A Florida state judge has denied a bid by Berger Singerman LLP and one of its attorneys to dismiss a malpractice suit related to hurricane damages, ruling that it's too early to determine whether the claims against them are time-barred.

Volusia County Circuit Judge Mary G. Jolley said Monday that because Berger Singerman's attempt to have the suit dismissed relies on the timeliness of the claims against the firm, litigation should continue until it is determined when the statute of limitations on ARC Resorts LLC's claims began.

"A motion to dismiss based on the expiration of a statute of limitations should be granted only in those circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and its attachments so as to conclusively establish that the action is timebarred," Judge Jolley said.

Berger Singerman argued that according to the "first injury rule," the clock on the two-year statute of limitations for malpractice claims would have started by December 2020 at the latest, as by that point ARC had already suffered its claimed losses, hired new counsel and taken action to address the alleged malpractice.

Judge Jolley also did not consider the hundreds of pages of supporting documents the firm added to its motion, saying that a motion to dismiss is not the appropriate stage to use those documents to determine the merits of the suit.

In November, ARC accused the law firm and attorney Michael Higer of breaching their fiduciary duty, legal malpractice and failing to "properly perfect" a statutory bad faith claim under a certain insurance-related Florida statute.

The case stems from damage during 2016's Hurricane Matthew to the Americano, a nine-story, 200-room timeshare and hotel facility in Daytona Beach with amenities like a health spa, laundry and other guest services. The Americano was insured for both building damages and business interruption as a result of the damages.

ARC says it tapped Berger Singerman and Higer to maximize the insurance recovery for the Americano and they decided to use Florida Statutes Section 624.155, referred to as the bad-faith statute. The statute requires those who are insured to file a "Civil Remedy Notice of Insurer Violations," or CRN. Those forms must be filed at least 60 days before initiating a bad faith lawsuit against an insurer.

Over three years of representation, Berger Singerman lawyers drafted and filed four CRNs, in the name of only one of its clients, Americano Beach Resort Condominium Inc., according to the suit.

By 2020, ARC hired another attorney to help with the insurance recovery, who found that Berger Singerman failed to include other entity names on the CRNs, and as a result, the company was unable to reach the maximum recovery amount for the damaged hotel, the suit said.

ARC alleged that the "finality accrual rule" applied to the matter and that the statute of limitations began in 2023, when the final decision was made on the amount of money the company would recover.

Representatives of both sides didn't immediately respond to requests for comment Friday.

ARC Resorts is repeated by Theodore A. Corless of Corless Law Group.

Berger Singerman is represented by David P. Ackerman, John L. Dicks II and Monica M. Kovecses of Akerman LLP.

The case is ARC Resorts LLC v. Michael Higer et al., case number 2024-13748-CICI, in the Seventh Judicial Circuit Court of the State of Florida.