RKC Elects Three New Partners


MIAMI and ORLANDO, Fla. – February 11, 2014 – Rumberger, Kirk & Caldwell is pleased to announce that Miami attorneys Marty Fulgueira Elfenbein and Nicole Sieb Smith and Orlando lawyer Damien Orato have been elected to partner.

“We are very proud to welcome Nicole, Marty and Damien to the RKC partnership,” said Frank Sheppard, Managing Partner. “They are extremely talented lawyers who have demonstrated the essential traits, both in skills and leadership, the firm needs for continued growth and success.”

Elfenbein practices in the areas of aviation law, automotive product liability, and casualty defense. Her recent trials have included obtaining two defense verdicts for American Airlines in a breach of contract dispute and in a personal injury action, a defense verdict for a major grocery chain in a personal injury action, as well as a directed verdict for La Quinta Inns in a workers' compensation retaliation case. She has also successfully tried other aviation cases involving the Warsaw Convention, allegations of severe turbulence, false imprisonment claims against flight attendants and airlines, and Air Carrier Access Act claims.     

Also in the area of aviation law, Elfenbein’s motion practice resulted in the creation of new law in the Southern District of Florida on issues involving the Montreal Convention’s preemptive effect, the definition of “accident” under the Montreal Convention, the timing of an “accident” under the Warsaw Convention, and the recoverability of emotional harm damages under the Montreal Convention.

As part of Elfenbein’s product liability practice, she was an integral part in prevailing in a $44 million action on a motion for summary judgment, later upheld on appeal, involving complex issues of Panamanian law. As a result of this victory, she was a member of the team selected as a finalist for the Daily Business Review's Most Effective Lawyers for 2008 in the international law category.

Elfenbein earned a law degree, magna cum laude, from the University of Florida Levin College of Law.

Smith represents national and local businesses and institutions in diverse litigation matters with a focus on complex commercial and tort litigation and employment defense. An experienced litigator, Smith has represented clients in state and federal courts at both the trial and appellate levels, as well as before administrative boards. Additionally, she is part of a team of lawyers that handles commercial foreclosure and other real estate litigation matters; her real estate practice has included representation of developers, brokers, title and closing agents. She has also represented attorneys in complex professional liability matters and insurance companies in a variety of coverage issues.

In her tort practice, Smith obtained a summary judgment on behalf of an automotive dealership on the basis of “statutory employer” immunity under Florida’s Workers’ Compensation Law, overcoming the argument that such immunity is limited to the construction industry. The appellate court affirmed on all points, and wrote only to explain its reasons for rejecting plaintiff’s argument that the trial court erred in holding as a matter of law that a motor vehicle dealer qualifies as a “statutory employer” under existing law and to confirm the continuing authority of supreme court precedent holding that the statutory employer is not limited to construction contracts. Her several published appellate opinions include Felder v. King Motor Co. of S. Fla., 110 So. 3d 105 (Fla. 4th DCA 2013), rev. denied, 119 So. 3d 443 (Fla. 2013) and Perdomo v. Cabrera, 963 So. 2d 736 (Fla. 3d DCA 2007).

As part of her employment practice, her recent victories include the dismissal with prejudice of a Florida Whistleblower Act case on the grounds that plaintiff did not engage in statutorily protected activity, the dismissal with prejudice of a negligent supervision claim on the basis that the plaintiff could not allege an underlying tort recognized by Florida common law, and a “no cause” determination by the Florida Commission on Human Rights, which found that the charging party failed to show that her employer had discriminated against her on the basis of gender.

Listed as a Rising Star by Florida Super Lawyers in 2012 and 2013 for Business Litigation, Smith earned a law degree, magna cum laude, from the University of Miami School of Law.

Orato practices in the areas of product liability, commercial litigation, trucking defense and casualty defense. In his product liability practice, he represents motor vehicle manufacturers, including automobiles, motorcycles and personal watercrafts, against negligence and strict liability claims based upon alleged product defects that resulted in injury or death. He also represents manufacturers and distributors of a wide range of products, such as construction equipment, tools, plumbing and recreational products. 

In his trucking defense practice, Orato represents trucking companies against significant and catastrophic personal injury and wrongful death claims.  Orato has successfully defended truck drivers and companies in trials throughout Florida. His commercial litigation practice involves the representation of individuals and companies in contract disputes and claims of fraud. The casualty defense portion of his practice includes premises liability, professional liability and motor vehicle accidents. In one of his recent trials, Orato obtained a defense verdict for an apartment complex in a negligent security case that involved the shooting of a tenant.

Orato earned a law degree, cum laude, from Florida State University College of Law, where he served as Articles Editor of the Florida State University Law Review, and received several honors including Order of the Coif, Distinguished Pro Bono Service Award, and Outstanding Editor of the Year for Law Review, Volume 33.

About Rumberger, Kirk & Caldwell

Rumberger, Kirk & Caldwell provides litigation and counseling services in a wide range of civil practice areas including product liability, securities, banking and financial services litigation, commercial litigation, real estate and construction litigation, intellectual property litigation, environmental, labor and employment law, insurance coverage, professional liability, bankruptcy, and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee, Fla. and Birmingham, Ala. For more information, please visit www.rumberger.com or read more about us on our blog.

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