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  • 100 Southeast Second Street Suite 3800 Miami, FL 33131
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Publications

  • Sotheby’s Goes Private & More Art World Headlines

    Sotheby’s Goes Private & More Art World Headlines

    June 28, 2019

    When the art world makes headlines, it becomes clear just how important the field is to all of us. From the sale of Sotheby’s auction house to a private owner, to a Ferrari judicially declared a work of art, to the story of UK artists’ work with “deepfake” video technology, Wilson Elser’s Art Law practice features summaries of recent world art news reports, including Hong Kong’s protests of planned extradition laws to a new viewing experience for the Mona Lisa.
  • Notre Dame de Paris & More Art World Headlines

    April 17, 2019

    When the art world makes headlines, it becomes clear just how important the field is to all of us. From Notre Dame de Paris suffering a devastating fire, to the first-ever photograph of a Black Hole, to the discovery of ancient treasures in Lake Titicaca, Peru, Wilson Elser’s Art Law Perspectives blog features summaries of recent news reports pertaining to art law and art markets.
  • Travelers in a Dangerous Time: The Do’s and Don’ts of Crossing the United States Border in the Cannabis Age

    Travelers in a Dangerous Time: The Do’s and Don’ts of Crossing the U.S. Border in the Cannabis Age

    October 1, 2018

    As Canada draws ever closer to October 17, 2018 – the date on which the Cannabis Act comes into force and recreational or other adult-use cannabis is set to be unveiled across Canada – complex regulatory issues continue to cloud the celebrations, including individuals working or investing in the Canadian cannabis sector being turned back at the U.S. border – or worse.

  • Florida Supreme Court Rules Incorrect Denial of Insurance Benefits Can Trigger Award of Attorneys’ Fees to Insured

    Florida on Incorrect Denial of Insurance Benefits

    October 26, 2016

    The Florida Supreme Court has found that insurance companies can owe attorneys’ fees to insureds under Florida law if they incorrectly deny benefits. The court found that the degree of wrongfulness or bad faith in the denial does not factor into the decision to award attorneys’ fees. 

  • Florida Supreme Court Rules Defendants May Not Admit Evidence of Potential Collateral Source Benefits Provided by Social Legislation, Such as Medicare and Medicaid

    Collateral Source Benefits from Medicare and Medicaid

    October 23, 2015

    The Florida Supreme Court recently held that defendants are precluded from introducing evidence regarding collateral source benefits that plaintiffs may receive in the future from social legislation, such as Medicare and Medicaid. The decision has significant ramifications because it removes a tool that could be used to diminish the jury award for the plaintiffs’ future damages.

  • Eleventh Circuit Addresses Statutory Penalty Claims under ERISA

    11th Circuit Addresses ERISA Statutory Penalty Claims

    August 25, 2015

    In a recent case, the Eleventh Circuit took a step closer to joining ten other circuits that have refused to recognize ERISA penalty claims against de facto plan administrators.

  • Citizens Property Insurance Corporation Immune to Statutory Bad Faith Claims

    Citizens Property Insurance Corporation Immune to Statutory Bad Faith Claims

    June 3, 2015

    A recent decision by the Florida Supreme Court confers a benefit on a state-created entity that provides property insurance that private insurers do not enjoy. Critics of the opinion say that the entity has no incentive to handle claims quickly and correctly, and that, as a practical matter, this decision actually creates a disincentive for it to do so. Proponents counter that the entity will not be burdened the by abuse of bad faith litigation that drives up rates to policyholders.

  • Modification of Florida Law Imposes New Requirements on the Use of Child Safety Restraint Seats

    Florida’s New Law on Child Safety Restraint Seats

    February 18, 2015

    Effective January 1, 2015, a new law in Florida takes a step in the right direction by modifying the state’s child safety restraint seat laws and providing for $60 fines and three points on the driver's licenses of offenders. Parents and caregivers should be aware that the law is the minimum requirement that must be followed.

  • Florida Supreme Court Rules an Insured Can Use Payments from a Third Party to Satisfy a Self-insured

    FL: “Made Whole Doctrine” Applied to Favor Insured

    March 17, 2014

    In a recent case, the Florida Supreme Court applied the “made whole doctrine” standard contract law to favor the insured over the insurer. However, if a policy contains a provision spelling out how any subrogation recovery obtained from a third party will be shared between an insurer and its policyholder, the terms of the insurance contract should prevail.

  • FINRA Dispute Resolution Opening to RIAs

    FINRA Dispute Resolution is now an alternative dispute resolution forum

    November 5, 2012

  • Eleventh Circuit Mandates Insurers’ Strict Statutory Compliance with Florida Claims Administration Act When Denying Coverage

    July 26, 2012

    The Eleventh Circuit affirmed a district court’s judgment denying an insurer’s motion for summary judgment on no duty to defend or indemnify its insured in connection with hurricane repair work, and granting in part and denying in part a cross-motion for summary judgment filed by plaintiff. The insurer was estopped from denying coverage because the insurer failed to adequately comply with the procedures set forth in Fla. Stat. § 627.426.

  • One to Watch: Pre-suit Duty to Preserve Surveillance Video without a Written Request?

    July 24, 2012

    While Florida’s Second District Court of Appeal ruled that it would not be fair to businesses to require them to preserve video evidence without a written request, the court noted that the Fourth District Court of Appeal has held there can be circumstances in which a defendant has a duty to preserve evidence absent a request to preserve it. There is now a conflict among the appellate districts, which may ultimately be resolved by the Florida Supreme Court.

  • Florida Courts to Require Service of Pleading and Documents by Email

    July 2, 2012

    Effective September 1, 2012, Florida will take another major step toward paperless litigation. While not substantive law, the procedural events that are occurring in Florida in this area are leading to an e-practice that will result in greater efficiency and expediency in the practice of law in Florida.

  • No Common Law First-Party Bad Faith Action in Florida

    June 6, 2012

    The Florida Supreme Court recently concluded that there is no common law first-party bad faith action in Florida and that the “implied covenant of good faith and fair dealing” does not exist as a separate claim from a statutory bad faith claim in the first-party insurance claims in Florida.
  • Florida Sinkhole Problem Prompts Lawmakers to Act

    February 15, 2012

    The Florida Senate banking and insurance committee passed a broad property insurance bill, ss. 627.706-627.7074, F.S., in February 2011 that would no longer require companies to offer comprehensive sinkhole insurance to Floridians. Coverage would be required only for “catastrophic ground collapse,” which means that a house is literally sucked into the ground. Proponents felt the bill would help reduce the rampant fraud that causes insurance companies to raise rates on consumers. But opponents saw it as the end of sinkhole insurance in Florida.
  • Florida Decisions Trending Toward Admitting Gross Amount of Medical Bills into Evidence

    September 2011

    Florida’s First District Court of Appeals distinguished cases involving payments made by Medicare from those involving payments made by a private health insurer to whom the plaintiff actually paid premiums and “earned” the benefits.

  • Supreme Court Limits Rule 10b-5 Liability to Actual “Makers” of Allegedly Misleading Statements – Perhaps Not the Fraud Shield Predicted by Some

    July 2011

    As with any decision of this magnitude, it will take years for the full impact of this ruling to be appreciated. However, a large number of potential securities fraud defendants may now rest a little easier, knowing that so long as they do not have the “ultimate authority” to actually “make” a statement, they are shielded from at least one form of exposure and sometimes cripplingly expensive litigation.

  • Florida "Crashworthiness" Bill Becomes Law

    July 2011

    On Thursday, June 23, 2011, Florida Governor Rick Scott signed into law the heavily debated Senate Bill 142. The new law is retroactive, meaning it applies to pending cases.
  • Florida "Crashworthiness" Bill One Step Closer to Law

    May 2011

    Both houses of the Florida Legislature have passed a bill that would allow defendants in "enhanced injury" product liability cases to present evidence relating to the fault of anyone whose negligence may have contributed to an underlying accident. Governor Rick Scott is expected to sign the bill into law.
  • "Crashworthiness" Bill Passed by Florida State Senate

    April 2011

    A bill pending in the Florida Legislature could change the litigation landscape in product liability cases where the "crashworthiness" of a motor vehicle is involved.
  • Florida Law Raising Burden of Proof in Slip-and-Fall Cases Is Retroactive

    March 2011

    A recent change in Florida law makes it more challenging for plaintiffs in slip-and-fall cases to establish liability for their injuries. Now a state court has ruled that the law applies not only to new claims, but to older cases coming to trial, regardless of when the loss occurred.

  • U.S. Supreme Court to review an important securities case that may open the door to fraud suits against service providers

    August 2010

    The U.S. Supreme Court will hear a case that may expose service providers to lawsuits over alleged misstatements in securities prospectuses. The decision's impact could extend beyond the investment management business to others who advise public companies concerning securities offering documents. That group likely would include accountants, attorneys, bankers, financial advisors and consultants.

  • Florida adopts UN arbitration model

    June 2010

    Until recently, international arbitration in Florida was governed by the Florida International Arbitration Act (FIAA).  However, the FIAA has now been repealed and replaced with the Model International Commercial Arbitration Law (Model Law), as drafted under the supervision of the United Nations Commission on International Trade Law.

  • New Florida law raises burden of proof for claimants in slip and fall suits

    June 2010

    Effective July 1, 2010, a claimant involved in a slip and fall lawsuit stemming from the presence of a foreign transitory substance will have to establish actual or constructive knowledge of the alleged dangerous condition on the part of the premises owner.

  • Florida Supreme Court determines no bad faith by an insurer where it did not cause damages claimed by its insured, nor were damages incurred beyond the policy limit

    May 2010

    Florida third party claimants may bring common law bad faith actions against insurers under limited circumstances, including the rendering of an excess judgment against an insured or by assignment.  In a case recently determined by the Florida Supreme Court, Pamela Perera v. United States Fidelity and Guaranty Company, No. SC08-1968, the court, in essence, found that bad faith does not exist in a vacuum—that without the causation of damages, a carrier's alleged bad faith conduct is not actionable.

  • Florida: Should plaintiffs pay for frivolous suits?

    February 2010

    Parties, but not their attorneys, could be spared sanctions for frivolous litigation if they do not understand their cases were baseless under House Bill 449, which cleared the Florida House of Representatives Civil Justice and Court Committee in January 2010.

  • "That's what friends aren't for," says Florida ethics panel

    January 2010

    On November 17, 2009, Florida's Judicial Ethics Advisory Committee concluded that judges should not be Facebook friends with attorneys who appear before them.  The State Committee said "'friending' someone on Facebook poses an appearance of conflict and could lend the weight of the robe to others."  Judicial Canon 2B strictly prohibits judges from doing anything that might "lend the prestige of judicial office to advance the private interests of the judge or others."  The ruling did not address Facebook in particular but, instead, referred to all social networking sites by noting that the primary problem was allowing others to see who someone's friends are.

  • Statement on Auditing Standards – Consideration Of Fraud In A Financial Statement Audit – Slated For Review By The Auditing Standards Board

    January 2010

    The Auditing Standards Board ("ASB") of the American Institute of Certified Public Accountants ("AICPA") will review the exposure draft of the proposed Statement on Auditing Standards ("SAS"), Consideration of Fraud in a Financial Statement Audit, at its January 2010 meeting as part of the continuing Clarity Project.

  • Florida appellate court finds that third-party contribution claims are obsolete

    September 2009

    A recent Florida case may have a dramatic impact on the way that defendants and defense counsel handle claims in which a third party may be partially or entirely liable for the claimant's damages.  See T & S Enterprises Handicap Accessibility Inc. v. Wink Industrial Maintenance and Repair, Inc., 34 Fla. L. Weekly D953 (Fla. 2d DCA May 13, 2009).  The court in T & S answered the question of whether the right of contribution continues to exist following the 2006 statutory abolition of joint and several liability.

  • Florida legislature reaffirms exemption for surplus lines carriers

    June 2009

    Whereas domestic insurers are regulated by Chapter 627 of the Florida Statutes, it was assumed that this chapter did not apply to surplus line insurers.  Following two 2008 court rulings in Florida, which created an ambiguity as to how many surplus lines insurers are regulated in contrast to domestic insurers, the Florida Legislature passed House Bill 853 during the 2009 Legislative Session, which was signed into law by Governor Charlie Crist on June 11, 2009.

  • BDO International escapes liability for mistakes of member firm

    June 2009

    In a case closely watched by the accounting profession, a jury took only one hour to render a verdict in favor of BDO International (now known as BDO Global Coordination B.V.), saving that company, the umbrella organization of the BDO network, from huge vicarious liability for the acts of one of its member firms, BDO Seidman.

  • Potential impacts from the proposed changes to the regulation of the financial industry and the federal securities laws

    June 2009

    In an effort to protect our clients' current and future interests, the existing rules and regulations in place and any proposed changes which could have an impact on business practices should be recognized and evaluated.  On June 17, 2009, the Treasury Department and the White House released their proposed changes to the regulation of the financial industry entitled, Financial Regulatory Reform: A New Foundation (the "Proposal").  The Proposal could have a dramatic effect on how our clients manage their business and litigation.

  • New rulings by Florida courts create uncertainty about regulation of surplus lines insurers

    March 2009

    Two recent court rulings in Florida have resulted in ambiguity as to how much surplus lines insurers are regulated in contrast to domestic insurers. Whereas domestic insurers are regulated by Chapter 627 of the Florida Statutes, it was assumed that this chapter did not apply to surplus line insurers until these court rulings indicated otherwise. Legislation has now been introduced in the Florida House of Representatives and Florida Senate that provides that surplus lines insurers are exempt from all of Chapter 627.

  • Florida joins growing number of jurisdictions that have invalidated pre-injury releases signed by parents on behalf of their minor children

    January 2009

    Recently the Florida Supreme Court in Kirton v. Fields, 2008 WL 5170603 (Dec. 11, 2008) held that a parent cannot enter into a binding pre-injury release on behalf of a minor who is participating in a commercial activity. The court's ruling stemmed from a 2003 accident involving a 14 year old boy who was fatally injured while operating an ATV at an off-road motor-sports park. In order to gain admission to the park, the father, who was the primary custodial parent, had to execute a release and waiver of liability.  Following the fatal accident the personal representative of the child's estate filed a wrongful death lawsuit against the park's operators.