Philip Fairman - Vernis & Bowling

Philip Fairman, Esq.
Attorney
Vernis & Bowling of Southwest Florida, P.A. 2369 West First Street Fort Myers, FL 33901
Phone: (239) 334-3035
Email: PFairman@Florida-Law.com
Fax: (239) 334-7702
Website: www.national-law.com
V-Card Email

Verdicts and Dispositions

Florida National Insurance Solutions Inc., v. Welcome Home Development Corp.
Philip Fairman and William Kratochvil (Ft. Myers, FL) (Litigation) obtained a complete Defense Verdict in Lee County, Florida after a two-day trial where a tenant’s damaged office contents were disposed of by the landlord in the aftermath of Hurricane Ian. Florida National Insurance Solutions was the plaintiff and tenant in the office building owed by the landlord and defendant Welcome Home Development Corporation.

On September 28, 2022, Hurricane Ian caused significant damage to the building owed by the defendant Welcome Home Development Corporation. The Hurricane destroyed Plaintiff’s second floor office with rain driven water when the roof over the plaintiff’s rented office was partially torn off. Shortly thereafter, Welcome Home began the remediation process and instructed its contractor to salvage any items from its tenant’s offices which were dry and mold free. After finding nothing salvageable in the Florida National’s office and after assuming Florida National had abandoned the items in their office when they failed to contact Welcome Home, the contractor pursuant to Welcome Home’s instructions collected all the contents in Florida National’s destroyed office and placed them on the curb for disposal with debris from the other offices.

The plaintiff in its lawsuit asserted a defacto data breach claim for its lost business and financial records. The plaintiff also alleged that a large volume customer stopped doing business with Florida National after being informed that Florida National’s business records which contained the client’s proprietary information records were possibly compromised when those records were placed on the curb for disposal during the cleanup process from the hurricane.

At trial, the court granted a Directed Verdict as to two of the counts alleged in the Amended Complaint. On the remaining counts, Plaintiff asked the jury to return a verdict of $1.3 million. After deliberating for approximately thirty minutes, the jury returned a complete Defense Verdict on the remaining counts and awarded the plaintiff zero dollars.

Proposals for Settlement were filed on behalf of the Defendants, as well as Motions to Tax Fees and Costs.
Yindra Carmona and Victor Lopez, Sr., as Mother and Father and Legal Guardians of a minor vs. School Board Of Lee County.
Philip J. Fairman (Fort Myers, FL) (Governmental Law) obtained a Final Summary Judgment in Lee County, Florida. The Plaintiffs claimed that the child passenger on the School Board’s school bus was blinded when he was struck in the eye by an unsecured seat belt after the bus braked suddenly.

Between July 2018 and July 2021, the Plaintiffs retained a series of different attorneys to represent them in their claim against the School Board. Each of those retained attorneys served the School Board with separate pre-suit notices of their claim. In total 5 pre-suit notices were served on the School Board.

The School Board’s Motion for Summary Judgment asserted that all of the five pre-suit notices were deficient and failed to comply with the pre-suit notice requirements of Florida Statutes Section 768.28. Plaintiff’s attorney in his response to the School Board’s Motion for Summary Judgment did not address the notices prepared by the prior attorneys. The trial court agreed with the School Board’s position that the plaintiff waived any arguments as to notices filed by any previous attorneys and held that the School Board was entitled to Summary Judgment as to the notices served by the plaintiff’s previous attorneys. With respect to the notice that the Plaintiff’s current attorney served, the School Board asserted in a supporting affidavit that it had never received that notice. During discovery Plaintiff’s attorney was unable to produce the green mailing card showing receipt in hand by the School Board of the pre-suit notice, however, Plaintiff’s attorney filed his affidavit stating his office mailed the pre-suit notice in the usual course of business to the School Board. The trial court agreed with the School Board’s argument that the mailbox rule did not apply to sovereign immunity cases and held in the absence of a (green) mailing card showing receipt of the letter, the School Board was entitled to Summary Judgment.
Iberia Bank v. Blue Water Coach Homes Condominium Association, Inc.
Philip J. Fairman (Fort Myers, FL) (D&O) obtained a Final Summary Judgment in Lee County, Florida in the case of Iberia Bank v. Blue Water Coach Homes Condominium Association, Inc.

During construction of the condominiums, the developer learned that multiple units contained Chinese drywall. As a consequence, the developer was unable to sell those units. A Federal class action lawsuit in Louisiana was the forum for adjudication of the nationwide Chinese drywall claims. The Association filed claims on behalf of unit owners whose condominiums contained Chinese drywall. The developer also filed claims in the class action. Due to financial problems with its lender Iberia Bank, the developer assigned 80% of any recovery in the class action to Iberia Bank.

At the conclusion of the Louisiana multi-state litigation, the Association recovered approximately $1,250,000 for remediation reimbursements to the unit owners. The Association paid out approximately $250,000 to unit owners who remediated, but due to competing claims by past and current unit owners, as well as the claim by Iberia Bank to the entire $1,250,000 in recovered proceeds, the Association filed an impleader action and placed the $1,000,000.00 balance of non-disbursed funds into the court’s registry. Iberia Bank filed a counterclaim against the Association for negligence, breach of fiduciary duty, and equitable accounting. The bank essentially claimed the Association wrongfully paid the unit owners for remediation of their units because it had priority in recovering the class action Chinese drywall recovery.

After a four-hour hearing on the Motion for Summary Judgement, the court determined that the Association was protected by the Florida Business Judgment Rule and was not negligent when it disbursed some of the proceeds to unit owners who remediated their units. The court also determined that the Association did not breach any fiduciary duty on two grounds. The court agreed with our argument that officers and directors only owe fiduciary duties to unit owners and not to the association itself. Iberia Bank also argued that a fiduciary relationship was created through the Association’s holding of the developer’s settlement proceeds. The court agreed with our argument that because the developer did not remediate any of its units, it was not entitled to any payments for its remediation claims.

Proposals for Settlement were filed on behalf of the Association and Motions to Tax Fees and Costs against Iberia Bank are pending.
Sabrina Moore v. Maritta and Kenneth Stevens
Steven Sundook and Phillip Fairman (Ft. Myers, FL) (Automobile Liability) obtained a Defense Verdict in Lee County Circuit Court in a three-day trial of an auto negligence case. Plaintiff’s counsel requested the jury award $171,000.00 in medical bills and $4,200,000.00 million in pain and suffering. The jury awarded $35,000.00 in medical bills, found the Plaintiff to be 40% at fault for the accident, and also found that she had no permanent injury. After a PIP setoff and comparative negligence, net verdict was only $11,000.00. The defense previously served a proposal for settlement for $110,000.00 and will be seeking an attorney fee award. A “high low” agreement was offered but the Plaintiff refused to go below “$250K/$1 million.” There was also a prior nonbinding arbitration award of $225,000.00.

The case arose out of a March 3, 2018 accident in which the 75-year-old defendant driver was leaving a restaurant with his wife and sister-in-law. Traffic to his right was in gridlock. He waited until a driver in the gridlock traffic stopped to let him through to turn left. He waited, looking to his right for oncoming headlights to make a safe left turn.

Seeing no oncoming headlights, he slowly turned left and then accelerated. He admitted his vision was partially obstructed as he looked through the windows of parked cars to his right before turning. His wife testified she also saw no oncoming headlights as they turned. After 5-6 seconds he felt a push from behind, realized his car had been hit, pulled over to the side of the road and called 911.

Plaintiff, a 42-year-old single mom, was coming back from the fair with an ex-boyfriend and her adult disabled child. She claimed the defendant’s vehicle suddenly partially pulled into her lane and stopped. The first thing she saw was his brake lights. She braked and turned to the right to try to avoid the collision but struck the right rear side of the defendant vehicle with her right front quarter panel. Her ex-boyfriend claimed the defense vehicle was stopped at angle, and not fully in the lane at impact.

Plaintiff only complained of some chest pain from her seatbelt and refused medical treatment from EMS at the scene. The next day she went to urgent care complaining of a myriad of areas of pain and discomfort, including to her right shoulder. She followed up with a chiropractor, neurologist and eventually returned to an orthopedic surgeon who had treated her in the past.

She had two prior car accidents in 2006 and 2010. She had right shoulder arthroscopic surgery in 2006 after the first accident and again in 2010 after the second accident. She had a third right shoulder arthroscopic surgery following our 2018 accident.

She went a year and a half until July 2020 without treating with the orthopedic surgeon, Dr. Kagan. She had an injury at home in January 2020 when she felt pain in her shoulder while reaching behind her to close a door. When Dr. Kagan saw her in the summer of 2020, his report was mostly a cut and paste of his March 2019 MMI report. He referred her to physical therapy and never mentioned anything about discussing future surgery with the Plaintiff, much less recommending it. Plaintiff’s counsel claimed the 2020 “door” injury related back to our March 2018 accident.

In November 2020 Plaintiff’s lawyer produced a “confirming” letter he wrote to Dr. Kagan in which he asked Dr Kagan whether Plaintiff would need a future surgery. Dr Kagan signed a form attached to the letter outlining the future surgery he recommended to her lawyer. When Dr. Kagan’s video testimony for trial was done in May 2021, he admitted it was unusual to not examine a patient, get an MRI or have any discussion with a patient before recommending a future surgery. Plaintiff’s counsel also had him testify that Plaintiff might need a second future surgery if the first was not successful, which would be open surgery using cadaver bone, which another doctor would have to perform. He admitted the need for the second future surgery was “sheer speculation”.

Our CME doctor testified that Plaintiff had general laxity in her shoulder, that it was a chronic condition not related to our 2018 accident, and that he did not find her 2018 surgery to be related to it, or believe she needed any surgery in the future.

In closing argument Plaintiff’s counsel argued that our opening statement, in which we said Defendant was not a cause of the accident, was proven to be false, that Defendant “darted out” in front of the Plaintiff cutting her off. It was further argued that she had lost the use of her right dominant arm, and this was almost like an arm amputation case. The total award requested from the jury was just under $4,400,000.00.

We argued that our client was at most only partially at fault for the accident after he had a “lapse in judgment” turning onto the roadway, but that he was accelerating away, and not stopped partially as Plaintiff claimed, and that she rear-ended his vehicle.

The jury found Plaintiff 40% at fault and found the 2018 surgery not related to the 2018 accident, found no permanent injury, and awarded $0 in pain and suffering damages. It also awarded $35,000.00 in total medical bills, resulting in a $11,000.00 net verdict after applying the PIP reduction.

Areas Of Practice

Appellate Practice
Automobile Liability (PIP/PD/BI/UM)
Condominium and Homeowners' Association Litigation
Construction and Construction Defect Litigation
Director & Officer Liability (D&O)
First and Third Party Property and Casualty Claims
Product Liability
Public Entities

Bar & Court Admission

Florida Bar
United States District Court for the Southern and Middle Districts of Florida
Oklahoma Bar
United States District Court for the Northern District Oklahoma

Education

Graduate:
University of Tulsa, Juris Doctor
University of Cincinnati, Master’s Degree in Labor and Industrial Relations
Undergraduate:
University of Cincinnati, Bachelor’s Degree in History

Reported Decisions

Charlotte County v. Grant Medical Transportation, Inc. 68 So.3d 920
In the Interest of C.W., a Child 681 So.2d 1181
Better Roads Incorporated v. Maria De Jesus Gonzalez et al, and Ronald Dale Walker and Krehling Industries, Inc. 744 So.2d 1123

Philip Fairman was born in Cincinnati, Ohio. Phil obtained a Bachelor of Arts in History and a Master’s Degree in Labor and Industrial Relations from the University of Cincinnati. Phil obtained his Juris Doctor from the University of Tulsa College of Law.

Phil began his legal career as a prosecutor with the State Attorney’s office in Ft Myers. Phil then worked as a corporate attorney for Carnival Cruise Lines and then again as a prosecutor with the State Attorney’s office in Sarasota.

Phil joined the Ft. Myers office of Vernis & Bowling of Southwest Florida nearly 20 years ago. Phil worked as an in-house liability trial attorney with St Paul-Travelers Insurance Company. Phil then worked for over a decade as an Assistant County Attorney for Charlotte County where he defended public entity liability claims. Phil returned to Vernis & Bowling of Southwest Florida where he continues to practice in the areas of property and casualty insurance, automobile liability, premises liability, and Director and Officers litigation. He represents insurance companies, insureds and self-insureds in trial and appellate litigation. Phil has represented clients in successful jury trials in Lee, Collier, Charlotte, Sarasota, Manatee, Hillsborough and Highlands counties.

Phil is a member of the Florida Bar, Oklahoma Bar, Federal District Courts for the Southern and Middle Districts of Florida, and Federal District Court for the Northern District of Oklahoma.

In his free time, Phil enjoys lap swimming, cruising with wife and his adult children, and cooking on his Big Green Egg. He is Tampa Bay Rays fan but still closely follows his hometown Cincinnati Reds.

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