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The firm represents individuals and companies
involved in lawsuits for personal injury and/or property damage
arising from automobile accidents. Our lawyers have extensive
experience dealing with litigation of insurance claims, first-party
lawsuits, third-party lawsuits and declaratory judgment actions.
A listing of trial results is available upon request. Defense
of these cases includes a broad variety of techniques, some
or all of which may apply to any given case, including thorough
background checks, obtaining prior medical and accident records,
requiring submission to a medical examination by a physician
who is not chosen by the attorney for the other party, investigation
of the other party’s expert witnesses and the hiring
of expert witnesses on technical aspects of the case.
Both Mr. Martinez and Mr. Callahan are FAA
licensed pilots. Mr. Martinez’ ratings include an instrument
rating, commercial pilot for single and multi-engine aircraft.
With a background in aviation, Mr. Martinez and Mr. Callahan
are uniquely suited to litigating cases involving Fixed Base
Operators, Maintenance Facilities, pilot certificate actions,
aircraft liens and airplane crash cases. In addition, the
firm can assist with the creation and maintenance of operator
and owner business entities. The firm provides legal defense
services for a broad spectrum of aviation related incidents
ranging from the insurance companies who retain counsel to
defend its insureds to the owner/pilot individually. Top
Most health care providers, including physicians
and hospitals, benefit from Florida Statutes which give them
special protection from lawsuits. Suit may be brought only
within the first two (2) years after a plaintiff is aware
of any facts which would lead him or her to believe negligence
caused an injury, and then only after acquiring all records,
having them reviewed by a specialist in the same field of
practice. After that, a sworn statement by a specialist as
to exactly how there was a "deviation from the prevailing
professional standard of care" must be recorded. After
a pre-suit process of information exchange occurs, suit may
be filed. Top
ORIGIN OF BAD FAITH CLAIMS IN FLORIDA
Insurance companies have a fiduciary duty to an insured party
in Florida, similar to the obligations of a trustee of a fund,
or the administrator of an estate to act prudently to preserve
property or money. Bad faith liability comes from violating
this duty. Insurance claim representatives have had this duty
since Auto Mutual v. Shaw (1938) because an insurance contract
typically allows "control over the defense of the case"
and "control over the method of negotiation and the amount
of settlement." The current Florida jury instructions
describe this duty as "acting fairly and honestly toward
the insured, with due regard for his interests." Top
SOME TYPES OF BAD FAITH DEALING
TOWARD AN INSURED PARTY:
A. Failing to settle claims within
policy limits when under all circumstances you could have and
should have done so (Florida Standard Jury Instruction).
B. Failing to offer to pay up to policy limits, when
offering limits would have resulted in settlement at or below
policy limits (Florida Standard Jury Instruction).
C. Failure to properly investigate the claim (Boston
Old Colony Ins. Co. v. Gutierrez, 382nd So. 2d 783 {Fla. 1980}),
resulting in harm to the insured party.
D. Failure to advise an insured party of an opportunity
to settle (Boston Old Colony case) the case within policy limits.
E. Failure to advise the insured of the probable outcome
of a case, of the probability of excess liability; failure to
advise the insured of steps to avoid exposure beyond policy
limits. (Boston Old Colony case).
F. Failure to advise the insured of "conditions"
placed upon the offer or counteroffer to settle, even if the
conditions placed on the offer by the insurer were reasonable,
but caused the rejection of limits (Odom v. Canal Insurance,
582 So. 2d 1203 {Fla. Appellate, First District 1991}).
G. Rejecting the advice of a claim supervisor or defense
attorney to settle a case within policy limits.
H. Placing unreasonable requirements on the acceptance
of policy limits to the benefit of the insured.
I. Failing to pay the insured party on a first party
claim up to the limits of the policy.
THINGS FOR YOU TO BE AWARE OF:
A. In Florida, the injured
party is considered to be similar to a "third-party beneficiary"
of the insurance contract between the defendant and the insurance
company. If a judgment in excess of policy limits occurs,
the injured party plaintiff may solicit and get an assignment
of the insured party's right to sue the insurance company
and bring the suit in the name of the insured party, or may
simply bring the claim directly in his or her own name against
the insurance company for the amount of a judgment in excess
of policy limits. The Civil Remedy statute in Florida (Section†624.155)
allows bad faith suits directly against the insurance company
by the injured party as well, after proper notice and failure
of the insurance company to honor a proper claim. The insured
need not suffer actual financial loss through post-judgment
collection proceedings to enforce the excess judgment directly
against the insurance company. The existence of the unsatisfied
judgment against him or her is enough to establish the right
to a bad faith claim.
B. Courts disagree as to
whether an "offer to settle" the case by the claimant
without coverage limits is even necessary. Under certain circumstances,
if early in the claim adjustment process the damages are well
in excess of policy limits and the share of liability is sufficient,
failure of the insurance company to offer the limits may be
enough to establish liability, even if they are never demanded.
The claimant would still have to prove that the offer would
have been accepted, if made, a much harder case to prove.
C. Liability for bad faith
is not "automatic" just because a judgment in excess
of policy limits occurs. Circumstances such as a surprise
"run-away" verdict, a demand by the insured party
that limits not be paid, changed circumstances regarding the
potential for liability during the discovery or trial process,
withholding of information by claimant's counsel, and any
other matter which constitutes a reasonable basis for not
offering the limits of the coverage, when demanded, may be
taken into consideration by a jury, when the carrier is later
defending a bad faith claim. The test, however is not whether
the likelihood of an excess verdict was "fairly debatable."
That standard for the defense was rejected by the Florida
Supreme Court in State Farm v. Laforet, 658 So. 2d 55 (Fla.
1995) wherein the Court adopted the views that the "totality
of the circumstances" could be considered by the jury
in determining if the insurance company attempted to settle
in good faith, acted fairly and honestly toward the insured,
and acted with due regard for the insured's interest.
D. A claimant may make a
written demand to settle within policy limits. An oral offer
to settle within policy limits can be a basis for a valid
bad faith claim later.
E. There is no "comparative
bad faith." Misconduct or negligence by the claimant
or the claimant's attorney may be a total defense to a bad
faith claim. The jury in a bad faith lawsuit will not, however,
consider the fault of the claimant versus the fault of the
claim representative of the insurance company and render a
verdict based on percentage of fault.
F. CIVIL REMEDY STATUTE
(SECTION 624.155, FLORIDA STATUTES)
Although the Civil Remedy statute allows suits against insurers
under a variety of circumstances, for the layman, the basis
will be the same as bad faith claims under common law. You
should be aware that an insurance company "settling cases
without disclosing the coverages involved" or "holding
up settlement under one portion of a policy to gain advantage
on another portion of the policy" is strictly prohibited
(a good example of this would be trying to hold up the settlement
on a person's vehicle to gain advantage in settlement amount
under the Bodily Injury coverage, or vise versa. There is
no common law first-party of bad faith action, so any uninsured
motorist "bad faith" claim would have to be brought
pursuant to the Civil Remedy Statute. Damages under the Civil
Remedy Statute are those which are a foreseeable result of
the violation, including the judgment amount in excess of
policy limits. Damages in uninsured motorist bad faith suits
under the Civil Remedy Statute now include any excess judgment
amount, costs, and attorneys fees and interest under an amendment
to the U.M. Statute (Now codified in Section 627.727(10),
Florida Statutes 1997).
The firm also specializes in Nursing Home
defense and represents several national level nursing home
corporations. The nursing home defense team includes nurse-paralegals
and experienced attorneys who deal with the complex multi-jurisdictional
and multiple layers of corporations commonly attacked in nursing
home litigation. Dan Martinez has authored several publications
on the effective defense of nursing homes and has lectured
at national level seminars.
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The firm has defended numerous allied health
professionals. These include nurses, nurse anesthetists, dentists,
physical therapists, speech-language pathologists and any
of a number of other non-physician health care providers.
The Allied Health Team includes nurse paralegals.
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Many contracts for the financed purchase of goods and real estate
require insurance that would make payments for those goods or real
estate in the event of a disability or death of the purchaser. The
consumer credit industry is a highly regulated area of insurance which
requires expertise in handling lawsuits that stem from these types of
agreements. The firm is well equipped to handle such disputes in a cost
effective and time-sensitive manner.
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The most talented and knowledgeable professionals can find themselves in court. Callahan Martinez has provided successful defenses for professionals of various backgrounds and specialties. Professionals from virtually all fields including accountants, pilots, doctors, dentists, physiotherapists, lawyers, management consultants, actuaries, investment advisors and architects are at risk. While some accusations are frivolous, they tax a company's valuable time, resources and patience.
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Many claims raise issues as to whether they are a covered event under a particular policy. Whether there is an intentional act, an unlisted driver or a non-scheduled vehicle on a policy - or any number of scenarios - many clients turn to us to advise them on whether a coverage defense is implicated by a particular set of facts. Many times an outright denial of coverage is appropriate and other time a defense under a reservation of rights is the more prudent course. We can advise clients on a recommended course of action involving issues of insurance coverage. Services range from a coverage opinion letter through trial of a declaratory judgment action.
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