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Insurance litigation expert Rick Ellsley discusses how small businesses can help recover their income loss from COVID-19 through business interruption insurance claims. Check out the full article on Law.com (Daily Business Review) by clicking here.

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COVID-19 Business Interruption Claim?

April 29, 2020

Friends,


We hope that you and your families are staying strong as we all endure this difficult time. It is not easy to obey a stay-at-home order, but now there is a bit of good news …

Today, Palm Beach County, Broward County, and Miami-Dade County will be re-opening some public parks and other outdoor recreational facilities. Although the access and activities will be limited to comply with social distancing, these open spaces will be available so that we can once again enjoy Florida’s fresh air and sunshine.

Our business interruption attorneys in Plantation, Pembroke Pines and Davie are committed to helping you, your families, and your businesses navigate the legal landscape during this crisis. Our remote technological capabilities have been seamless. The courts have been operating through the ZOOM video conferencing system and we have successfully conducted hearings, depositions and mediations on ZOOM and other platforms.

COVID-19 Business Interruption Claim?

Many of you own or are affiliated with small businesses. Most small businesses have business interruption insurance coverage as part of their overall insurance portfolios. Business interruption insurance coverage protects businesses by providing compensation for business losses due to various events or occurrences.

Typically, these claims arise after a hurricane or a fire damages the physical location where the business operates.

Now, because of the COVID-19 pandemic, state and local governments are forcing businesses that the government has deemed “non-essential” to shut down. As a direct result, these small businesses (many of them family-owned) are sustaining significant business income losses.

While the government officials may view these businesses as “non-essential” there is no question that the income that these businesses generate is absolutely essential to the owners and to the employees of the business. With the forced closure of the business by the government, that income is now gone.

In many cases, this lost business income is recoverable from the insurance company that insures the business. However, we are seeing a disturbing number of claim denials by the insurance companies.

Our business income loss lawyers can help your small business in Plantation, Pembroke Pines, Davie and throughout Florida recoup this business income loss. Call us (954) 888-7720 to discuss this with us. You may also email the insurance policy to us at info@ellsleylaw.com for a free review.

We are truly grateful for your continued confidence in us and look forward to speaking with you soon.

A motorcyclist who sustained permanent injuries to his neck, back, and left arm after being hit by a car obtained a $5,970,000.00 recovery against a landscaping company, various governmental entities, and another driver. The case was brought against the Florida Department of Transportation (FDOT), the City of Oakland Park, Landscaping Service Professionals, Inc., and Sharon McLeod.

Rick Ellsley of The Ellsley Law Firm in Plantation represented Alexander Ramos in the case. He said that on March 13, 2018 around 10:00pm, Ramos was driving his Suzuki motorcycle westbound in the far left lane on Oakland Park Boulevard and was approaching NE 10th Avenue. At that same time, Sharon McLeod was driving her Mitsubishi sedan eastbound. McLeod made a left turn in front of Ramos causing the crash. The police report indicated that McLeod was attempting a U-turn, but did not see the motorcycle before pulling out in front of it.

Ellsley determined that the landscaping on the median in front of McLeod had grown to 2 feet 11 inches. The state code allows for a maximum height of 2 feet. Ellsley uncovered documents that established that FDOT owned and was responsible for maintaining the median. FDOT had transferred the maintenance responsibility by contracting with the City of Oakland Park, who, in turn, paid Landscape Service Professionals, Inc. to maintain the median.

Ellsley worked with an accident reconstruction engineer and obtained eyewitness testimony. The witnesses testified they saw Ramos exceeding the speed limit, but not greatly. The engineer recreated the incident and concluded that the heights of the shrubs and bushes on the median partially obstructed the line of sight for each driver. The police found McLeod at fault for failing to yield the right of way and that action was determined to have caused the crash. The reported noted that the median landscaping was a possible factor.

Within a few weeks of the crash, McLeod’s insurance carrier paid its liability limits of $10,000.00 so that she would ultimately be released from the case. Throughout the year, Ellsley litigated the case until very recently when $5,960,000.00 was paid by the insurance carrier for the landscaping company. This settlement released governmental entities as well.

Counsel for Landscape Service Professionals, Inc., Kory Ickler, of Garrison Yount in Tampa, had no comment by deadline. However, court papers show that the landscaping company asserted in its defense to the case that Ramos was speeding, that McLeod was careless in making the U-turn in front of Ramos, and that the condition of the landscaping on the median did not cause the crash.

According to Ellsley, roadway vision obstructions are quite common. He said he has handled numerous cases just like this one because many of the chosen landscaping features grow very quickly in South Florida. “The landscape maintenance companies rarely measure the shrub or hedge heights before leaving the job. Unfortunately, overgrown landscaping ends up obstructing the vision of drivers in both directions.” said Ellsley.

Ellsley noted that as a result of a similar lawsuit he successfully prosecuted 8 years ago, (which occurred near Hollywood on U.S. 441 just south of Stirling Road), the FDOT and the Seminole Tribe of Florida finally decided to completely remove the bushes that blocked the view of the drivers in that case. The bushes were replaced with grass. Ellsley pointed to the Florida Highway Landscape Guide issued by FDOT and suggested that, “Decision-makers, landscape architects, and urban planners should choose grass, and not trees, hedges, bushes, or plants for the medians because grass is a much safer alternative for motorists.”

All settlement monies have been paid. Dismissal of the case is pending. Broward County Circuit Court Judge John Bowman has jurisdiction.

Aura Martinez woke up on the morning of July 10, 2012 with pure joy.  One of her sons was getting married in the coming days, and another son had just flown into town with his wife and young family to celebrate.  Mrs. Martinez was especially thrilled to spend time with her 5 year old grandson, Juwan.  Later that morning, she and little Juwan took a walk with her dog to the children’s playground on the hill at the Samari Lake Condominium Complex in Hialeah.  Aura and her husband and their other children had been living there for many years. 

 While going down the slide, Juwan noticed some ducks at the edge of the large lake at the bottom of the hill.  He ran through a small opening in the broken aluminum fence that surrounded the playground.  Aura chased him frantically.  The little boy reached the ducks at the edge of the lake, lost his footing, and fell into the dark and murky water.  Aura jumped in after him.  Neither could swim and each was caught in a thicket of sawgrass.  A Good Samaritan who was on a second floor balcony raced down to the lake, dove in, and pulled them both out.  Thankfully, Juwan was not seriously injured.  Unfortunately, Aura sustained brain damage and remained in a coma for many months following the incident.  She ultimately passed away a year and a half later.

Rick Ellsley of Ellsley Sobol, P.L. in Plantation, and the late Julio Jaramillo of the Law Offices of Julio Jaramillo in Miami, represented the Martinez family.  According to Mr. Ellsley: “there was no law, regulation, ordinance, or industry standard that would have required the condo association to erect a fence or other barrier along the edge of that lake.  In fact, many of the other apartment complexes on that same lake did not have a fence.”

Additionally, the aluminum fence enclosing the children’s playground was missing some of the vertical protective bars.  Juwan ran through the opening in that fence that was closest to the lake.  Mr. Ellsley said that just like a fence along a lake, there is no law that requires there to be a fence around a playground, but “the federal government recommends that any playground that has been built near a lake needs to conform to the local building code.  The Miami-Dade County Code required that any fence or barrier that is constructed around a playground be ‘structurally sound and maintained in good repair’”.  Mr. Ellsley and Mr. Jaramillo sued the condo association, the former property management company, the janitorial contractor, and a small handful other entities that did work at various times on the property.

In court filings, the condo association and the other defendants all denied that they did anything wrong and assigned the blame to Mrs. Martinez for failing to properly supervise her grandson.

Throughout the litigation, the family faced many hurdles.  During Mr. Ellsley’s investigation, it was learned that many months before this tragedy, the condo association had fired its longtime property management company, Tower Management Services, Inc., (“TMS”) to save money.  It had replaced TMS with an onsite employee.  This created a legal hurdle for Aura’s lawyers on the issue of whether TMS even had a legal duty to protect Mrs. Martinez because it had not been the property management company for a long time before the incident.  It was also questionable as to whether the actions of TMS even contributed to cause the drowning given that it was not legally permitted to be working at the property for so many months prior. 

The testimony of Aura’s family established that the fence surrounding the playground had been missing the security bars for quite some time, and therefore TMS knew or should have known about the danger and recommended that the condo association fix it. 

Additionally, TMS was insured by Certain Underwriters at Lloyd’s of London under a Commercial General Liability Policy.  The insurer filed a Declaratory Judgment action seeking to have the policy declared inapplicable to the incident because of the fact that the location in which the event occurred was not listed on the policy as the premises to be insured.  Mr. Ellsley countered that TMS, as a property management company, was the insured entity under this policy, and that the very nature of a property management company is to manage property at various locations. 

Mr. Ellsley also asserted that the specific type of insurance policy was not a ‘premises only’ policy but a ‘general liability’ policy which provided insurance for negligent acts of the insured property management company regardless of which property the events occurred on.  Ultimately, the insurer dismissed its Declaratory Judgment action when it agreed to settle the liability and damages case, but had it not, it was likely the family would have prevailed with this theory in the trial court.

 Recently, the various parties agreed to resolve the case for $1,475,000 which included the limits of the condo association’s insurance policy.

A corporation makes a money-saving decision to use a third party to do its work on your client’s home or business.  Your client has no idea that the services it will receive are not from the corporation’s employee(s) but from an undisclosed third party.  Of course, the third party is negligent and that negligence results in your client suffering a traumatic brain injury.  Pretty scary, huh?  It gets worse.  In response to your notice of representation letter, the corporation’s lawyer sends a response asserting that the guy who negligently brain injured your client was never an employee of the corporation, but just an independent contractor, and of course, the guy has no liability insurance. 

In drafting your complaint, you should thoroughly review Florida Standard Jury Instruction 402.9 and the case law related to it.  Under FSJI 402.9 a defendant will be held vicariously liable for an active tortfeasor that it claims is an “independent contractor” if: 1) the tortfeasor is deemed an “actual” or “apparent” agent; or 2) if the defendant did not exercise due care in selecting or retaining the tortfeasor; or 3) if the defendant undertook to perform services for the victim.  The tortfeasor is an actual agent if the defendant authorized him to act for the defendant, and is an apparent agent if by words or conduct, the defendant allowed the victim to believe the tortfeasor had authority to act for defendant and was doing so within the scope of his apparent authority. 

As to negligent selection, hiring, and retention of an independent contractor, if you review Suarez v. Gonzalez, 820 So.2d 342, 344 (Fla. 4th DCA 2002), you will see an informative foundational analysis of Florida law on this issue.  See also McCall v. Alabama Bruno’s Inc. 647 So.2d 175, 177 (Fla. 1st DCA 1994), and Restatement (Second) of Torts §409, §411 (1965).  A few themes emerge.

First, “the amount of care which should be required is proportionate to the danger involved in failing to use it” Restatement (Second) of Torts § 411, cmt. c. Second, the “extent of the employer’s knowledge in the field of work to be done” is critical.  For example, a national company that has expertise in cargo transport that sub-contracts with truckers for interstate freight services needs to make sure that any driver it contracts with to haul cargo across the country is truly competent to safely perform the job.

Finally, the court will look to the relationship between the parties to see if there is any legal authority imposing a higher duty on the employer, such as a non-delegable duty.  In Suarez, the case centered upon whether a landlord’s daughter-in-law was negligent in selecting an independent contractor (whom she first met when she saw him driving down the street with some cabinets in his van) to hang a kitchen cabinet that later fell from the wall and struck and paralyzed the tenant. Id. at 344. The Court held that the landlord-tenant relationship imposes a nondelegable duty of care upon a landlord who undertakes to make repairs or improvements for the benefit of the tenant.  Id. at 346.

As to actual agency, as outlined in Font v. Stanley Steemer International, Inc. 849 So.2d 1214, 1216 (Fla. 5th DCA 2003): “the essential elements of actual agency are: 1) acknowledgement by the principal that the agent will act for him or her; 2) the agent’s acceptance of the undertaking; and 3) control by the principal over the actions of the agent.”  The Court in Font followed its general proposition of the rule with a corollary pronouncing that despite what the express provisions of an agreement between the parties states as to the status of the hired worker, “the nature of the parties’ relationship is not determined by the descriptive labels employed by the parties themselves”.  Id. at 1216.  

To prove a case involving apparent agency, the Fourth District Court of Appeal in Ginsberg v. Northwest Medical Center, 14 So.3d 1250, 1252 (Fla. 4th DCA 2009) laid out three factors: “(1) a representation by the purported principal, (2) a reliance on that representation by a third party, and (3) a change in position by the third party in reliance on the representation.”  See also Sapp v. City of Tallahassee, 348 So. 2d 363, 367 (Fla. 1st DCA 1977) (agency may be inferred from prior dealings between the parties and may be proven by the facts and circumstances of each particular case, including the words and conduct of the parties).

When a victim has sued the principal company generally the courts decline to permit a summary judgment for the principal, agreeing almost uniformly that the issue of agency is one requiring an in depth analysis of the totality of the circumstances.  So, the next time that you face a contract which the corporation’s lawyers flooded with the words “independent contractor” take a closer look at that document, take the necessary depositions of the people actually involved in the work, and obtain the discovery that proves your agency case — more likely than not, the facts are there and you will be able to prove agency.

Good luck!

Armando Alvarez suffered a traumatic brain injury after being thrown off of the back of his brother’s motor scooter at around 1:30am in August of 2007 in the southbound lanes of 441 just south of Stirling Road. At the time, Armando was in his early 20s. He was not wearing a helmet. He and his brother were on their way home from the Seminole Hard Rock Hotel & Casino. The incident was caught on videotape. The tape showed that a taxi cab that pulled out in front of the scooter did not slow down or stop before causing the crash. Unfortunately, the taxi driver had no insurance coverage for the incident and the owner of the taxi cab had a minimal insurance policy, so the attorneys at Ellsley Sobol investigated additional avenues of compensation.

The median in front of the left turn lane from where the taxi cab was turning had a little overgrowth of its hedges (15 inches over the regulation) and created a partial visual obstruction for the motorists. Suit was filed against the State of Florida Department of Transportation, the Seminole Tribe of Florida, as well as the various companies responsible for the design, construction, installation, and maintenance of the median. Liability was based upon the selection of the types of species of plants and hedges for the median as well as the lack of proper maintenance of those hedges. The main landscaping defendant, Vila & Son Landscaping Corp. argued that it had no duty to maintain the hedges because there was no written contract with the company, and that the only reason this incident occurred was that the taxi cab did not slow down or stop before making a left turn, all of which was captured on the video. The case settled shortly before trial in October 2012 trial.

A Special Needs Trust was set up for Mr. Alvarez and he now has substantial funds for the extensive daily therapies and rehabilitative treatments that are helping him move forward.

The family of aspiring commercial airline pilot Ray Jefferson will be financially secure for the rest of their lives thanks to a settlement secured by Ellsley Sobol.

The seven-figure settlement also provides for the creation of a charitable foundation named in Jefferson’s honor. It would help fund the education and training of minority pilots.

Ray Jefferson was killed when the pilot of a Piper aircraft – after safely crossing Jefferson’s path over the Everglades – doubled back and put his plane on a collision course with Jefferson’s Cessna. Jefferson apparently banked at the last second to avoid the collision, but it was much too late. His aircraft was hit from the right.

Ellsley Sobol bolstered the family’s case by hiring a top aviation accident reconstruction expert, Kenneth Orloff, Ph.D. Orloff analyzed the flight data and examined the wreckage. Most midair collisions are caused by the inattention of both pilots, but Orloff concluded that the pilot who hit Jefferson had the best view and should have avoided the collision.

Jefferson, 30, lived in Miramar FL. He died two days before he was to take his FAA Instrument Flight Rules exam – a key step in obtaining his commercial license. The fatal flight was his last pre-exam practice run.

Verdicts & Settlements

Model Helicopter’s Rotor Blade Strikes Consumer’s Eye

THOMAS ROBBINS PURCHASED a radio-controlled TREX 450 XLE model helicopter manufactured by Taiwan-based Align Corp. About a year later, Robbins purchased a “first aid parts set” for the helicopter containing replacement parts also manufactured by Align. The kit included a main rotor holder, which connects the blades to the base of the helicopter. After repairing the helicopter, Robbins held it up to eye level with his left hand to see if the blades were properly aligned. As he activated the remote control with his right hand, the main rotor holder split in two. The blades broke apart, and one flew into Robbins’s face, striking his nose and left eye.

Robbins, 44, suffered a detached retina.

Ellsley uses physical evidence to disprove damaging allegations against his client

An aggressive review of the physical evidence by lawyers Rick Ellsley and Joe Slama transformed tough case into a significant victory for their client, a college student who lost half of his left leg as the result of a motorcycle crash.

Daily Business Review

A charter pilot won a settlement for injuries against a toy distributor and West Palm Beach-based hobby shop that sold him a model-helicopter repair kit that was improperly manufactured and injured him.



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