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Joshua D. Lerner

Partner
Miami Office
305.995.5416
Email

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Practices

  • Appellate
  • Insurance Coverage and Bad Faith
  • Commercial Litigation
  • Professional Liability
  • Securities and Financial Services
  • Class Actions
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    Profile

    Josh Lerner has a diverse practice including commercial litigation, professional liability, insurance coverage and appeals.

    He represents national insurance companies in the Life, Disability and ERISA arena, as well as coverage matters, appeals and class actions. Josh also provides opinions and handles litigation in matters relating to coverage under commercial general liability, errors and omissions, garage liability and trucker’s liability policies. Working closely with SIU professionals, Josh prosecutes recovery actions arising from insurance fraud. Among the insureds Josh represents, are accountants, lawyers, securities broker-dealers, financial planners, IRA custodians and automobile dealers.

    Josh also has a strong commercial litigation practice representing portfolio and private lenders  and CMBS special servicers in commercial foreclosure litigation. He leads a firm wide team of lawyers that handles foreclosure and other real estate litigation matters from each of the firm’s five offices.

    One of his core strengths is as a writer and editor. Josh received focused training in appellate practice while in law school and served as a law clerk on Florida’s Fifth District Court of Appeal. He has been counsel of record in more than fifty appeals.rnrnJosh served on the firm’s executive committee from 2008-2015.

    Details

    1987 – 1991, Brevard County, Florida Circuit Court,
    (Part of team representing CPA firm and individual partners in action for securities fraud by approx. 600 individual investors; pursuant to case management order attended depositions for two weeks every four weeks for 3.5 years; confidential settlement)

    Silver v. Florida Department of Transportation

    1992 – 1995, Broward County, Florida Circuit Court
    (Represented, prominent state wide law firm in malpractice action; summary judgment entered for defendant)

    2001 – 2003, U.S. District Court, Southern District of Florida
    (Counsel for Defendant custodian of self-directed Individual Retirement Accounts in RICO action arising from massive investment fraud in sale of viatical settlements; damages sought in excess of nine figures; settled in six figures)

    2005 -2006, U.S. District Court, Middle District of Florida
    (Counsel for Defendant manufacturer of diesel engines in breach of contract suit arising from plaintiff’s sale of 36 custom manufactured fire fighting vehicles to the Royal Netherlands Air Force, Royal Netherlands Navy and the Dutch National Airport Schiphol; confidential settlement)

    2006 – 2007, Broward County, Florida Circuit Court
    (Counsel for plaintiff private investor in action to establish de facto mortgage and foreclose same; judgment for plaintiff after trial)

    2006 – 2010, Miami-Dade County Circuit Court
    (Counsel for plaintiff private investor in action to foreclose mortgage and defend counterclaim, arising from failed business partnership with numerous transactions between the parties; Final Judgment for plaintiff after trial, notwithstanding defendant’s claim of forgery supported by expert testimony and no corresponding expert for plaintiff)

    2010 – 2012,U.S. District Court, Southern District of Florida
    (Counsel for defendant lien holder in action to quiet title; judgment for defendant after trial)

    2012 – present, Hillsborough County, Florida Circuit Court
    (Complex Business Litigation Divisiion) (counsel for plaintiff; architected and prosecuted suit against four former agents of Plaintiff and their sham entities for violation of state RICO statutes, including conspiracy, arising from scheme to rebate insurance commissions to insureds; confidential settlements against all defendants)

    Miami-Dade County Circuit Court
    (Complex Business Litigation Divisiion) (counsel for defendant, action against bank for failure to disclose/aiding bookkeeper embezzlement of more than $5 Million over five year period; scheduled for trial in April 2015)

    Miami-Dade County Circuit Court, 2012 – present
    (Counsel for plaintiff and third party counterdefendant, local Fox TV affiliate, in foreclosure action against adjoining propery owner and defense of counterclaim, culminating 10+ years of litigation regarding development and use of property adjoining client’s TV station; scheduled for trial in January 2015)

    72 So. 3d 205 (Fla.App. 2 Dist. 2011)

    329 Fed. Appx. 257 (11th Cir. 2009)

    308 Fed. Appx. 389 (11th Cir. 2009)

    997 So. 2d 1158 (Fla.App. 3 Dist. 2008)

    985 So. 2d 1176 (Fla.App. 3 Dist. 2008)

    934 So. 2d 518 (Fla. App. 3 Dist.2005)

    905 So. 2d 84 (Fla. 2005)

    129 Fed. Appx. 543 (11th Cir. 2005)

    327 F. 3d 1307 (11th Cir. 2003)

    763 So. 2d 536 (Fla. App. 3 Dist. 2000)

    743 So. 2d 129, 1999 WL 765942, 24 Fla. L. Weekly D2242, Fla. App. 3 Dist., September 29, 1999 (NO. 98-3002)

    707 So. 2d 427 (Fla. App. 3 Dist. 1998)

    700 So. 2d 170 (Fla. App. 3 Dist. 1997)

    672 So. 2d 897 (Fla. App. 3 Dist. 1996)

    654 So. 2d 1244 (Fla. App. 3 Dist. 1995)

    602 So. 2d 983 (Fla. App. 3 Dist. 1992)

    581 So. 2d 1359 (Fla. App.1 Dist. 1991)

    534 So. 2d 1187 (Fla. App. 4 Dist. 1988)

    497 So. 2d 1324 (Fla. App. 3 Dist. 1986)

    492 So. 2d 1148 (Fla. App. 3 Dist. 1986)

    RumbergerKirk attorneys Josh Lerner and Nicole Smith secured a final summary judgment in MSP Claims 1, LLC v. Infinity Auto Insurance Company in the U.S. District Court for the Southern District of Florida. Plaintiff, an alleged three times removed assignee of a Medicare Advantage Organization, sued for double damages under the Medicare Secondary Payer Act. Plaintiff claimed Infinity was a primary payer under Medicare but had failed to make primary payments for Medicare covered services provided to the original assignor’s enrollee. After the completion of discovery, both parties moved for summary judgment.

    The original assignment required the approval of the original assignor to any subsequent assignments. Plaintiff testified in deposition that such approval had been secured orally in conversations between its lead counsel and representatives of the original assignor but there was no other evidence of that. And, plaintiff successfully obtained a protective order when Infinity sought to depose its counsel. In opposition to summary judgment, although it submitted an affidavit of its lawyer, plaintiff was unable to produce admissible evidence showing it received the required approval. This was one of a plethora of cases this and related plaintiffs have filed in Florida and elsewhere seeking recovery under the Medicare Secondary Payer Act for payments that, allegedly, others, not Medicare, should have paid.

    691 So. 2d 629 (Fla. 3d DCA 1997)

    • Insurance
    • Banking and Financial Institutions

    • International Association of Defense Counsel

      Insurance Committee

    • Defense Research Institute
    • Dade County Bar Association
    • Florida Bar Grievance Committee 11A — (2001-2004)
    • American Bar Association

    • Royal Palm Tennis Club, President

    University of Miami School of Law — J.D., 1984

    • Deans list (Fall 1981, Fall 1983, Spring 1984)
    • Recipient, American Jurisprudence Book Award in Administrative Law
    • Florida Appellate Practice Workshop

    Colorado College in Colorado Springs — B.A., History, 1980

    • Florida — 1984

    • U.S. District Courts of Florida (Middle, Southern)
    • U.S. Court of Appeals, 11th Circuit
    • U.S. Supreme Court

    • AV Rated by Martindale-Hubbell

    • South Florida Legal Guide Top Lawyer, Professional Liability (Defense), Corporate and Business Litigation 2015-2018
    • Florida Trend Magazine Florida Legal Elite 2012

    • Co-author, "Automatic Liability: New Risk Under California’s Insurance Lapse Protection Statutes," Insurance Newsnet.com, December 2022
    • Co-Author, "McHugh, Thomas, and the Long-Term Risk of California Insurance Code Sections 10113.71 and 10113.72," 'For the Defense' publication by the Defense Research Institute, July & August 2022 edition.
    • Co-Author, "California’s Life Insurance Liability Trap," Published in DRI's "For the Defense," July/August 2022
    • Author, "Defending Against Subjective Disorder Claims," Published in DRI's "For the Defense," August 2019
    • Speaker, "Defending Subjective Disorder Claims," DRI Life, Health, Disability, ERISA Seminar, April 2018, Chicago, IL
    • Author, "Interpreting Accident under ERISA-Governed AD&D Coverage," The ERISA Report, Volume 13, Issue 3, December 2018
    • Co-Author, "Interpleader: Court Holds Plan Benefits Must Be Distributed to Beneficiary and Insured's Estate May Not Assert Claims Against Plan Trustee Regarding Distribution of the Death Benefits," DRI-The Voice of the Defense Bar, "ERISA Report," Volume 13, Issue 2, August 23, 2018
    • Author, "Court Construes Pre-Existing-Condition Exclusion to Avoid Illusory Disability Coverage," The Voice of the Defense Bar "ERISA Report," Volume 13, Issue 1, May 17, 2018
    • Co-Author, "Chapter 558 Pre-Suit Notice May Trigger an Insurer's Duty to Defend and Indemnify," January 2018
    • Potential liability of workers’ compensation carriers and adjusters to claimants for claims of intentional infliction of emotional distress resulting from their conduct during the adjusting of workers’ compensation claims , Speaker
    • Topics related to accountant liability to the Management Advisory Services Committee of American Institute of Certified Public Accountants, Speaker

    • Spanish

    Josh's News and Insights

    See All News See All Insights Read Beyond the Bio
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    02.09.2023
    Firm News

    RumbergerKirk Attorneys Receive the ‘Secretary’s Award for Excellence’ from the Florida Department of Corrections

    The Florida Department of Corrections (FDC) awarded RumbergerKirk attorneys Dan...

    12.15.2022
    Insurance Coverage and Bad Faith

    Automatic Liability: New Risk Under California’s Insurance Lapse Protection Statutes

    Last year, the Supreme Court of California held that changes...

    07.19.2022
    Insurance Coverage and Bad Faith

    McHugh, Thomas, and the Long-Term Risk of California Insurance Code Sections 10113.71 and 10113.72

    In 2012, the California Legisla­ture enacted changes to the California...

    Photo: Shutterstock/Rawpixel.com
    07.18.2022
    Media Mentions

    California’s Life Insurance Liability Trap, published in DRI’s ‘For the Defense’

    The results of the McHugh decision in subsequent case law,...

    02.15.2022
    Media Mentions

    11th Circuit Revives $100M Trade Secrets Claim Against Boeing, in Law360

    Law360 reported in an article on February 14, 2022 that...

    02.28.2020
    Media Mentions

    Boeing Hit With $2M Verdict For Breaching Air Force Bid Deals, Law360

    In an article published by Law360 on March 2, 2020,...

    10.28.2019
    Firm News

    Josh Lerner Receives Excellence in Professionalism Award at the 7th Annual Professionalism Summit

    Miami partner Josh Lerner received the “Excellence in Professionalism” award...

    08.19.2019
    Insurance Coverage and Bad Faith

    Defending Against Subjective Disorder Claims

    This article was published in the August 2019 issue of...

    04.05.2019
    Firm News

    Defending Subjective Disorder Claims under Disability Insurance Policies

    At the Defense Research Institute’s Life, Health, Disability and ERISA...

    02.20.2019
    Firm News

    A Defense Win for Guardian Insurance and Annuity Company of America

    Featured in the February 20, 2019 issue of DRI’s The...

    See All News See All Insights Read Beyond the Bio

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