IN THE SUPREME COURT OF FLORIDA CASE NO. SC08-1. MARK FREEMAN and RAPHAEL RODRIGUEZ. Petitioners, vs. BLOSSOM COHEN and ABRAHAM COHEN, Respondents

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC08-1 MARK FREEMAN and RAPHAEL RODRIGUEZ Petitioners, vs. BLOSSOM COHEN and ABRAHAM COHEN, Respondents RESPONDENTS ANSWER BRIEF ON JURISDICTION ALVIN N. WEINSTEIN WEINSTEIN, BAVLY & MOON, P.A. Counsel for Respondents 19 West Flagler Street Suite 1400 Miami, FL Tel. No. (305) Fla. Bar No BRIAN HERSH Counsel for Respondents 19 West Flagler Street Suite 602 Miami, FL Tel. No. (305)

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND OF THE FACTS 1 SUMMARY OF ARGUMENT 2 ARGUMENT 3 CONCLUSION 4 CERTIFICATE OF SERVICE 5 CERTIFICATE OF COMPLIANCE 5

4 TABLE OF AUTHORITIES Berges v. Infinity Insurance, 896 So.2d 665 (Fla. 2004) 2, 3, 4 Shuster v. South Broward Hospital District, 591 So.2d 174 (1992) 2, , Fla. Stat. 4

5 STATEMENT OF THE CASE AND OF THE FACTS Petitioners seek review of a decision of the Fourth District Court of Appeal. That decision affirmed a final order of the trial court enforcing a settlement between Med Pro, a medical malpractice insurance carrier, and Respondents Blossom and Abraham Cohen. Med Pro was the malpractice insurance carrier for Petitioners Mark Freeman, M.D., and Raphael Rodriguez, M.D. Med Pro settled the malpractice claims brought by Respondents within the applicable policy limits. The settlement did not expose either of the Petitioners to an excess judgment and did not deprive Petitioners of any counterclaim. The trial court entered a final order enforcing the settlement after an evidentiary hearing. 1

6 SUMMARY OF THE ARGUMENT There is no conflict, express, direct, or otherwise, between the Fourth District decision in the case at bar, on the one hand, and the decisions in Shuster v. South Broward Hospital District, 591 So.2d 174 (1922) and Berges v. Infinity Insurance, 896 So.2d 665 (Fla. 2004), on the other hand. Petitioners brief misrepresents that Shuster recognizes a multi-defendant exception. Nowhere in Shuster is such an exception noted. Shuster recognized an exception where multiple parties make claims against a single policy and the insurer settles with one claimant, thereby exhausting the policy limits and exposing the insured to excess personal liability as to the other claimant. Since both of the Cohens claims were settled within the policy limits, the insureds were not exposed to any personal liability. Nowhere in Shuster is there any discussion of what rights, if any, the insured may have to control the allocation of settlement proceeds among multiple insurance policies in an omnibus settlement. In Berges, the issue was the insured s exposure to excess personal liability resulting from the insurer s failure to settle a case on behalf of its insured. By contrast in the case at bar, the settlement insulated the insureds from excess 2

7 liability. Furthermore, , Fla. Stat., the statute at issue in the instant case, was not at issue in Berges. ARGUMENT There is no conflict, express, direct, or otherwise, between the decision of the Fourth District in the case at bar, on the one hand, and the decisions in Shuster v. South Broward Hospital District, 591 So.2d 174 (1992) and Berges v. Infinity Insurance, 896 So.2d 665 (Fla. 2004), on the other hand. Shuster did not involve a settlement in which the insurer negotiated a settlement on behalf of multiple insureds under multiple insurance policies. And Shuster does not address the propriety of an insurer s conduct under such circumstances. Petitioners Brief, at pages 5 and 9, misrepresents that Shuster recognizes a multi-defendant exception. Nowhere in the Shuster opinion is any such exception noted. Shuster recognizes an exception where multiple parties make claims against a single policy of insurance where the insurer settles with one claimant, thereby exhausting the policy s limits and exposing the insured to excess personal liability vis a vis the other claimant. That exception is entirely inapplicable in the case at bar. The multiple parties in the case at bar are Plaintiffs Blossom and Abraham Cohen. The insurer has settled both of their claims within policy limits, thereby exposing the insureds to no personal liability. 3

8 Nowhere in Shuster is there any discussion of what rights, if any, an insured may have to control the allocation of settlement proceeds among multiple insurance policies in an omnibus settlement. In Berges at issue was rather an insurer s exposure of its insured to excess personal liability due to the insurer s failure to settle a claim on behalf of its insured. That is the antithesis of the facts of the case at bar, where the settlement insulated the insureds from any excess personal liability. In that regard, Berges, 896 So.2d at 679, n. 10, aptly notes: A.W. Huss Co. and Shuster are factually distinguishable from this case because neither case concerned a situation in which the insurer was offered a settlement within the policy limits but did not settle. Rather in both A.W. Huss Co. And Shuster the insurers actually settled within the policy limits and the insureds were not subjected to excess judgments. Nowhere in the Fourth District decision is there any reference to Berges. Indeed, , Fla. Stat., the statute at issue in the case at bar, was not at issue in Berges. CONCLUSION Accordingly, there is no basis upon which to invoke this Court s jurisdiction and the petition should be denied. Respectfully submitted, ALVIN N. WEINSTEIN 4

9 WEINSTEIN, BAVLY & MOON, P.A. Counsel for Respondents 19 West Flagler Street Suite 1400 Miami, FL Tel. No. (305) Fla. Bar No BRIAN HERSH Counsel for Respondents 19 West Flagler Street Suite 602 Miami, FL Tel. No. (305) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing were mailed to Michael R. Presley, Esq., Presley Law Center, LLC., Bricolage Health Systems, LLC., 201 Alhambra Circle, Ste. 200, Coral Gables, Florida and Michelle Nelson, Esq., 1645 Palm Beach Lakes Boulevard, Suite 700, West Palm Beach, Florida this day of February, CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief comports with the font and spacing requirements of Fla. R. App. P