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Filing # 146286749 E-Filed 03/23/2022 03:26:34 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
951 Harbor Drive, LLC, a Florida
limited liability company,
Plaintiff, Case No: 2017-014568-CA-01
v.
SD Construction, LLC, a Florida
limited liability company; Merick
Roofing, Inc., a Florida
corporation; and N. Oscar
Gonzalez, PE, an individual,
Defendants.
DEFENDANT SD CONSTRUCTION LLC’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, TO EXCLUDE EVIDENCE OF
DAMAGES RECOVERABLE IN RELATED PRIOR CASE1
Plaintiff’s lawsuit is barred by Florida law prohibiting claims-splitting. A plaintiff
may not file multiple complaints or split its damages from a single event in multiple
lawsuits. Here, Plaintiff’s insurer previously filed a subrogation action on behalf of
Plaintiff against SD Construction for property damages to the same home caused by the
same alleged water intrusion as Plaintiff seeks in this action. In fact, the complaints in
the two cases are identical. In the alternative, Plaintiff should be prohibited in this case
from presenting evidence of damages that were recovered or could have been recovered
in the related subrogation case.
1 Contemporaneously with this motion, SD Construction is filing a Motion Establishing
Good Cause for the Court to consider this motion outside the time established in the Case
Management Order entered on February 1, 2022.
I. SIMPLIFIED MOTION FOR SUMMARY JUDGMENT
This is a single-issue motion for summary judgment that requires the Court to
review the pleadings filed in this case and the pleadings filed in the related subrogation
case styled Privilege Underwriters Reciprocal Exchange a/s/o Joaquin A. Ribadeneira
Quevedo, Maria D. Gomez Mendizabal, & 951 Harbor Drive, LLC. v. SD Construction,
LLC et al., In the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida, Case No. 2017-006935-CA-01.
SD Construction already filed a Motion to Take Judicial Notice of the pleadings
filed in the related subrogation case pursuant to Fla. Stat. § 90.202, which provides that
a court may take judicial notice of records of any court of this state and Fla. Stat. § 90.203,
which provides, “[a] court shall take judicial notice of any matter in s. 90.202 when a
party requests it” upon timely written notice to the adverse party and sufficient
information to enable it to take judicial notice of the matter.
A. Facts
Based on a review of the two complaints, there is no dispute that Plaintiff’s insurer,
Privilege Underwriters Reciprocal Exchange (“PURE”), filed a complaint on behalf of 951
Harbor Drive, LLC on March 23, 2017 seeking to recover damages against SD
Construction LLC for property damages resulting from water intrusion to the house
located at 951 Harbor Drive, Key Biscayne, Florida.
Plaintiff filed an identical complaint in this case three months later on June 16,
2017. Plaintiff attempts to differentiate the two cases by alleging in this case that the
property damages sought are for a different kind of property damages than the property
damages sought in the first suit: “Owner brings this lawsuit not for the resulting property
damage caused by the water intrusion, but instead, for damages to cover the cost to repair
2
and/or replace the deficient roof system, post and cable rail system, and to restore the
integrity of the waterproofing system of the roof.” Complaint at ¶ 39.
A simple review of the pleadings shows that all the facts supporting the second
lawsuit were known to the Plaintiff, and the action was ripe, at the time the first action
was filed. The parties are the same, the causes of action are the same, the underlying work
at issue are the same, and the witnesses overlap. Even the expert used in the first case is
the same expert the Plaintiff is employing in the present case. Compare Complaint at
¶¶11-12 (“…Owner promptly made a claim with its homeowners’ insurance
company…PURE commissioned Axiom Engineering, Inc. to…determine ‘the cause and
origin of the various water damage.’”) with Plaintiff’s Expert Witness List dated April 5,
2019 (referencing reports prepared in earlier case and disclosing Axiom Engineering, Inc.
as its expert).
The pleadings supporting SD Construction’s factual position in support of this
Motion for Summary Judgment are all filed contemporaneously with this motion in SD
Construction’s Appendix of Supporting Facts.
B. Law
Florida law explicitly prohibits claim-splitting. “We recognize the rule against the
splitting of causes of action and that as a general rule the law mandatorily requires that
all damages sustained or accruing to one as a result of a single wrongful act must be
claimed and recovered in one action or not at all.” Gaynon v. Statum, 10 So.2d 432, 433
(1942). Later Florida courts have consistently applied the Gaynon anti-splitting rule as
barring multiple suits arising from a single “transaction or occurrence.” See, e.g., Mims
v. Reid, 98 So. 2d 498, 501 (Fla. 1957) (“All damages sustained or accruing to one as result
of a single wrongful act must be claimed or recovered in one action or not at all.”);
3
Thermofin, Inc. v. Woodruff,491 So.2d 344, 345 (Fla. 4th DCA 1986) (“[t]he rule against
splitting causes of action requires that all relief arising out of a single transaction or event
be sought, and recovered, in one action.”).
There is one narrow exception to this rule, called the “Rosenthal exception,” that
arises in certain personal injury cases. See Rosenthal v. Scott, 150 So.2d 433 (Fla. 1961).
Under this narrow exception, an insurance carrier subrogated to the property claims of
its insured may bring a suit for property damages sustained by its insured without regard
to a prior lawsuit brought by the insured for personal injuries arising out of the same tort
incident. Similarly, the insured is not barred from bringing a suit for personal injuries
based on its carrier's prior lawsuit for subrogated property damages arising out of the
same tort incident. See McKibben v. Zamora, 358 So.2d 866, 868 (Fla.3d DCA 1978).
The only cases subject to the Rosenthal exception are subrogation cases involving
property damage on the one hand and personal injuries on the other. In this case the
damages sought in both cases are exclusively property damages. There is no exception to
the rule against splitting causes of action.
Florida courts have refused to extend this exception any further. See DeCarlo v.
Palm Beach Auto Brokers, 566 So.2d 318 (Fla. 4th DCA 1990). The DeCarlo court noted
that the Rosenthal exception was “very limited” and found “no authority or justification
for our engrafting a further exception onto the rule against splitting of causes of action.”
Id. at 319. Acknowledging that application of the rule might yield harsh results, it
nevertheless held opined that to expand the exceptions to the rule under the very purpose
of the rule which promotes these circumstances only defeats stability in litigation by
inhibiting vexatious multiple suits arising out of a single injury and recognizing the
necessity for the courts to bring litigation to an end. Id. See also, Commodores Point v.
4
Florida Towing, 280 So.2d 509 (Fla. 1st DCA 1973) (refusing to extend the Rosenthal
exception beyond the "exceptional circumstances as to the factual posture of that case.")
Simply put, Plaintiff has improperly split its cause of action and does not fall within
the exception to the rule that requires a plaintiff to “raise all available claims involving the
same circumstances in one action.” Department of Agriculture v Mid-Flowers Growers.
Inc., 570 So.2d 892, 901 (Fla. 1990). Accordingly, as a plaintiff is not permitted to
“maintain more than one action against the same party for the same cause,” summary
judgment must be entered in the Defendant’s favor. Mims v. Reid, 98 So.2d 498,501 (Fla.
1957). This is precisely the type of situation which calls for the enforcement of the rule
against splitting causes of action.
Accordingly, summary judgment is appropriate here because “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fla. R. Civ. P. 1.510(a).
II. ALTERNATE MOTION TO EXCLUDE EVIDENCE OF DAMAGES RECOVERED OR
RECOVERABLE IN PRIOR RELATED LAWSUIT
After improperly splitting its claim with the filing of a second lawsuit arising out of
the same incident, Plaintiff purports to bring this lawsuit “not for the resulting property
damages caused by the water intrusion, but instead for damages to cover the cost to repair
and/or replace the deficient roof system, post and cable rail system, and to restore the
integrity of the waterproofing system of the roof.” Complaint at ¶ 39. Plaintiff repeats
this claim in a Motion in Limine dated March 15, 2022 to prevent introduction of evidence
that Plaintiff has already been paid $226,789.12 by its insurer: “Plaintiff only seeks
damages to compensate it for expenditures incurred in having to correct Defendant’s
substandard construction which allowed water intrusion into Plaintiff’s home.” Id. at 1.
5
Plaintiff’s Exhibit List, however, filed on March 18, 2022 contains evidence of
damages well outside “the cost to repair and/or replace the deficient roof system, post
and cable rail system, and to restore the integrity of the waterproofing system of the roof.”
For example, Plaintiff’s evidence includes costs for kitchen countertop installation,
removal of interior drywall and trash, replacement of doors, installation of interior
drywall replacement of kitchen lights and kitchen “work,” replacement of “front lights,”
door pulls, a jacuzzi, landscaping, millwork, cabinets, plumbing, and wood flooring. See,
e.g., Plaintiff’s Exhibit List #12 (951Harbor000001-66 and updated documents since
original production). All of these damages were expressly at issue in the first lawsuit filed
by PURE for which Plaintiff was compensated by its insurer. See, e.g., Belfor Property
Restoration Estimates for Cost to Repair 951 Harbor Drive produced at PURE 189-211.
On the record in this case, it is impossible to determine with precision exactly what
property damages were covered already in the first lawsuit and exactly what property
damages are at issue in this lawsuit. This is exactly the kind of problem the rule against
splitting causes of action is meant to avoid. Plaintiff’s over-inclusion of damages evidence
does not help this problem.
If the Court does not dismiss this case, the Court should rule on a page-by-page,
category-by-category basis in advance of exactly what damages Plaintiff may and may not
present to the jury.
WHEREFORE, Defendant SD Construction LLC prays this Honorable Court grant
this Motion for Summary Judgment in favor of SD Construction LLC on Count I of the
Complaint or, in the alternative, Motion to Exclude Damages Evidence, and for such and
further relief deemed equitable and just.
6
Dated: March 23, 2022 Respectfully submitted,
1
Robert J. Alwine, Esq.
Fla. Bar No. 404179
ROBERT JOSEPH ALWINE, P.A.
240 Crandon Blvd, Suite 263
Key Biscayne, Florida 33149
Telephone: (305) 965-0813
robert@robertalwine.com
Counsel for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of March 2022 a true and correct copy
of the foregoing was served via Florida E-Portal upon all counsel of record.
1
Robert J. Alwine
7
Preview
Filing # 146286749 E-Filed 03/23/2022 03:26:34 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 951 Harbor Drive, LLC, a Florida limited liability company, Plaintiff, Case No: 2017-014568-CA-01 v. SD Construction, LLC, a Florida limited liability company; Merick Roofing, Inc., a Florida corporation; and N. Oscar Gonzalez, PE, an individual, Defendants. DEFENDANT SD CONSTRUCTION LLC’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO EXCLUDE EVIDENCE OF DAMAGES RECOVERABLE IN RELATED PRIOR CASE1 Plaintiff’s lawsuit is barred by Florida law prohibiting claims-splitting. A plaintiff may not file multiple complaints or split its damages from a single event in multiple lawsuits. Here, Plaintiff’s insurer previously filed a subrogation action on behalf of Plaintiff against SD Construction for property damages to the same home caused by the same alleged water intrusion as Plaintiff seeks in this action. In fact, the complaints in the two cases are identical. In the alternative, Plaintiff should be prohibited in this case from presenting evidence of damages that were recovered or could have been recovered in the related subrogation case. 1 Contemporaneously with this motion, SD Construction is filing a Motion Establishing Good Cause for the Court to consider this motion outside the time established in the Case Management Order entered on February 1, 2022. I. SIMPLIFIED MOTION FOR SUMMARY JUDGMENT This is a single-issue motion for summary judgment that requires the Court to review the pleadings filed in this case and the pleadings filed in the related subrogation case styled Privilege Underwriters Reciprocal Exchange a/s/o Joaquin A. Ribadeneira Quevedo, Maria D. Gomez Mendizabal, & 951 Harbor Drive, LLC. v. SD Construction, LLC et al., In the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 2017-006935-CA-01. SD Construction already filed a Motion to Take Judicial Notice of the pleadings filed in the related subrogation case pursuant to Fla. Stat. § 90.202, which provides that a court may take judicial notice of records of any court of this state and Fla. Stat. § 90.203, which provides, “[a] court shall take judicial notice of any matter in s. 90.202 when a party requests it” upon timely written notice to the adverse party and sufficient information to enable it to take judicial notice of the matter. A. Facts Based on a review of the two complaints, there is no dispute that Plaintiff’s insurer, Privilege Underwriters Reciprocal Exchange (“PURE”), filed a complaint on behalf of 951 Harbor Drive, LLC on March 23, 2017 seeking to recover damages against SD Construction LLC for property damages resulting from water intrusion to the house located at 951 Harbor Drive, Key Biscayne, Florida. Plaintiff filed an identical complaint in this case three months later on June 16, 2017. Plaintiff attempts to differentiate the two cases by alleging in this case that the property damages sought are for a different kind of property damages than the property damages sought in the first suit: “Owner brings this lawsuit not for the resulting property damage caused by the water intrusion, but instead, for damages to cover the cost to repair 2 and/or replace the deficient roof system, post and cable rail system, and to restore the integrity of the waterproofing system of the roof.” Complaint at ¶ 39. A simple review of the pleadings shows that all the facts supporting the second lawsuit were known to the Plaintiff, and the action was ripe, at the time the first action was filed. The parties are the same, the causes of action are the same, the underlying work at issue are the same, and the witnesses overlap. Even the expert used in the first case is the same expert the Plaintiff is employing in the present case. Compare Complaint at ¶¶11-12 (“…Owner promptly made a claim with its homeowners’ insurance company…PURE commissioned Axiom Engineering, Inc. to…determine ‘the cause and origin of the various water damage.’”) with Plaintiff’s Expert Witness List dated April 5, 2019 (referencing reports prepared in earlier case and disclosing Axiom Engineering, Inc. as its expert). The pleadings supporting SD Construction’s factual position in support of this Motion for Summary Judgment are all filed contemporaneously with this motion in SD Construction’s Appendix of Supporting Facts. B. Law Florida law explicitly prohibits claim-splitting. “We recognize the rule against the splitting of causes of action and that as a general rule the law mandatorily requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.” Gaynon v. Statum, 10 So.2d 432, 433 (1942). Later Florida courts have consistently applied the Gaynon anti-splitting rule as barring multiple suits arising from a single “transaction or occurrence.” See, e.g., Mims v. Reid, 98 So. 2d 498, 501 (Fla. 1957) (“All damages sustained or accruing to one as result of a single wrongful act must be claimed or recovered in one action or not at all.”); 3 Thermofin, Inc. v. Woodruff,491 So.2d 344, 345 (Fla. 4th DCA 1986) (“[t]he rule against splitting causes of action requires that all relief arising out of a single transaction or event be sought, and recovered, in one action.”). There is one narrow exception to this rule, called the “Rosenthal exception,” that arises in certain personal injury cases. See Rosenthal v. Scott, 150 So.2d 433 (Fla. 1961). Under this narrow exception, an insurance carrier subrogated to the property claims of its insured may bring a suit for property damages sustained by its insured without regard to a prior lawsuit brought by the insured for personal injuries arising out of the same tort incident. Similarly, the insured is not barred from bringing a suit for personal injuries based on its carrier's prior lawsuit for subrogated property damages arising out of the same tort incident. See McKibben v. Zamora, 358 So.2d 866, 868 (Fla.3d DCA 1978). The only cases subject to the Rosenthal exception are subrogation cases involving property damage on the one hand and personal injuries on the other. In this case the damages sought in both cases are exclusively property damages. There is no exception to the rule against splitting causes of action. Florida courts have refused to extend this exception any further. See DeCarlo v. Palm Beach Auto Brokers, 566 So.2d 318 (Fla. 4th DCA 1990). The DeCarlo court noted that the Rosenthal exception was “very limited” and found “no authority or justification for our engrafting a further exception onto the rule against splitting of causes of action.” Id. at 319. Acknowledging that application of the rule might yield harsh results, it nevertheless held opined that to expand the exceptions to the rule under the very purpose of the rule which promotes these circumstances only defeats stability in litigation by inhibiting vexatious multiple suits arising out of a single injury and recognizing the necessity for the courts to bring litigation to an end. Id. See also, Commodores Point v. 4 Florida Towing, 280 So.2d 509 (Fla. 1st DCA 1973) (refusing to extend the Rosenthal exception beyond the "exceptional circumstances as to the factual posture of that case.") Simply put, Plaintiff has improperly split its cause of action and does not fall within the exception to the rule that requires a plaintiff to “raise all available claims involving the same circumstances in one action.” Department of Agriculture v Mid-Flowers Growers. Inc., 570 So.2d 892, 901 (Fla. 1990). Accordingly, as a plaintiff is not permitted to “maintain more than one action against the same party for the same cause,” summary judgment must be entered in the Defendant’s favor. Mims v. Reid, 98 So.2d 498,501 (Fla. 1957). This is precisely the type of situation which calls for the enforcement of the rule against splitting causes of action. Accordingly, summary judgment is appropriate here because “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). II. ALTERNATE MOTION TO EXCLUDE EVIDENCE OF DAMAGES RECOVERED OR RECOVERABLE IN PRIOR RELATED LAWSUIT After improperly splitting its claim with the filing of a second lawsuit arising out of the same incident, Plaintiff purports to bring this lawsuit “not for the resulting property damages caused by the water intrusion, but instead for damages to cover the cost to repair and/or replace the deficient roof system, post and cable rail system, and to restore the integrity of the waterproofing system of the roof.” Complaint at ¶ 39. Plaintiff repeats this claim in a Motion in Limine dated March 15, 2022 to prevent introduction of evidence that Plaintiff has already been paid $226,789.12 by its insurer: “Plaintiff only seeks damages to compensate it for expenditures incurred in having to correct Defendant’s substandard construction which allowed water intrusion into Plaintiff’s home.” Id. at 1. 5 Plaintiff’s Exhibit List, however, filed on March 18, 2022 contains evidence of damages well outside “the cost to repair and/or replace the deficient roof system, post and cable rail system, and to restore the integrity of the waterproofing system of the roof.” For example, Plaintiff’s evidence includes costs for kitchen countertop installation, removal of interior drywall and trash, replacement of doors, installation of interior drywall replacement of kitchen lights and kitchen “work,” replacement of “front lights,” door pulls, a jacuzzi, landscaping, millwork, cabinets, plumbing, and wood flooring. See, e.g., Plaintiff’s Exhibit List #12 (951Harbor000001-66 and updated documents since original production). All of these damages were expressly at issue in the first lawsuit filed by PURE for which Plaintiff was compensated by its insurer. See, e.g., Belfor Property Restoration Estimates for Cost to Repair 951 Harbor Drive produced at PURE 189-211. On the record in this case, it is impossible to determine with precision exactly what property damages were covered already in the first lawsuit and exactly what property damages are at issue in this lawsuit. This is exactly the kind of problem the rule against splitting causes of action is meant to avoid. Plaintiff’s over-inclusion of damages evidence does not help this problem. If the Court does not dismiss this case, the Court should rule on a page-by-page, category-by-category basis in advance of exactly what damages Plaintiff may and may not present to the jury. WHEREFORE, Defendant SD Construction LLC prays this Honorable Court grant this Motion for Summary Judgment in favor of SD Construction LLC on Count I of the Complaint or, in the alternative, Motion to Exclude Damages Evidence, and for such and further relief deemed equitable and just. 6 Dated: March 23, 2022 Respectfully submitted, 1 Robert J. Alwine, Esq. Fla. Bar No. 404179 ROBERT JOSEPH ALWINE, P.A. 240 Crandon Blvd, Suite 263 Key Biscayne, Florida 33149 Telephone: (305) 965-0813 robert@robertalwine.com Counsel for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of March 2022 a true and correct copy of the foregoing was served via Florida E-Portal upon all counsel of record. 1 Robert J. Alwine 7