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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2025

What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025

December 1, 2025

by Blake J. Hood

1.    Treatment with an authorized provider tolls the statute of limitations, although treatment occurred without employer/carrier’s knowledge and billed to private health insurance
Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301 (Fla. 1st DCA 2024), reh’g denied (Dec. 30, 2024), reh’g denied (Feb. 13, 2025) (aka, Ortiz II)

In earlier proceedings involving the same case—Ortiz I—the court introduced the “two-year master countdown timer” and “tolling timer” concepts in explaining how to construe the time bars for filing petitions for benefits set forth in section 440.19, Florida Statutes. In so doing, Ortiz I held that the one-year tolling provision in section 440.19(2) (prompted by furnishing medical care or paying compensation) does, in fact, apply within the first two years following an accident, something prior case law held otherwise. Thus, under Ortiz I, if an employer/carrier provided benefits immediately following an accident, the initial two-year master timer would never even start ticking, and claimants could effectively “bank” that time. 

By contrast, Ortiz II makes no mention whatsoever of the master/tolling timers. Rather, the new majority opinion focuses only on whether the specific treatment that the claimant received qualified as medical care “furnished” by the employer/carrier sufficient for the one-year tolling provision in section 440.19(2). Ortiz I held that it did not qualify and upheld the judge’s dismissal of the claim. Ortiz II now holds it did qualify and, thus, allowed the claimant’s claim to proceed.

 

2.    Employers/carriers are entitled to recover benefits paid from third-party settlement after settlement date
Liberty Mut. Ins. Co. v. Lee, 401 So.3d 1245 (Fla. 6th DCA 2025)

The claimant was injured when the elevator he entered at work suddenly stopped and then plunged into a free fall. While he received benefits from his workers’ compensation employer/carrier, he also sued the elevator operator. Pursuant to section 440.39(3)(a), Florida Statutes, the employer/carrier filed a notice of lien in the third-party suit. The claimant did enter into a settlement in the third-party suit, but for over 750 additional days he continued to receive workers’ compensation benefits at a cost to the employer/carrier of over $300,000. 

Pursuant to the statutory calculation, the parties agreed that the employer/carrier was entitled to 11.61% of the benefits paid as its equitable distribution from the settlement proceeds. The real dispute, however, centered on what benefits the 11.61% was to be applied. More specifically, the parties disagreed on when the “valuation date” should be for determining the amount of an employer’s/carrier’s workers’ compensation payments. 

The Sixth District Court of Appeal held that, while the statute does not set forth a “valuation date,” it is unnecessary given the clear directive in the statute entitling employers/carriers to reimbursement of either all or a percentage of benefits they pay up to a claimant’s net settlement amount. 

 

3.    Award for nonprofessional attendant care reversed because judge failed to distinguish which services qualified for compensation under Florida law
Girardin v. AN Fort Myers Imports, LLC, 403 So.3d 255 (Fla. 1st DCA 2025)

The claimant’s husband provided her with nonprofessional attendant care. The judge awarded him payment for 30 hours per week at the federal minimum wage. The judge made this award based on a generalized finding that what the husband did for the claimant—including carrying her upstairs for her to bathe—qualified as attendant care services under Florida law. However, the employer/carrier argued that some services provided by the husband that were included in the 30-hours-per-week award did not meet the statutory definition for nonprofessional attendant care. The First District Court of Appeal held that the judge did not engage in a detailed analysis of the husband’s activities to ensure the husband was paid only for those services not “within the scope of household duties and other services normally and gratuitously provided by family members.” For that reason, the District Court vacated the award for the husband’s nonprofessional attendant care. 

 

4.    Average weekly wage should be calculated at time of last injurious exposure in occupational injury cases
Guglielmo v. State, 418 So.3d 656 (Fla. 1st DCA 2025)

In an occupational disease case, the First District Court of Appeal held that the time of injury (when last injurious exposure occurred) is the period of relevant wages for calculation of the average weekly wage (AWW). The claimant worked as a police officer for 23 years, retired, later returned to work—as a corrections officer—and voluntarily resigned in March of 2021 because of health concerns. He complained of stress from his corrections job and exhaustion due to the long hours because of alleged understaffing. The parties agreed that when he resigned, he was making $673.20 per week. 

The judge ultimately denied entitlement to indemnity benefits because he found that the claimant’s AWW was $0.00. The judge reasoned that, because there was no “contract of hiring in force at the time of the accident,” there were no “wages.” The judge stated, “[a]s the claimant’s accident date occurred 119 days (17 weeks) after leaving his employment, he was not an employee in the 13 weeks preceding his accident.”

The First District Court of Appeal reversed, noting that the definition of “disability” deliberately uses the term “injury” and “time of injury” as the critical time focus. It does not use the term “accident.” See § 440.02(13), Fla. Stat. (2021). Furthermore, the definition of “wages” pinpoints those earnings at the “time of injury,” which in occupational disease cases relates to the period of exposure. See § 440.02(28), Fla. Stat. (2021).

In this case, the relevant “wages” for purposes of calculation are those paid to the claimant for his services at the “time of injury.” As the parties stipulated, 13 weeks existed of wages preceding the last injurious exposure (the claimant’s last day of work) which provided an AWW of $673.20.

 

5.    Court of Appeal enforces statutory provision divesting judges of compensation claims of subject matter jurisdiction
Sapp v. Sims Crane & Equip. Co./Bridgefield Cas. Ins. Co., 412 So.3d 808 (Fla. 1st DCA 2025)

This case appears, at first glance, to be about collective bargaining agreements, but it is really about the fundamental source and scope of jurisdiction in workers’ compensation cases. 

The claimant was employed as a crane operator and was involved in an accident on October 29, 2020. The first recorded activity with the Office of Judges of Compensation Claims took place when the employer/carrier filed a motion to preserve blood and urine samples within a few days of the accident. Thereafter, the employer/carrier provided benefits, though the claimant later filed four petitions for benefits a few years later—between June and October of 2023. The claimant requested indemnity and medical benefits, and the employer/carrier provided some, but not all, of the benefits requested. In some of its responses, the employer/carrier also stated that subject matter jurisdiction was lacking because the “case is governed by Collective Bargaining Agreement authorized per FL Statute 440.211.” The employer/carrier filed a motion for summary final order, requesting that the judge dismiss any pending claims for lack of subject matter jurisdiction, which was denied due to factual disputes regarding the existence of the collective bargaining agreement. A final hearing regarding certain benefits in dispute was scheduled, and the parties agreed to bifurcate the issues, with the issue of subject matter jurisdiction to be addressed first.

The District Court of Appeal held that for cases in which employers/carriers take the first actions to invoke jurisdiction in workers’ compensation claims and continue to litigate and provide benefits over an extended period of time, subject matter jurisdiction is not thereby created if it never actually existed in the first place.

 

6.    Employees may not file tort claims against their employers in circuit court without first seeking workers’ compensation benefits
Steak’N Shake, Inc. v. Spears, No. Fla. 5th DCA, No. 5D2024-0148, 2025 WL 1668095, June 13, 2025, reh’g denied (Oct. 1, 2025)

This case sets forth a process for claimants seeking to file civil liability suits against their employers and identifies the final arbiters of workers’ compensation compensability determinations. It does so acknowledging that no other court has addressed the specific issue at hand.

The employee was held at gunpoint while at work and was forced into a backroom where a gunman threatened to kill her. The gunman grabbed the employee by the shoulder and neck during the encounter. The employee experienced severe emotional distress as a result of the robbery, but rather than pursue a claim for workers’ compensation benefits, she sued her employer for civil damages. 

She argued that her case was not compensable because elsewhere in Florida’s Workers’ Compensation Act, mental injuries are deemed non-compensable if they are not accompanied (or caused) by physical injuries. § 440.093, FLA. STAT. (2024). The employer/carrier argued, however, that the claimant could not make the compensability determination on her own and was required to at least request benefits within the workers’ compensation system as a necessary condition to filing a civil suit. The civil trial court agreed with the claimant and ruled that she was permitted to file a civil suit premised on its determination that her accident and injuries were not compensable.

The court announced a new rule, at least within the Fifth District Court of Appeal: employees may not file tort claims against their employers in circuit court without first seeking a determination of whether they are entitled to workers’ compensation benefits. The court highlighted language in Florida Statutes § 440.13(1)(d), stating that compensability questions are determined by only two entities, a “carrier” or a “judge of compensation claims.” A Florida circuit judge, therefore, lacks such authority.

 

7.    Court of Appeal holds judges of compensation claims lack jurisdiction over employer/carrier-paid costs and have limited role in reviewing employer/carrier-paid fees
Fox v. Sarasota County School Board, 415 So. 3d 736 (Fla. 1st DCA 2025)

The First District Court of Appeal issued an opinion that clarifies the extent of a judge of compensation claims’ discretion, and even jurisdiction, to review attorney fees and costs paid by employers/carriers. The court held that a judge’s role in approving employer/carrier-paid attorney fees for benefits secured under Florida Statutes Section 440.34(1) extends to only reviewing the amount of, rather than entitlement to, attorney fees. The court stated that judges have no jurisdiction whatsoever over employer/carrier-paid costs. The opinion may have significant implications for settlement negotiations and the role of judges in approving “side stipulations” to employer/carrier-paid attorney fees and costs.

 

8.    Reservation over attorney fee entitlement may not toll statute of limitations
Murphy v. Polk Cnty. Bd. of Cnty. Commissioners, Fla. 1st DCA, No. 1D2022-2752, 2025 WL 2527901, Sept. 3, 2025

The First District Court of Appeal held that a party’s purported reservation over attorney fees, as part of a voluntary dismissal before an employer/carrier accepts compensability over a claim or compensability is adjudicated on the merits, does not toll the statute of limitations. 

The claimant alleged an accident on September 10, 2016. The employer/carrier initially authorized some medical appointments but ultimately denied compensability of the claim in its entirety. The claimant then filed  a first Petition for Benefits, to which the employer/carrier responded with a full denial and furnished no further benefits. The claimant then filed a Notice of Dismissal of the first Petition for Benefits but reserved jurisdiction over claims to entitlement and the amount for attorney fees and costs. 

Approximately two years later, the claimant filed a second Petition for Benefits, requesting indemnity benefits regarding the same accident date. The employer/carrier responded with a denial based on the expiration of the two-year statute of limitations. The employer/carrier then filed a motion asking the judge to require the claimant to file a verified motion for attorney’s fees and costs relating to the first Petition for Benefits. The judge granted the motion, but the claimant failed to file any such verified motion for attorney’s fees and costs. Consequently, the judge dismissed the claim for fees and costs from the first Petition for Benefits. The judge analyzed the nature of attorney fees. Essentially, since the claimant could not possibly show that he secured benefits pursuant to the first Petition for Benefits, the fee claim in that Petition for Benefits was a nullity, even though he reserved jurisdiction over fee entitlement. Because the fee claim in the first Petition for Benefits remained “ancillary” and “collateral,” rather than one that had “ripened” through the securing of benefits or an adjudication on the merits, and two years from the accident elapsed before another Petition for Benefits was filed, all Petitions for Benefits after the first were time barred. 

 

9.    Daubert evidentiary challenges do not apply to expert medical opinions under Florida’s Workers’ Compensation Act
Sedgwick Claims Mgmt. Services v. Thompson, Fla. 1st DCA, No. 1D2023-0193, Sept. 3, 2025

In a matter of first impression, Florida’s First District Court of Appeal addressed whether Florida Statutes Section 440.25(4)(d) precludes Daubert challenges to Expert Medical Advisor (EMA) opinions. Put simply, Daubert requires that expert opinions result from analysis of reliable facts, use of reliable principles and methods, and reliable application of those principles and methods to the facts of the case. In this case, the court held that the plain language of the statute in conjunction with the ever-evolving changes to Florida’s Workers’ Compensation Act mandates that Daubert cannot be used to exclude EMA opinions. 

 

10.    Standards for misconduct under Workers’ Compensation Act and Reemployment Assistance Law are not equivalent
Cobb v. TECO Energy Inc., Fla. 1st DCA, No. 1D2024-0787, 2025 WL 2919055, at *1, Oct. 15, 2025

The First District Court of Appeal affirmed the judge’s denial of temporary indemnity benefits that were terminated for “misconduct” under section 440.15(4)(e) of the Workers’ Compensation Act. The court explained, while the claimant was awarded unemployment benefits, that determination was not binding in workers’ compensation proceedings. While the definitions of “misconduct” in the Workers’ Compensation Act and the Reemployment Assistance Law are similar, and while prior cases treated them similarly, the latter statute was substantively amended in 2011–2012. The court held the judge properly applied the statutory definition of misconduct, the factual findings were supported by competent and substantial evidence, and the judge acted within his/her discretion as factfinder. 


What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

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106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.