The Hunter Has Become the Hunted

Over the course of the year, Groelle & Salmon has obtained significant judgments against plaintiffs based on proposals for settlement. Some of these orders are on appeal. This past month, we noticed a fascinating trend. Plaintiffs are voluntarily dismissing their cases when we file Motions for Summary Judgment to avoid the consequence of a defeat. We even received a notice of voluntary dismissal this past Monday when trial was about to start hours later!

We are not talking about two or three dismissals. We received upwards of twenty dismissals. Some of these cases have been litigated for years. Here are some details.

Kimberly Salmon filed four Motions for Summary Judgment, two on behalf of Edison Insurance Company, and one each for Florida Peninsula Insurance Company and Universal Property & Casualty Insurance Corporation. All these motions involved coverage issues, not just a Florida Statute 627.1052 Notice of Intent dismissal. Two of the motions were for cast iron pipe cases and two involved Tropical Storm ETA. Two of the motions were accompanied by 57.105’s. In response to the 57.105’s, the plaintiff lawyers asked for a “walk-away”, where each party bears their own fees and costs. The companies received three dismissals and a settlement for $15,000, where the demand preceding the Motion for Summary Judgment was $200,000.00.

The plaintiff lawyer asks for a “walk-away” to avoid any liability for attorney fees and costs. When we reject that offer and they dismiss the lawsuit, they remain liable for taxable costs.

Imagine a plaintiff lawyer on the verge of obvious victory and then the defense lawyer asking for a “walk-away” so the plaintiff will not recover fees from the defense lawyer’s client. That would never happen. But now that the hunter has become the hunted, that is what is happening. The defense is on the verge of obvious victory, which will trigger the insurance company’s right to fees and costs based on expired proposals for settlement. Rather than face a final judgment, plaintiffs are dismissing their lawsuits after years of litigation.

David Salmon obtained three dismissals for Florida Peninsula on 2022 lawsuits when he discovered the unusual timing of one of the plaintiff’s death and the other plaintiff’s incompetency. There were two companion lawsuits associated with the insureds’ lawsuit. One insured died months before the lawsuit was filed.

The other plaintiff was incompetent at the time of the filing, yet somehow answered interrogatories and presumably formed a contract for legal services. Under the law, when a party is incompetent, all the actions taken from that moment forward are deemed a nullity. In other words, the legal proceedings had been a sham since the filing in 2022. The hunter’s solution? Let’s do a “walk-away”.

David Kelly filed four proposals for settlements in different cases. In one case, he filed a Motion for Summary Judgment on the absence of a peril created opening and existing damage. The result? A voluntary dismissal. In the second case, he filed a summary judgment on an HO-8 policy asserting the plaintiff could not prove a covered peril. The result? A voluntary dismissal. In the third case, the plaintiff failed to provide a notarized signature to answers to interrogatories for over a year, violating a discovery order. The reason was because the plaintiff was incompetent. Under the Rules of Civil Procedure, the plaintiff has ninety days to substitute an incompetent party or the case shall be dismissed. After the plaintiff tried to dismiss the case without prejudice, the court ruled the dismissal shall be with prejudice. In the fourth case, Mr. Kelly moved to amend his defenses to add a fraud or concealment defense after the plaintiff changed his policy from an HO-8 to an HO-3 immediately before making the claim. Again, the plaintiff dismissed the case.

Meanwhile, Brad Mitchell prepared for a Tropical Storm ETA trial in Broward County this weekend only to wake up to a dismissal with prejudice the morning trial was to start.

Chelsey Polgar also received a voluntary dismissal on a case set for trial after a proposal for settlement expired.
It bears repeating these dismissals are unrelated to the sea of dismissals the firm obtained this month based on violations of Florida Statute 627.1052.
Why is this happening? If you have been litigating cases as a plaintiff lawyer and your greatest weapon, an unfair financial advantage, is taken away, it affects your perspective. If you have lost the leverage of threatening your adversary with the attorney fee statute, maybe your confidence slips. Perhaps the playing field has been leveled so people can focus on the merits of a claim. But maybe not. Maybe Groelle & Salmon is using the leverage of attorney fees to its advantage. Maybe the hunter has become the hunted.