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| November 03, 2008 |
By: Review staff & VerdictSearch |
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Case: Odaliz Falstreau, Michael Falstreau Sr., Michael Falstreau Jr., Raquel Falstreau and Joshua Falstreau as counter-
plaintiffs v. The Continental Insurance Company as counter-defendant
Case no.: 06-21368
Description: Insurance bad faith
Filing date: Nov. 9, 2007
Trial date: Sept. 15-24, 2008
Judge: U.S. District Judge Cecilia Altonaga, Miami
Counter-plaintiff attorneys: Stephen A. Marino Jr., Christine Gudaitis and Danya Pincavage, Ver Ploeg & Lumpkin, Miami
Counter-defense attorneys: Jay Barry Green and Ilana Green Kellner, Green Ackerman & Frost, Boca Raton; Rebecca Woods and Thomas T. Locke, Seyfarth Shaw, Washington; Raoul Cantero, White & Case, Miami.
Award: $18.1 million
Details: A passenger on a 21-foot recreational fishing boat was killed and two other people were injured when a 23-foot boat collided with their vessel at night on Biscayne Bay near the Coral Gables Waterway in January 2005.
Carlos Armas was killed. Boat operator Michael Falstreau suffered a severe brain injury, and his son, Joshua, also received a head injury. Anthony Profitt, who also was on board, received minor injuries.
The larger boat was operated by Amadeo Lopez-Castro. He and his passenger received minor injuries.
Chicago-based Continental Insurance paid the maximum $300,000 on Lopez-Castro’s boat policy to the Armas family. The Armas family already had collected $3.5 million on a policy from plastic surgeon Phillip George, the owner of the boat carrying the Falstreaus.
Lopez-Castro reached an $18.1 million settlement with the Falstreau family, which agreed not to enforce the judgment if Lopez-Castro assigned to the Falstreaus the right to sue Continental to enforce payment. A total of $17.5 million was to go to Michael Falstreau and $575,000 to Joshua Falstreau.
Continental sued Lopez-Castro for breach of contract, claiming his policy required him to cooperate with his insurance company. In an amended complaint, the company asked Altonaga to issue a declaratory judgment saying Continental satisfied its obligations under the policy.
The Falstreaus filed a counterclaim against Continental, alleging bad faith for failing to pay the settlement.
Counter-plaintiff’s case: Marino argued Continental had an obligation to settle with the Falstreaus first because their claim exceeded those of the Armas family, and Michael Falstreau would need care for the rest of his life.
“He can’t walk on his own. He can’t really feed himself. He can’t bathe or shower alone,” Marino said. “He needs assistance for all the basic life functions.”
Continental breached its duty to its client by failing to promptly investigate the claim and trying to limit its exposure by settling with the Armas family, the Falstreaus’ counterclaim alleged.
Counter-defendant’s case: Continental’s complaint said the Falstreaus rejected a $175,000 offer. As a result, the Armas family was offered the full value of the policy.
Continental said it diligently defended Lopez-Castro, but he rejected the company’s defense in May 2007. Two months later, Lopez-Castro settled with the Falstreaus without Continental’s knowledge.
“The settlement was wholly unreasonable, was far in excess of the Falstreaus’ actual damages and rep
resented far greater liability than Lopez-Castro reasonably had,” an amended complaint said.
Continental was at a disadvantage because the Florida Fish & Wildlife Conservation Commission seized Lopez-Castro’s boat and the company couldn’t determine liability, said White & Case attorney Raoul Cantero, who joined Continental’s legal team after the federal trial.
“Certainly liability was not clear after the accident, so we could not tender the policy limits at the time,” he said. “We did tender them later, and they were not accepted.”
Outcome: A jury found Continental acted in bad faith, and Lopez-Castro did nothing wrong in settling with the Falstreaus.
Comments: “In this case, the insurance company was really looking out for itself more than its policyholder, and the jury recognized that,” Marino said.
Cantero said, “We were surprised at the verdict, but we know the case is not over.”
Post verdict: Altonaga issued an order Sept. 26 upholding the settlement between the two boaters. Cantero, a Florida Supreme Court justice until September, is handling post-verdict motions for Continental, which has asked Altonaga to reverse the jury verdict, among other things. The company also filed a motion for a new trial, claiming the verdict “was against the great weight of evidence.” A Nov. 20 hearing has been set on the motions.
— John Pacenti
Stephen A. Marino Jr. photo by Richard M. Brooks
Motor Vehicle
Orange Circuit Court
Jury awards family of woman killed by drunken driver
A jury awarded $15 million to the family of a woman killed in a head-on crash with an intoxicated man behind the wheel of a Hummer H2.
Heather N. Mobley, 20, was driving on McCormick Road in Orange County when she collided with the truck driven by Javier Trevino, 21. In addition to suing Trevino, Mobley’s family sued his parents for negligent entrustment.
Before closing arguments, Judge George A. Sprinkel issued a directed verdict against the defendants. Of the $15 million, the jury awarded $10 million in punitive damages.
Case: Mobley v. Trevino
Case no.: 06-CA-7908
Plaintiff lawyers: David A. Paul and Jason A. Paul, David A. Paul & Associates, Orlando
Defense lawyers: Dennis R. O’Connor, Cooney Mattson Lance Blackburn Richards & O’Connor, Orlando; James K. Powers, McGee & Powers, Orlando
Leon Circuit Court
Officer not liable for hitting bicyclist at night
A jury declined to award damages to the family of a man who died after he was struck by a police car while bicycling.
Timothy Conn, 22, was hit by a Leon County sheriff’s deputy while biking along State Road 20 late at night. Plaintiff counsel argued the deputy was going at least 70 mph while responding to a call.
A defense biomechanics expert said the low point of impact on the patrol car’s windshield indicated it was going 40 mph. Defense counsel noted Conn wasn’t wearing a helmet and was difficult to see because of his dark clothes and a lack of reflectors. Defense counsel also suggested he was using his cell phone while biking, noting the phone was found with three digits pressed.
Case: Estate of Conn v. Leon County Sheriff’s Office
Case no.: 2006CA3027
Plaintiff lawyers: Michael Rayne, Law Office of Michael Rayne, Tallahassee
Defense lawyer: Keith C. Tischler, Jolly & Peterson, Tallahassee
Animals
Orange Circuit Court
Woman awarded $250,000 for dog bite on face
A woman who was bitten on the face by a friend’s dog was awarded $250,000.
Melissa Grimmer, who is in her 20s, was at the Orlando home of Melina Rollins when she was bitten by a terrier.
The parties disputed whether the dog was owned by Rollins or her boyfriend. Rollins claimed the dog was visiting, but a roommate testified the dog lived there. Plaintiff counsel also noted a warning sign for a dog in the house.
Defense counsel maintained the sign was there only to ward off intruders and no dog lived there. Grimmer underwent emergency plastic surgery and received 25 stitches.
Case: Grimmer v. Rollins
Case no.: 48-2006-CA-009691-0
Plaintiff lawyer: Louis A. DeFreitas Jr. and Carolyn M. Salzmann, Morgan & Morgan, Orlando
Defense lawyer: John Hood Roberts, Mimi Smith & Associates, Orlando
Premises Liability
Hotel not to blame for alleged injuries on elevator
Orange Circuit Court
A jury rejected a woman’s claim that a Hilton hotel at Sea World was to blame for injuries she said occurred on one of its elevators.
Gwen VanSyckle claimed the elevator bounced twice on its way to the top floor, causing a torn rotator cuff and back and neck injuries.
The defense maintained she was unable to show the elevator had any previous problems. Hilton’s elevator service provider testified it provided routine safety testing and preventive maintenance, including an inspection conducted eight days before the incident.
Case: VanSyckle v. Hilton Grand Vacations Club
Case no.: 37-2007-CA-016145-O
Plaintiff lawyer: Debra Wilkinson Botwin, Debra Wilkinson Botwin LLC, Orlando
Defense lawyers: Dale R. Hightower, David B. Goulfine and Amanda J. Podlucky, Hightower & Partners, Miami
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