Property Insurance Coverage Law Blog : Florida Insurance Lawyer & Attorney : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables, Gulfport

Kelly Kubiak has passion and it is demonstrated everyday in her practice of law. In The Value Of Valuation Clauses--Gold Exists In The Small Print Of Your Property Insurance Policy, I noted a little of her winning and passionate style:

Kelly Kubiak burst into my office jubilant in her recent victory over Great American Insurance Company. She received an Order granting her Motion for Summary Judgment in a case where the central dispute involved the interpretation of the valuation clause of an insurance policy. We so often talk about the problems of causation that we fail to spend enough time talking about how many benefits insurance policies are supposed to provide. It has been our experience that many policyholders think they have obtained a fantastic settlement from their insurance company until we explain how much money was left on the table through lack of knowledge and experience.

In Experience and Passion Count When Selecting Insurance Lawyers, I noted something else about Kelly:
 

I thought about this on Saturday morning while eight of our attorneys were in deep discussion with an expert claims consultant about the presentation of insurance cases to juries. It was a beautiful day outside; I could see people milling about and enjoying a free concert. I wondered how many other law firms were working on such a beautiful day, flying in attorneys from other offices to teach how to do a better job for their clients -- specifically on insurance cases where they represent policyholders. I'll bet that the answer to that is zero.

The discussion among us was pretty brutal at times. You do not help others get better at something by just letting them slide by when they do the wrong technique. Eventually, the trial presentation topic changed to reaching settlement after a heated battle with an insurance company. Kelly Kubiak has been quite successful for her clients over the past year and she was trying to articulate her perception of what was working for her. I interrupted and said, "Kelly, you are passionate about your clients and you have experience and maturity. You are a better attorney than you were five years ago because you now have a deeper feeling and anticipation for what works and does not work in a given situation.

Kelly Kubiak commented on my post:

I have always wanted to be an attorney since grade school. I did not know exactly what an attorney was, but knew I wanted to be one. Even when I graduated from law school, I did not know what type of law I wanted to practice. I just wanted a job. I started off doing personal injury work. Three of the four years I was practicing personal injury law, I represented insurance companies. Eventually, I lucked out and was hired to work for the Merlin Law Group. I've been working here for about 8 years and I love it. I love the practice of insurance law -- the investigation and litigation.

As attorneys, we strive to balance our personal time with our professional life. It is a hard balance because we strive to give our clients the best representation. The practice of law takes time. There is no way around it.

Despite the sacrifices, I know that I am truly blessed and lucky that I am able to do something that I enjoy doing. I still run down the hallway with excitement babbling in shock and disbelief about some testimony or fact discovered about an insurance company's practices. (I know I have to stop running down the hallway and causing possible harm to my colleagues). If I continue to be lucky, I will be doing this well into my 90's and never retire.

Craig Kubiak is lucky to have Kelly as his wife. Her children are lucky to have such a wonderful mother. We are lucky to have such a hard working, bright and passionate colleague to work with everyday.

I am thrilled as well. Our firm spent over sixty thousand dollars in costs for experts, deposition costs of USAA’s experts, deposition transcripts, and trial exhibits. All of it plus our time was on the line pending the outcome of the trial. Without spending the money to properly prepare and present the case, we certainly would have lost. I am fairly certain that USAA spent a considerable sum above that for its able attorneys and their costs. Its pockets are a lot deeper than ours because it can use its own customers’ premiums to finance litigation against them.

Craig Kubiak has tried approximately ninety cases to a jury verdict. I asked him what he felt was a significant deciding factor in the case. He claimed it was the credibility of the insurance company experts at trial. Sinkholes involve very complex geological concepts. Unfortunately in Florida, they are not rare. However, the distress sinkholes place on structures mimics a number of other geologic and subsurface activities which manifest in cracks or downward subsidence. Without precise and thorough investigation, much sinkhole damage to structures can improperly be attributed to a number of causes excluded under most property insurance policies. Indeed, except for Florida statutes mandating the sinkhole coverage, insurance policies generally exclude this cause of loss.

Craig felt that the pre-trial depositions taken by his wife Kelly lead to a number of flaws and admissions by the insurance company experts. Apparently, some of the soil borings taken by USAA sinkhole experts were discarded before we could have our experts review them. We felt this was improper and tried to exclude the experts’ opinions, but the trial court did not rule with us on the spoliation of evidence issue. We were surprised by this trial ruling. Indeed, the destruction of evidence certainly prevented us from fully questioning the basis for their findings. In the future and as a result of this case, it is my understanding that USAA will require its experts to retain the physical evidence gathered to support their experts’ opinions.

Craig also said the opposing counsel was one of the finest and most effective trial attorneys he has faced. Most insurance counsel are pretty good at trial or they would not be hired by insurance companies on a repetitive basis. Craig and I discussed how it must feel to represent insurance companies on such a basis and if there is joy in a sense of winning for an insurance company. The biggest litigation machines in America are insurance companies and they are savvy at legal representation. We are aware of a number of insurance defense counsel who pour their hearts out, win at trial, and then get rewarded with a fight about the amount of the legal bill or having other less skilled competitors ready to take over an account for cheaper fees.

Under Florida law, we are now allowed to request interest on the amount owed since the time of the denial. We will also ask for taxable costs and an award of reasonable attorneys fees. Had we not prevailed, USAA had filed an Offer of Judgment against its policyholder which it threatened to enforce. Such an action by USAA would have effectively bankrupted its customer merely for filing an insurance claim with USAA and challenging USAA in court. I mention this because, while many USAA customers think USAA is such a nice and good company typically catering to the military, it has a litigation history which can only be described as quite harsh with their member policyholders. The Mississippi Katrina litigation is such an example where USAA has tried nearly as many cases as State Farm, despite having a much smaller market share. Slabbed reported on one such a case in Judge Bridges: the negligence was not “gross.” Still, there are many insurers with a much more “difficult” claims culture than USAA and I feel the Katrina litigation was an aberration for the typical claims decision making for USAA.

Trials are important for society. Lessons are learned from them. Future litigation and controversies can be avoided from the lessons, if applied. I am certain that our mid-fifty year old single mother of two is relieved that she is not facing bankruptcy. Whatever USAA pays in judgment of the verdict and ancillary amounts owed has no such impact upon it. USAA executives and claims managers probably are not worried about any accountability for their wrong decision. I doubt they regret anything.

At first this seems reasonable, but when one considers the individual insurance company, it may not be so.

Prior to 2004, Federated National Insurance Company ("Federated") had 2 adjusters handling property claims and no written standards for them.

Federated relied on independent adjusting companies to adjust its losses, and it selected the independent adjusting companies by word of mouth. Federated did not check their qualifications.

As you can imagine, when the hurricanes hit Florida in 2004 and 2005, BOOM!!!!! The insurance company was receiving approximately 4,000 calls a day and was handling five times the claims it handled prior to 2004. Federated had less adjusters/supervisors per claim. Go figure, sometimes the independent adjusters didn't know which Federated claims employees were assigned to the file.

When did Federated realize there was a problem? Why didn't it realize there was a problem earlier than 2004? When did anyone look at the Florida claims handling statutes to make sure Federated was complying with same?

When I addressed these issues with one of Federated's attorney, I was told these facts would never establish a claims handling violation. I truly believe the attorney believes this, but I completely disagree.

The reality is that the insurance company attorneys are coming up with many creative arguments to avoid facing a jury. They argue meaningless technicalities so that no homeowner can properly fill in the Civil Remedy Notice form necessary to file a claims handling lawsuit. Most courts have ruled against the insurance companies’ arguments, but not all.

Hopefully, a jury will be able to decide whether Federated's excuses are valid.

I am proud that Merlin’s David Pettinato was elected as a Vice Chair of the Insurance Section of the American Association for Justice. He will also Co-Chair the Bad Faith Litigation Group. Kelly Kubiak gave a fine speech yesterday regarding Catastrophe Losses, and she was elected as the Vice Chair of the Bad Faith Litigation Group. David and Kelly are two of our firm’s most successful attorneys and their passion for helping other attorneys learn from their experiences shows in the leadership they provide. While I work with them day to day, in the presentations they made yesterday, I learned a few extra tips for better handling of my claims. I am certain that by putting thoughts and ideas to paper and teaching others, they learned lessons as well.

Attorney Jerry Ramsey gave a presentation about the recurrent issue of underinsurance. Given my recent post, Insurance Agents and Brokers Should Be Concerned Writing Risks with 100 Percent Coinsurance to Avoid Error and Omission Claims, Ramsey’s suggestions regarding the remedies that are available for policyholders with such issues is invaluable, and could only be learned by those attorneys who went to AAJ Convention and are members of the Bad Faith Litigation Group. I am much better today representing clients with these problems. How many of my colleagues do not even appreciate that the issue exists, much less have been trained to do something about it. I strongly urge attorneys with clients that have been underinsured to read Ramsey’s article, “Underinsurance Litigation: The Hidden Deductible,” in the November/December issue of the Consumer Attorneys of California magazine, Forum, Volume 38, number 6.

Since the former insurance company litigation claims manager made a point about how important discovery can be to finding embarrassing conduct in claims departments, I was also proud that Slabbed in "If you don’t stand for something you’ll fall for anything – Plaintiffs’ growing opposition to State Farm Protective Orders," described Deborah Trotter as a hard nose policyholder attorney hell bent on getting to the truth regarding State Farm in Mississippi. Slabbed quoted from one of Deborah’s briefs at length. I assigned the job of discovery disputes involving literally millions of documents in our case representing the Port of New Orleans to Deborah. She became an expert in electronic retrieval of information from computers, and I am happy she is using her knowledge and experience to get at State Farm’s misdeeds. I felt the conclusion of her brief was just as good as the quoted portion by Slabbed:

Several years ago, a Federal District Court Judge observed:

"District Courts are today being bombarded by an ever increasing number
of requests for protective orders. Some of the increase may be attributed
to legitimate attempts by litigants to stem the increasing use of abusive
discovery tactics. Much of the increase, though, must be attributed to a
practice among some attorneys to automatically seek protective orders in
every case where any potential for embarrassment or harm, no matter how
slight, exists."

Ericson v. Ford Motor Co., 107 F.R.D. 92, 94 (E.D. Ark. 1985)

Many courts have come to recognize a defendant’s true objective in seeking estrictive confidentiality orders, and in objecting to production of internal documents. See, e.g., Wilson v. American Motors Corp., 759 F. 2d 1568, 1571 (11th Cir. 1985)(Discussing harm to a defendant’s reputation); Earl v. Gulf & Western Mfg. Co., 366 N.W. 2d 160, 164-65 (Wis. Ct. App. 1985)(Discussing a defendant’s concern that the plaintiff might pass discovery information along to other plaintiffs involved in similar
litigation, and explaining that this rationale does not constitute good cause for a
protective order).

A number of legal scholars have recognized that the true motivation behind the
tactics utilized by large defendants, in seeking to cloak information with the robe of
secrecy, is to deny the plaintiff the benefit of coordinating discovery efforts, and to
otherwise prevent the disclosure of potentially embarrassing internal information:
“Frivolous claims of confidentiality have been asserted to cause delay and disruption, to drive up discovery expenses, and make it difficult for opposing counsels to simply understand the information being sought.” Martin I. Kaminsky, Proposed Federal Discovery Rules for Complex Civil Litigation, 48 Fordham L. Rev. 907, 929 (1990). Many courts, therefore, favor access to discovery conducted by other parties in collateral or similarly situated litigation. It makes the administration of justice more efficient. Any other result would require that “each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel.” Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982). See also Wauchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 546-47 (D. Ind. 1991) (Federal Rules of Civil Procedure should be construed to foster the just, speedy, and inexpensive determination of every civil action....collaborative use of discovery material fosters that purpose.); Baker v. Ligett Group, Inc., 132 F.R.D. 123, 126 (D. Mass 1990)(To routinely require every plaintiff to go through a comparable, prolonged and expensive discovery process would be inappropriate.); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980)(The sharing of discovery information between plaintiffs may reduce time and money which must be expended in similar proceedings, and allows for effective, speedy, and efficient representation.); Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 87 (D. N.J. 1986)(Maintaining a high cost of litigation for future advisories is not a proper purpose under Rules 1 or 26.); Wilk v. American Medical Ass’n, 635 F.2d 1295, 1301 (7th Cir. 1980) (That the expense of litigation deters many from exercising that right is no reason to erect gratuitous road blocks in the path of a litigant who finds a trail blazed by another.); U.S. v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D. N.Y. 1981) (Use of discovery fruits disclosed in one lawsuit in connection with other litigation and even in collaboration among plaintiffs attorneys, comes squarely within the purposes of Federal Rules of Civil Procedure.); Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1131 )(9th Circ. 2003) (This court strongly favors access to discovery materials to meet the needs of parties in collateral litigation.”)

Her point is well taken. When attorneys share information and ideas, our clients are the better for it. I am certain that the last thing the insurance industry wants is a better informed legal bar pointing out how unfair and wrongful some of its practices and conduct has become. Attorneys are in a better position to do so when they make the investment in their profession to come to the events such as those sponsored by the AAJ.

I should have just agreed and told him to hire the Merlin Law Group. Instead, I wrote:

"Experience certainly helps do a better job for the client. But, it is no guarantee.

When I was a younger attorney, I hated to admit that experiences as a lawyer, and in life, made a difference in the quality of my representation. Now that I am older, there are so many reasons why I know that I am a much better attorney than 25 years ago. Much of it has to do with learning subtle aspects of human communication and interaction.

Still, I sometimes have the opportunity to get brought into a case with less experienced attorneys that look at matters with a fresh viewpoint. There are many very bright and hardworking attorneys, with little prior insurance experience, that do a very fine job helping policyholders. I try to learn from them as well, and take from them the best of their ideas..."

Nowdoucit was right, and I was wrong.

I thought about this on Saturday morning while eight of our attorneys were in deep discussion with an expert claims consultant about the presentation of insurance cases to juries. It was a beautiful day outside; I could see people milling about and enjoying a free concert. I wondered how many other law firms were working on such a beautiful day, flying in attorneys from other offices to teach how to do a better job for their clients -- specifically on insurance cases where they represent policyholders. I'll bet that the answer to that is zero.

The discussion among us was pretty brutal at times. You do not help others get better at something by just letting them slide by when they do the wrong technique. Eventually, the trial presentation topic changed to reaching settlement after a heated battle with an insurance company. Kelly Kubiak has been quite successful for her clients over the past year and she was trying to articulate her perception of what was working for her. I interrupted and said, "Kelly, you are passionate about your clients and you have experience and maturity. You are a better attorney than you were five years ago because you now have a deeper feeling and anticipation for what works and does not work in a given situation."

Practice makes virtually everything better. Golfers, tennis players, piano players, and poker players get better through practice, study, and experience. The practice of law is no different. And when it comes to representing clients with serious issues, the practice part should have been done long ago.

The American Association for Justice is having its Winter Conference in New Orleans. A number of specialized litigation groups will also have their meetings. The Bad Faith Litigation Group is comprised of consumer attorneys that have cases where the insurance company has engaged in wrongful conduct.

Over a decade ago, I served as the Chair of that Litigation Group. David Pettinato is also a past Chair and Kelly Kubiak is a current officer. We find that by sharing information among consumer attorneys across the country, we can gain knowledge and better represent our clients against insurance companies. Twice a year, we formally get together as friends trying to help each other in our battles against wrongful insurance company practices.

The Bad Faith Litigation Group shares information regarding many insurance companies. I strongly encourage attorneys representing policyholders to join. Nobody representing insurers is allowed to be a member. Contact Kelly Kubiak if you have questions.

The Port of New Orleans lawsuit was very unique. When you pour your heart and soul into a difficult endeavor with others, there is often a special bond that forms. We expected the lawsuit to drag on through this summer. When it settled early last September, most of us missed the day to day litigation grind that takes place in such a massive lawsuit. We built a fairly large contract legal staff that was suddenly without a lawsuit to work upon. What do you do when the war is over?

Tonight, we are hosting a Port Legal Team Dinner to celebrate our work and accomplishments. New Orleans attorney, Bill Hall, was a perfect co-counsel. Like so many attorneys in New Orleans, he is a diehard LSU Tiger (pronounced "Tiga") fan. I guess Florida Gators and LSU Tigers can come together for mutual gain when they put their minds to it. I will always be indebted to Bill and the General Counsel of the Port, Brien Gussoni, for believing in our talents and selecting our firm as the litigation insurance counsel.

There is one aspect to New Orleans that everybody has to admire---the New Orleans people know how to have fun. It is a culture different from that anywhere else in the United States. The music, food, and people are exotic, and we are better for it. While New Orleans still has not recovered from Hurricane Katrina, Mardi Gras fun is still going on in the Vieux Carré.