$1M in Attorney Fees Awarded in South Florida Case After Insurer Refused $100K Settlement

“The defense turned what should have been a straightforward matter—one that should have been settled very early on—into an exceedingly complicated and expensive one,” said attorney Todd L. Wallen.

What You Need to Know

• Digging deep, lawyers found undisclosed finances, which led to a big judgment.
• The car crash driver admitted to heroin use, and the underlying litigation ends with over $5.5 million in damages awarded.
• Plaintiffs counsel are planning a bad faith trial next for a hopeful $6 million win.

South Florida lawyers took a $100,000 settlement snub from an insurance company, and turned it into a seven-figure judgment for their client.

The litigation unfolded after Progressive Insurance Co. failed to settle a claim by a Coral Gables woman injured in a 2017 rollover car crash caused by what she alleged in court records was a driver under the influence of heroin.

Attorneys for plaintiff Elizabeth Winkeljohn said her injuries were extensive and required multiple surgeries. They deposed an emergency-room doctor—who evaluated defendant driver, Scott Leonard Callari of Fort Myers—and a Florida state trooper who testified that Callari admitted to snorting heroin before continuing to drive.

“The defense turned what should have been a straightforward matter—one that should have been settled very early on—into an exceedingly complicated and expensive one,” said Winkeljohn’s attorney, Todd L. Wallen of Wallen Kelley, co-trial counsel and appellate counsel.

In January, the plaintiff’s legal team secured a final judgment from Miami-Dade Circuit Judge Carlos Lopez of $1 million in fees and costs, which brought the award to date to nearly $5.6 million, plus interest, for a total of about $6 million.

Years of Litigation

The result followed proceedings in the courtroom of Miami-Dade Circuit Judge Mavel Ruiz on March 3, 2020, which resulted in a more than $4.6 million verdict.

Callari appealed the verdict, and his defense moved to reduce the award, arguing it was excessive and that Callari couldn’t afford it. But plaintiffs lawyers later proved otherwise.

The judge, Ruiz, held four hearings on Callari’s motions for a new trial and for remittitur to reduce the verdict amount.

But in June 2020, Ruiz entered a final judgment of nearly $4.6 million, including $3,561,097 in compensatory damages and $1 million in punitive damages.

Callari appealed to Florida’s Third District Court of Appeal.

On Oct. 21, 2021, the appellate panel affirmed the compensatory award, but sent the case back to the trial court for a new trial on the issue of punitive damages.

Discovery of an Inheritance

After extensive discovery into Callari’s finances—which included an apparent previous inheritance—and his ability to pay a punitive damages award, the retrial of the punitive damages issue was set for September 2022.

“The challenging part of the punitive award also was there’s a limitation based on how much the defendant is able to pay,” plaintiffs counsel Wallen said. “We had to establish an ability to pay—and that was the difficult part. … He was on heroin and the conduct was egregious, but establishing that this guy who lives in Fort Myers can afford to pay a significant punitive award, that was the challenge.”

Lopez, who was the new judge in the division at the time, struck the first jury panel on the first day of the new trial on punitive damages.

The following day, on Sept. 20, 2022, a new juror pool or venire was brought in, and after the parties’ voir dire, Callari, with the consent of his insurer, Progressive, agreed to have a judgment entered against him for $1 million in punitive damages.

At the end of October 2022, Lopez entered judgment for $3,561,097 in compensatory damages and $1 million in punitive damages—the same amounts as the judgment in 2020.

At that time Callari waived the right to appeal that judgment.

In December 2022, Callari withdrew his “Second Amended Motion to Confirm the Absence of an Operative Concession to Plaintiff’s Entitlement to Recover Attorney’s Fees,” and agreed to an award of $850,000 in attorney fees and $150,000 in taxable costs.

In January 2023, Lopez entered the final judgment of $1 million in fees and costs, bringing the total to date to $5,561,097, with interest coming to approximately $6 million.

More Litigation

Now that the parties have resolved the underlying litigation in the tort case, plaintiffs counsel say they plan a lawsuit against Progressive for bad faith, seeking to collect the entire amount of the judgments from Progressive.

“We go on to what we call the extra-contractual litigation, meaning we litigate against the responsible parties who owed a fiduciary duty to Mr. Callari, and we asked the court and a jury to hold them responsible for the damages in excess of the policies limits,” said attorney Stephen A. Marino Jr., of Ver Ploeg & Marino, who is the plaintiff’s insurance coverage counsel.

Marino said he will now try and prove to a new jury that there was a breach of fiduciary duty by Progressive Insurance and that it should have settled sooner.

“And if a jury agrees that they breached their duties to get the claim settled within the policy limits where they could and should have done so, Florida law is going to hold them responsible for any judgment in excess of the policy limits,” Marino said.

Marino and his legal team say this time the final numbers could exceed $6 million, as they seek to collect the entire amount of the judgments in excess of the $100,000 Progressive policy limit including about $500,000 in interest.

Lead trial attorney in the case, Chris Drury of Drury Law Firm in Miami, offered this advice to plaintiff-counsel colleagues: ”Have the intestinal fortitude to fight for your client, through all of the roadblocks and ultimately, you will do well for yourself, for your client, and you will be proud that you held accountable people that were intractable and that tried to stand in the way of justice,” Drury said.

When asked for comment, all defense attorneys in the lower court case and appeal case did not respond to requests.

South Florida Lawyers Land $4.6M Verdict After Comparing Damages to Defense-Expert Fees

by Raychel Lean

Christopher Drury and Todd Wallen represented a Coral Gables woman whose car flipped upside down when a driver, allegedly high on heroin, crashed into her.

Christopher Drury of Dimond Kaplan & Rothstein in Miami teamed with Todd Wallen of Wallen Kelley in Coral Gables t.o land a $4.6 million verdict for a woman injured in a rollover car crash caused by a drtver allegedly high on heroin.And once the defendant conceded liability, the plaintiffs team decided t.o try a novel approach to requesting damages – by comparing their numbers to what the defense was paying its experts.

“We took the defense orthopedic surgeon’s hourly rate, which was $1,100 per hour for the inconvenience of coming t.o testify at trial, and we said,’We’re not asking you for $1,100 per hour for pain and suffering. We’re only going to ask you for one tenth of that: $110 per hour,'” Drury said. “Certainly, Mrs. [Elizabeth] Wmkeljohn’s pain and suffering is far more inconvenient than the inconvenience the doctor had in coming t.o testify.”

Drury and Wallen said they asked for 12 hours of pain and suffering per day for the rest of their client’s life – about 35 years, according to experts – at a rate they noted was less than even the defense’s cheapest expert, who charged $400 per hour.

“Whether they thought that my pain-and-suffering explanation was interesting, or whether they disregarded it or not, I’ll never know.” Drury said. “But I do think it go them thinking, ‘Wow, the defense have paid a lot for experts, and this lady’s really hurt and she deserves real money for it.'”

Plaintiff Elizabeth Winkeljohn’s life changed around midday on Sept. 1 7, 2017, as she followed her husband’s car along Summerlin Road in Fort Myers. They were returning from spending a few days out of town after Hurricane Irma cut power at their Coral Gables home, when a Toyota Avalon came careering toward them, driving on the wrong side of the road.

After almost hitting her husband, driver Scott Callari veered toward Winkeljohn, who had her 9- and 10-year-old children in the back seat. Windows shattered as Winkeljohn’s car flipped one and a half times, and landed upside down, according to her attorneys.

Her injuries were severe. Among them: a herniated disc on her spine, mild traumatic brain injury and chronic post -traumatic stress disorder. Winkeljohn’s seatbelt also caused her left shoulder to dislocate, and part of her knee bone chipped off when it hit the inside of her car.

Though Callari was initially prosecuted for driving under the influence of drugs or alcohol, that charge was dropped when he pleaded guilty to failure to submit to testing, according to Drury.

“Unfortunately, the State Attorney’s Office in Fort Myers did not really do the things that my co-counsel and I did to prove that he was under the influence of heroin at the time of the crash,” Drury said.

Drury and Wallen deposed the emergency-room doctor who evaluated Callari, and concluded that the driver had passed out at the wheel after taking heroin. A Florida State trooper seconded that, testifying that Callari twice admitted to snorting heroin and continuing to drive.

“He [the trooper] drove across the state of Florida and testified, I think because he thought that there needed to be justice in this case,” Drury said.

The defendant’s insurer Progressive Corp. agreed to settle over the children’s injuries, according to Drury, but it was a different story for Winkeljohn. She sued Callari for negligence in June 2018.

“He [Callari] only carried $100,000 per person bodily injury liability coverage, so it was sort of amazing that there was no offer presuit by Progressive,” Drury said.

The defendant ultimately admitted liability, leaving Winkeljohn to prove damages at trial.

Defense attorneys Kenneth Hazouri of DSK Law in Orlando and Richard Adams of Cole Scott & Kissane in Miami declined to comment.

But they alleged Winkeljohn wasn’t as badly hurt as she had claimed, and that some of her injuries stemmed from underlying conditions. They argued jurors need only award past and future medical expenses.

Drury and Wallen countered with testimony from their client’s treating doctors, who said although she had experienced depression, she’d never complained about her neck, left shoulder, left knee or right hip before the crash, and had no history of neurological treatment for a head injury.

“She had no history of any of that stuff, and the treaters were very clear that this was all a result of the crash and it was serious,” Drury said.

What’s more, the defendant’s psychologist agreed that Winkeljohn had PTSD after conducting a compulsory medical exam, according to Drury.

Self-proclaimed fans of allowing pictures to do the talking, Drury and Wallen also showed jurors illustrations of Winkeljohn’s medical procedures, in the hope the jury would better understand the science.

“I can say ‘anterior cervical discectomy and fusion,’ and it’ll go in one ear and out the other,” Drury said. “But if they’ve got a picture of it, and they hear an orthopedic surgeon talking about how you’ve got to make an incision on the throat and push all of the visceral tissue out of the way to get back to the spine, and then excise the disc, and put a bone graft into a cage, then lock that in place with other pieces of metal, they get that.

“Jurors awarded Winkeljohn $375,000 for lost earnings, $1.03 million in past and future medical expenses, $2.25 million in past and future pain and suffering, and $1 million in punitive damages.

In addition to physical pain, Drury said his client feels extreme guilt over not being able to protect her children from the accident.

“She knows that it’s not her fault, but she just can’t get over the fact that she exposed them to that, and that this was a sunny day at noon,” Drury said. “No one would expect to be hit by someone under the influence of heroin in the middle of a sunny day. And now, whenever she’s driving, even during the day, she just thinks at any moment, someone impaired under the influence of drugs or alcohol could hit her and her children.”

The defense has moved to reduce the award, arguing it’s excessive and that Callari can’t afford it.