Taylor Day Law

The Briefing

Author: Job Fickett

Is the Carrier also the Client?

Is the Carrier also the Client?

Recently, the Florida Supreme Court accepted jurisdiction and set for oral argument the matter of Arch Insurance Company v. Kubicki Draper, LLP.  Arch asked the Fourth District Court of Appeal to certify the following question to the Florida Supreme Court: WHETHER AN INSURER HAS STANDING TO MAINTAIN A MALPRACTICE ACTION AGAINST COUNSEL HIRED TO REPRESENT THE INSURED WHERE THE INSURER HAS A DUTY TO DEFEND. In the underlying case, Arch alleged that Kubicki Draper, LLP, a sizeable state-wide Florida law firm whom it hired to defend an insured, did not timely assert a viable statute of limitations defense, which in turn, caused Arch to have to pay a large settlement (within the policy limits) that may have otherwise been avoided.  Kubicki won summary judgment by asserting that Florida law limits standing on suits for attorney malpractice to only the client-insured, with whom the firm has privity of contract.  On appeal, Arch conceded that there was no Florida case on point that extended the privity from insured to insurer, nor cast the insurer as an intended third-party beneficiary of the attorneys’ advice and counsel (the lone exception recognized in Florida law).  Still, Arch asked the Fourth DCA to consider relevant federal case law that “guessed” how Florida courts might rule on such a question, and put forth a public policy argument that lawyers are insulated from malpractice suits if the insurer is unable to sue on behalf of its insured for a lawyer’s negligence. The Fourth DCA ultimately incorporated the trial […]

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Florida’s Expert Witness Standard: Daubert Reigns Supreme (Again)

Florida’s Expert Witness Standard:  Daubert Reigns Supreme (Again)

(This post assumes a general understanding of the Frye and Daubert standards.  For a detailed explainer, click here.) Daubert is again the standard for admission of expert witness testimony and evidence in Florida state courts, displacing the Frye standard.  Daubert limits the admission of so-called “pure opinion testimony” from expert witnesses. Since 2013, Florida’s standard for determining the admissibility of expert witness testimony and evidence has fluctuated.  After decades following the more permissive Frye standard, in 2013, the Legislature amended the Florida Evidence Code by adopting the more robust Daubert standard. Daubert and its progeny had controlled expert testimony in the federal courts and at least 36 state courts for over 20 years. But in response to the Legislature’s amendment, the Supreme Court of Florida concluded, in a rule-making opinion, that the Legislature had infringed upon the Supreme Court’s rulemaking authority by passing the amendment. The Florida Supreme Court explained that the amendment was procedural in nature, and therefore could only be changed by the court. Additionally, after considering the extensive briefings, oral arguments, public commentary, a Report of the Florida Bar’s Code and Rules of Evidence Committee, and extra jurisdictional case law study, the Florida Supreme Court reasoned that that Daubert’s broad applicability to all expert testimony (as opposed to Frye’s limitation to “new and novel” methods) posed “grave constitutional concerns” about access to courts and the expense of litigation on the parties and the judicial system.  The Court’s reasoning seemed at odds with greater than twenty years’ worth […]

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