Homeowner clients of Merlin Law Group prevailed and received a winning jury verdict yesterday in Lee County, Florida. In a weeklong trial against Avatar Property and Casualty Insurance Company, represented by insurance defense attorney Curt Allen, Merlin Law Group attorneys Dennis Bailey, Amy Currotto, and Anthony Orlando made the winning presentation and closing argument before the jury retired to answer a 16-question verdict form. I mentioned that this trial was ongoing while commenting on another trial in yesterday’s post, Insurance Company Lawyer Tells Jury Insurance Companies Cannot Be Expected to Know Building Codes.

I highlighted Dennis Bailey’s trial experience in, Former Judge Dennis Bailey To Head Merlin Law Group Trial Division:

Dennis has experience in the property insurance field and worked at the same policyholder firm Javier Delgado did before joining our firm. He will work closely with Managing Attorney Mike Duffy on the oversight and support of cases. His experience and passion for trial practice will aid the most seasoned Merlin Law Group attorney and lend a hand in training and mentoring other attorneys with little trial exposure.

I believe Dennis is a great addition to the team effort of Merlin Law Group trying to provide the best representation of any law firm representing policyholders. Insurance companies and their attorneys will know that behind every Merlin Law Group attorney and client is an experienced trial attorney who also has the viewpoint of being a judge. It is unique to have a person that has tried hundreds of cases to a jury, taught lawyers how to persuasively try cases and viewed cases from the bench.

The verdict form shows the many complex and varied reasons Avatar tried to deny the claim. Avatar is no stranger to fighting its own policyholders. I mentioned how a court made its lawyers turn over its claims files in, The Mythical Claim File Privilege, and commented:

Why should insurance carriers withhold claim log notes created before any ‘event’ giving rise to the anticipation of litigation simply because they are contained in the ‘claim file?’ Similarly, why should they be permitted to withhold the notice of loss or the independent adjuster/field adjuster’s initial estimate, photographs, report, and communications created before the insurer could reasonably have anticipated litigation?

In most circumstances, the insurance carrier’s routine investigation of the loss is performed well before any event that could be said to give rise to the anticipation of litigation. Absent a showing that they were prepared in anticipation of litigation, these documents do not fall under the work-product privilege and are discoverable whether or not they are contained in a ‘claim file.’

While Avatar is no stranger to published litigation against its customers, its tenacious and clever counsel has also found his way into a recently published opinion:1

Curt Allen represented SafePoint at the pre-trial and trial proceedings. The purpose of an examination under oath is ‘to enable the insurer to possess itself of all knowledge and all information as to other sources and means of knowledge, in regards to the facts, material to its rights, to enable it to decide upon its obligations and to protect it against false claims.’ Goldman v. State Farm Fire Gen. Ins., 660 So. 2d 300, 305 n.9 (Fla. 4th DCA 1995) (citing Claflin v. Commonwealth Ins., 110 U.S. 81, 94–95, 3 S.Ct. 507, 28 L.Ed. 76 (1884)). Very little of Allen’s work effectuated this purpose. While one must read the entire examinations to appreciate his behavior fully, the first thirty pages of Mr. Hallet’s first examination alone contain multiple instances of unprofessional conduct. Allen repeatedly lectured and questioned Mr. Hallet—a mechanic with a high school education—on the policy’s legal implications. He called Mr. Hallet ‘rude,’ ‘disrespectful,’ ‘confrontational,’ and ‘defensive.’ He referenced how long he had been practicing law and repeatedly highlighted his past career as a homicide prosecutor.

Throughout all three examinations, his behavior towards opposing counsel was also unprofessional. He called opposing counsel ‘irritating,’ ‘offensive,’ ‘belligerent,’ ‘snarky,‘ ‘a jerk,’ ‘a very nasty person,’ ‘a setup artist,” and an ‘ass.’ He informed opposing counsel he ‘was not in South Florida,’ was ‘not in Miami,’ and that Hernando County judges ‘are really going to be interested in your style.’ He encouraged opposing counsel to ‘file a Bar complaint, Sport’ and described his objections as ‘grievable.’ Taken as a whole, Allen’s repetitive and argumentative examinations illustrate he was more interested in making the process as long and painful as possible, rather than gathering information about the Hallets’ claim.

In 2020, the Second District twice noted Allen’s unprofessional behavior. See Avatar Prop. & Cas. Ins. v. Jones, 291 So. 3d 663, 668 n.1 (Fla. 2d DCA 2020) (citing Rodriguez v. Avatar Prop. & Cas. Ins., 290 So. 3d 560, 564–65 (Fla. 2d DCA 2020)). In 2021, the Florida Supreme Court reprimanded Allen for, among other things, the unprofessional questioning of witnesses and treatment of opposing counsel. Florida Bar v. Allen, No. SC20-1470, 2021 WL 401950, at *1 (Fla. Feb. 4, 2021). We have recently noted misrepresentations he made to the trial court in another case. See Lopez v. Avatar Prop. & Ins., 313 So. 3d 230 (Fla. 5th DCA 2021). We believe Allen’s conduct throughout this case warrants independent review, and we therefore refer this matter to The Florida Bar for further proceedings.

Litigation is hard business. I feel fortunate to be among such hard working and passionate attorneys and staff trying to help people against insurance companies with unlimited resources.

Amy Currotto sent me a text after the trial saying that, “I might cry for the Kirchers. They are such nice people. THANK GOD.”

Thought For The Day

‘Stand By You’ is about sticking by the person you love not only when things are easy, but being there for them during trials and letting them know they aren’t alone.
—Rachel Platten
1 SafePoint Ins. Co. v. Hallet, 322 So.3d 204 (Fla. 5th DCA 2021).