Jonathan Bukowski

Litigating a case involving a claim for fraudulent misrepresentation? The most recent case addressing the elements of the claim is 𝑅𝑢𝑠𝑡𝑦 115 𝐶𝑜𝑟𝑝. 𝑣. 𝐵𝑎𝑛𝑘 𝑜𝑓 𝐴𝑚𝑒𝑟𝑖𝑐𝑎, 2024 WL 1619697, *7 (S.D.Fla. April 15, 2024). Remember, when pleading such a claim in federal court, “[w]hile Rule 8(a) does not demand “detailed factual allegations,” it does require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 𝐹𝑟𝑖𝑠ℎ𝑏𝑒𝑟𝑔 𝑣. 𝑈𝑛𝑖𝑣𝑒𝑟𝑠𝑖𝑡𝑦 𝑜𝑓 𝑆𝑜𝑢𝑡ℎ 𝐹𝑙𝑜𝑟𝑖𝑑𝑎 𝐵𝑜𝑎𝑟𝑑 𝑜𝑓 𝑇𝑟𝑢𝑠𝑡𝑒𝑒𝑠, 2024 WL 1579797, *2 (M.D.Fla. April 11, 2024)(quoting 𝐵𝑒𝑙𝑙 𝐴𝑡𝑙. 𝐶𝑜𝑟𝑝. 𝑣. 𝑇𝑤𝑜𝑚𝑏𝑙𝑦, 550 U.S. 544, 555 (2007)). In order to survive a motion to dismiss, factual allegations must be sufficient “to state a claim to relief that is plausible on its face.”” 𝐼𝑑. Like what you see? Visit the Florida Litigation Guide and see our FREE sample chapter: https://lnkd.in/eGGPuDBY #floridalawyer #florida #floridalaw #legalresearch #breachofcontract #floridaattorney #litigation #legalguide #lawyers #attorneys #lawstudents #floridalitigationguide #lawschool

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Jury selection and trials one very important thig that trial attorney need to do is have a well planned out voir dire. How to get there? you need to do the following: 1) figure out what you are afraid of, what's the 800 lbs gorilla in the room? (gaps in treatment? pre-existing conditions? low speed impact? ) 2) ask the jury about those things and if they have experienced them, done them or seen them and then ask how they feel about those issues. if you don't the defense will gain ground when they bring it up in trial. 3) Be respectful: don't act like a total jerk in court, don't be condescending to the jury, judge, the other side, or a witness: remember they are your guest, and you are an officer of the court. This is not high school, there are no points given for being a smart ass.

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CASELOAD OVERLOAD? HOW MANY TIMES DO YOU HEAR THIS?: "If only the plaintiff attorney was reasonable, we could have settled this matter earlier". "The defense counsel needs to bill on this case before it can be settled". "The adjuster never returns my calls" If this is your mindset, you are missing opportunities to make your work life better. TAKE CHARGE OF YOUR CASES CREATE THE RULES AND ACTIONS THAT WORK You want the relationship to become the focus, not the individual case. That is how you get the attorneys and adjusters to keep coming back to the table with more cases. Mediation is a paradox. MORE can be LESS. More Mediation means LESS: Less Cases Less expenses Less wasted time Less discovery Less motion practice MEDIATE. CONTACT ME TO DISCUSS MORE OF THIS AND I WILL SHARE MORE WAYS TO LIGHTEN YOUR CASELOAD THRU MEDIATION.

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To anchor or not to anchor that is the question? If you’re a #insurancedefense #lawyer handling #insurance #claims #litigation is part of counseling your #claimsprofessionals to anchor a jury even on a contested #liability case part of your #trialstrategy? Why or why not? And how receptive are your #insurancecarrier clients to anchoring?

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12 Comments

MMA files Emergency Motion to Authorize the Use of Cash Collateral On May 2, 2024, MMA filed the attached Emergency Motion for Interim and Final Orders Authorizing the Debtor's Use of Cash Collateral. MMA states "The Debtor currently has over 25,000 engagement agreements with clients regarding damage/insurance claims, and a fee interest in more than 5,000 mass tort claims." MMA argues in part "If the Debtor is not authorized to spend cash collateral, the Debtor would face the real possibility of being forced to cease operations, thereby placing the Debtor’s clients and creditors in great difficulty." It is wonderful that MMA is expressing serious concern for its clients and argues that the best way to protect those clients is to give MMA access to more money. MMA's proposed payroll through May 31 is $68,444.44. (Page 5) MMA also indicates "The Debtor has obtained authority and agreement from EAJF to process a limited payroll since the filing of this case and has continued to attempt to agree upon an interim order for use of cash collateral. No agreement was reached." It will be interesting to see the responses filed and whether the Court grants this request.

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The best written demands make it easy for the adjuster to tender in 30 minutes or less. They are clear and unequivocal in their demand. This means there's a deadline and a sum certain. You've also agreed to exonerate the defendant from any personal financial responsibility. An insurance company acts in bad faith if they tender their limits--while leaving their insured out to dry. The demand provides all the information that an adjuster needs to obtain the authority. This means you've provided a summary establishing liability and proving damages, while pointing to the support in the attached exhibits. The demand allows the insurance company the ability to meet your demand. This means you haven't provided any conditions that the insurance company can't meet on its own accord. The last one can be tricky--in certain cases--because you want information from the insured/defendant. This typically comes in the form of assets and/or affidavits of no other insurance. Best practice is to reach out to them early (literally cold call the defendant) to discuss the requested information. Or, if you prefer, you can simply hire an investigator to go out and talk with the defendant. Because if you condition acceptance of your demand on something the insurance company can't guarantee (insured's compliance) then the insurance company doesn't act in bad faith if the condition is not met due to something outside of their power (e.g. insured's non-compliance).

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Insurers control the purse strings. They choose which claims they are going to settle. Yet I often see insurers complaining about certain practices in the personal injury industry that the insurers' own practices have incentivized. But why do law firms do some of those things? It's because they get results in that insurers frequently pay the claims. The law firms wouldn't do what they do if their practices didn't result in the law firms making money. Insurers frequently pay policy limits of $100K or less on cases based solely on the medical bills. Here's an example. Say there is a car wreck with two people in the same vehicle. Policy limits for the at-fault driver are $50K. The two clients have the same exact treatment: ER, orthopedic visits, 1 epidural steroid injection, and 6 months of physical therapy. The only difference is the amount of medical bills: Client 1's medical bills are $25K; Client 2's medical bills are $40K. I can almost guarantee you that if it is one of the large insurers, Client 2 will get the $50K policy limits paid on his claim. Client 1? They'll get a pre-suit offer less than the medical bills (probably in the range of $15K). Client 1 will then have to file a lawsuit and potentially litigate the case for many months or years, and may have to go to trial. I see this happen all the time. It isn't an aberration. And it makes zero sense. Why the discrepancy? Because insurers focus almost single-mindedly on the medical bills, at least when it comes to pre-suit motor vehicle claims. They give little, if any, weight to actual pain and suffering. It's like it doesn't exist. And why is that? Because insurers want it so a formula or algorithm can handle their claims. They want to process as many claims as possible, as cheaply as they can. They are incapable of evaluating each claim individually. As a result, they use one factor as the biggest proxy for claim severity: medical bills. What message does this send to personal injury lawyers? Particularly those whose business model is to run a high volume and settle as many cases as they can, as easily as they can? If insurers don't like what they see, perhaps they should look internally at what their own practices have incentivized. Then maybe they should try to realign the incentives, instead of constantly looking for external, legislative fixes that (a) won't solve the problems, and (b) will likely just cause new problems to pop up.

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Why a Personal Injury Attorney: They determine fair compensation and negotiate on your behalf A personal injury attorney assesses the damages caused by the accident and suggests fair compensation. For example, they will look at the severity of the damage and recommend accordingly.  For example, someone who has suffered a traumatic brain injury will get a higher settlement than someone who broke their arm.  They also look at other things, such as: https://lnkd.in/et4jCU-C  Almanzar-Paramio Law can help! Contact us today.  #PersonalInjuryLaw #InjuryClaims #Compensation #AccidentLawyer #JusticeForVictims #LawFirm #InjurySettlement #LegalRights #PersonalInjuryAttorney

Ever hear an insurance company say something in negotiations to the effect of: "We only normally pay $X for this type of injury" or "That offer is 3 times specials!"? The best lawyers on both sides, and insurance adjusters, don't rely on blanket rules or formulas for evaluating cases. They take into account all the facts of the case, which include: 1. The likability and credibility of the plaintiff. 2. Any egregious liability facts. 3. Causation, including any prior problems and credibility of the treating doctors. 4. Extent and duration of pain and suffering. 5. Ongoing pain and impairments. 6. Medical bills and lost wages. 7. Expected future special and general damages. 8. Venue. 9. Plaintiff's damages witnesses and their likability and credibility. 10. Likability of the defendant. I always tell clients they could have the same exact injury in the same venue, but there's a difference between a sweet little old lady who rear-ends them on their way to church, versus a driver who is texting and distracted and runs a red light. No two cases are the same. Don't fall into the trap of taking a one size fits all approach in evaluating cases, regardless of which side you are on. Evaluate all the unique facts of your case. Your client deserves it.

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Policy language is key. In this case, the insured argued that a subpoena constituted a "Claim," in part based on case law that defined "Claim" as a "written demand for monetary damages or non-monetary relief." However, the policy at issue here more specifically defined a "Claim" as “a demand received by an Insured seeking a remedy and alleging liability or responsibility on the part of the Named Insured for loss.” If you enjoy receiving FREE updates regarding insurance coverage issues, subscribe to Wiley Rein LLP's Executive Summary blog here: https://lnkd.in/e6mpFjxx And as my colleague Ben Eggert says, "Smash that like button!" https://lnkd.in/e_2CPaXj

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Personal Injury Attorneys vs Insurance Defense Attorneys The constant plaintiff vs. defense war on LinkedIn gets old fast. There are the plaintiff's attorneys who celebrate their wins and write about how an insurance company only offered a nominal amount to settle a case and the jury returned a verdict of $10,000,000+. The defense attorneys see that and rail against fake injuries and nuclear verdicts. They then celebrate their wins and write about cases with horrific injuries where their client was at fault but they were able to limit the damages award to a nominal sum. The plaintiff's attorneys see that and rail about the dirty tricks used to delay cases and minimize a person's pain and suffering. They demonize each other. But what if there was a firm that was widely respected on both sides of the "v" and by the judiciary? A firm with a 50+ year legacy of fighting ethically for the injured, maximizing recoveries, and fostering long-term attorney growth. A firm known for both results and ethical practice, earning respect from judges and adversaries alike. A firm that dedicates significant resources and teamwork to ensure each client gets the best possible outcome. A firm that provides dedicated support staff allowing you to focus on developing business and practicing law. A firm that empowers attorneys to build a career and fulfilling future. A firm that will pay you what you're worth. Yes, you can achieve financial success while doing meaningful work. What if you had the opportunity to join such a firm? You do. Whether you're a plaintiff's attorney or defense attorney, DM me to hear more. 𝗕𝗲 𝗨𝗻𝗰𝗼𝗺𝗺𝗼𝗻ᵀᴹ #BeUncommon #FloridaLegalRecruiter #LegalRecruiter

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Fractured bones, whiplash, concussions and other closed head injuries are some of the most common types of car crash injuries which Lorenzana Law Firm can help you recover compensation for. #CarAccident #CarAccidentClaims

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Wonder why you occasionally read about defense verdicts in clear liability rear end car wreck cases? Credibility. Credibility of the plaintiff, that is. You can easily lose a clear liability case if you don’t have a credible plaintiff. On the other hand, you can win really difficult liability or causation cases with a credible and likeable plaintiff. This is why you can’t just value cases on one single metric, like the medical bills. You have to look at all the facts.

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***CIPA Litigation Update*** It was just a matter of time before CIPA and Airline Deregulation Act preemption collided. A lawsuit was filed today in Los Angeles Superior Court alleging that an airline violated CIPA through its use of pixel technology. Here's how I would imagine this case plays out: (1) to remove or not to remove? (California state courts and California federal courts do not always interpret ADA preemption the same) (2) Are the claims preempted? (that is, do the claims relate to the airline's "rates, routes, or services?) (3) Choice of law (does California law (i.e., CIPA) even apply?) (4) Choice of venue (do the terms of use require the lawsuit to be filed in another court and, if so, is that choice of venue provision enforceable?) (5) Arbitration (does the airline's website have an arbitration provision and, if so, does it apply to these claims? Also, with the rise in mass arbitrations, is compelling an arbitration still the most economical way of litigating?) Given that I have only seen the complaint (at this point), I have no way of knowing the answers to these questions, but I would imagine we will get answers to them all eventually.

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We often get calls from potential clients who think they may have a case (car crash, dog attack, boating incident, truck wreck, etc.), but they’d like to hold off on hiring a lawyer until they get the investigation report/police report. Here’s why that’s the wrong approach and can actually harm your case: 1. A police report is not necessary to prove your claim. While it’s certainly helpful, injury claims can be proven through a variety of methods - expert testimony, eyewitness testimony, photo/video evidence, and more. 2. Investigation reports can take weeks, even months, before they are finalized or before they are releasable to the public, especially if there is a correlating criminal case associated with the incident. Attorneys are often able to gather important pieces of evidence through various information requests and can get started investigating the claims and parties involved right away. 3. Time is not on your side and can lead to evidence disappearing or being destroyed. Hiring an attorney right away can help make sure that the appropriate notices (preservation letters) get sent out to the at-fault parties, notifying them to keep all records, photos, videos, statements, evidence, etc. that relate to your potential claims or the incident that occurred. Your attorney will also have the opportunity to get to work on investigating your case much sooner, which often leads to gathering critical evidence that otherwise would have been lost or destroyed. Injured by someone else and wondering if you have a case? Call/Text/Email for a #freeconsultation 📱(248) 983-5620 📧[email protected] 💬 DM #truckwrecklawyer #OlsmanLaw #MILawyer #truckingattorney #womeninlaw #personalinjury #freecasereview

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An employer gets a hole in one! 🏌‍♂️ In a recent case here in Arizona, a golf course employee filed a complaint asserting hostile work environment and retaliation in violation of Title VII. The plaintiff predicated its hostile work environment claim on two events: (1) she was groped by a non-employee; and (2) a coworker sent her a sexually suggestive text, which she reported to her employer. The employer immediately investigated and took action. First, it contacted security and law enforcement about the non-employee who physically touched the employee. Second, the employer next suspended the employee who sent the text message for a week. The coworker did not sent any similar text messages or otherwise acted inappropriately with the employee. Additionally, the employer also put an end to workplace gossip about the groping incident. Consequently, the court granted summary judgment over the plaintiff’s claim. Not long after her report, the plaintiff—whose employment was riddled with attendance issues—continued to violate the attendance policy. The employer, who had engaged the plaintiff in counseling and progressive discipline, terminated her employment. The plaintiff also asserted a claim for retaliation. The court, once again, granted summary judgment. In doing so, the court concluded the plaintiff failed to meet the requirements for retaliation. The plaintiff, it found, had indeed been disciplined and counseled; was aware she could be terminated for continued violations; and others had been disciplined for lesser violations. So what did the employer do right here? ⛳ It quick launched an investigation! I know I harp on this, but it’s with good reason! Prompt and thorough investigations are essential in defending future claims. The employer did that here and it paid off. ⛳ It took appropriate steps to address the conduct. An investigation is, of course, not enough. You have to take action to ensure the workplace is safe. The employer addressed both complaints and took swift action, which resulted in the plaintiff not experiencing any similar behavior.  The employer also addressed issues relating to workplace gossip by reminding its workforce about its policies its intolerance of such behavior. ⛳ It enforced its policies in a consistent manner. The employer here enforced its attendance policy against the plaintiff, who had a history of attendance issues. Having been previously disciplined, she was aware of what could happen if her attendance issues persisted. Thus, the employer was able to demonstrate its decision did not relate to her complaints. There was a lot of risk here, which the employer managed well. And while no one wants to deal with a lawsuit, summary judgment is a great result. Your friendly employment counsel will help you navigate sticky employment issues. Don't have employment counsel or looking for new counsel? I respectfully encourage you to call me and my colleagues at Pierson Ferdinand LLP. We got you!

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Eleventh Circuit Finds that But-For Causation Needed for ADA Discrimination Claims   The Eleventh Circuit issued an opinion affirming a district court's grant of summary judgment for an employer in an ADA claim. The plaintiff, Jennifer Akridge, appealed the summary judgment for defendant Alfa Mutual Insurance Company. Akridge brought a claim under the Americans with Disabilities Act (ADA). Akridge argued that the Alfa discriminated against her by terminating her to avoid paying healthcare costs related to her multiple sclerosis (MS). Alfa self-insures for medical plans. Alfa claimed they terminated Akridge because her position was no longer needed and they needed to cut her position to save on business expenses. Akridge’s medical plan was administered by a third party and the defendant claimed they had no way to determine Akridge’s healthcare costs. Further, Alfa did not maintain information about individual employees’ healthcare costs.   Akridge argued that she was not required to show her disability was a but-for cause of her termination but may simply show it was “a motivating factor,” but the court disagreed with this argument. The court held that because the ADA does not contain similar motivating-factor language as found in Title VII, Akridge cannot resort to this lesser showing and a but-for standard had to be followed for discrimination claims. The court found Akridge did not provide sufficient evidence to support a pretext argument and Akridge had failed to present sufficient evidence of “mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination” to survive summary judgment.  Robert Sniffen Michael Spellman Jeffrey Slanker Terry Harmon Matthew Carson #ada #employmentlaw #laborandemploymentlaw #hr #personnel #eeo

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