Kansas R. Gooden awarded FDLA’s Amicus Award

Posted on August 17, 2015

goodenThe Florida Defense Lawyers Association awarded the 2015 Amicus Award to Kansas R. Gooden.

The award is presented each year to the appellate attorney who makes significant contributions to the defense bar and amicus committee.

Ms. Gooden is Board Certified in Appellate Practice and serves as the firm’s Appellate Department Practice Leader. She handles a wide array of appellate matters, including extraordinary writs and plenary appeals in state and federal court, and often assists trial counsel with preserving issues for appeal.

Super Lawyers

Posted on July 8, 2015

The Super Lawyers list recognizes no more than 5% of attorneys and The Rising Stars list recognizes no more than 2.5% of attorneys in the State of Florida.

Our firm is honored to have two (2) of our attorneys included in this year’s Florida Super Lawyers and five (5) attorneys included in this year’s Florida Rising Stars.

Congratulations you’ve worked hard to earn this selection!

Super Lawyers

KvanderlindeKristen M. Van der Linde          Personal Injury Defense: General   2010-2015





MEckelsMark K. Eckels                            Transportation/Maritime   2014-2015





Rising Stars

AAbramovichAndrew Abramovich                   Insurance Coverage   2013-2015





Heather CarboneHeather M. Byrer Carbone         Workers' Comp   2010, 2013 - 2015





goodenKansas R. Gooden                          Appellate 2011-2015






EHowardElizabeth B. Howard                     Construction Litigation 2009-2015





Billie Jo Taylor

Billie Jo Taylor                               Personal Injury Defense: General   2013-2015




jrichardsonJennifer Shoaf Richardson            Appellate   2015

Workers’ Compensation Update

Posted on July 8, 2015


*Save the date for our Suite Reception during the WC Convention Tuesday, August 25th at 4:30 p.m.

Case Law Update

Babahmetovic v. Scan Design/Zenith

MCC AND THE 120 DAY RULE: Claimant appealed JCC order denying a one-time change. Claimant injured his back lifting and was sent to an urgent care facility. The urgent care provider referred him to a specialist. The specialist opined that 60% of his condition was pre-existing but that he had suffered a sprain at work and had pre-existing degenerative disc disease. E/C then issued a denial for the entire claim and stated that the industrial accident was not the major contributing cause of the need for treatment. The parties agreed that same was a denial of compensability. E/C argued that they were entitled to do so under the “120 day” provision. The JCC found that denial of compensability under the 120 day rule did not itself foreclose the right to a one-time change. However, the JCC denied the one-time change because the accident was not the MCC of injury or the need for treatment. The 1st DCA found that the JCC erred in not recognizing the existence of a compensable injury. The Court further held that the JCC should not have applied an MCC analysis to determine the existence of a compensable injury, because there is no evidence that the sprain was caused by degenerative disc disease or anything other than work. The DCA also pointed out that the E/C did not provide written notice to the Claimant of its intention to rely on the 120 day provision which is required. Ultimately, the DCA held that because the Claimant suffered a compensable injury (the sprain), he was entitled to a one-time change in physician.

*The Claimant’s bar is reading this case to hold that an E/C may not deny for MCC outside of the 120 day provision. We strongly disagree. The take away point is to be certain that Claimants are given written notice of the E/C’s intention to pay and investigate within 120 days.


¨ Blake Hood was a speaker at the WCCP/Fla Bar Forum in April

¨ Mary Morgan and Blake Hood spoke at the Signal Maritime Conference in May

¨ Linda Farrell and Ben Samuels spoke at the WCCP Claims Management Conference in Bonita Springs on June 16th

¨ If your company would like CEUs, let us know. We come right to you!


Qualifying Agents…Licensed Contractors

Posted on July 8, 2015

Taylor Morrison Serv., Inc. f/k/a Morrison Homes, Inc. v. Carol Ecos and Susan Bessing,

40 Fla. L. Weekly D1283b (1st DCA May 28, 2015).


On May 28, 2015, Florida’s First District Court of Appeal reversed a final judgment from the trial and held that Taylor Morrison Services, Inc. (“Taylor Morrison”) was not an unlicensed contractor pursuant to Florida Statute §489.128(1). Section 489.128(1) provides:


. . . [a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.


Section 489.128(1)(c) further states:

. . . a contractor shall be considered unlicensed only if the contractor was unlicensed on the effective date of the original contract or the work, if stated therein, or if not stated, the date the last party to the contract executed it, if stated therein.


In the underlying case, Taylor Morrison entered into an agreement with Carol Ecos and Susan Bessing (the “Homeowners”) for the construction and purchase of a home. The Homeowners sued Taylor Morrison for claims of negligence, unlicensed contracting, and construction defects. Prior to the non-jury trial, the parties stipulated that construction defects in the home caused compensatory damages in the amount of $200,000.00 and the case proceeded to trial only on the issue of whether Taylor Morrison was acting as an unlicensed contractor under § 489.128(1).


On the effective date of the contract, Taylor Morrison had four contractors listed as “qualifying agents” with the Department of Business and Professional Regulation (“DBPR”) Construction Industry Licensing Board.


Testimony at trial evidenced that two and a half months after the contract was entered into, a building permit was issued to Taylor Morrison for the home. However, the individual who signed the permit on behalf of Taylor Morrison, one of the four “qualifying agents” listed by Taylor Morrison with the DBPR on the effective date of the contract, had in fact resigned several weeks before the effective date of the contract. She testified that she had no involvement with the project, doubted the signature’s authenticity, and admitted to signing blank building permit applications previously. She also testified that she had not authorized Taylor Morrison to pull the permit for the project using her license.


Trial testimony also established that Taylor Morrison did have another “qualifying agent”, a licensed certified building contractor, on the effective date of the contract and who remained employed with Taylor Morrison throughout the contract period.


Focusing on the apparent fraud in the permit application and the lack of construction supervision for the home, the trial court ruled that Taylor Morrison was an unlicensed contractor. The First DCA reversed, holding Taylor Morrison was not an unlicensed contractor under §489.128(1) because it did have a “qualifying agent” on the effective date of the contract.


The Court further noted that although Taylor Morrison violated the law by submitting a permit signed by a “qualifying agent”/contractor who was no longer employed with the company and failed to have adequate supervision for the construction, “these transgressions did not retroactively render [Taylor Morrison] unlicensed within the meaning of § 489.128(1).”


Thus, Florida case law has been clarified to hold there is no requirement that a business organization’s “qualifying agent” be the same person that pulls the permit and supervises the construction under the contract. But a “qualifying agent” must be employed on the effective date of the contract in order for the business entity to be deemed properly licensed.


 Elizabeth Howard                                                                                                            Nicole Liu


Be Careful What You Sign: Contractually Raising the Standard of Care

Posted on July 8, 2015

School Board of Broward County v. Pierce Goodwin Alexander & Linville, --- So.3d ----, 2014

WL 1031461 (Fla. 4th DCA March 19, 2014)



In spring 2014, Florida’s Fourth District Court of Appeal issued its opinion addressing professional liability in School Board of Broward County v. Pierce Goodwin Alexander & Linville. The most critical part of the opinion addressed what standard of care for an architect is appropriate to present to a jury. At the trial court level, the jury was instructed on a negligence theory and was specifically told not to decide whether the architectural plans at issue were code-compliant. In its verdict, the jury found that there was no breach of duty by the architect regarding its design of a balcony staircase. On appeal, the District Court ordered a new trial because it found that the trial court improperly instructed the jury as to the applicable standard of care.


As a matter of common-law, professionals rendering professional services are to perform such services in accordance with the standard of care used by similar professionals in their community under similar circumstances. Trikon Sunrise Association, LLC v. Brice Bldg. Co., 41 So. 3d 315 (Fla. 4th DCA 2010). Thus, as long as an architect uses the same ordinary and reasonable skill as other architects in their community, to draft plans that are code-compliant, the common law standard of care is met. See Edward J. Seibert, A.I.A., Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, 573 So. 2d 889 (Fla. 2d DCA 1990). But, if an express provision in a professional services contract provides for a heightened standard of care, the professional must then perform in accordance with the terms of the contract. CH2M Hill, Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240 (Fla. 2d DCA 1997). Thus, a design professional can contractually agree to perform services at a standard of care higher than the common law standard.


In the instant case, the District Court found that the architect had agreed to a heightened standard of care when the design contract called for the design work to be performed in accordance with customary professional standards currently practiced by firms in Florida and in compliance with any and all applicable codes, laws, ordinances, etc.


The School Board of Broward County decision also addressed an important issue with regard to damages.   The Court held that “first-cost” items (items that would have been borne by the owner had they been included in the plans) should not be included in the damages that flow from an error in the design plans. Therefore, the fact that those costs had to be incurred later to repair/remediate does not create additional liability for the design professional.


The potential impact of this decision highlights the fact that owners, design professionals, general contractors, and subcontractors must determine what they have agreed to, or what they are being asked to agree to, in any services contract at the front end to avoid problems at litigation.

Further, once litigation has commenced, an evaluation of any contractual risk-allocation is of primary importance and may be determinative of the outcome of the litigation. Additionally, insurers for design professionals need to be aware of any heightened standard of care a design professional accepts in contracting for services.

 Elizabeth Howard                                                                            Patrick Hinchey

EHoward PHinchey

Construction Defect Statute of Repose

Posted on July 8, 2015

Section 95.11(3)(c), Florida Statutes, provides a 10-year statute of repose for causes of action based upon improvements to real property:

An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

Cypress Fairway Condo. v. Bergeron Const. Co. Inc., No. 5D13-4102, 2015 WL 2129473, at *1 (Fla. 5th DCA 2015), decided in May, focused on “the date of completion or termination of the contract” for the improvement of the realty. The trial court interpreted that phrase as referring to completion of construction and dismissed the lawsuit as time-barred by the statute of repose. The appellate court reversed, holding the contract was not complete until final payment was made: “Completion of the contract means completion of performance by both sides of the contract, not merely performance by the contractor.” This gave the condominium owners an additional three days to sue, making their suit timely. The defendants filed a motion for rehearing, and it was denied on June 1, 2015. The case has not yet been released for publication.

Thus, an owner may have additional time to sue, more than 10 years after obtaining possession of the property, issuance of the certificate of occupancy, and completion of construction, if final payment or some other performance under the construction contract happened later. The court was not troubled that the timing of final payment, in many circumstances, will be under the owner’s (i.e., the would-be plaintiff’s) control.

Jonathan Huffman



Construction Update

Posted on July 8, 2015




The Northern Florida Chapter invites you to their

Education & Networking Event

"Construction Defect"

This will be an educational and networking event covering Construction Defect. In particular, attendees will learn, among other things, how to help protect the company from a future Construction Defect claim during: project selection; contract drafting/review; insurance procurement/confirmation; project management; and litigation.

Friday, July 24, 2015
Registration: 2:30 PM - 3:00 PM
Education: 3:00 PM - 5:00 PM
Networking 5:00 PM - 7:00 PM
CE Approved

The Haskell Company
111 Riverside Ave
Jacksonville, FL 32202

Jack Florence - Risk Management Executive, American Contractors Insurance Group, Inc.
Elizabeth B. Howard - Partner/Liability, Boyd & Jenerette, P.A.
Vanessa McMillan - Director Risk Management, The Haskell Company

Register at:
For details about the Northern Florida Chapter:

No cost to attend 

4100 South Hospital Drive, Suite 209, Plantation, FL 33317




Boyd & Jenerette Announces New Associate, Jennifer Shoaf Richardson

Posted on July 8, 2015

Boyd & Jejrichardsonnerette is proud to announce Jennifer Shoaf Richardson has joined the Firm as an Associate in its Jacksonville office. Ms. Richardson practices in the area of insurance coverage and bad faith/extra-contractual liability litigation, complex civil litigation, commercial litigation, and appeals. She represents insurers, other businesses and individuals in all stages of litigation, including trial, before state and federal courts throughout Florida, and she advises insurers about insurance coverage, good-faith claims handling, regulatory compliance, investigations, insurance fraud and other matters. In 2013, she was recognized as a Leader in the Law by the Florida Association for Women Lawyers.

Ms. Richardson graduated cum laude from the Florida Coastal School of Law in 2009. She is admitted to practice in Florida and Georgia, and is a member of the American Inns of Court (Associate, Chester Bedell Chapter), Jacksonville Bar Association, Jacksonville Women Lawyers Association and Florida Bar Code and rules of Evidence Committee, Florida Bar Foundation (Fellow) and Florida Bar Young Lawyers Division Board of Governors.

Ms. Richardson previously practiced at the law firm of Creed & Gowdy. Before entering private practice, Ms. Richardson served as a law clerk for three years to former Judge Peter D. Webster and the Honorable Simone Marstiller, of Florida’s First District Court of Appeal, in Tallahassee.


Successful Defense Verdict

Posted on March 30, 2015









Congratulations to two of our Liability Partners, Kristen Van der Linde and BJ Taylor, on a great defense verdict of only 10% liability on our client.

Boyd & Jenerette Partner, Elizabeth Howard Appointment By Gov. Scott To Serve On Florida Board Of Professional Engineers

Posted on March 30, 2015

EHowardElizabeth B. Howard has been appointed by Gov. Scott to serve on the Florida Board of Professional Engineers, pending Senate confirmation. The Board is comprised of 11 members, 9 licensed professional engineers and 2 laypersons. Ms. Howard’s term will run from March 27, 2015 through October 31, 2018. The purpose of the Board is to regulate the practice of engineering in the State of Florida in the interest of public health and safety. The Board reviews applications, administers exams, licenses qualified applicants, and enforces the proper practice of engineering which meets 6 times per year throughout the state.