3d DCA Watch -- Schwartz/Shepherd Double Team Time!

I like it when the 3d gets all "hand of God" and starts instructing lawyers on how they should behave as professionals.

I say that because the profession is infused with jerky obnoxious blowhards who frequently misuse their limited power to make life difficult for opposing counsel, their clients, and sometimes even the judges before whom they practice.

And that's just at my law firm!

So let's see what the great tag-team duo of Schwartz and Shepherd have to say about about a local insurance company lawyer who went a little too far at a deposition of the insured (who was not represented by counsel at the time):

De Leon v. Great American:

This guy sure knows how to take a depo:
The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American’s payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American’s lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction, and the person with whom the claimant was then living.
 Judge Schwartz quotes at length from the deposition, which is indeed as bad as it sounds.

I've often said I can take a seven-hour depo about literally nothing, but it seems that is exactly what happened here.

Judge Schwartz no likey:
This is completely wrong; because De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play.
In walks Judge Shepherd, to deliver the final knock-out punch and to plead with lawyers to start acting like lawyers (the good kind):
This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added). This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freightliner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO). The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert—as the insurer does in this case—that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F. Supp. 883, 905 (S.D.N.Y. 1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first—badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that—although it should have been—the insured’s claim in this case was not resolvable absent judicial intervention.
I said Good Day, Sir!

Intrepid Insurance v. Prestige:

I note this only because it's kinda cool to see Judge Schwartz grant a summary judgment motion that was never filed below (see footnote 1).


  1. This was not even a depo. It was an Examination Under Oath (EUO) that insurers require as a condition precedent to filing suit. The vast majority of insureds are unrepresented at these, and unreasonable time, place, location, length or scope are all favorite tactics insurers use to intimidate insureds into dropping their claims. If you read the excerpts, that is exactly what the attorney was doing. He even threatened the poor guy to get him to withdraw the claim.

    The point of Judge Shepherd's concurrence is, I think, to deflect blame away from the insurer and focus it all on the attorney.

    Because we can't have anything that might derail the train that is barreling through Tallahassee right now to protect insurers from bad faith claims.

  2. Professionalism is the last refuge of scoundrels.

  3. and the legislature got bamboozelled into believing there was an insurance crisis.

  4. I went to law school with Luis Diz and he was always a really nice guy. Bruce B.

  5. Hahaha! It was foreseeable to anyone with half a brain that the incompetent and self conflicting case of USF&G v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999), in which Schwartz specially concurred, was going to make the abuse of the EUO even worse than it was.

  6. this guy hosted a lecture on euos for great american. look at his bio. too good to be true lol


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