Broward Circuit Judge Carlos Rodriguez on Friday denied a motion by an insurance defense law firm to strike a deceptive trade lawsuit filed by a workers’ compensation claimant who was offended by the firm’s online pronouncement that it litigates “with a baseball bat.”
Tim Neal, an employee with a franchisee of Stanley Steemer Carpet Cleaner Co., claimed the employer tried to intimidate him when he hired Boca Raton attorney Robert Winess to help process his claim and ensure he got treatment for a back injury.
The franchisee, Dean Enterprises Inc., hired McFarlane & Dolan, a statewide insurance defense firm with offices in Coral Springs.
At the time, McFarlane & Dolan had a website that showed founding partner William McFarlane III holding a baseball bat. A marketing statement said the firm “aggressively” defends insurance companies, and “we litigate claims with a baseball bat.”
The firm site also said its philosophy was to presume that “a claim is fraud until proven otherwise.”
Neal was shown the website by his attorney and said he was outraged by it. On April 19, he filed a lawsuit claiming the advertising violated Florida’s Deceptive and Unfair Trade Practices Act and asked for injunctive relief.
McFarlane sought an opinion from The Florida Bar about the website content. On May 1, Bar ethics counsel Elizabeth Clark Tarbert concluded the bat and the reference to it don’t comply with Bar rules.
Advertisements cannot include statements or dramatizations that state “or imply that the lawyer will use tactics that are prohibited by the Rules of Professional Conduct,” Tarbert said.
She went on to say a reference to claims being “fraud until proven otherwise” violated the rules because a lawyer can’t advertise with statements that are factually or legally inaccurate.
The law firm retooled its website and removed the offending statements, and Neal’s employer dropped the law firm as its counsel.
On Friday, McFarlane & Dolan’s attorney, Venus Caruso, a West Palm Beach partner at Akerman, argued Neal’s entire case rested on voluntarily viewing a website and not liking what he saw.
She claimed he could not bring a cause of action under the deceptive practices act because the law is intended to provide a remedy to consumers who suffer a loss after being misled by a company. Caruso argued the website markets to the insurance industry, and Neal was never the intended consumer.
The statements at issue were specifically mentioned by the law firm as its “philosophy,” which made them opinions, not assertions of fact, she maintained.
SKy’s Not THe Limit
“This is not a case where McFarlane and Dolan sent him a letter,” Caruso said. “There was no affirmative act by this firm to tell Mr. Neal, ‘Hey, look at our website. This is what we’re going to view your claim. This is what we think of you.’ ”
Caruso claimed Neal never explained how he was aggrieved and there was no loss. Feelings are not sufficient to establish loss, and Neal, nevertheless, obtained workers’ compensation benefits, she said.
Winess claimed much of Caruso’s argument was off the mark because Neal was not seeking monetary damages. He is seeking injunctive relief and only has to show he is aggrieved.
Winess attacked Caruso’s claim that Neal as a third party was not affected by trade between the law firm and Dean Enterprises.
“Calling him a fraud” made Neal an aggrieved party, Winess said. It is disingenuous to say the law firm marketed only to the insurance industry when anyone could see its site.
Rodriguez agreed, saying The Bar’s regulation of attorney advertising provides the nexus that brings Neal under the deceptive trade law.
“The sky’s not the limit. The First Amendment applies, with restrictions. He’s claiming he’s an aggrieved member of the public who’s directly affected by this. He has a worker compensation claim,” the judge said.
Rodriguez cited a 2011 opinion of the Fourth District Court of Appeal in which the attorney general’s discovery attempt was quashed because a foreclosure law firm, Shapiro & Fishman, wasn’t advertising its services, merely representing a client.
“In quashing, the 4th DCA makes that distinction between advertising and getting clients generally. You can’t just say this advertising was directed at employers because it’s out there. The public sees this,” Rodriguez said.