young adults with special needs and their families through teenage and young adult volunteer outreach, providing a variety of different social, recreational, and educational programs and activities to participate in together as friends. In addition to participating in the event, Team BMS raised over $2,800 for the Friendship Circle! Picture

BMS Presents at 2015 Windstorm Insurance Network [2015-01-25]

Six attorneys from Berk, Merchant & Sims recently attended the Windstorm Insurance Conference that was held from January 19 through 22, 2015 in New Orleans, LA.  The Conference took place at the Roosevelt Hotel on Canal Street, a beautifully restored property within walking distance
of the French Quarter.  Attorneys and representatives for both the policyholders and insurance carriers from a number of States were in attendance, bringing their own perspectives to the seminars
and discussions.  (And getting along for the most part!)

Evelyn Merchant and Melissa Sims were presenters at the Conference and helped chair panels that brought together perspectives from both sides on current issues of common interest.  Melissa epresented the insurance company lawyer’s perspective on a workshop panel on “The Evolution of a Hurricane Claim”.  This workshop explored issues relating to the initial reporting and field adjusting of a hurricane claim, through appraisal and potential bad faith extra-contractual claims.  Evelyn was the insurance company lawyer on an interactive workshop panel on “Presenting Critical Persuasive Testimony”.  This workshop presented a mock trial of an insurance case, exploring issues relating to the presentation of testimony on direct and cross-examination from both sides of the aisle.

Bill Berk, immediate past-President of the Windstorm Insurance Network, addressed the final General Session by reading a poem on Windstorm Insurance commissioned by a free-lance poet working his craft at Jackson Square in the French Quarter.  Besides the tarot card readers, the caricature drawers, and general itinerants at Jackson Square, Bill found a young man sitting at a card table behind an old black manual typewriter selling poems.  After rejecting several subjects to try to stump the young man, Bill settled on the subject “Windstorm Insurance”.  To his credit, the young poet considered the request and asked for about 15 to 20 minutes to write a poem.  Bill returned in the allotted time and the result is below.  Enjoy!

(P.S. Bill did get the rights to publish the poem, so we have no copyright infringement here.  But please feel free to contact the poet for your own special poem.)


Defense Verdict in Hurricane Wilma Appraisal Case
[2013-03-07]

In Garden-Aire Village South Condominium Association Inc. v. QBE Insurance Corporation, U.S. District Court for the Southern District of Florida; Case No. 10-61985-CIV-DIMITROULEAS/SNOW, the Court ruled that QBE was not obligated to go to appraisal because Plaintiff did not comply with post-loss conditions.

Plaintiff first provided notice of its loss within days after Hurricane Wilma. QBE began investigating Plaintiff’s claim with an inspection but stopped when Garden-Aire withdrew its claim and agreed the loss would be below the approximate $255,000 deductible. Plaintiff had no further communication with QBE until the lawsuit filed on October 18, 2010, nearly five (5) years after the date of loss. Plaintiff demanded that its claim go to appraisal.

The Court dismissed the original complaint to allow for Plaintiff to comply with its duties after loss. Plaintiff provided a proof of loss, sat for an examination under oath (“EUO”), provided access to its records, and allowed inspection of the property. QBE notified Garden-Aire that the EUO was deficient because the representative could not answer any questions about the claim, and requested additional EUOs. Additionally, QBE requested Garden-Aire provide QBE with an inventory of what property was damaged from Hurricane Wilma as Plaintiff’s proof of loss indicated only some windows needed to be replaced, but did not indicate which ones. Garden-Aire refused both of these requests. After the Court then allowed Garden-Aire to proceed on its action seeking appraisal, QBE asserted that Garden-Aire was not entitled to go to appraisal for failure to perform its duties after loss and for a violation of the “fraud, misrepresentation, or concealment” clause. QBE further denied the Garden-Aire’s supplemental claim.

The Court, after a four-day bench trial, ruled as a matter of fact and law that Plaintiff 1) failed the examination under oath requirement when it produced an unknowledgeable person regarding the claim and could not answer reasonable questions to assist QBE’s evaluation; and 2) prejudiced QBE’s investigation when it would not provide an inventory of damaged and undamaged property. The Court stated: “QBE has shown that Plaintiff substantially prejudiced QBE’s contractually permitted investigation into Plaintiff’s dubious insurance claim. Plaintiff’s abysmal examination under oath and needle-in-the-haystack description of property damage prevented QBE from properly evaluating Plaintiff’s claim. For failure of these conditions precedent, QBE was not obligated to go to an appraisal.”  The Court further found QBE did not prove fraud as it found the Garden-Aire’s submission of an inflated claim was at worst, negligent.

QBE was represented by BMS attorneys Evelyn Merchant, William Xanttopoulos, and Scott Janowitz, with the assistance of paralegal Gus Rodriguez. For any questions please contact any of the attorneys.

Patrick Betar Named Partner [2013-02-21]

BMS is pleased to announce it has made Patrick Betar its newest partner, effective January 1, 2013. Mr. Betar has been with the firm since 2006 and focuses on insurance coverage and third-party litigation. Mr. Betar currently sits on The Florida Bar’s Federal Court Practice Committee and has been selected for inclusion in Super Lawyers–Rising Stars Edition multiple times over the past few years.

Melissa Sims Named Windstorm Insurance Network 2014 Conference Co Chair [2013-02-07]

BMS founding member Melissa Sims was recently named Co Chair for 2014 Windstorm Insurance Network Annual Conference to be held in Orlando, FL, January 27–30, 2014. Ms. Sims and her committee will be planning next year’s educational and networking event, which has become one of the most important industrywide meetings of its kind.

Bill Berk Elected President of Windstorm Insurance Network [2013-02-01]

Bill Berk has been elected President of the Windstorm Insurance Network (WIND).  WIND is the first educational member association devoted solely to dealing with windstorm insurance claims issues.  It was formed in 1999 with the goal to bring professionals together in the review and discussion of windstorm insurance claims issues.

Bill Berk Selected to 2013 Florida Super Lawyers List
[2012-02-03]

Bill Berk has been selected to the 2013 Florida Super Lawyers list.

According to Thomson Reuters, the publisher of the list:

“Super Lawyers selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.”

Defense Verdict in Hurricane Condo Claim [2012-01-12]

On January 10, 2012, BMS lawyers Evelyn Merchant, Melissa Sims and Melanie Grant obtained a defense verdict in a Hurricane Wilma condominium case.

In Ocean View Towers Association, Inc. v. QBE Insurance Corporation, United States District Court for the Southern District of Florida; Case No. 11-cv-60447-SCOLA Plaintiff sued QBE alleging breach of the insurance contract and seeking damage in excess of $5 million dollars for additional damage allegedly caused by Hurricane Wilma.

Plaintiff first provided notice of its loss within days of Hurricane Wilma. Upon notice, QBE evaluated Plaintiff’s claim and issued payment totaling $125,312.09, after application of the $270,818 hurricane deductible. Plaintiff had no further communication with QBE until the lawsuit filed on October 15, 2010, nearly five (5) years after the date of loss.

Plaintiff’s estimate prepared by loss estimator Paul Norcia, paid on a contingency basis, and submitted after suit was filed, claimed unpaid damage exceeding $5 million dollars on a replacement cost basis.  QBE asserted that Plaintiff’s additional claimed damage did not include any damage caused by Hurricane Wilma which was not already paid.

After six (6) days of trial, the jury returned a verdict in favor of QBE, finding QBE did not breach the policy of insurance.

William Berk named “Top Lawyer” by the South Florida Legal Guide [2011-12-23]

BMS congratulates William Berk for being named in the 2012 edition of the South Florida Legal Guide (SFLG) as a “Top Lawyer” in Insurance. The SFLG chooses its “Top Lawyers” based on a peer nomination procedure.

John Anderson named “Top Up & Comer” [2011-12-23]

BMS congratulates John Anderson, who was recently named a “Top Up & Comer” in 2012 edition of the South Florida Legal Guide.

Defense Verdict in Hurricane Wilma Case [2011-10-23]

9/21/11 – Gilbert & Dalia Sanchez v. Citizens Property Ins. Corp. – In the 11th Judicial Circuit in and for Miami-Dade County, Florida; Case No: 10-40559 CA 13 (Judge Pedro Echarte, Jr.)

Gilbert & Dalia Sanchez/Plaintiffs sued Citizens alleging breach of the insurance contract seeking unpaid dwelling damage, specifically full roof replacement, in excess of $60,000 allegedly resulting from Hurricane Wilma on October 24, 2005.  The Plaintiffs’ first notice of the claim/loss to Citizens was August 13, 2009, almost four (4) years after the date of the loss. Citizens asserted its investigation was prejudiced by Plaintiffs’ late reporting of the claim, and under Florida law was given a rebuttable presumption of prejudice. Citizens further asserted Plaintiffs failed to comply with conditions precedent to filing their lawsuit, i.e., submitting records of repair expenditures requested by Citizens pre-suit; and Plaintiffs failed to comply with post-loss conditions, e.g., reasonable and necessary repairs to protect the property from further damage and keep an accurate record of repair expenditures.

After three (3) days of trial, the jury returned a verdict in favor of Citizens finding Plaintiffs breached the policy by failing to comply with conditions precedent to filing their lawsuit.

Gil Barreto of BMS was lead counsel. He was assisted by Jonathan Tobin.

Defense Verdict in Medical Malpractice Case [2011-09-27]

Shaw-Caillouet v. Bonati, M.D., et. al., 6th Judicial Circuit in and for Pasco County, Florida (medical malpractice, case number 51-2005-CA-3022-WS)

Lead Defense Counsel Evelyn Merchant, assisted by Maria Fuxa.  Also assisted by Defendants’ general counsel, Patricia Ferrari.

           Plaintiffs sued Dr. Bonati and the corporate entities alleging medical malpractice in Dr. Bonati’s performance of a minimally invasive cervical spine surgery. As a result of Dr. Bonati’s surgery and the alleged malpractice, Plaintiffs claimed that Mrs. Shaw-Caillouet was left with an unstable spine, neurological deficits, inability to walk and required a subsequent multi-level fusion of the cervical and part of the thoracic spine. Plaintiff and her husband, Allen Caillouet, who claimed loss of consortium and lost wages, demanded $20 Million dollars at trial along with punitive damages.

           Defendants claimed that Plaintiff formed a hematoma after the procedure performed by Dr. Bonati and that the formation of the hematoma, along with neurological deficits were known risks, which were explained to the Plaintiff and which was spelled out in Dr. Bonati’s informed consent signed by Plaintiff. Further, Defendants’ claimed that Plaintiff was exaggerating her damages as surveillance obtained clearly showed Plaintiff partaking in activities she claimed she could not do, including walking.

           After a 10-day trial, the jury returned a verdict for the defense. Prior to starting trial, the parties attended non-binding arbitration. The arbitrators awarded $163,000 to Plaintiff (for past and future economic and non-economic damages).  The arbitration panel did not award any moneys for punitive damages or for Allen Caillouet’s claim, since the panel found that the claim for punitive damages and the claim of Allen Caillouet was not established. Thereafter, Defendants filed a Proposal for Settlement in the amount of $250,000, which was rejected by Plaintiffs.

Defense Verdict in Fire Case [2011-07-16]

Ibanez v. Citizens Prop. Ins. Corp., Case No. 09-05155 CA 32 (MIami Dade County) Plaintiff sued Citizens alleging breach of the insurance contract seeking unpaid damage for dwelling [including full roof replacement], contents, additional living expenses, other structures, debris removal, ordinance or law, and consequential damages in excess of $300,000 resulting from a fire on December 22-23, 2007. During the claims process, Citizens had acknowledged coverage for the loss and paid the Plaintiff in the amount of $178,000.  Citizens asserted it properly and fully indemnified Plaintiff for her damage.

Citizens was represented by BMS attorneys Gil Barreto and Scott Janowitz.

After three days of trial, Citizens proved that the Plaintiff, via her public adjuster, had reached an agreement on contents back in March 2008, and that Citizens paid its limits under the additional living expense coverage.  As a result, Plaintiff withdrew these claims along with her claims for other structures, and ordinance or law leaving the dwelling damages to be considered by the jury. After five (5) days of trial, the jury returned a verdict in favor of Citizens finding it had not breached the policy.

Defense Verdict Where Neighbor Sued Neighbor
[2011-05-22]

BMS Attorneys Evelyn Merchant and John Anderson successfully defended a business which was sued by a neighbor for allegedly being responsible for a large property loss.

Plaintiff, SG Findings, a company dealing in precious metals, was a tenant in the Seybold Building, in downtown Miami. GM Properties Corporation owned and operated a building adjacent to the Seybold Building. Plaintiff’s Precious metal business was on the third floor. The third floor of the GM Property building was vacant. In March, 2004, Plaintiff allegedly suffered a burglary of precious metals, valued up to $400,000, that had been left out of their safes.  Plaintiff claimed the burglars were allowed to wrongfully enter GM Properties and break through two block walls into the Plaintiff’s property. Plaintiff sued GM Property claiming it was negligent in providing security to GM’s building, which allowed the burglary to occur on SG Findings’ property. BMS argued to the jury that GM Properties was not negligent, or in the alternative, that any burglary which may have occurred was solely due to the negligence of SG Findings itself. The jury returned a complete defense verdict, finding GM Properties was not at fault.

Defendant submitted a proposal for settlement and will be pursuing its attorneys fees and costs from the date of the proposal forward.

Berk, Merchant & Sims Taught at the 2011 Windstorm Conference [2011-01-20]

Bill Berk, Evelyn Merchant and Melissa Sims all taught at the 2011 Windstorm Insurance Network Conference in Houston, TX, January 24–27, 2011.

Mr. Berk, who is an Officer of the Windstorm Insurance Network, was part of a panel teaching the first-ever Professional Appraiser Designation.

Ms. Merchant and Ms. Sims, with extensive trial experience, offered a workshop on “Effective Techniques in Windstorm Claims for Trial.”

Court Awards Attorneys Fees to Defendant [2010-11-07]

In King Cole Condominium Ass’n v. QBE Insurance Corp., No. 08-23350-CIV-GRAHAM/TORRES (S.D. Fla.), the Court denied Plaintiff’s motion for new trial of a defense jury verdict rendered in a Hurricane Wilma first-party action. BMS attorneys Evelyn Merchant and Melissa Sims successfully defended the action for QBE and Sorraya Solages successfully defended the post-trial motions. The Court also awarded QBE $345,337.25 in attorneys’ fees and costs as the prevailing party pursuant to a $250,000 offer of judgment that was not accepted by King Cole.  King Cole has appealed the final judgment as well as the order awarding attorney’s fees and costs.

2 DCA Affirms Defense Judgment [2010-06-22]

On June 18, 2010 the Second District Court of Appeal Affirmed, Per Curiam, the defense judgment in Monaco Beach Club, Inc. v. QBE Insurance Corporation, Case. No. 2D09-2083.

QBE successfully defended its defense verdict in this Hurricane Wilma case, arising from a claim exceeding $20 million. BMS attorneys William Berk, Melissa Sims and Gil Barreto defended a two-week trial in Naples, FL based primarily on QBE’s defense that the insured’s claim was fraudulently exaggerated. The jury rendered a defense verdict, and Monaco Beach Club appealed.

Without discussion, the Court of Appeal affirmed the decision below.