Matthew B. Bernstein - Vernis & Bowling

Matthew B. Bernstein, Esq.
Department Managing Attorney
Vernis & Bowling of Central Florida, P.A. 1450 S Woodland Blvd, 4th Floor DeLand, FL 32720
Phone: (386) 734-2505
Email: MBernstein@Florida-Law.com
Fax: (386) 734-3441
Website: www.national-law.com
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Verdicts and Dispositions

McMillion, Nicole v. Southern Oak Insurance Company
Matthew Bernstein (Deland, FL) (Property) obtained Summary Judgment in a property claim. Prior to filing suit, benefits for damages to the dwelling under Coverage A were exhausted. The Insured/Plaintiff also made a pre-suit claim for Law & Ordinance benefits, but the carrier denied those benefits because the County had not sought to enforce any applicable codes for the necessary repairs. Plaintiff filed suit seeking the Law & Ordinance benefits, as well as a claim for Additional Living Expenses for the first time. We moved for Summary Judgment as to both L&O and ALE. In opposition, the Plaintiff presented an affidavit from her contractor that bringing the property up to code was necessary. She also presented an affidavit of having to rent another place temporarily while the repairs were being completed. The Court granted our Summary Judgment Motion in favor of the carrier because (a) L&O is an incurred benefit, which only occurs when the local governing body enforces the codes in the particular claim (and that had not occurred here); and (b) a carrier cannot breach a policy by failing to pay for benefits not claimed prior to filing suit for said breach.
Stewart, Nichole and Stewart v. Cheryl Smith, Cheryl Smith Realty, Inc., et al.
Matt Bernstein (Deland, FL) (E&O) Plaintiffs purchased a vacant lot with the intent to clear the land and build a home. After going under contract but before closing, the Seller’s real estate agent (the Insured) emailed the Plaintiffs’ agent, “Just making sure you notified the buyers that we informed you of the wetlands on the lot”, to which Plaintiffs’ agent quickly replied “Yes, the buyers have been notified”. A month later, the transaction closed, and Plaintiffs cleared the lot, but were then fined by the EPA for clearing protected wetlands. Plaintiffs sued the Insured, the seller, and their own agent for failing to disclose a material fact (the presence of wetlands on the property). We moved for Judgment on the Pleadings, as the Plaintiffs attached the email correspondence between the agents to their Complaint. The Judge granted our Motion after finding the Insured’s email to Plaintiffs’ agent constituted the necessary disclosure. We will be pursuing attorneys’ fees and costs pursuant to a “prevailing party” attorney’s fees provision in the subject contract.
Beasley v. Wells Fargo Bank, N.A. and Lilac Group-Sanford, LLC
Tim Kazee and Matthew Bernstein (Deland, FL) (Appeal) The Plaintiff parked in the drive thru lane of our client, Wells Fargo bank. Plaintiff then walked across the street to a bar. Upon returning to his vehicle, he was shot in the head. Plaintiff survived and filed a premises liability lawsuit in federal court against the bank and the alleged owner of the premises, Lilac-Group Sanford, for negligent security. Ownership and control of the bank parking lot was disputed. First responders found a firearm in Plaintiff’s sweater and drugs near his person. Plaintiff testified he could not remember anything about the night of the incident due to his injuries. On behalf of Wells Fargo, we moved for Summary Judgment on the bases that (1) Plaintiff (a convicted felon) was engaged in the commission of a felony at the time of the incident by possessing a loaded firearm and drugs at the time of the incident; and (2) Plaintiff was an uninvited licensee and the defendants did not breach any such duty owed to him. Plaintiff argued there was no forensic proof the gun or drugs were his (such as fingerprints or DNA) and that he was a public invitee of the premises, for which Wells Fargo owed him a greater duty than that of an uninvited licensee. The district court agreed with Wells Fargo’s arguments and entered Summary Judgment in Wells Fargo’s favor. Plaintiff appealed to the 11^th Circuit Court of Appeals. Vernis & Bowling of Central Florida handled the appeal and the appellate court affirmed the federal trial court’s Summary Judgment in favor of Wells Fargo.
David Galat v. William R. Ferrara and William A. Ferrara
Matthew Bernstein (Central Florida) (Auto Liability) Plaintiff filed a complaint on 09/04/2020 for bodily injury stemming from an auto accident. Over the next two years, Plaintiff did nothing to move the case forward, including serve the Insureds. We moved to dismiss the Complaint on behalf of the Insured for lack of service of process and lack of prosecution. The Plaintiff opposed the Motion at the hearing on 11/04/2022 but put forth no sworn affidavits or other record evidence of any due diligence or good faith in attempting to serve the Insureds or move the case forward. The Court granted the Motion to Dismiss and because the Statute of Limitations has now run on Plaintiff’s claim, the Court included “Final Judgment” language in the Order.
Christine Green v. William Garbarino
Matthew Bernstein (Central Florida) (D&O) Plaintiff filed a complaint on 05/19/2021 against a former director of a homeowners’ association for defamation. On 11/08/2021, we filed a Motion to Dismiss on behalf of the Insured for Lack of Service of Process pursuant to Fla. R. Civ. P. 1.070(j), which provides that the court, on its own initiative or on motion shall direct that service be effected within a specified time or shall dismiss the action without prejudice if service is not effectuated within 120 days after the filing of a complaint. Plaintiff argued that because she had emailed our firm a copy of the Complaint, this constituted service. The court disagreed and gave the Plaintiff an additional 60 days to serve the insured. The Plaintiff then attempted a few times to serve the Insured but the process server did so during normal business hours and because the Insured works a 9-5 job, service was never effectuated. We then renewed the Insured’s Motion to Dismiss on the basis that Plaintiff still hadn’t effective service and her last attempts were months ago. In late October 2022, the Court granted the Insured’s Renewed Motion to Dismiss without Prejudice.
Anderson v. Wells Fargo Bank, N.A
Matthew Bernstein (Deland, FL) (Premises Liability) obtained a Summary Judgment in the case of Anderson v. Wells Fargo Bank, N.A. The Plaintiff alleged he slipped and fell on a foreign transitory substance inside a Wells Fargo bank. Security camera footage of the fall showed what appeared to be a pen cap on the floor where plaintiff fell but the court entered Summary Judgment in favor of Wells Fargo after the Plaintiff failed to present sufficient evidence that Wells Fargo knew or should have known the item was on the floor long enough to put Wells Fargo on notice of the condition. There is an expired proposal for settlement which we will be looking to enforce.
Deese v. Realtors Association of Lake & Sumter Counties, Inc., et al.
Matthew Bernstein (Deland, FL) (D&O) obtained a Summary Judgment in favor of a real estate association and its individual Board of Directors, all of whom were named respondents, in a declaratory judgment action filed by the Association’s former President. The Petitioner alleged that the Association and its Directors improperly removed him as President at its first annual meeting in 2019. He sought a declaratory judgment reinstating him to that position, claiming a conflict and ambiguity in the Association’s Bylaws. The parties presented competing motions for summary judgment. The Court granted Respondents’ Motion on the bases that Petitioner had exceeded term limits per the Bylaws and was not properly appointed or ratified as President at the annual meeting, as argued by Respondents. Therefore, Petitioner could not prevail because he was ineligible to continue serving as an officer and could not have been improperly removed from a position he never held in the first place.
Debra Ratliff v. Mary Christopherson and Sun Communities, Inc., d/b/a Grand Lake RV Resort
Terry D. Dixon and Matthew B. Bernstein (DeLand/Central FL) (Premises Liability) obtained Summary Judgment in the case Debra Ratliff v. Mary Christopherson and Sun Communities, Inc., d/b/a Grand Lake RV Resort. Plaintiff was asked by her neighbor to clean the roof of the neighbor’s RV trailer using a broom and pressure washer. The Plaintiff claimed that the neighbor simultaneously asked a maintenance employee of Sun Communities, Inc. d/b/a Grand Lake RV Resort to trim the limbs of a tree overhanging the trailer. At one point while the Plaintiff and the maintenance worker were on the roof together, the Plaintiff grabbed the pressure washer, which caused the pressure washer to break and spray water all over the roof causing her to slip and fall off the roof. The Plaintiff sued the neighbor and Sun Communities, Inc. for negligence. Specifically, the Plaintiff claimed Sun Communities, Inc. was negligent in trimming the tree limbs while she was on the roof of the trailer because the sawdust mixed with the water from the pressure washer, creating a dangerous condition. At her deposition, the Plaintiff testified that had the water from the broken pressure washer not sprayed all over the roof, the sawdust from the trees would not have mixed with the water from the pressure washer and she would not have fallen. The Court granted Sun Communities, Inc.’s Motion for Summary Judgment after finding that Sun Communities, Inc. did not owe her a duty and there was no proximate cause between her injuries and Sun Communities, Inc.’s actions.
Walko, Laura v. Wawa, Inc
Terry D. Dixon and Matthew B. Bernstein (DeLand/Central FL) (Premises Liability) obtained Summary Judgment in the case Walko, Laura v. Wawa, Inc. Plaintiff alleged she slipped and fell on an unknown foreign substance on the floor of Wawa’s premises, which caused her to break her arm. At her deposition, Plaintiff could not identify what she fell on, how the alleged foreign substance came to exist on the floor, who caused the alleged dangerous condition, how long the substance had been on the floor, or whether Wawa had actual or constructive notice of the substance. In fact, the only record evidence of the floor’s condition was that 20 minutes prior to Plaintiff’s fall, a Wawa employee walked through that very area and found nothing to be on the floor. The Court granted Wawa’s motion for Summary Judgment because of Plaintiff’s inability to establish the requisite elements of negligence, including the presence of a foreign substance or notice of the alleged dangerous condition.
Bluegreen Vacations Unlimited, Inc. and Vacation Trust, Inc. v. Kathleen McHugh, et al.
Tim Kazee and Matt Bernstein (DeLand/Central FL) (D & O), in the case of Bluegreen Vacations Unlimited, Inc. and Vacation Trust, Inc. v. Kathleen McHugh, et al., defeated Plaintiffs’ Motion for Preliminary Mandatory Inunction attempting to require Directors of a Timeshare-Condominium Association to hold an Association election.

The primary argument by the Plaintiffs was that the individual Directors were acting ultra vires to unlawfully prevent annual elections and, therefore, injunction was necessary to ensure the next election. In support, the Plaintiffs argued that the individuals allegedly, unlawfully, conspired against the Association’s former management company (the Plaintiffs’ business affiliate) to wrongly terminate the management contract and, relatedly, to wrongly disenfranchise the affiliate corporate Plaintiffs by preventing their ability to vote.

In response, the Defense argued that the Association was a necessary and indispensable party to the litigation because Directors in their individual capacities could not be compelled to conduct or interfere with official Association business, such as an election. The Defense also argued that the Plaintiffs failed to bring the action derivatively, failed to seek statutorily required arbitration, and that any alleged failure of the Association to hold an election was justified temporarily by the former management company’s failure to properly maintain Association records, including a current member roster.

Following an evidentiary hearing, the Court denied the injunction agreeing with the Defense that the Association was a necessary and indispensable party to the litigation,that it appeared the prospect of arbitration was the reason for the Plaintiffs not joining the Association, and that the Plaintiffs did not have a substantial likelihood of prevailing against the Defense.
Palms Rental Program, LLC v. Parkway Palms Resort Condominium Association
Matthew Bernstein (Deland/Central FL) (Condo D&O) Our client, a condominium association, was sued in Osceola County by a LLC that allegedly provided maintenance and marketing services to the association pursuant to an implied or oral contract. The Plaintiff asserted four causes of action against the association (civil theft, breach of an implied or oral contract, intentional interference with a business relationship, and conversion). The amount sought by Plaintiff exceeded $130,000. Early on, it was revealed that the managing member and sole registered officer of the LLC was also the President of the association’s Board of Directors. In July 2017, Mr. Bernstien successfully moved for judgment on the pleadings as to Plaintiff’s causes of action for intentional interference and conversion. Earlier this month (January 2018), after obtaining affidavits from other Board members attesting to the lack of financial interest disclosures by the Plaintiff’s managing member/Board President and the fact that no Board vote was held approving the alleged contract, Vernis & Bowling successfully obtained summary judgment for the association as to the remaining counts for civil theft and breach of an implied/oral contract. The Court also found Fla. Stat. 718.3025 controlling, which requires all association contracts for maintenance services to be in writing. Pursuant to an attorney’s fees provision in the Declaration of Condominium, we will be pursuing fees and costs.
Claimcap, LLC . v. American Integrity
Matthew Bernstein (Deland/Central FL) (Property) The Plaintiff (a collection company that had purchased a mold assessment company’s assignment of benefits in exchange for a second-tier assignment) sued our client, American Integrity, in Seminole County for breach of contract due to American Integrity’s alleged failure to pay the mold assessment company’s invoice. On December 5, 2017, we successfully argued that American Integrity did not breach the policy as a matter of law. In furtherance of our motion for summary judgment, Mr. Bernstein presented the affidavits of American Integrity’s corporate representative, the independent field adjuster, and a professional engineer with GHD, all of which supported American Integrity’s decision to deny the claim based upon the policy exclusion of long-term constant and repeated seepage of water. Plaintiff failed to present any counter evidence that the loss was a covered peril. Pursuant to a filed PFS that was rejected by the Plaintiff, we are now in the process of recovering fees and costs.

Areas Of Practice

Community Based Care
Director & Officer Liability (D&O)
Employment Law/Employment Litigation
Errors & Omissions Liability (E&O)
First and Third Party Property and Casualty Claims
Medical Malpractice

Bar & Court Admission

Florida Bar
California Bar
U.S. District Court for the Middle District of Florida

Education

Graduate:
California Western School of Law, 2013
Undergraduate:
University of Central Florida, cum laude, Legal Studies, 2009

Matthew B. Bernstein was born near Lake Hopatcong, New Jersey, and grew up in Martin County, Florida. Matthew (“Matt”) graduated from the University of Central Florida, cum laude, in 2009 with a Bachelors of Arts degree in Legal Studies. In 2013, Matt earned his Juris Doctorate degree from the California Western School of Law in San Diego, California. Upon passing the California bar exam in July 2013, Matt began practicing at a boutique law firm in San Diego where he focused his practice on real property transactions, landlord-tenant disputes, and estate planning.

In 2015, Matt moved back to the Central Florida area and passed the July 2016 Florida bar exam. Since joining Vernis & Bowling, Matt has focused his practice on community based care, director & officer liability, errors & omissions liability, employment liability, first and third party property & casualty claims (including PIP, bodily injury, auto glass, and SIU), and general civil litigation defense.

Matt is the Vernis & Bowling of Central Florida’s Department Managing Attorney for D&O, E&O, and EPL claims. Matt has represented numerous residential and commercial community associations in claims arising from management and resident disputes, as well as professional associations/companies, such as real estate brokerages, in claims arising from alleged disclosure and misrepresentation issues. Matt has defended employers with respect to charges of discrimination filed with the EEOC and litigation regarding alleged ADA violations. Matt also serves as General Counsel for the REALTORS Association of Lake & Sumter Counties.

When he is not working, Matt is enjoying spending time with his lovely wife, Erica, their son, Ari, and their dog, Leia. Matt has attended more than 150 concerts over the past several years and considers himself a history and movie enthusiast.

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