Las Vegas, Nevada – Parachute Trial Counsel – Severe Brain Damage and Wrongful Death - $27,987,922 Sought – DEFENSE VERDICT |
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Case: Carlos De Freitas, individually and as Personal Representative of the Estate of Isabel Auler vs. Defendant Car Rental Company
Practice Area: Premises Liability, Negligent Entrustment
Attorney(s): Daniel J. Santaniello, Esq. and Angelise M. Petrillo, Esq. of Luks and Santaniello, LLC.
Plaintiff Counsel: The Law Offices of Jonathan C. Capp (Jonathan Capp)
Result: Defense Verdict
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Dan Santaniello, who leads the firm’s Parachute Trial Counsel Team, and Junior Partner Angelise Petrillo, Esq., parachuted into the United States District Court, Las Vegas, Nevada, as lead trial counsel and obtained a complete defense verdict on 06/05/2023 in a catastrophic premises liability / negligent entrustment trial styled Carlos De Freitas, individually and as Personal Representative of the Estate of Isabel Auler vs. Defendant Car Rental Company.
The lawsuit arose out of an accident that occurred on January 1, 2017 in Defendant's rental car return area at the Las Vegas McCarran International Airport CONRAC in Clark County. Plaintiff, Isabel Auler, was severely brain damaged in the incident when she was run over by another vehicle. She was taken to the Sunrise hospital in Las Vegas, where she remained in critical condition until she was air lifted back to Sao Paulo, Brazil on January 19, 2017. She was thereafter hospitalized at the Sao Luis hospital in Sao Paulo and remained hospitalized for several months until she was discharged on October 4, 2017.
The accident caused Ms. Auler to no longer be able to control her limbs and bladder. Her brain mass shrunk nearly 50% in the first year. The initial life care plan from her economist and life care plan expert was $16,025,090. She was bedridden with 24/7 attendant care, and eventually expired more than 3 years later due to complications with sepsis. Her husband was also struck and witnessed the accident and made a negligent infliction of emotional distress claim, and sought damages for pain and suffering, grief, loss of consortium and past and future wages.
Nevada was a tricky venue with full blown joint and several liability. The jury was instructed that it was to award 100% of the damages even if the defendant was only 1% at fault, and not to consider the fault of the main tortfeasor (who had settled out and was not a party in the case), nor to make any reduction in damages due to any fault of the primary tortfeasor.
Over the course of two weeks more than 25 witnesses were called to this trial, including 13 experts. On the liability issue, Plaintiff called a Human Factors Expert, an Accident Reconstruction Expert and a Traffic Engineering Expert, all of whom attempted to allege that the rental return area violated industry standards, which was a contributory cause to the accident. Defendant called two liability experts – an architect and industry expert – as rebuttal. Moreover, Plaintiffs also attempted to argue to the jury that the Defendant had an inadequate traffic management plan for the return of vehicles.
Damages: In terms of special damages, Ms. Auler had approximately $2,786,925 in past medical specials, $250,060 in lost wages, and a life care plan of $16,025,090 (which was extinguished on her death). In Nevada, the decedent is entitled to pain and suffering and disfigurement and plaintiff’s counsel requested $12,000,000 for her alone in past pain, suffering, anguish, disability, disfigurement, and loss of enjoyment of life. The total damages requested by Ms. Auler were $15,036,985.
Mr. De Freitas sought $333,517 in medical specials, $617,420 in lost wages and earning capacity, and $12,000,000 in past pain, suffering, anguish, disability, disfigurement, and loss of enjoyment of life. As a participant in the accident, he was entitled to seek recovery for both pain and suffering witnessing the incident, as well as the loss of companionship and grief for the eventual death of his spouse. The total damages requested by Mr. De Freitas were $12,950,937.
Trial Strategy: In total all damages requested by both Plaintiffs combined were $27,987,922. The Defense anchored the case at $2,643,000, of which $500,000 was suggested for non-economic damages for both plaintiffs. Dan Santaniello employed his proprietary reverse-reptile strategy, which he has presented on and spoken about in numerous conferences. “My reverse-reptile strategy has been employed successfully with some of America’s largest corporations on sympathetic and catastrophic cases. It has enabled me to task jurors with the impossible job of setting aside sympathy and prejudice in deliberating tough cases, and ultimately obtain equal justice and fair treatment for corporations,” said Dan Santaniello. “We were clearly the deep pocket and plaintiffs never negotiated in good faith.” The jury deliberated for two days and at one point, told the Court they were deadlocked, but ultimately returned a complete defense verdict. For more information on this trial strategy, please reach out to Dan Santaniello directly.
Parachute Trial Counsel Team: Dan Santaniello leads the law firm’s high exposure and catastrophic Parachute Trial Counsel team. The team is available to co-counsel with primary defense counsel on catastrophic losses. We will advise our clients whether a case should be resolved or has a realistic probability of winning on liability. The team is available to consult on cases in other states on a case-by-case basis. For further information on the Parachute Team, please contact Daniel Santaniello.
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LAW ALERT: SB 7052 Insurer Accountability Act Passes Requiring Additional Claims Handling Oversight
June 6, 2023
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By: Daniel J. Santaniello, Esq., William J. Peterfriend, Esq., Anthony Perez, Esq., Terri M. Adjodha, Esq., Daniel S. Weinger, Esq., Janine Menendez-Aponte, Esq., and Angelise M. Petrillo, Esq.
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Governor DeSantis signed SB 7052 into law on May 31, 2023 and it takes effect on July 1, 2023. The Insurer Accountability Act, otherwise known as SB 7052, focuses on oversight of Insurers in an effort to curtail insolvencies and stem rapidly rising premiums. SB 7052 imposes new requirements for insurance companies’ claims handling processes, creates provisions aimed at increasing protections for insureds, and strengthens the Office of Insurance Regulation (“OIR”) by empowering it to better investigate Insurers and enforce compliance with the regulatory standards. The majority of the provisions apply to property insurers, however, there are a few sections which apply generally to insurers and more specifically to liability insurers. Below are some of the key provisions of the bill.
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Requirements insurance companies’ claims-handling process. This section applies to carriers providing property insurance. The bill requires residential property Insurers to not only create and use claims-handling manuals but to also report their claims handling policies to the State. At a minimum, Insurers’ claims-handling manuals must now conform to industry claims-handling practices. Their manuals must also comply with the specific requirement of the code. The bill provides specifies guidelines and procedures which must be included in a claims handling manual such as:
- (a) Initially receiving and acknowledging receipt of the claim and reviewing and evaluating the claim;
- (b) Communicating with policyholders, beginning with the receipt of the claim and continuing until closure of the claim;
- (c) Setting the claim reserve;
- (d) Investigating the claim, including conducting inspections of the property that is the subject of the claim;
- (e) Making preliminary estimates and estimates of the covered damages to the insured property and communicating such estimates to the policyholder;
- (f) The payment, partial payment, or denial of the claim and communicating such claim decision to the policyholder;
- (g) Closing claims; and
- (h) Any aspect of the claims-handling process which the office determines should be included in the claims-handling manual in order to: 1. Comply with the laws of this State or rules or orders of the office or department; 2. Ensure that the claims-handling manual, at a minimum, comports with usual and customary industry claims-handling guidelines; or 3. Protect policyholders of the Insurer or the general public.
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Furthermore, OIR’s broad discretion to investigate Insurers’ claim handling practices is enhanced with specific compliance requirements in the law.
Discontinuance of writing policies by carriers providing residential property insurance. This section applies to carriers providing residential insurance. An Insurer is now required to give the State notice before temporarily suspending writing new residential insurance policies. Insurers are now required to notify OIR the earlier of 20 business days before the effective date of the suspension of writing policies or five days before notifying its agents of the temporary writing suspension. Of note, this requirement does not apply to a temporary suspension in cases where a hurricane may make landfall in the State if the temporary suspension ends within 72 hours after the hurricane conditions are no longer present in the State or any other natural emergency as defined by Fla. Stat. Section 252.34(8). In addition, the rule does not require an Insurer to obtain approval to temporarily suspend writing new residential property insurance in the State.
Solvency. This section applies more to carriers providing property insurance but also carriers in general. In an effort to curb the number of insolvencies and protect policyholders, SB 7052 creates Hazardous Insurer Standards. OIR will consider the totality of the circumstances in evaluating an Insurer’s continued operation in the State. OIR may take into consideration whether any adverse findings in the Insurers’ financial condition or market conduct examinations report, the Insurer has made adequate provisions to cover its contractual obligations, the Insurers operating loss in the last 12-month period, including but not limited to, net capital gain or loss, change in non-admitted assets, and cash dividends paid to shareholders; the reinsurer solvency, affiliates of the Insurer, management and response to inquiries on the condition of the Insurer to name a few. OIR is empowered to take actions if it determines that the continued operations in the State is hazardous to the Insurer’s policyholders or creditors or the general public. The authorized actions vary from requiring the Insurer to reduce their total amount of present and potential liabilities, reduce or suspend or limit the volume of business being accepted or renewed, suspend or limit the payment of dividends to its stockholders or to its policy holders, among other actions. Of note, the bill provides an avenue for exemption from the solvency assessment.
Insurers providing liability coverage. This section applies to carriers providing liability insurance. If after conducting a market conduct examination OIR determines that the liability Insurer exhibited a pattern or practice of violations of Florida’s Insurance Code Insurers providing liability coverage are subject to enhanced enforcement penalties. The bill requires OIR to review the Insurer’s claims-handling practices to determine whether the Insurer should be subject to enhanced enforcement penalties. Further, the bill provides a list of things which if an Insurer fails to do would subject the Insurer to the enhanced enforcement penalties. For example, failing to do any of the following: assign an adjuster and “diligently attempt to resolve any questions concerning the extent of the insured’s coverage;” “[e]valuate the claim fairly, honestly, and with due regard for the interests of the insured;” “[c]onduct all oral and written communications with the insured with honesty and candor;” or “[m]ake reasonable efforts to explain to persons not represented by counsel matters requiring expertise beyond the level normally expected of a layperson with no training in insurance or claims-handling issues” among other duties.
Updated fines for violations of unfair methods of competition and unfair or deceptive acts provision. This section mainly applies to property insurers but also to insurers generally. The bill increases the fines for individual violations of this provision. Non-willful violations increased from $5,000 to $12,500 and willful violations increased from up to $40,000 to not greater than $100,000. Violation fines against an Insurer are modified to an amount not to exceed an aggregate amount of $50,000 for all non-willful violations arising out of the same action or an aggregate amount of $500,000 for all willful violations arising out of the same actions. Certain offenses such as “twisting” or “churning” are misdemeanors of the first degree punishable by an administrative fine up to $12,500 for non-willful violations and up to $187,500 for each willful violation.1 The fines also increased for violations related to a covered loss or covered claim caused by an emergency.
Enhances unfair claim settlement practices section. This section applies to carriers providing property insurance. The bill defines unfair methods of competition and unfair or deceptive acts or practices to include, when committed or performed with such frequency as to indicate a general business practice, the altering or amending of an adjuster’s report without providing a detailed explanation as to why any change that has the effect of reducing the estimate of the loss was made; and including on the report or as an addendum to the report a detailed list of all changes made to the report and the identity of the person who ordered each change; or retaining all versions of the report, and including within each version, for each change made, the identity of each person who made or ordered such change.
Unfair claim settlement practices also includes the failure to pay undisputed amounts of partial or full benefits owed under first-party property insurance policies within 60 days after an Insurer receives notice, determines the amounts of partial or full benefits, and agrees to coverage, unless payment of the undisputed benefits is prevented by factors beyond control of the Insurer.
The bill prohibits an insolvent or impaired Insurer from soliciting or accepting new or renewal insurance risks or receipt of certain bonuses by an officer or director. Additionally, while an Insurer is insolvent or impaired, directors or officers are prohibited from receiving a bonus not only from the Insurer but also from any holding company or affiliate that shares common ownership or control with the Insurer.
Notice of cancellation, non-renewals or renewal. This section applies to carriers providing property insurance. The bill prohibits Insurers from cancelling or non-renewing personal residential or commercial residential property insurance policies for a period of 90 days after the property has been repaired if the property was damaged as a result of a hurricane or wind loss under a declaration of emergency.
Additionally, Insurers are prohibited from cancelling or non-renewing personal residential or commercial residential property insurance policies, until the earlier of when the property has been repaired or 1 year after the Insurer issues the final claim payment, if the property was damaged by any covered peril and the above paragraph does not apply.
Insurers may still cancel or non-renew policies prior to repair upon 10 days’ notice for nonpayment of premium, upon 45 days’ notice for material misstatement or fraud related to the claim, if the Insurer determines that the insured unreasonably caused a delay in the repair, or if the Insurer has paid policy limits.
The bill clarifies when a structure is deemed to be repaired.
Deductibles. This section applies to carriers providing residential property insurance. The bill provides that for personal lines residential properties policies may include a separate roof deductible. The roof deductible must comply with various requirements such as not exceeding the lesser of 2 percent of the Coverage A limit or 50 percent of the cost to replace the roof, the premium includes a credit or discount for the roof deductible, the deductible can only apply to a claim adjusted on a replacement cost basis. Of note, the roof deductible does not apply to a roof loss from a hurricane as denied by Fla. Stat. Section 627.4025 (2)(c); a loss from a tree fall or other hazard that punctures the roof deck, a loss requiring the repair of less than 50 percent of the roof among a few additional requirements.
Tolling of the time period for filing claims for active service members. In support of active service members, the bill tolls the time limits during any term of deployment to a combat zone or combat support posting which materially affects the ability of a named insured who is a service member to file a claim, supplemental claim, or reopened file.
Citizens Specific. The bill prohibits Citizens from denying coverage eligibility based solely on the fact that the property has unrepaired damage caused by a covered loss that is the subject of a claim filed with FIGA. This prohibition applies until the earlier of 24 months after the date FIGA began servicing the claim or FIGA closes the claim.
Strengthen OIR enforcement powers and increased reporting on enforcement action. This section applies generally to insurers. Insurers now have less days to respond to OIR requests for documents and information. The bill decreased the number of days from 20 days to 14 days. The bill also increased penalties per violation, specifically increased from $2,500 per violation to $5,000 per violation and up to $1,000 per violation by any individual licensed by the department. Administrative penalties for failing to comply are up to $5,000.
OIR is also required to prepare annual reports on the previous year violations of Insurers. In addition, OIR must produce quarterly reports on its actions to enforce Insurer compliance, Insurer’s violations, resolutions and penalties. The reports must also be published on OIR’s website.
Rate transparency. This section applies to carriers providing property insurance. The bill requires that Insurers’ rate filings include actuarially reasonable discounts, credits, and savings to consumers who implement windstorm damage mitigation techniques among various other requirements. Effective October 1, 2023, Insurers must publish information on their website detailing the hurricane mitigation discounts available. These discounts are now required to be updated every five years.
OIR is given more discretion on examination of Insurers. While OIR may investigate Insurers as often as warranted, there is a minimum examination timeframe of at least every 3 years for high-risk Insurers. For average and low risk Insurers, the timeframe is at least once every 5 years. SB 7052 provides guidance on the methodology for scheduling examinations based on risk. Residential property Insurers are subject to additional market conduct examinations. Of note, prioritization for market conduct examinations will depend on an Insurer’s market share in the State and whether OIR receives a disproportionate number of claims-handling complaints against the Insurer.
Insurers should be aware of the specific claims-handling complaints which may trigger an investigation. Primarily, failure to timely communicate with respect to claims; failure to timely pay claims; untimely payments giving rise to the payment of statutory interest; failure to adjust and pay claims in accordance with the terms and conditions of the policy or contract and in compliance with State law; violations of part IX of Chapter 626, the Unfair Insurance Trade Practices Act; failure to use licensed and duly appointed claims adjusters; failure to maintain reasonable claims records; or failure to adhere to the company’s claims-handling manual among other criterions.
Implications Recent reform bills have been designed to stabilize Florida’s insurance market, increase consumer protections, and reduce frivolous litigation. An argument can be made that certain provisions in SB 7052 may have unintended consequences of countering the intent of recent reforms. Instead of reducing frivolous litigation, some of the language and / provisions in SB 7052 run the risk of exposing Insurers to more lawsuits and an increase in litigation.
Specifically, relating to Market Conduct Examinations and the Unfair Insurance Trade Practices provisions, at issue is the subjective nature of the things that could subject a liability Insurer to enhanced enforcement penalties. For example: failing to “evaluate the claim fairly, honestly, and with due regard for the interests of the insured based on available information”; failing to “request from the insured or claimant additional relevant information the Insurer reasonably deems necessary to evaluate whether to settle a claim” or failing to “make reasonable efforts to explain to persons not represented by counsel matters requiring expertise beyond the level normally expected of a layperson with no training in insurance or claims-handling issues among other actions.” Notwithstanding the language of the bill that the subsection does not create a civil cause of action, a civil remedy or an unfair trade practice, it is foreseeable that an attorney would attempt to argue that a liability Insurer’s failure to do any of listed actions evidences bad faith.
Similarly, modification to the unfair claim settlement practices section likely exposes Insurers to litigation for actions which are common practice in the insurance industry. Specifically, the requirement that Insurers provide and maintain a detailed report explaining why any changes to an adjuster’s report that has the effect of reducing the estimate of the loss was made. Adjuster’s initial reports often need to be amended or altered for a variety of reasons, typically to ensure the report is in line with the subject policy. Allowing this common practice to be the basis of a civil action claiming unfair insurance trade practice is counter to reforms aimed at reducing frivolous litigation.
While this is a general overview of the bill, in sum, the bill increases consumer protections, enhances oversight of Insurers, and strengthens OIR’s powers to enforce compliance. The bill also potentially increases Insurer’s exposure to more frivolous litigation.
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Questions? Luks and Santaniello, LLC.'s Tort Reform Committee will continue to monitor and provide updates regarding developments in the applications of these new laws. For questions or further assistance with your Florida matters, please reach out to Managing Partner Daniel Santaniello and visit our website for more information, resources and pertinent legal updates.
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End Notes
1Twisting is using misleading representations, whether by incomplete, fraudulent comparisons or material omissions of or with respect to any insurance policies or Insurers for the purpose of inducing someone to convert or take out a another policy. As opposed to churning in which Insurers use the policy values in an existing policy, either directly or indirectly, to purchase another insurance policy with that same Insurer for the purpose of earning additional premiums, fees, commissions, or other compensation.
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For further information, please contact: |
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Daniel J. Santaniello, Esq.
T: (561) 226-2525
E: DJS@insurancedefense.net
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William Peterfriend, Esq.
T: (954) 847-2947
E: WPeterfriend@insurancedefense.net
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Anthony Perez, Esq.
T: (786) 433-4302
E: APerez@insurancedefense.net
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Terri Adjodha, Esq.
T: (954) 640-0462
E: TAdjodha@insurancedefense.net
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Daniel Weinger, Esq.
T: (954) 847-2924
E: DWeinger@insurancedefense.net
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Angelise Petrillo, Esq.
T: (954) 847-2923
E: AMPetrillo@insurancedefense.net
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Janine Menendez-Aponte, Esq.
T: (786) 433-4268
E: JMenendezAponte@insurancedefense.net
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About Luks, Santaniello, Petrillo, Cohen & Peterfriend |
Our verdicts tell the story.™ Luks, Santaniello, Petrillo, Cohen & Peterfriend is a Florida Corporate & Insurance Defense Litigation firm. The firm defends professionals, corporations and their insurance companies from both Liability and Workers' Compensation claims. From our eleven Florida offices in Key West, Miami, Fort Lauderdale, Boca Raton, Stuart, Fort Myers, Tampa, Orlando, Jacksonville, Tallahassee and Pensacola, the firm’s 160+ attorneys deliver counsel and legal services in over 33 practice areas. The firm has several strategic and innovative practice areas including a dedicated Time and Policy Limit Demands and Tenders Practice Group, a Surgical LOP Abuse Practice and an SIU Fraud Special Investigations Practice that handle a number of specialized issues. Members have tried over 200 cases in Florida State and Federal Courts.
Our mission is to provide our clients with legal services that help them manage risk and reduce exposure. Our goal is to ensure that our clients obtain equal justice in the courtroom. The Law Firm is Peer Review Rated by Martindale-Hubbell and is a member of The Gavel.net LLC., Nationwide Claims Defense Network. The firm's Partners are members of the Trucking Industry Defense Association (TIDA), the Florida Defense Lawyers Association (FDLA), the Defense Research Institute (DRI) and the Claims and Litigation Management Alliance (CLM).
Managing Partner Dan Santaniello, Esq., Partners Anthony Petrillo, Esq. (Tampa), Luis Menendez-Aponte, Esq. (Miami), James Sparkman, Esq. (Boca Raton), Jack Frost (Boca Raton), Gary Ralph, Esq. (Fort Myers), Nash John Hedrick, Esq. (Orlando), and Juan Ruiz, Esq. (Orlando) are Florida Bar Board Certified Civil Trial Experts. Construction Law Partners Ashley Graham, Esq. (Fort Myers), Hayley Newman, Esq. (Boca Raton), Valerie Edwards, Esq. (Boca Raton), Christopher Burrows, Esq. (Boca Raton), C. Eric Bearden, Esq. (Jacksonville), Patrick Hinchey, Esq. (Jacksonville) and David Harrigan, Esq. (Orlando) are Florida Bar Board Certified Construction Law Experts. The firm has a full service Appellate team in South, Central and Northern Florida to assist with summary judgments, motions in limine, discovery objectives, trial strategy and post trial positions.
The Daily Business Review selected Luks & Santaniello as finalists for the Most Effective Lawyers for its innovation in filing a Declaratory Judgment Action in a multiple Wrongful Death claim. These times present extraordinary challenges to businesses and their insurers. Let us help even the playing field. View Contact Directory now.
Request a screen share meeting (email LS@insurancedefense.net) to view our claims portfolio management strategy, how we use artificial intelligence in litigation strategy and how we leverage claims analytics and technology to work efficiently and mitigate legal spend. Request a Screen Share Meeting.
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Contact:
Luks, Santaniello, Petrillo, Cohen & Peterfriend
T: (561) 226-2525
E: DJS@insurancedefense.net
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Luks, Santaniello, Petrillo, Cohen & Peterfriend
T: 954.847.2936
E: MDonnelly@insurancedefense.net
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This Law Alert is for informational purposes only and does not constitute legal advice. Reviewing this information does not create an attorney-client relationship. Sending an e-mail to Luks, Santaniello et al does not establish an attorney-client relationship unless the firm has in fact acknowledged and agreed to the same.
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