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THE EDGE


Winter 2017
INSIDE THIS EDITION:
Information & Articles
Message From the Chair                                                           Mock Trial Competition
Article: Concurring Cause Doctrine                                              Teachers Law School
Legislative Update                                                   Constitution Revision Commission
Civil Trial Board Certification                                                         Discovery Handbook

 
2017 CLE Programs
Civil Trial Update & Board Cert Review                                     Hot Topics In Evidence
Advanced Medical Malpractice                                              Advanced Trial Advocacy
Message From the Chair
I was talking with a circuit judge recently and he described the experience of reviewing records from the clerk of the court found in the archives of that county dating back to the 1800’s.  He felt a sense of history and the importance of court proceedings as he looked at handwritten entries in the dusty old book reflecting events from that long ago time.  This got me thinking about the way in which our work as trial lawyers makes history in small and large ways each time we participate in a case.  Our clients come to us with aspirations for a just result for their families, their businesses, and for all that is vital to them.  To our clients there is no such thing as “just another case”.  Every case is important, and their day in court is often their only day to try to correct a wrong or obtain justice.  What may be small to us in monetary terms may be life changing to them.
 
As trial lawyers we make history, case by case, year by year.  Each time we do the right thing, each time we stand up for our clients, each time we lead the court to a just decision, we are writing another page of history for our clients, our communities, and our state.  Ever since the founding of the nation, an independent judicial branch, an independent legal profession, and the right to our day in court has been central to our republican form of democracy.  The Founders (many of whom were lawyers) recognized that an independent judicial branch and an open and fair court process ensure a balance between the power of the state and its citizens.  It also ensures the security of the very rights written into those same founding documents.
 
At the center of this is the trial.  The right to summon witnesses, confront the evidence against you, and have the dispute heard by a neutral judge is a powerful and necessary piece of a healthy constitutional fabric based on rights and laws. 
 
This sense of history and the importance of the trial are the reasons that I decided to theme my year as Chair of the Trial Lawyers Section as “The Year of the Trial”.  I realize I am vulnerable to an accusation of emphasizing the obvious, but the theme is a powerful and important one for our Section.  We are in our 50th year as a Section, and have a rich history of burnishing and honoring the role of the trial through our work as a Section.  Our continuing education programs for trial lawyers, our outreach programs for the public and for teachers, and our work in the Capitol advocating for independent courts, are all things of which we can be rightly proud.
 
We are skilled professionals in a highly specialized part of the legal profession.  Our members go into courtrooms, deposition rooms, and client’s offices day in and day out addressing the most important matters for their clients.  When we are at our best, doing what is right and advancing our cases with honorable and skilled advocacy, the entire fabric of our society is better for it.  When we push one another to get better, to serve those most in need in our society, and to lead in our communities, then our state is better for it.  Lawyers at their best are a powerful force for good.  I hope that you will join me in these efforts, and reflect upon and celebrate the critical role of the trial, and trial lawyers, in our society, our culture, and our nation.
 
Someday, long after we are gone, someone will pull a record off a shelf and read your name, and a description of a case that you handled.  Make sure that the history you write today is one of which you can be proud.
 
Thomas E. Bishop
Chair

 
Article:  Concurring Cause Doctrine
CONCURRING CAUSE DOCTRINE EXPOSES MORE COVERAGE FOR HOMEOWNERS-SEBO V. AMERICAN HOME ASSUARNCE CO., INC.
 
            Available insurance coverage has been driving the types of litigation which proliferate, expand and develop in Florida.  This is not news.  What is news is there is a new opinion just issued by the Florida Supreme Court which may swing wider the available coverage to homeowners when there are multiple perils causing damage, some of which are covered, and others which are exempted. Before you change the station and stop reading this article, it would make more sense to examine the development of the latest “concurring cause doctrine” created by the Florida Supreme Court and decide for yourself how this new doctrine could be used by you, or against you, in your litigation practice. The opinion in Sebo v. American Home Assurance Co., Inc., 41 Fla. L. Weekly (Fla. Dec. 1, 2016) (motion for rehearing pending), starts with the facts, and one may characterize them independently as good or bad but the short version is that the house at issue had an insurance policy of $8 million, and as a result of the water damage it sustained, it could not be repaired and was eventually demolished. According to the opinion, the insurer agreed there was coverage under a mold policy, capped at $50,000, and tendered that amount.

            The homeowners brought suit against the sellers of the property, the architect who designed the home, and the contractor which built it. In this way, the case started out as a relatively standard construction defect case.  Then the homeowner’s policy carrier was added in a declaratory relief action seeking a declaration that there was coverage under the “all risk” policy which was issued. The Second District Court of Appeal found there was no dispute that there was more than one cause of loss to the home, including defective construction, rain, and wind (the home was apparently affected by Hurricane Wilma). See American Home Assurance Co., Inc. v. Sebo, 141 So. 3d 195, 197 (Fla. 2d DCA 2013).

            The issue considered by the Florida Supreme Court was whether coverage exists under the owner’s all-risk policy when multiple perils combined to create a loss and at least one of the perils is excluded by the terms of the policy. There are two theories of recovery which may be applied when two or more perils converge to cause a loss and at least one of the perils is excluded:

1. The Efficient Proximate Cause (“EPC”)- where there is a concurrence of different perils, the efficient cause- the one that set the other in motion-is the cause to which the loss is attributable. Thus, if an uncovered peril set in motion a covered peril, coverage would not exist, and;

2. The Concurring Cause Doctrine (“CCD”)- coverage may exist where an insured risk constitutes a concurrent loss even when it is not the prime or efficient cause.
 
The Second District rejected the application of CCD and reasoned that this doctrine would effectively nullify the exclusions in the policy. See Sebo, 141 So. 3d 195, 201. The Florida Supreme Court settled this issue by concluding that there was no reasonable way to distinguish the proximate cause of the homeowner’s property loss because the rain and construction defects acted in concert. Therefore, the Court concluded that if there is “human negligence” as part of the cause of the loss, it is covered by an all-risk policy.
 
            Yet, the Court also observed the insurance carrier “did not explicitly avoid applying the CCD” which potentially leaves open the possibility of all-risk policies in Florida specifically excluding CCD.  It is unclear what that policy language would have to state to pass the test of being sufficiently “unambiguous” as “not being susceptible to more than one reasonable interpretation.” See Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005).  The Second District held that Florida courts had not previously weighed in on whether “anti-concurrent cause language” would successfully avoid application of CCD. See 141 So. 2d at 201. Seemingly, if recognizable anti-concurrent cause language is found in the policy it will be successful in defeating the application of CCD. Such language was quoted by the Second District as effectively negating coverage for a peril if the exclusion provided it did not “cover any loss, directly or indirectly, and regardless of any cause or event contributing concurrently or in any sequence to the loss..” Id.  at 202.
 
            Potentially left unresolved by Sebo is the question: does CCD apply to coverage only when the causes are independent rather than dependent, i.e. if the water damage would not have occurred but for construction defects, is the rain damage “dependent” on the presence of defects? The Sebo decision was a 6-1 vote, Justice Polston dissenting on grounds that he did not agree the EPC/CCD issue had been preserved on appeal. Thus, it is likely that the decision will stand intact for the foreseeable future, subject to Florida insurance carriers revisiting the inclusion of “anti-CCD” language.

 
Legislative Update
The 2017 Florida Legislative Session kicked off with the Organization Session on Tuesday, November 22, 2016.  Committee meetings will begin and go on for two weeks in January (Jan. 9-13, and 23-27), and for three weeks in February (6-10, 13-17, and 20-24) 2017.  The opening day will be March 7, 2017.
 
Although the Florida House has restructured its Committees, the House Judiciary Committee is unchanged, with subcommittees for Civil Justice & Claims, and Criminal Justice.  With members termed out, there will likely be new chairs in both the House and Senate, and with the elections, there will be new members on the Committees that will have to be brought up to speed on TLS priorities. 
 
Issues that are expected to take up considerable time are likely budget cuts to the State Courts System, and workers compensation.  Recently the State Court System budget staff was asked to recommend which cuts would be made to the budget if there was 10% less funds available.  According to State Courts budget staff, the only choice for the State Courts System to meet the reduction targets is in the salary and benefits category, which would mean eliminating a substantial number of personnel.  The State Courts System is unique in that 50% of the General Revenue and State Courts Revenue Trust Fund salary budget is dedicated to judicial salaries and benefits.
 
The obvious difficulty is how the court system can assure Florida citizens of their constitutional right of access to the courts with the total number of staff being reduced by as much as 25%.  Court System budget staff has advised the Florida Legislature that this would be an additional staff reduction the judicial branch in Florida cannot sustain.  The staff that would have to be cut would be the System’s case managers, magistrates, hearing officers, law clerks, judicial assistants, mediators, and administrators, all of whom contribute numerous efficiencies in the processing of cases.
 
For workers compensation, the Florida Supreme Court’s two decisions in Castellanos (April 2016) and Westphal (June 2016) has thrown workers comp rates for an approved 14.5% rate increase, and a great deal of uncertainty for carriers.  The decisions were heralded by attorneys defending injured workers, but there will be considerable time spent this session trying to find a constitutional fix.  Look for business groups and the FJI to battle it out, once again.


For more information and to access the official 2016 Trial Lawyers Section Legislative Report, it can be found on the Section's website:
 
 
2016 Chester Bedell Mock Trial Competition
The 2016 Chester H. Bedell Memorial Mock Trial Competition, hosted by the Trial Lawyers Section of the Florida Bar, was once again a great success. Eighteen teams from ten Florida law schools competed this year at the Sawgrass Marriot Resort in Ponte Vedra, Florida. We were honored to have U.S. District Court Judge Timothy Corrigan of the Middle District of Florida preside as judge for the Finals.

This year the finalists were a team from FSU and a team from FIU. For the first time ever, FIU emerged as the Chester H. Bedell Mock Trial Champions. Additionally, FIU’s Elroy John was the recipient of the Best Advocate Award.

 
2016 Teachers Law School
The 4th installment of the Teachers Law School was conducted on January 21 and 22, 2016, in Ponte Vedra.  This year’s workshop featured presentations on the three branches of government and the court system, the role of the independent lawyer, the right to a civil jury trial, criminal justice, family law and First Amendment and school issues.  Special presentations included such topics as Bush v. Gore, the Casey Anthony trial and the Constitution Revision Commission.  Presenters included Federal Court Judges Timothy J. Corrigan, Marcia Morales Howard and Brian J. Davis, former counsel for Al Gore, Benedict Kuehne, Esq., Judge Belvin Perry, Jr., and a number of esteemed lawyers from throughout the state.  We received assistance from and are thankful for the contributions provided by The Jacksonville Chapter of ABOTA and R. Scott Constantino, in particular.
 
There were over 70 teacher attendees from St. John’s, Duval, Clay, Putnam, Sarasota and Palm Beach counties.  As experienced with past workshops, this year’s installment was very well received by the teachers.  The program was praised by many who attended, stating that it had invigorated their desire to educate their students about the American justice system.  One teacher in particular spoke of the workshop causing her to reconsider her recent thoughts of leaving the profession.

 
Constitution Revision Commission
The third Constitution Revision Commission in under Florida’s 1968 Constitution must be established within 30 days before the convening of the 2017 regular session of the Legislature which convenes on March 7, 2017. The commission is required to hold public hearings, examine the Constitution and file proposed amendments or revisions to the Florida Constitution with the secretary of state. Any revision or amendments will appear on the general election ballot Nov. 6, 2018.
 
The Constitution sets the composition of the 37-member commission:

● The attorney general.
● 15 appointed by the governor.
● 9 appointed by the speaker of the House.
● 9 appointed by the Senate president.
● 3 appointed by the chief justice of the Florida Supreme Court.
 
The governor designates the chair.
 
The governor, House speaker, Senate president and chief justice all are accepting applications to serve on the Commission. (As of the end of October, nearly 90 people had applied to the governor.) For links to their application forms, go to The Florida Bar’s Constitution Revision Commission page at http://www.floridabar.org/crc. Commissioners are not paid, but are usually reimbursed for travel.
 
During the regular legislative session beginning March 7, 2017, it is anticipated that the Legislature will consider appropriations for the commission’s work.
 
After all the appointments are made, the commission will hold its organizational session and adopt its rules of procedure.
 
After that, it is anticipated that  the commission will begin holding public hearings. It is also anticipated that the commission will work throughout 2017 and continue into 2018.
 
No later than 180 days before the Nov. 6, 2018, general election (May 10, 2018), any proposals by the Constitution Revision Commission to revise the Constitution must be filed with the Florida secretary of state.
 
On Nov. 6, 2018, in the general election, Florida voters will vote on any proposed changes to the Constitution.
 
Resources
 
The Florida Bar’s Constitution Revision Commission page at http://www.floridabar.org/crc offers many resources and a link to the Florida Constitution Revision Commission Citizens’ Guide. The Partnership for Revising Florida’s Constitution (http://revisefl.com) also is an excellent resource. Finally, the Special Committee on the 2017 Constitution Revision also has a resource page at http://www.floridabar.org/cmdocs/bs100.nsf/WDOCS

 
Civil Trial Board Certification
Initial Applicants:
The filing period for initial applications opens July 1, 2017 and applications must be postmarked by August 31, 2017.

Recertification Applicants:
If you were originally certified in 1987, 1992, 1997, 2002, 2007 or 2012. All requirements for recertification are to be completed by May 31, 2017 unless you file a recertification extension request.
 
Applications for initial board certification and recertification will be available on the Civil Trial Certification website by March 1, 2016.

 
EXECUTIVE COUNCIL

OFFICERS:

CHAIR: 
Thomas E. Bishop
(904) 598-0034
tbishop@tannerbishop.com

CHAIR-ELECT:
Joseph F. Kinman
(813) 226-3000
jfk@law-fla.com

SECRETARY/TREASURER:
Mindy McLaughlin
(813) 226-3000
mm@law-fla.com

IMMEDIATE PAST CHAIR:
Courtney K. Grimm
(904) 269-6377
courtney.grimm@claycountygov.com
 

EXECUTIVE COUNCIL:

Kimberly A. Ashby
Patricia D. Crauwels
Thomas H. Dart
Wiley B. Gillam, IV
Jeffrey M. Goodis
J. Wiley Hicks
M. Katherine Hunter
J. Charles Ingram
Orman L. Kimbrough, Jr.
Rachael S. Loukonen
James E. Messer, Jr.
Nicholas P. Mizell
Lewis W. Murphy, Jr.
Dennis R. O'Connor
David R. Roy
Herman J. Russomanno, III
Clifford W. Sanborn
Paul J. Scheck
Weston F. Smith
Vicki L. Sproat
John W. Williams, Jr.
 
SPECIAL ADVISORS:
Charles J. Bartlett
Theodore C. Eastmoore
Thomas S. Edwards, Jr.
Hector A. More'
Terrence P. O'Connor
 
BOARD LIAISON:
Wayne L. Helsby
 
JUDICIAL LIAISON:
Hon. Mark Mahon
 


SECTION ADMINISTRATOR:
Chase Early
(850) 561-5628
cearly@floridabar.org
UPCOMING EVENTS
Chester Bedell Memorial Mock Trial Competition
January 25-27, 2017
Duval County Courthouse
Jacksonville, FL
 

5th Annual
Teachers' Law School

January 26-27, 2017
Doubletree Riverfront Hotel
Jacksonville, FL
 

Executive Council Meeting
March 2-5, 2017
The Abaco Inn
Elbow Cay, The Bahamas
 

Executive Council Meeting
& Out of State Retreat
April 27-30, 2017
Mansion on Forsyth Park
Savannah, GA
 

Executive Council Meeting
The Florida Bar Annual Convention
June 23, 2017
Boca Raton Resort & Club
Boca Raton, FL
 
SECTION CLE

UPCOMING

Civil Trial Update & Board Certification Review 2017
Jan. 19-20, 2017
Renaissance Tampa International Plaza Hotel
Tampa, FL
Registration & Information
*Program will be available for aftermarket sales in 2-4 weeks.

This course is designed for two audiences: those who are preparing to take the Board Certification exam for civil trial or business litigation and those who want a refresher course and update on civil litigation and trial practice. Printed course books will be provided to all in-person attendees upon check-in. 9.25 Hours of Continuing Judicial Education Credits Awarded, Inlcluding 1.75 CJE Ethics Hours

CLE Credit - 16.0 hours including 2.0 Ethics hours.
 

Advanced Medical Malpractice 2017
April 7, 2017
Hyatt Regency Pier 66
Fort Lauderdale, FL
 
Save the Date
Registration Opens Soon!
 

Hot Topics in Evidence 2017
May 12, 2017
Orange County Bar Association
Orlando, FL

Save the Date
Registration Opens Soon!
 

Advanced Trial Advocacy 2017
May 16-20, 2017
UF Levin College of Law
Gainesville, FL
 
Save the Date
Registration Opens Soon!

 

AVAILABLE NOW

Annual Civil Trial Update & Board Certification Review 2016
One of our highest rated seminars ever!
Purchase the Online Seminar or CD/DVD today!
 

Advanced Medical Malpractice 2016
Purchase the Online Seminar or CD/DVD today!
 

Hot Topics in Evidence 2016
Purchase the Online Seminar or CD/DVD today!
 

ALL TRIAL LAWYERS SECTION CLE
 
DISCOVERY HANDBOOK
The 2016 Florida Civil Discovery Handbook is now available on the Section's Website.  Please visit 2016 Civil Discovery Handbook to access this publication.
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