“A Century of Service to Miami-Dade County”

Programs and Services That Help You GROW Your Practice, GAIN Experience & GIVE Back

BULLETIN

SEPTEMBER 2018

IN THIS ISSUE:Joint Proposals for Settlement: A Case Study on EnforceabilityPages 2

YLS President’s Message

Bipartisan Trademark CaucusPages 3

Illegal Substitution: Thwarting Insurers’ Efforts to Substitute Third Party Performance for their OwnPage 4

A Brief Overview ofFlorida Wrongful Death Law

The Constitutional CornerPage 5

Eighth Annual Getting a Jump Start on Pro Bono for Summer AssociatesPage 6 & 7

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Hello!

Aristotle explained the essence of life is to “serve others and to do good.” And Martin Luther King, Jr. challenged us when he explained: “Life’s most persistent and urgent question is, what are you doing for others?” The Dade County Bar Association (“DBCA”) is here to help you answer this.

The legal profession has always recognized the need to serve others and the DCBA is committed to community service. We have wonderful members who love and support this commitment. The DCBA regularly partners with Dade Legal Aid and other community associations to present pro bono opportunities to our members and I wanted to re-introduce you to them and some of the projects we will be working on this year.

Dade Legal Aid serves low income individuals, families, and children in need of legal assistance. It has many departments who work with the DCBA. For example, the Family Law Department’s team provides legal services in complex divorce and custody proceedings. The Domestic Violence Department’s team provides direct free legal representation to victims of domestic violence, sexual assault, stalking and dating violence, including the children caught in the cross fires, in four offices located across Miami-Dade County. The Guardianship Department’s team provides assistance to those serving as guardians for the elderly and, physically or mentally incapacitated and assists youth aging out of foster care. Recently, the Dade Legal Aid team represented a young client in her divorce and helped her obtain financial support from her physically abusive husband setting her and her children on the road to freedom.

Dade Legal Aid also runs the Put Something Back program (“PSB”). PSB is the clearinghouse for pro bono opportunities for the Eleventh Judicial Circuit and the team helps with training and matching attorneys to clients in need. The DCBA’s Volunteer Lawyers Project merged into PSB and PSB has continued to grow. For example, recently, they referred a case to a pro bono attorney who will represent a two-year-old child during the termination of his mother’s parental rights and they will assist his mother, a teenage victim of human trafficking, receive needed services. PSB constantly needs attorneys to handle cases for innocent children, teens, women and other individuals and each week I will share a couple of the cases they are currently staffing in my electronic President’s message. Please continue to check their webpage, www.dadelegalaid.org, for other opportunities. Karen Ladis, Bruce Levine and their team are doing great things.

On September 21, 2018, the DCBA will partner with Dade Legal Aid and other voluntary bar associations to present an Immigration Training so that volunteers can assist children and families in need. Our Immigration Committee has been working with Dade Legal Aid in this area. Cases and materials are available and Dade Legal Aid can guide you to them. Additionally, we will host other clinics with Dade Legal Aid throughout the year.

Earlier this month, the DCBA helped students in need by donating school supplies to get the year off to a great start. Board members Latoya Brown and Natalie Rico led the program again this year. As Latoya explained, it allows us to “positively impact the lives of many children in need.”

In the coming months, we will continue to reach out on community service and pro bono opportunities, clinics and workshops including those focused on our veterans and our youth. Please consider participating and, of course, please share with us ideas and service opportunities that the DCBA can co-sponsor. Let’s work together to do something for others.

As Justice Ruth Bader Ginsburg explained: “[Y]ou will get satisfaction out of doing something to give back to the community that you never get in any other way.” Stephanie L. Carman

Stephanie Carman102nd President of

the Dade County Bar

PRESIDENT’S MESSAGE

“I believe that every human

mind feels pleasure in doing good

to another.” Thomas Jefferson

2 DCBA BULLETIN | SEPTEMBER 2018

DADE COUNTY BAR ASSOCIATIONBoard of Directors 2018-2019

OFFICERSSTEPHANIE L. CARMAN, President*

GILBERT K. SQUIRES, President-Elect*JANE MUIR, Vice President*

SABRINA PUGLISI, Secretary*ERIC HOCKMAN, Treasurer*

JACQUELINE KIVIAT, Executive Director

JOHNNIE M. RIDGELY, Executive Director (1965-2006)

GROUP ONELATOYA BROWNNICOLE M. REID*

JULIAN A. JACKSON-FANNINMELISSA V. JORDON

SAMAH ABUKHODEIRNATHANIEL EDENFIELD

GROUP TWOSTELLA CHU

NATALIE RICOSTUART J. WEISSMANSTEPHANIE GROSMANJACQUELINE LEDON*

GROUP THREEPATRICK MONTOYA

ZACHARY N. JAMES*MIRANDA LUNDEEN SOTO

ALICE SUMIRENE ORIA

EVELINA LIBHEN

GROUP FOURTHOMAS SANTORO*BRADLEY TRUSHIN

JACQUELINE ARANGOJEFF P. CYNAMON

JULIE HARRIS NELSONLORI SOCHIN

GROUP FIVERICHARD LESLIESCOTT L. BAENA

STANFORD BLAKEDAVID ROGERO*

NEIL ROBERTSONPATRICIA REDMOND

RICHARD LESLIE, ABA Delegate

DADE COUNTY BAR ASSOCIATIONYOUNG LAYWERS SECTION

BOARD OF DIRECTORS 2018-2019

OFFICERSEVIAN L. WHITE- DE LEON PRESIDENTISABELLA POSCHL, PRESIDENT-ELECT

KRISTEN CORPION, SECRETARYSCOTT MERL, TREASURER

2018-2019 DIRECTORSMICHAEL T. DAVIS

RACHAEL MITCHELL FAGENSONAMBER KORNREICHDANIEL ROWINSKYRICHARD D. SHANE

JIHAN SOLIMAN

2018-2020 DIRECTORSMARIANNE CURTIS

TIFFANY-ASHLEY DISNEYDARYL GREENBERG

MICHAEL LEVINERODRIGO PALOMINO

NIKKI RIGLJUSTIN STIVERS

BULLETIN COMMITTEEKATHERINE MASTRUCCI, CO-CHAIR

MIHAI VRASMASU, CO-CHAIR123 NW FIRST AVENUE #214

MIAMI, FLORIDA 33128305-371-2220

EX – OFFICIOSOOKIE WILLIAMS

Joint Proposals for Settlement: A Case Study on EnforceabilityBY KATHRYN ENDER

“[M]any jurists have lamented that the offer of judgment statute has had the unfortunate and unintended consequence of spawning additional litigation, even though the statute

was enacted to have exactly the opposite effect.” Paduru v. Klinkenberg, 157 So. 3d 314, 318 (Fla. 1st DCA 2014). Litigation over enforceability of joint proposals is no exception. Since enactment of Florida Rule of Civil Procedure 1.442(c)(3) and (c)(4), governing service of joint proposals, creative and persuasive lawyering has flooded the Florida court system with arguments addressing enforceability.

In 2010, the Florida Supreme Court announced comprehensive guiding principles for preparation of a joint proposal:

[W]hen a plaintiff serves a proposal of settlement to multiple defendants, each defendant is entitled to evaluate the proposal and ‘should be able to settle the suit knowing the extent of his or her financial responsibility.’ . . .[c]onversely, a defendant must differentiate an offer of judgment or a proposal of settlement to multiple plaintiffs such that each party can independently evaluate and act upon the offer or proposal. . . . Therefore, a proposal that conditions acceptance upon the mutual acceptance of both parties and prohibits either party from independently evaluating and accepting the amount offered violates these principles.

Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 651 (Fla. 2010) (internal citations omitted).

Despite the Supreme Court’s clear instructions, disputes over enforceability continue. What follows is a case study of how the Florida courts have treated these variant arguments.

Derivative liability of separately-named entities. In Pratt v. Weiss, 161 So. 3d 1268, 1272-73 (Fla. 2015), the Florida Supreme Court held that a joint proposal from one plaintiff to multiple defendants was not enforceable under rule 1.442(c)(4), as the complaint’s allegations separately identified the defendants, requiring apportionment.

Singleofferstoresolveclaimsof additional parties. In Audiffred v. Arnold, 161 So. 3d 1274, 1280 (Fla. 2015), the Florida Supreme Court held that a proposal from one plaintiff to one defendant, conditioned upon dismissal of both plaintiffs’ claims was unenforceable: “[W]hen a single offeror submits a settlement proposal to a single offeree pursuant to section 786.79 and rule 1.442, and the offer resolves pending claims

by or against additional parties who are neither offerors nor offerees, it constitutes a joint proposal that is subject to the apportionment requirement in subdivision (c)(3) of the rule.”

Application of rule 1.442(c)(4)whenanofferee’sliabilityisstatutorily capped. In Saterbo v. Markuson, 210 So. 3d 135 (Fla. 2d DCA 2016), the Second District concluded that the focus of rule 1.442(c)(4) is not upon ultimate liability for damages, but upon whether “claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability.” Thus, even though liability may ultimately be capped, an undifferentiated proposal can be served

if the claims are vicarious in nature. See id. at 138-40.

“All or nothing” proposals to one offeree.In Hoang Dinh Duong v. Ziadie, 153 So. 3d 354, 359 (Fla. 4th DCA 2014), the Fourth District clarified that an “all or nothing” proposal from multiple offerors to one offeree does not violate Gorka, as it does not divest the offeree of independent control over settlement. Accord Wolfe v. Culpepper Constructors, Inc., 104 So. 3d 1132, 1134-35 (Fla. 2d DCA 2012) (holding that a joint proposal from two offerors to one offeree was valid and did not implicate the concerns identified in Gorka); Rossmore v. Smith, 55 So. 3d 680, 680-81 (Fla. 5th DCA 2011) (same).

Joint proposals and conditions of acceptance. In Chastain v. Chastain, 119 So. 3d 547, 550 (Fla. 1st DCA 2013), the First District found a joint proposal unenforceable under Gorka, holding that, although the proposal “did not expressly require joint acceptance,” it was “clear from the proposal . . . [it] was conditioned on joint acceptance . . . .” Accord Schantz v. Sekine, 60 So. 3d 444, 446 (Fla. 1st DCA 2011) (same); Pacheco v. Gonzalez, 43 Fla. L. Weekly D1084, 2018 WL 2224163, 2018 Fla. App. LEXIS 6774 (Fla. 3d DCA May 16, 2018) (rehearing pending) (same). But cf. Atl. Civil, Inc. v. Swift, 42 Fla. L. Weekly D516, 2017 WL 815362, 2017 Fla. App. LEXIS 2755 (Fla. 3d DCA Mar. 1, 2017) (rehearing pending) (finding that a joint

proposal was not ambiguous, as there was no language requiring mutual acceptance).

Proposals to or from multiple plaintiffswhenclaimsareindivisible. Prior to enactment of rule 1.442(c)(4), the Fourth District held that rule 1.442(c)(3) applies in all cases “without an exception for claims against litigants to property they own as tenants by the entirety.” Graham v. Peter K. Yeskel 1996 Irrev. Trust, 928 So. 2d 371, 378 (Fla. 4th DCA 2006). The holding in Graham remains intact, despite adoption of rule 1.442(c)(4). See Cobb v. Durando, 111 So. 3d 277 (Fla. 2d DCA 2013) (relying on Graham). Accord Javellana v. Tower Hill Sig. Ins. Co., case no. 14-31467 (Miami Dade Cir. Ct. June 8, 2018) (unreported) (enforcing separate proposals and rejecting the argument that a joint proposal was necessary due to unity of the claim).

Notably, while the Gorka decision does not rely upon an ambiguity analysis, many subsequent decisions do, explaining that a joint proposal must be “sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). Nichols is, most often, recognized in the context of rule 1.442(c)(2)’s “particularity” requirement; however, it makes logical sense to apply it to the Florida courts’ consideration of matters such as enforceability of joint proposals.

So, what then is the key to enforceability of a joint proposal? The issues presented to the Florida courts have taken many forms, but the answer still appears to rely on Gorka’s analysis—follow the rule’s requirements and ensure the offeree has the independent ability to evaluate and act upon the proposal. Accord Pacheco, 2018 Fla. App. LEXIS 6774, at *14 (observing that the Third District “remain[s] bound by the principle set forth in Gorka”).

In Pacheco, Judge Lagoa recently warned practitioners that “joint proposals have become a trap for the wary and unwary alike,” and “until the law is further clarified or corrected, we caution counsel in our district to avoid joint proposals . . . .” Pacheco, 2018 Fla. App. LEXIS 6774, at *14-15. Notwithstanding this clear warning, joint proposals will continue to be used and, thus, to realize the best chance of surviving a legal challenge, it is critical to understand and consciously apply this ever-changing Florida law.

Kathryn (“Katie”) Ender is a partner and Board Certified Appellate Specialist at Cole, Scott & Kissane, P.A. Ms. Ender practices primarily in the area of appellate litigation and trial support, and has handled over 250 appeals in the Florida state and federal courts. As part of her practice, Ms. Ender concentrates on issues involving the service and enforceability of proposals for settlement. Ms. Ender is a graduate of American University Washington College of Law in Washington, D.C. Ms. Ender may be reached at kathryn.ender@csklegal.com.

“[W]hat then is the key to enforceability of a joint proposal? The issues presented to the Florida courts have taken many forms . . .”

www.dadecountybar.org 3

YLS President’s Message

Bipartisan Trademark Caucus featuring Congressman Ted Deutch

BY EVIAN WHITE DE LEON Director

Profile: Marianne Curtis

Over this next year, you’re going to continue to read profiles of the YLS Board of Directors who give their time, energy, and passion to make our legal community a better place. This month you’re meeting Marianne Curtis, one of our newest Directors. She’s young, scrappy, and hungry – and she’s not throwing away her shot.

The Intellectual Property Committee held a Bipartisan Trademark Caucus featuring Congressman Ted Deutch on Wednesday, August 29th at Shook Hardy & Bacon. The mission of the caucus is to help increase awareness among Congress, the media and the public about the importance of trademarks and global commerce, foster public policy dialogues among state and federal governments and brand owners on how best to reduce counterfeit goods in the marketplace and highlight trademark protection in discussions between the U.S. and other nations and world governing bodies.

Q: Tell us about your professional path and how you ended up where you are today.

A: I never thought I would be a lawyer! I swore I was going to be the first girl in the NBA. I played basketball at the University of Miami. Unfortunately, I had a career-ending injury going into my junior year. I graduated early and spent what would have been my senior year coaching high school basketball at Ransom Everglades. When I wasn’t coaching, I was a personal trainer for athletes trying to turn professional or for kids who were trying to play their sport in college. Ultimately, I thought it was crazy to make my living on the performance of athletes’ bodies when mine had just broken down in the blink of an eye. So, I ended up at UM Law School. I felt like a complete fish-out-of-water until I took Evidence and Litigation Skills. I spent my 2L summer at an internship with the Miami-Dade State Attorney’s Office and absolutely fell in love with the courtroom. After four years, and about seventy jury trials later, I went to the U.S. Attorney’s

Office. Practicing for then-United States Attorney, Wifredo Ferrer, was the honor and privilege of a lifetime. In January 2018, I took a big leap of faith and headed over to Berger Singerman to practice with some of the finest lawyers, and people, I could have ever imagined. It’s been quite a journey, but I know this is just the beginning of a long ride.

Q: Why do you care about what you do?

A: I grew up in a family where our parents constantly reminded my brother and me that you work on your craft and make excellence your brand, not because you need recognition for it, but because it’s the right thing to do. The law provides such an amazing vehicle for me to do just that. All I can hope for is that I am able to use it to effect change on a scale much bigger than myself.

Q: What makes you get up in the morning?

A: My wife. She’s the best. She helps me start every day with the energy and enthusiasm that I need to do the things I hope to do—even when the

wake-up call is way too early.

Q: Whom would you most like to meet?

A: Thurgood Marshall. I am a law geek and a huge advocate for closing the racial divide through education and acceptance.

Last, but not least, make sure you sign up for the event that Marianne is planning: “Style and Substance: The Art of Building and Maintaining Your Brand Without Losing Sight of Being a Lawyer.” While branding is important, learning your craft and remembering where you came from has to be part of that process. We’ve put together a panel of pillars in our legal community to work through what that means in today’s environment. Don’t miss out—Wifredo Ferrer, Melba Pearson, Katie Phang, Jude Faccidomo, Andrea Wolfson, and Santo Digangi will be at Greenberg Traurig on October 25, 2018, from 12:00-1:30 p.m. to partake in a panel discussion over lunch. The event is free and open to everyone who wishes to attend.

Evian White De Leon, is Program & Policy Director at Miami Homes For All, Inc.

Marianne Curtis

President Stephanie Carman, Congressman Ted Deutch, Jaime Vining and John EaganCongressman Ted Deutch

4 DCBA BULLETIN | SEPTEMBER 2018

Illegal Substitution: Thwarting Insurers’ Efforts to Substitute Third Party Performance for their OwnBY CHRISTOPHER T. KULEBA

Insurance, at its core, is simply an agreement by one party to, in exchange for premium, indemnify and/or defend the other party

in the event certain contingencies occur. Unfortunately, when those contingencies occur, the path to claim resolution is often far from simple. While basic insurance disputes involve divergent interpretations of policy language or a party’s compliance or non-compliance with policy conditions, insurance carriers are ever searching for new and more nuanced ways to disclaim their obligations to their insureds. Seemingly on-trend is the notion advocated by commercial general liability, directors and officers, errors and omissions and other third-party liability insurers that the performance of others may be substituted for their own.

Liability policies typically require the insurer to pay, on behalf of their insured, for loss that the insured becomes “legally obligated to pay.” There is little dispute – at least under the law of most states – that a legal obligation to pay is incurred upon the entry of a monetary judgment against the insured or execution of an agreement confirming the insured’s financial liability to a third party. For practical reasons, or out of necessity when an insurer fails or is slow to acknowledge coverage, insureds often look to third parties to fund or assist with that obligation. When that happens, insurers argue that their payment obligation has been extinguished to the full extent of that third-party payment because the insured is no longer “legally obligated to pay.” According to those insurers, any subsequent payment of their policy proceeds would result in an impermissible double recovery to their insured.

Fortunately for insureds, courts are cognizant of the funding mechanisms used by modern-day corporations and increasingly reluctant to permit insurers to use third-party payments to offset their liability. These courts recognize that under the language of most liability policies, the insured incurs a loss – and the insurer’s liability therefore becomes fixed – the moment

the insured incurs a legal obligation to pay regardless of whether the insured, a subsidiary, or a rich aunt actually pays. Holding the insurer to the bargain it struck is not seen as a windfall to the insured because the insured pays substantial premiums (and may have for an extended period of time without ever receiving a benefit), the insurer does not adjust the premium charged to account for the availability of collateral funds (with the possible exception of other insurance) and, regardless, a double recovery by the insured is preferable from a policy

perspective to providing the insurer the benefit of a fund it did not create.

Earlier this year, for example, the U.S. District Court for the Southern District of Florida, applying insurance policy interpretive principles common to both New York and Florida law, confirmed the circumstances under which an insured, and thus its insurer, becomes “legally obligated to pay” an underlying settlement. In Sun Capital Partners, Inc. v. Twin City Fire Insurance Company, Case No. 9:12-CV-81397-KAM (S.D. Fla. January 16, 2018), the insured and several of its codefendants settled an underlying lawsuit for $166 million. The defendants agreed to internally allocate the settlement sum in accordance with their relative exposure and use assets held by LLCs of which they were minority owners to fund their respective shares. To facilitate the orderly consolidation of settlement funds from multiple sources, the defendants formed a third party “paying agent” to hold and distribute the settlement funds to the plaintiffs on the settlement closing date.

The insured’s excess carrier disclaimed liability under its $10 million Directors & Officers policy, arguing that because the settlement agreement did not require the insured to itself write a check, but instead contemplated the transfer of funds held by third parties, the insured never became “legally obligated to pay.” The insured argued that its legal obligation to pay was established by a provision in the settlement agreement clarifying that the insured was jointly and severally liable for the settlement payment. The court agreed with the

insured, holding that as a matter of law the insured’s – and thus its insurer’s – legal obligation to pay became fixed at the time the settlement was signed. Whether that obligation was ultimately satisfied by third parties was held irrelevant to the analysis:

[ T]he fact that the Settlement Agreement identifies the sources of payment that satisfy Sun’s liability does not mean that the Settlement Agreement does not create Sun’s obligation to pay, even assuming arguendo for purposes of this Order only, that none of the payment sources enumerated in the agreement required direct payment from Sun. There is nothing in the Policy that requires Sun to pay the liability or suffer out-of-pocket loss as a condition to coverage. Rather, coverage applies under this liability Policy “as soon as the insured incurs liability for the loss.” Moreover, although the Settlement Agreement establishes three sources of payment, the Settlement Agreement specifically provides that Sun is jointly and severally liable for those payments

and there is nothing in the Settlement Agreement that purports to release Sun from its liability absent full satisfaction of the settlement amount.

In addition to policy language, courts often look to the “collateral source” doctrine to accomplish the same result. Under the “collateral source” doctrine, a plaintiff may recover damages that include amounts for which the plaintiff has already been compensated through sources wholly independent of and collateral to the wrongdoer. While Florida courts have taken some of the punch out of the doctrine’s substantive utility, see Joerg v. State Farm Mutual Automobile Ins. Co., 176 So. 3d 1247, 1249 (Fla. 2015), the doctrine is still widely used elsewhere to prevent carriers from receiving the very windfall they argue should not be borne by their insureds. See, e.g., Lyman Morse Boatbuilding, Inc. v. N. Assur. Co. of Am., Inc., Case No. 2:12-CV-313-DBH, 2014 WL 901445, at *2 (D. Me. Mar. 6, 2014) (“Here, the insurer is the wrongdoer and the injured party is the individual who was denied a defense by the insurer despite the insurance contract provisions; the individual insured found another source (the third party) to provide the defense that the insurer should have performed; and the insurer cannot now use that performance by a third party to exonerate itself from its breached duty.”); Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 623 n.15 (2d Cir. 2001).

Though the principles solidified in Sun Capital and like cases are ubiquitously beneficial, they are particularly relevant to private equity and other corporate policyholders who may use funds held by subsidiaries, paying agents, or other third parties to fund or offset liabilities. As is most often the case with insurance disputes, the outcome of this issue is driven largely by the facts and policy language at issue. Insureds should be sure to carefully review their policies and consult with insurance counsel to ensure they do not proceed in a way which might jeopardize coverage.

Christopher T. Kuleba is a 2010 graduate of the Florida State University College of Business, and a 2013 graduate of the University of Miami School of Law, Magna Cum Laude, Order of the Coif. Christopher concentrates his practice in the areas of insurance coverage and bad faith litigation on behalf of policyholders.

Disclosure: The author, Christopher Kuleba, and his firm, Ver Ploeg & Lumpkin, P.A., represented Sun Capital Partners, Inc. in the matter discussed herein.

“Seemingly on-trend is the notion advocated by commercial general liability, directors and officers, errors and omissions and other third-party liability insurers that the performance of others may be substituted for their own.”

www.dadecountybar.org 5

PROFESSIONALISM TIP OF THE MONTH

From the Eleventh Judicial Circuit

Standards of Professionalism and Civility

REMEMBERall attorneys practicing within the Eleventh

Judicial Circuit are bound by the Eleventh

Judicial Circuit Standards of Professionalism

and Civility. The standards are controlling

authority. A lawyer should not unreasonably

oppose an adversary’s application for an

order or an adversary’s request to insert a

term or provision in a document. Eleventh

Jud. Cir. Prof’l & Civility Comm. & Local Prof’l

Panel, Admin. Order 14-01, Ex. A § 2.3 (2014).

BY HONORABLE MILTON HIRSCH

BY PILAR VILLAVERDE

On Sunday, September 15, 1957, the defense team for Rudolf Ivanovich Abel, alleged to be the highest-ranking Soviet spy ever captured and prosecuted in America, met to put the final touches on the motion to suppress that they would be filing in U.S. district court the next day. (Abel’s litigation, and his ensuing fate, are the subject of the movie Bridge of Spies, with Tom Hanks playing Abel’s lead counsel Jim Donovan.)

The motion to suppress concluded with these words:

“Abel is an alien charged with the capital offense of Soviet espionage. It may seem anomalous that our constitutional guarantees protect such a man. The unthinking may view America’s conscientious adherence to the principles of a free society as an altruism so scrupulous that self-destruction must result. Yet our principles are engraved in the history and the law of the land. If the free world is not faithful to its own moral code, there remains no society for which others may hunger.”

The Honorable Milton Hirsch has been a judge of the 11th Judicial Circuit of Florida since January of 2011. He is also an adjunct professor of law at the University of Miami School of Law and at St. Thomas Law School. In 2016, he became the recipient of the Dade County Bar Association’s “Criminal Justice Award” for his outstanding contribution to Miami-Dade County’s criminal justice system. The above passage is an excerpt from Judge Hirsch’s Constitutional Calendar. If you would like to be added to the Calendar’s distribution list, please contact Judge Hirsch at milton.hirsch@gmail.com with your name and e-mail address.

What remedies are available when a loved one has been wrongfully killed? The State of Florida affords the survivors of

a wrongfully killed decedent an opportunity to recovery for their losses under the Wrongful Death Act, Fla. Stat. §768.16 – 768.26 (2017). Not just anyone can recover for the death of a loved one, however. The term “survivors” includes the “decedent’s spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.” Fla Stat. § 768.21(1). A wrongful death claim must be brought forth by the decedent’s personal representative, who has a statutory duty to bring the claim on behalf of all survivors and the estate under one suit. Fla. Stat. § 768.20; Thompson v. Hodson, 825 So. 2d 941, 955 (Fla. 1st DCA 2002).

The wrongful death action shall include all damages of the decedent’s survivors and the estate including, but not limited to, mental

The Constitutional Corner

A Brief Overview of Florida Wrongful Death Lawpain and suffering, lost support and services, funeral and burial expenses, and loss of prospective net accumulations. Fla. Stat. § 768.21; Thompson, 825 So. 2d at 952. After a recovery is made and attorney’s fees and other litigation expenses have been paid, the personal representative is obligated to apportion the wrongful death proceeds between the survivors and estate in conjunction with

damages claimed. Fla. Stat. § 768.26 (2017); Thompson,825 So. 2d at 950.

An apportionment does not necessarily have to be equal amongst all of the survivors but

shall be made in a reasonable and equitable manner when the settlement is nonspecific. Id. If a survivor objects to a proposed allocation of a wrongful death recovery, the proposed allocation shall be presented to the court. Fla. Stat. § 768.25. Before approving a proposed allocation, the court may require an evidentiary hearing so that the objecting survivor may present

evidence showing why a different allocation other than what has been proposed by the personal representative should be approved. In re Estate of Wiggins, 729 So. 2d 523, 524 (Fla. 4th DCA 1999).

“A wrongful death claim must be brought forth by the decedent’s personal representative, who has a statutory duty to bring the claim on behalf of all survivors and the estate under one suit.”

After the court has approved the allocation, the survivors can receive their proceeds from the personal injury attorney directly. The money allocated to the estate, if any, must be placed in an estate account. From this account, the personal representative must then pay the estate administration expenses and obligations according to the order of payment under Fla. Stat. § 733.707. Once all estate expenses and obligations have been addressed, any remaining monies in the estate account are to be distributed to the estate’s beneficiary(ies) according to whether the decedent died testate or intestate. Pilar Villaverde is an attorney at Suarez Law focusing in the areas of probate, guardianship, elder law, estate planning, and special needs trusts. Prior to joining the firm, Pilar served as a judicial intern to Judge Maria Sampedro-Iglesia (Fla. 11th Cir., Juvenile and Unified Family Court/Complex Litigation Divisions); Judge William M. Hoeveler (S.D. Fla.); and Judge Michael A. Genden (Fla. 11th Cir., Probate Division). She earned her J.D. degree from St. Thomas University School of Law, as well as her Elder Law Certificate. Pilar may be reached at pv@suarezlawyers.com.

6 DCBA BULLETIN | SEPTEMBER 2018

Eighth Annual Getting a Jump Start on Pro Bono for Summer Associates On July 19, 2018, Dade Legal Aid held its annual “Getting a Jump Start on Pro Bono” event for South Florida Summer Associates. The evening reception was hosted by Hogan Lovells and featured a variety of distinguished members of the judiciary from the federal and state benches who shared their experiences and thoughts on how to get started on pro bono work with our community’s budding lawyers. “Young lawyers and law students like me are getting exposed to the importance of the billable hour for the first time,” said Jacob Koffsky, Summer Associate at Foley & Lardner. “We’re seeing how quickly that concept can take over. But this event reminded us that the group of people who need legal services far exceeds the group of people who can actually afford them. We need to care about that larger group of people, and it is great to see that the firms we are working for and the judges we may eventually appear in front of feel the same way.” This year’s panel of Judges was moderated by the Honorable Stanford Blake and featured Chief Judge Laurel Isicoff of the United States Bankruptcy Court for the Southern District of Florida; the Honorable Kevin Emas of Florida’s Third District Court of Appeal; the Honorable Rodolfo “Rudy” Ruiz of the Eleventh Judicial Circuit of Florida; and Put Something Back Liaison and Associate Administrative Judge, the Honorable Mari Sampedro-Iglesia of the Unified Children’s Court and Human Trafficking Division. “We are delighted to have so many wonderful judges share their words of wisdom with over 50 future lawyers in attendance and extremely grateful to Alvin F. Lindsay, Juan C. Garcia, Victoria Q. DeBayle and the entire Hogan Lovells team for hosting such an impactful event,” said Karen Ladis, Legal Aid executive director. “Each year the program grows and gets better and better thanks to the creativeness of the firm and event founders!” “Hogan Lovells is incredibly proud of its eight-year partnership with Dade Legal Aid in presenting the annual ‘Getting a Head Start on Pro Bono’ program. But this endeavor could not be what it is without the support of the entire community of major Miami law firms who bring their summer associates every year, with the hope they will be inspired from the beginning to make pro bono service an important part of their professional careers. We thank everyone who came and contributed,” said Alvin Lindsay for the firm.

Jared Spector, Marie L. Baez-Lorenzo, and John Thornton

Judge Kevin Emas, Judge Rodolfo Ruiz, and Judge Stanford Blake Lauren Alvarez, Luis Alvarez, Meaghan Goldstein, and Katherine Mitchell

Victoria Q. DeBayle, Ivan Bracho Gonzalez, and Marissa Shulman

Cicely Hodges, Rafael R. Ribeiro, and Alvin F. LindsayZack Panter and Judge Kevin Emas

Diana Johnson, Taylor Fox, and Mary Corbin

www.dadecountybar.org 7

Brian Fernandez, Karen J. Ladis, and Jacob Koffsky

Nathalie de Almagro, Orlando Cabrira-Colorodo, and Gabrielle Socarras

Delreese N. Martin, Lolita Sosa, and Adam HoochStephanie Grosman, Judge Kevin Emas, and Karen J. Ladis

Daniel Guernsey, Alexandra Rios, and Megan Cheney Brianna Donet and Rochelle Hall Judge Stanford Blake, Jennifer Ruiz, Judge Rodolfo Ruiz, and Richard Lorenzo

Isabella Llano, Katherine Mitchell, Meaghan Goldstein, and Karina Leiter Brian Fernandez and Jacob Koffsky Judge Kevin Emas and Judge Laurel M. Isicoff

Judge Stanford Blake, Stephanie Grosman, and Judge Rodolfo Ruiz

Mandela Washington Fellowship leaders with Judge Laurel M. Isicoff

Alvin F. Lindsay, Judge Rodolfo Ruiz, Judge Maria Sampedro-Iglesia, Karen J. Ladis, Judge Laurel M. Isicoff, Judge Stanford Blake, and Judge Kevin Emas

8 DCBA BULLETIN | SEPTEMBER 2018

For more information visit www.dadecountybar.org

MARK YOUR CALENDAR

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PERMIT NO. 1110

SEPTEMBER 12Update from the Directors – EEOC Panel

LOCATION: GREENBERG TRAURIGTIME: 8:30 AM MEMBER ADMISSION: $15 NON-MEMBER ADMISSION: $25 SEPTEMBER 13PROBATE & GUARDIANSHIP SEMINARLOCATION: LAWSON THOMAS COURTHOUSETIME: 12:00 NOONMEMBER ADMISSION: $15NON-MEMBER ADMISSION: $25

SEPTEMBER 20BREAKFAST WITH JUDGE LINDSEYLOCATION: GRAY ROBINSONMEMBER ADMISSION: $10 NON-MEMBER ADMISSION: $20TIME: 8:00 AM

SEPTEMBER 21DCBA IMMIGRATION TRAININGLOCATION: HOLLAND & KNIGHTTIME: 8:30 AM

SEPTEMBER 25INTELLECTUAL PROPERTY SEMINARLOCATION: TBATIME: 12:00 NOON

OCTOBER 8ADDRESSING BIAS AND DISPARITIES IN THE CRIMINAL JUSTICE SYSTEMLOCATION: MIAMI DADE COLLEGE NORTH CAMPUS, LEHMAN THEATERTIME: 10:00 AM

OCTOBER 11PROBATE & GUARDIANSHIP SEMINARLOCATION: LAWSON THOMAS COURTHOUSETIME: 12:00 NOONMEMBER ADMISSION: $15NON-MEMBER ADMISSION: $25

OCTOBER 25YLS STYLE & SUBSTANCE: THE ART OF BUILDING AND MAINTAINING YOUR BRAND WITHOUT LOSING SIGHT OF BEING A LAWYERLOCATION: GREENBERG TRAURIGTIME: 12:00 NOON

NOVEMBER 19TH ANNUAL PATENTLY IMPOSSIBLE PROJECTLOCATION: TBATIME: 6:00 PM

NOVEMBER 8PROBATE & GUARDIANSHIP SEMINARLOCATION: LAWSON THOMAS COURTHOUSETIME: 12:00 NOONMEMBER ADMISSION: $15NON-MEMBER ADMISSION: $25

NOVEMBER 15YLS MIAMI NIGHTSLOCATION: BALL & CHAINTIME: 6:00 PM