Plaintiff Lawyers endeavor to put nursing homes, long term care facilities and other like kind residences on trial, seeking to show that these facilities seek to cut costs for financial gain, all at the risk of sacrificing the quality of care of their residents. Now in the COVID-19 era, we have all heard in the news that as many as 50% of the deaths have occurred in nursing homes. There has been much discussion in the Florida Plaintiff’s Bar that COVID-19 requires owners and operators to spend even more money to ensure their residents are kept safe. When looking backward, should there be a death or other significant health consequence, Plaintiff lawyers will surely be focusing upon whether owners have spent money to protect their residents, and will be alleging not enough money was spent to do so to establish liability arguments.

     People 65 and older are at higher risk for COVID-19, as are people with chronic medical conditions such as heart disease, diabetes, kidney disease and respiratory illness. Both groups are heavily represented among the nation’s 1.3 million nursing home residents. That concentration is a key reason why 1 in 5 U.S. deaths from COVID-19 have occurred in nursing homes and other long-term care facilities, but it’s not the only one. Some nursing homes conditions can exacerbate the spread of the disease:

• shortages of coronavirus tests

• shortages of or lack of access to personal protective equipment (PPE) such as masks and gowns

• necessary and frequent physical contact between residents and staff

• under staffing

• employees who work in multiple facilities, increasing chances for exposure

• residents sharing rooms

• transfers of residents from hospitals and other settings

    These factors make nursing homes potential breeding grounds for viral and bacterial diseases, especially given chronic problems with infection control that predate the pandemic.

    The Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) have issued guidelines on reducing the spread of COVID-19 in nursing homes. Facilities have been instructed to:

• strictly limit visitation

• suspend communal dining and group activities for residents

• screen residents daily for fever and other COVID-19 symptoms

• screen anyone entering the building for symptoms and observe flexible sick-leave policies for staff members

• require staff to wear masks

    If the disease is identified at a nursing home, the federal agencies urge the facility to restrict residents to their rooms; require health care staff to wear gowns, gloves, eye protection, and N95 or medical masks; and treat suspected and confirmed COVID-19 patients in a designated area, away from other residents. The CMS is requiring facilities to promptly alert residents, their families or representatives, and the CDC about new COVID-19 cases. The agency is also posting data, updated weekly, on coronavirus case counts at the national, state and individual nursing home level, and in May it announced tougher rules on infection-control inspections and enforcement.

    Who can visit a nursing home?

    Nursing homes and other senior-living facilities are effectively in lock-down, with entry restricted to essential staff, health care workers and vendors. Under CMS guidelines, outside visitors can come only in “compassionate care situations,” such as when a resident is near death. The CMS issued recommendations on May 18 aimed at helping state and local authorities determine when and how to resume visitation, but it will likely be some time before that happens. Some states are exploring outdoor-only visitation as a transitional step, as studies have shown the risk of coronavirus transmission is considerably lower outside. Indeed, one facility in Miami is arranging “drive by” visitation.
 

    In the meantime, the best way to “see,” check on and observe residents and living conditions during this period is through video-chat and conferencing platforms like Zoom, FaceTime and Skype. Phone calls are another option to speak with residents, and offer emotional support. Isolation “can have very real and serious health impacts” for nursing home residents. Virtual visitation is likely to become the norm it seems. Support of loved ones is best accomplished by staying informed about what’s going on at their facility. Identify a point of contact on staff for questions and concerns.

    Will the nursing home tell if people there are infected?

   The CMS has announced it will require nursing homes to tell residents and their families or representatives within 12 hours if a COVID-19 case is confirmed on-site. The information must also be reported to the CDC. Some states, including Michigan, Illinois, New Jersey, California and Florida, have announced plans to name nursing homes with cases, but not all states are doing so. Greater transparency and accountability will lessen the likelihood of litigation for violations of the standards of care, and the Patient’s Bill Of Rights.

    How are nursing homes regulated?

     They are regulated by the federal government, specifically the Centers for Medicare & Medicaid Services, in collaboration with the states. State survey agencies conduct inspections of nursing homes on behalf of the CMS to check that they comply with federal laws and standards in areas such as staffing, hygiene, record keeping, and residents’ care and supervision. Facilities must be deemed compliant to be certified by the CMS and eligible for payments from Medicare and Medicaid. State surveyors also ensure compliance with state laws, statutes and rules. Last year, the CMS proposed rolling back what it deemed “excessively burdensome regulations” on nursing homes. The proposals, which have not yet been finalized, include relaxing rules on documenting grievances and investigations; requiring facilities to conduct assessments of staff and resource needs every two years, rather than annually; and allowing them to use consultants for infection prevention rather than hiring at least one part-time staff member for that purpose. Further deregulation will likely increase the “policing” by the Plaintiffs’ Bar, especially where attorneys’ fees are available to the prevailing party, through fee shifting statutes.

    What if one has a complaint or concern?

       First, communication and documentation are key. Learn as much as one can about the situation and have specific questions ready. If the facility is not responsive, reach out to your state’s long-term care ombudsman. Ombudsmen programs were established by the federal Older Americans Act in all 50 states, plus the District of Columbia, Puerto Rico and Guam, to address problems related to the health, safety, welfare and rights of residents of nursing homes and long-term care communities. Staff and volunteers at ombudsmen offices work to advocate for residents of long-term care facilities.

     What is nursing home residents’ Bill Of Rights?

        The CMS has a list of residents’ rights and protections under federal and state laws. Broadly speaking, these include the right to:

• be treated with dignity and respect

   

• be free from abuse, neglect and discrimination

   

• have friends and family visit and participate in your care

   

• take part in activities

   

• make complaints without fear of punishment

   

• receive proper medical care

   

• have a doctor, family member or legal representative notified of changes in your condition or treatment

      Keep in mind that state statutes on resident rights often go beyond federal rights. But rights related to visitation and activities are being restricted as part of efforts to curb the spread of COVID-19. The National Consumer Voice for Quality Long Term Care, an advocacy group that focuses on care issues, has a fact sheet on how the pandemic is affecting rights and rules in nursing homes.

     Should a loved one be removed from a nursing home?

      There is no simple answer as some individuals and families may decide that it makes sense for a spouse, parent or other loved one to come home during the pandemic, particularly if there are COVID-19 cases at the facility. But the reality is that some nursing home residents have medical or other needs beyond what can be provided at home. Here are some questions to consider:

• How is the facility handling the coronavirus? For example, are residents and staff being tested? Are there confirmed cases among them? Do staff have PPE? Are staffing levels adequate?

   

• What type and level of care does your loved one need, and are you able to provide it?

   

• Is in-home care available during the pandemic?

   

• Can your home accommodate a loved one with mobility issues or dementia? For example, is there a ground-floor bedroom if they can’t use stairs, or ways to guard against wandering?

   

• Will your loved one be able to return to the nursing home? Many residents rely on Medicaid to help cover their long-term care costs, and leaving a facility can affect eligibility.

     What about other long-term-care facilities, like assisted living?

     Many assisted living facilities and senior care communities have implemented lockdowns and other restrictions to combat COVID-19. The CDC has issued recommendations for assisted living that mirror much of its guidance for nursing homes on controlling the disease, including no outside visitors or group activities and regular screening of staff for symptoms.

     Unlike nursing homes, however, assisted living facilities are generally not subject to federal oversight. For example, the CMS rules on disclosing COVID-19 cases to residents and family members do not apply to assisted living facilities. They are licensed by the states, many of which have not issued disclosure orders, and regulation varies by state.

We at Shendell & Pollock have handled numerous bodily injury and wrongful death cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at gary@shendellpollock.com.

We have surveyed numerous real estate agents and brokers related to the impacts they are seeing on closing transactions given that we are now nearly 12 weeks post shelter-in-place. While states are slowly phasing into “reopening” others are seeing an increase in the number of COVID case, including Florida. Agents and brokers are being forced to address and circumvent the multiple roadblocks that have developed due to this crisis including: showing properties, closing risks, legal risks arising from contract language, buyer’s access to financing, logistics of inspections and repair work given the sensitivities to exposing the residence or offices to strangers.

I. Closing Risks

      In the current environment, with recorder’s offices either closed or capacity to process deeds being materially reduced, if the closing is contingent on recording, a buyer may be hesitant to fund the purchase price into escrow without any assurance of when the deed will be recorded due to the costs inherent in having funds remain in escrow for a prolonged period of time. Additionally, there may be an unwillingness on the part of the buyer’s lender to provide funding or to leave funds in escrow for an extended period of time. In a gap closing, title insurance companies may be wary of accepting gap indemnities and issuing title insurance when the date of recordation is a moving target as there is a greater risk of intervening liens as the gap period lengthens. Even if the title insurance company accepts the gap indemnity and is willing to issue title insurance to the buyer, there is a question as to the buyer’s willingness to close when it may have to pursue claims against its title insurance company to clear title of liens or defects following closing. Similarly, the buyer’s lender may consider the title company’s gap coverage insufficient given the possibility of needing to pursue claims against the title company to defend the lender’s lien priority.

      Regardless, the seller typically bears the risk that the title insurance company will fail to issue title insurance and that this condition precedent remains unsatisfied. While failure of the title insurance company to remain committed to issue the title policy is not a default by the seller, the buyer will likely have the right to terminate the contract in the event that: (i) in a deed-recordation closing, the recording cessations or uncertainties mean the title company is not timely committed to issue title insurance as of the scheduled closing date; and (ii) in a gap closing, the title company will not insure the gap as noted above.

       Buyers, on the other hand, risk default under the purchase contract. A buyer will not be in default if it deposits its funds and closing documents in escrow and authorizes closing. As noted above, however, a buyer may be unwilling or, because of its lender, unable to do so in either type of closing. Thus, a buyer’s potentially substantial deposit may be now at risk.

II. When Time Is of the Essence

      The timing of closings has also been impacted due to the COVID-19 crisis. Accordingly, parties should consider the concept of “time of the essence” clauses and notices.

       Where time is of the essence in connection with a party’s obligation, failure to perform by such party by a specific date will constitute an incurable breach. Failure to include such limiting language will be construed to permit a “reasonable time” to perform, including reasonable adjournments of the closing date unless there is bad faith or inexcusable delay.

      In New York, for example, a party can unilaterally create such an obligation by sending a “time of the essence” notice whereby one party must give clear, distinct, and unequivocal notice to the other party setting a closing date that provides a reasonable time for that other party to act. The notice must also state that the other party will be considered in default should it fail to perform on the date designated in the notice.

       What is a “reasonable” amount of time may be subject to change given a prolonged national emergency that results in the periodic extended closure of county recorder’s offices, local governments, courts and businesses. While a question of fact, courts may consider the following as probative of what is “reasonable”: (i) the nature of the contract, (ii) the parties’ previous conduct, (iii) whether the parties acted in good faith, (iv) the experience of the parties, (v) the potential for prejudice or hardship for one of the parties, and (vi) the amount of time provided for performance.

      Parties need to be aware that using “time of the essence” notices during the COVID-19 crisis may not have the same teeth as previously and that it may be viewed as acting in bad faith.

    The COVID-19 crisis may result in clauses inserted into sales contracts permitting delays due to pandemic, government closures and other causes not heretofore deemed to excuse performance by either a seller or a buyer.

III. Potential Defenses for Breaching Parties

      If a non-breaching party is able to establish that it was ready, willing and able to close, but the non-performing party is in default for failing to close — whether due to strict enforcement of timing or a general unwillingness to close — the non-performing party may be able to assert some of the potential defenses below.

A. Impossibility of Performance

  The common law doctrine of impossibility of performance is available generally “when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible” and the “impossibility” was produced by an unanticipated event that could not have been foreseen or guarded against in the contract. When performance of a contract becomes impossible, performance may be excused, but mere difficulty or inconvenience is insufficient to excuse performance. Arguments that a contract was impossible to perform, even in the face of a government moratorium, will not succeed where the intervening government action was foreseeable. 

B. Frustration of Purpose

     A party may be able to invoke the “frustration of purpose” doctrine where the purpose or “essence” of a contract is frustrated, rather than rendered impossible, by an unforeseeable event. This defense may be available even where performance of the contract is not impossible. To invoke the defense, the frustrated purpose “must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” As with impossibility, the frustrating event must not have been foreseeable by the parties. Note that “changes in market conditions or economic hardship do not excuse performance.” A party is not excused from a contract simply because it becomes more economically difficult to perform.

C. Good Faith and Fair Dealing

     The law of most states includes an implied covenant of good faith and fair dealing to all contracts such that neither party will act in a way that destroys or damages the right of the other to receive the benefits of its contract. It is unclear, however, whether a court would elevate in importance an implied covenant over an express “time of the essence” clause.

D. Force Majeure

     Many non-performing parties to all types of contracts have begun advancing arguments based on force majeure clauses in connection with the effects of COVID-19. Force majeure, or superior force, is a defense that, under certain circumstances, may excuse performance of a contract when a party has been prevented by a force beyond its control. This is a bargained-for contractual right where the defense will depend on the language of the clause and whether it is broad enough to include the effects of the COVID-19 crisis. Since most purchase and sale agreements do not include force majeure clauses and courts are not likely to read a force majeure clause into a contract absent the express language, claims of force majeure are unlikely to excuse a missed closing unless explicitly contained in the contract.

III. Conclusion

    In light of the COVID-19 pandemic, most recorder’s office closings have been resolved through Recording programs and local governments have demonstrated their commitment to maintaining the functions of the property records systems they administer.

    If both parties to a sale transaction desire to consummate a deal, they will need to proactively and collaboratively seek creative solutions. Parties may mutually agree to waive claims for failure of a condition to closing, including for title, or claims for default due to timing issues related to recordings. Parties contracting for future deals will want to account for the possibility of government shutdowns impacting their transactions. However, if one party determines not to move forward with a transaction, the parties will likely face a protracted battle over the deposit, asserting many of the claims and defenses discussed above. These legal battles may be similarly impacted by delays and face protracted schedules as courts are forced to shut down, statutes of limitations are tolled as a result of the very same national crisis that produced the underlying legal dispute.

At Shendell & Pollock we remain available to answer all of your COVID-19 related concerns, questions and claims. Please contact Gary Shendell at gary@shendellpollock.com and Ilana Hanau at ilana@shendellpollock.com to discuss this alert further. gary@shendellpollock.com

On May 17, 2018, Brett R. Bloch, Senior Partner, and our S&P trial team, completed a four day trial defending H.A.T. Services Corporation against allegations that one of its trucks was involved in a rear end collision in Apopka, Florida which injured the Plaintiff. Our trial team obtained a defense verdict notwithstanding having to stipulate to liability, so this result is especially noteworthy. In his lawsuit, Jeb Bachman alleged that he was slowing down for a yellow light at an intersection on a rainy day when his vehicle was impacted by our client’s commercial ice cream delivery truck. The Plaintiff asserted that he sustained a concussion, traumatic brain injury, traumatic disc herniation at the C5-C6 level which required a laminectomy and related soft tissue injuries. The Plaintiff further claimed that he continued to suffer permanent dizziness, neck pain and headaches as a result of the collision.

Although liability was conceded due to the nature of the collision, Brett stressed to the jury that the Plaintiff did not evidence the required clinical elements of a concussion and that all of his neurological tests yielded normal results. Brett also asserted that the Plaintiff’s spinal surgery occurred three and one-half years after the collision and was necessitated by an intervening injury as well as a degenerative condition. In closing arguments, the Plaintiff requested a $1,017,059 damage award.

After a four hour deliberation period, the jury rendered a defense verdict.

The Plaintiff thereafter filed an appeal, contending that the trial court erred in failing to order a new trial due to alleged errors in the verdict form and that the verdict was against the manifest weight of the evidence. Diran Seropian, Senior Partner, and our S&P appellate team represented our client in the appeal, and argued to the appellate court that the Plaintiff’s trial counsel failed to properly object to the use of the subject verdict from and in fact agreed to its use after the court ruled adverse to his client at the charging conference. Diran also asserted that the verdict was entirely appropriate due to conflicting medical testimony between the parties’ respective experts, thereby leaving this issue for jury determination.

On March 20, 2020, the appellate court issued its opinion and denied the Plaintiff’s appeal. In affirming the trial court’s order denying a new trial as well as affirming the judgment entered in favor of our client, the appellate court specifically noted that at trial, the Plaintiff was “aggressively cross-examined” regarding his medical records and the information which he provided to his health care providers and that at trial, the Defendants presented evidence that the Plaintiff’s injuries on the date of the collision “may not have been as severe as he had stated in testimony.”

Jeb Bachman v. H.A.T. Services Corporation., case no. 2015-CA-009291-0, venued in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. Hon. Heather L. Higbee presiding.
Jeb Bachman v. H.A.T. Services Corporation, case no. 5D18-3376, venued in the District Court of Appeal of the State of Florida, Fifth District.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com

As a result of the Coronavirus Disease 2019 (COVID-19) pandemic, the State Surgeon General and State Health Officer on March 1, 2020, declared that a public health emergency exists in Florida, and the Governor on March 9, 2020, declared a state of emergency for the entire state. The Florida state courts have taken measures to mitigate the effects of this public health emergency upon the judicial branch and its participants. To that end, Florida Supreme Court Chief Justice Canady has issued several administrative orders implementing temporary measures essential to the administration of justice during the COVID-19 pandemic. The overarching intent of those orders has been to mitigate the impact of COVID-19, while keeping the courts operating to the fullest extent consistent with public safety.

See In re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Administrative Order No. AOSC20-23, Amendment 1, at *1-2 (Fla. May 4, 2020) (internal footnotes omitted) (emphasis added).

With this latest amendment to its Administrative Orders, the Supreme Court of Florida has extended its moratorium on jury proceedings and jury trials through July 2, 2020. Meanwhile, the chief judge of each judicial circuit has been charged with the challenge of maintaining his/her court’s workflow, to the “maximum extent feasible,” through the use of technology.

By separate order on April 21, 2020 (AOSC20-28), the Chief Justice created the Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19. This Workgroup has determined that the following types of proceedings are conducive to being held remotely:

1. Alternative dispute resolution proceedings;

2. Status, case management, and pretrial conferences in all case types;

3. Non-evidentiary and evidentiary motion hearings in all case types;

4. Arraignments and pleas in absentia in county court misdemeanor cases

5. Hearings in juvenile delinquency cases;

6. Hearings in noncriminal traffic infraction cases;

7. Problem-solving court staffing, hearings, and wellness checks; and

8. Non-jury trials in all case types, except for criminal, juvenile delinquency, and termination of parental rights petitions in dependency cases unless the parties in an excepted case agree to the remote conduct of a non-jury trial.

AOSC20-23, Amendment 1, at *7-8 (emphasis added). While these are the directives from our highest state court, each circuit – and even each judge – is responsible for implementing these orders pursuant to their own capabilities, as well as in compliance with any local government dictates and restrictions. Thus, while Gov. Ron DeSantis has relaxed some restrictions on residents in the State (beginning May 18, 2020, all Florida counties will be under Full Phase 1: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery as outlined by Gov. DeSantis’ Re-Open Florida Task Force), local and county orders, law, and ordinances as well as the Supreme Court’s Orders and the individual court’s own technological capabilities must be taken into consideration while attempting to keep our state courts from coming to a complete standstill.

Shendell & Pollock, P.L. continues to monitor events as they unfold for our clients and strives to keep you up to date on this and all happenings affecting the legal community. If you have specific questions regarding the operation of state and federal courts during this time, please contact Gary R. Shendell at gary@shendellpollock.com

New York: Impact of COVID-19 on Homeowner Associations

While COVID-19 continues to keep us quarantined, several executive orders have been issued that directly impact our daily operations, specifically as regards real estate and homeowner associations:

Executive Order 202.8, Effective Through April 19, 2020

• Tolls all time limits for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding under all applicable laws, rules, and regulations. This tolling applies to all actions or special proceedings that would otherwise be commenced by the New York Attorney General, as well as private-party disputes involving real estate securities; and

• Except those that provide “essential services,” all businesses and not-for-profit entities in New York must reduce in-person workforce’s by 100% no later than March 22 at 8:00 p.m. The Governor has already publicly stated that this applies to the in-person showing of apartments.

The Governor has since issued Executive Order No. 202.14 which extends the tolling date from Executive Order 202.8 through May 7, 2020. At this time, it is unclear whether those dates will be extended further as NY Courts are beginning to hear non-essential matters electronically (via Skype) and have said that they will begin to issue decisions on matters that have been fully submitted. Notably CPLR 2219(a) provides that an order determining a motion shall be made within sixty days. Should a court fail to comply with this rule, any party to the action can commence an article 78 proceeding to compel the judge to file a decision, however in light of the tolling provision of the executive order, there have been numerous questions raised regarding the timing of the stated tolling. That notwithstanding, as NY practitioners, most, if not all of us have not received a court order/decision since early March.

As cases of COVID-19 increase here in the US, a number of questions from condominium boards are being raised. Two of the most common are:

• What should we do to protect the condominium and its members?

• What is our responsibility for the clubhouse, pool, workout area, playground, plumbing, HVAC system?”

While condo boards should be vigilant, there are limits on what can be done to fight the virus. While the situation should be taken seriously, there’s much that isn’t yet known. Early theories posited that the virus might have been transmitted in cruise ships and apartment buildings through HVAC circulation or plumbing systems, but nothing has been proven. Several recent cases have no clear origin, leaving the medical community with little ability to provide direction on prevention methods.

As NY continues to be a “hot spot” for the virus, with an ever increasing number of cases (although the curve is starting to even out), we are beginning to see claims alleging that homeowner associations are responsible to mitigate the spread because they control the condominium’s common areas. Based on those allegations, we anticipate seeing the following increased obligations needing to be undertaken by homeowner association boards, and failure to do so, may lead to liability (and not just for COVID-19 but for other contagious illnesses, as well):

• More frequent, and extensive cleaning, disinfecting, and wiping down of common areas and common area surfaces.

• Gatherings in the common areas, whether a membership meeting or educational event, may need to be postponed or canceled.

• Public common areas such as gyms, clubhouses, and pools, may need to be temporarily closed.

  • Limiting access to common laundry rooms/facilities

• Controls and/or limitations on the number of people that can access elevators at one time

• The association may wish to consider the installation of hand sanitizer dispensers or wipes in common areas for owner and guest use. (notwithstanding the fact that the cost of sanitizer gels has tripled and product is being rationed in some areas.)

Additionally, depending on the course of the virus, and as more information becomes available, homeowner associations may take affirmative steps to discuss with facilities professionals whether any changes are necessary to the equipment serving the common areas over which the association has control, such as the plumbing or HVAC systems in the clubhouse (or possibly the entire building in the case of high-rises.) Consideration must be given to the fact that these upgrades may be prohibitively expensive, and that at present, there is nothing to suggest this would help stem the spread of coronavirus. Additionally, as regards the funding of same, associations must consider whether to spend down their reserve funds, increase the common charges or levy an assessment and what percentage of the board and/or owners would be necessary to approve such expenditures. We also note that consideration must be given to provisions requiring votes of all owners for certain upgrades/changes

Incredibly, there is evidence that at least one dog has contracted the coronavirus. Based on the need to implement additional precautions, associations may need to consider pet restrictions.

Regardless of the outcome, liability and responsibility will fall along lines of ownership, specifically what is the association’s responsibility (common areas) vs. what is the unit owner’s responsibility question. While certainly buildings and associations can and should stay aware and be proactive, at the end of the day, owners will likely be most responsible for their own health and safety.

At Shendell & Pollock we remain readily available to answer all of your COVID-19 related concerns, questions and claims. To discuss this alert further, please contact Gary R. Shendell at gary@shendellpollock.com. 

Florida is among few states with stringent liquor liability statutes. To better understand the prevailing state law, it is helpful to first consider the history of this area of law in Florida. Under common law, a bar had no liability for any problems arising from the sale of alcoholic beverages, as it was the consumption of the alcoholic beverages, and not its sale, which was considered the cause of any improper conduct and resulting damages. By the early 1960’s, the law began to shift and in Davis v. Shiappacossee, 145 So.2d 758, 760 (Fla. 2d DCA 1962), the sale of alcohol to a minor was determined to be negligence per se as to the vendor. This trend continued and in Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967), the court first recognized the distinction between the sale and consumption, leading to a recognition that in many instances, the proximate cause of the resulting damages was the sale when made to individuals who lacked the ability to make a responsible decision when drinking alcoholic beverages.

As a result of the foregoing, in 1980, Florida enacted its first liquor liability statute, which has since been codified into Section 768.125, Florida Statutes. This law provides that:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Critically, this law begins with the premise that a bar is not liable for injury or damage caused by the intoxication of a person. As respects the sale to underage individuals, the specific use of the terms “willfully and unlawfully” indicate that there is an established legal duty to not provide alcoholic beverages to minors. By contrast, the “habitual drunkard” standard involves establishing that the server had knowledge that the individual was someone who “cannot resist getting drunk anytime the temptation is offered” and intoxication is “frequent, excessive and the dominant passion.” Todd v. Todd, 56 So.2d 441, 442 (Fla. 1951.) Similarly, the statute does not prohibit the furnishing of alcohol to an intoxicated person, provided that as the intoxicated person is not a known habitual drunkard. Landstar Florida, Inc. v. Cooper, 408 So. 2d 758 (Fla. 4th DCA 1982).

It should be noted, however, that a lawsuit cannot be based upon solely upon a violation of this statute as the “clear language of Section 768.125 does not create a cause of action … but is a protective statute that would eliminate a cause of action where one might otherwise exist, except in certain circumstances.” Ellis v. N.G.N of Tampa, Inc (Fla. 4th DCA 2016.) Accordingly, the proper cause of action would be ordinary negligence and therefore a a Plaintiff is barred from recovering any damages if he or she was found to be:               

         A) Under the influence of any alcoholic beverage or drug to the extent that his or her normal                                     faculties were impaired or had a blood or breath alcohol level of at least 0.08; and
         B)  As a result of the influence of alcohol  or drugs was determined to have been more than 50%                               at fault for his or her injuries.

See Section 768.36(2), Florida Statutes; Shehada v. Tavss, 965 F.Supp.2d 1358, 1377 (S.D. Fla. 2013). This statute is a considerable departure from the standard pure comparative negligence rule which would allow recovery regardless of the degree to which a Plaintiff is found to have been at fault. We have successfully asserted this particular defense in circumstances where an intoxicated Plaintiff was independently negligent for, among other grounds, riding in a vehicle with a driver known to also be intoxicated. As a result, this statute provides another measure of potential risk avoidance for insurance companies regarding liquor liability claims.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com or Brett R. Bloch at brett@shendellpollock.com

The present circumstances and business closures related to COVID-19 are clearly affecting all aspects of both our professional and personal lives. When discussing commercial general liability coverages at renewal, your clients will likely ask you whether there would be coverage if a customer or visitor alleges to have been infected at their business. Similarly, insurers may, for the first time, introduce certain endorsements at your client’s renewal. The potential effect of any such restrictions would depend upon the particular risk involved- a restaurant or retail operation with a considerable client base as compared to an office building with fewer people traveling though the premises.

These are all issues which you will need to be prepared to address with your clients. In Florida, an insurance broker has a duty to procure the insurance coverage that is requested by its client or warranted under the circumstances. Wachovia Insurance Services, Inc. v. Toomey, 994 So.2d 980, 987 (Fla. 2008.) Further, an insurance broker can be held to even a higher standard if a “special relationship” is created utilizing certain criteria. Tiara Condominium Assoc., Inc. v. Marsh USA, 607 F.3d 742 (11th Cir. 2010.) In this regard, an insurance broker is therefore required to use reasonable skill and diligence in procuring the necessary coverage. Warehouse Foods, Inc. v. Corporate Risk Management Services, Inc., 530 So.2d 422 (Fla. 1st DCA 1988); Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1981). Accordingly, it will be the broker’s responsibility to explain these issues if they arise during the renewal process.

In this regard, the first question to answer is whether an alleged infection claim would be covered by a typical commercial general liability policy. Pursuant to SECTION I- COVERAGES, 1. Insuring Agreement (b), the policy applies to ‘bodily injury” which is caused by an “occurrence” and an “occurrence” is defined in SECTION V. – DEFINITIONS, 13 as “an accident, including continuous or repeated exposure to substantially the same general conditions.” With that in mind and considering that the term accident is not a defined term, coverage will likely exist for such claims subject to the other terms, provisions and conditions of the policy. As coverage and legal liability are inextricably intertwined, it would appear, however, that a claimant would face a considerable burden to establish that your client was the precise source of any infection exposure unless your client knew of an infection source at its business and/or failed to comply with a government directive, for there to be an impact on coverage.

For this reason, an insurance broker should anticipate certain requested coverage modifications in the future. It is likely that an underwriter may wish to include the Communicable Disease Exclusion endorsement (CG 21 32 05 09) which excludes coverage for “bodily injury” arising out of the actual or alleged transmission of a communicable disease. This exclusion would apply to both indemnification and defense coverage for any claim and therefore it is essential that you carefully discuss this potential change with your client and carefully document your file accordingly, in the event that any issues arise in the future.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com

On Although the ever-increasing restrictions may not have directly prohibited construction projects from continuing, nevertheless, impacts on projects are already being felt, and are likely to increase and become more disruptive. While not prohibiting construction, many jurisdictions are no longer accepting or processing permits, or conducting inspections. Consequently, many projects will not be able to timely start, move forward or obtain a certificate of occupancy. This will inevitably lead to project delays, with potential related litigation.

While the majority design professionals’ project contracts do not have liquidated damage or penalty provisions related to schedules for completion (or incentives), some do, such as governmental contracts. For those projects, it is incumbent on design professionals to address the conditions adversely affecting completion deadlines in writing, and to seek relief in writing from those deadlines. Design professionals that do not have specific schedules for completion can still face potential liability for delay(s) on the theory that the time it took for them to perform their contractual responsibilities was unreasonable and fell below the ordinary standard of care in the community. Accordingly, we encourage ALL design professionals whose delivery of project responsibilities that are being negatively impacted by COVID-19 measures, to expressly address these impacts and the delays that they are causing in the performance of their work. Such correspondence should be part of design professionals practice in keeping their clients informed. Design professionals with construction administration responsibilities on projects experiencing delays or stoppages should also warn contractors to protect work and materials from potential exposure to elements.

It is also anticipated that as the virus will slow construction progress, diminish the workforce and potentially delay payments. Some banks will not issue checks larger than $10,000 without face to face interaction, and many banking facilities are closed. We would caution design professionals against using delayed payments as a trigger to enforce contractual provisions to stop work or to terminate their contracts as this will may potentially lead to claims down the road, and be viewed unfavorably by prospective juries if any such cases reach trial. Following these best practices should help avert many claims when restrictions ease and projects resume.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com

On May 17, 2018, Brett R. Bloch, Senior Partner, and our S&P trial team, completed a four day trial defending H.A.T. Services Corporation against allegations that one of its trucks was involved in a rear end collision in Apopka, Florida which injured the Plaintiff. Our trial team obtained a defense verdict notwithstanding having to stipulate to liability, so this result is especially noteworthy. In his lawsuit, Jeb Bachman alleged that he was slowing down for a yellow light at an intersection on a rainy day when his vehicle was impacted by our client’s commercial ice cream delivery truck. The Plaintiff asserted that he sustained a concussion, traumatic brain injury, traumatic disc herniation at the C5-C6 level which required a laminectomy and related soft tissue injuries. The Plaintiff further claimed that he continued to suffer permanent dizziness, neck pain and headaches as a result of the collision.

Although liability was conceded due to the nature of the collision, Brett stressed to the jury that the Plaintiff did not evidence the required clinical elements of a concussion and that all of his neurological tests yielded normal results. Brett also asserted that the Plaintiff’s spinal surgery occurred three and one-half years after the collision and was necessitated by an intervening injury as well as a degenerative condition. In closing arguments, the Plaintiff requested a $1,017,059 damage award.

After a four hour deliberation period, the jury rendered a defense verdict.

The Plaintiff thereafter filed an appeal, contending that the trial court erred in failing to order a new trial due to alleged errors in the verdict form and that the verdict was against the manifest weight of the evidence. Diran Seropian, Senior Partner, and our S&P appellate team represented our client in the appeal, and argued to the appellate court that the Plaintiff’s trial counsel failed to properly object to the use of the subject verdict from and in fact agreed to its use after the court ruled adverse to his client at the charging conference. Diran also asserted that the verdict was entirely appropriate due to conflicting medical testimony between the parties’ respective experts, thereby leaving this issue for jury determination.

On March 20, 2020, the appellate court issued its opinion and denied the Plaintiff’s appeal. In affirming the trial court’s order denying a new trial as well as affirming the judgment entered in favor of our client, the appellate court specifically noted that at trial, the Plaintiff was “aggressively cross-examined” regarding his medical records and the information which he provided to his health care providers and that at trial, the Defendants presented evidence that the Plaintiff’s injuries on the date of the collision “may not have been as severe as he had stated in testimony.”

Jeb Bachman v. H.A.T. Services Corporation., case no. 2015-CA-009291-0, venued in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. Hon. Heather L. Higbee presiding.
Jeb Bachman v. H.A.T. Services Corporation, case no. 5D18-3376, venued in the District Court of Appeal of the State of Florida, Fifth District.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com

As concerns over the Coronavirus continue to grow, the health and safety of our clients, friends and colleagues remain foremost in our minds as we continue to closely monitor and react to the COVID-19 outbreak. In light of the new developments related to COVID-19 virus, we are providing an update on our operations and to let you know that we are here to help you.

We will remain open for business, our team is well connected remotely and we will continue our operations as usual. Our main goal is to achieve continuity of business at the high level of service that you have come to expect from us, in a secure manner while providing a safe environment for our personnel. We have robust remote access/telework/work from home capabilities that have been tested to ensure a seamless transition. Please be assured that our top priority is the safety and wellbeing of our staff, clients and their families.

Our thoughts are with all of those affected by the coronavirus outbreak. We wish everyone safety and health as we navigate these challenging times.

If you have any questions or would like further information as to how we can assist you, please contact Gary R. Shendell at gary@shendellpollock.com