When a Cape Coral man was left severely injured in an explosion on his outdoor patio because someone had accidentally left a gas grill turned on, his attorneys felt all signs pointed to a cleaning company that had stopped by the day before.
Plaintiffs attorneys Tom Scolaro and Justin Shapiro had a problem, though. No direct evidence actually proved that a cleaning service staff member had been negligent — meaning, technically, it could have been anyone. The premises liability lawsuit that ensued ultimately hinged on a single deposition, as Scolaro and Shapiro found one witness’s lie boxed the defendant into settling the claims for its $2 million insurance policy limit.
Shapiro and Scolaro, partners at Leesfield Scolaro in Miami, represented plaintiff James Dastra. He hired Sparkle and Shine Cleaning Service of SWFL LLC to professionally clean his house about twice a month, including his propane grill on the patio. Dastra’s complaint claimed their last visit put him in serious danger, alleging one cleaner caused highly-flammable propane to leak and build up by inadvertently leaving a burner knob switched on after cleaning it.
“The next morning, our client goes outside to cook breakfast, he clicks the igniter on his grill, and there’s a massive explosion of flames that results in severe burns,” Shapiro said. But the defendant countered that there was no evidence that ever happened, noting the plaintiff or anyone else who visited his home could have left the grill on. That meant Scolaro and Shapiro had to find a way to rule out alternative theories. First, they hired an expert, who found no gas line or grill defects. Then, they quizzed everyone who had entered Dastra’s house between the cleaners’ visit and the explosion, and all testified they had never touched the grill.
While useful, the evidence still was only circumstantial — until the staff member who cleaned the grill that day was deposed. Scolaro and Shapiro said the cleaner told them she specifically remembered checking the grill was turned off before leaving Dastra’s house. But that directly contradicted a statement Florida Department of Financial Services investigators had obtained from her a year prior, when she said she’d been in a hurry that day and hadn’t double checked. The investigator who interviewed the cleaner confirmed this, according to Shapiro, who found, “It was the lie that doomed this defendant in the case.”
In Scolaro’s view, it’s the kind of whopper that defendants usually can’t overcome at trial. “This is almost like a math equation. When negligence plus a lying defendant equals policy limits,” Scolaro said. “Maybe they would have gotten away with, ‘I don’t remember.’ But to affirmatively try and change the facts to not only, ‘No, I don’t remember,’ to be completely opposite? Oh, you’re just asking for a beating at that point.” Julie Ireland and Audrey Fisher of Cole, Scott & Kissane’s Fort Myers and Bonita Springs offices represented Sparkle and Shine. They did not immediately respond to a request for comment. The settlement didn’t include an admission of liability by the defendant.
Jurisdiction was also an issue for the plaintiffs, as the suit was destined for the conservative realm of Lee County, typically home to less-generous jurors than South Florida. “Lee County is a very conservative jurisdiction that does not routinely value cases where we would like them to,” Scolaro said. “That, to me, was probably the biggest challenge—letting our defense attorney and adjuster know that these facts, these lies, these play anywhere, whether it be Miami-Dade County, Lee County or Timbuktu.” The defendant’s Miami-based insurer, Hiscox Business Insurance, agreed to pay its full policy limit of $2 million, which Scolaro said offered a lesson about preparation. “Be very diligent on your investigations,” Scolaro said. “Drill down on all the facts, get all the documents and know what the answers are, or should be, before you even take the deposition.” Lee Circuit Judge James R. Shenko presided over the litigation.
By Raychel Lean – South Florida litigation Reporter for the Daily Business Review.
Reprinted with permission from the 1/26/21 edition
of the DAILY BUSINESS REVIEW ©
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