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Filing# 137652445 E-Filed 1 1/01/2021 02:59:05 PM
IN THE CIRCUIT COURT OF THE 17th
JUDICIAL
CIRCUIT
IN
AND FOR
BROWARD COUNTY, FLORIDA
KENNETH PHILYAW and KHALLEE
CASE NO: CACE 19-024738
NICOLE THAME,
Plaintiffs,
VS.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
PLAINTIFFS' SECOND MOTION IN LIMINE PRECLUDING ANY EVIDENCE,
COMMENTARY, AND/OR INFERENCES REGARDING PLAINTIFF'S INCOME OR
ABILITY TO PAY FOR THE REPAIRS AND INCORPORATED MEMORANDUM OF
LAW
The Plaintiffs,
KENNETH PHILYAW and KHALLEE NICOLE THAME, by and through
their undersigned counsel, and hereby move this Honorable Court for entry of an order,in limine,
precludingDefendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
"
(hereinafter"Defendant"), its counsel, and/or any witnesses from presenting any evidence,
testimony, commentary, argument, and/or making inferences at trial pertainingto Plaintiffs
income or abilityto pay for the repairs.As grounds thereof,Plaintiffs state as follows:
This is an action for breach of contract arisingfrom an insurance claim made by Plaintiffs
under a policy issued by his insurer,Defendant. This insurance contract was in effect when
Plaintiff's insured property located at
15231 SW 18?,th Street,Miramar, FL 33027 (hereinafter
referred to as the "Property")sustained damages as a result of a water loss caused by a plumbing
leak during the policy period held by Universal (hereinafterreferred to as the "loss" or the
"claim").
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/01/2021 02:59:05 PM.****
Kenneth Philyawv. Universal PropertyCasualtyInsurance Company
Case No. CACE-19-024738
Although Defendant eventuallyacknowledged that the loss was the result of a covered peril,
it paid significantly
less than what Plaintiffs are owed under the policy.Thus, the issue to be
determined at trial can be summarized as whether Defendant has fullyindemnified Plaintiffs for
their claim in accordance with the terms and conditions of the policy.
It is anticipated
that Defendant, throughwitnesses and/or its counsel,may attempt to present
evidence or raise arguments to the jury at trial,either directlyor indirectly,
relatingto Plaintiffs'
income or wealth including,but not limited to:
a. Plaintiffs' income and/or rate of pay;
b. Whether Plaintiffs is able to personallyadvance the money perform the repairsto the
property relating
to the subjectloss;and/or
c. Whether Plaintiffs could incur the cost of the repairshimself and then "come back" or
make a subsequent claim with Defendant if the repairscost more than what has been paid.
Plaintiffs,
throughthis motion in limine,seeks to prevent any such argument, evidence, or
reference from being presentedto the jury as it: (1)has no relevancyor bearingon any issues in
this case, and (2)the relevancy,if any, would be significantly
outweighed by the danger of unfair
prejudice,
misleadingthe jury,or confusingthe issues.
A motion in limine seeks to prohibitany reference to offendingevidence at trial by first
having its admissibility
determined outside the presence of the jury.Rosa v. Florida Power &
Light Co., 636 So. 2d 60, 61 (Fla.2d DCA 1994). Its purpose is to move the case toward a
conclusion on the merits. Id. A motion in limine also givesthe trial judge notice of the movant's
positionin order to "preventthe introduction of improper evidence, the mere mention of which at
trial would be prejudicial."
Dailey v. Multicon Dev., Inc.,417 So. ld 1106, 1107 (Fla.4th DCA
1982).Thus, "[a]motion in limine would test not onlythreshold relevancy...but also whether the
Kenneth Philyawv. Universal PropertyCasualtyInsurance Company
Case No. CACE-19-024738
probativevalue of the evidence is outweighed by danger of unfair prejudice."Adkins v. Seaboard
Coast Line R. Co., 351 So. 2d 1088, 1093 (Fla.2d DCA 1977).
Relevant evidence is evidence that tends to prove or disprove a material fact. Fla. Stat.
§90.401 (2013). Evidence on a purely collateral issue that would only serve to confuse and
mislead the jury is too remote, i.e. not relevant,and should therefore be excluded. Donahue v.
Albertson's Inc.,472 So. 2d 482, 483 (Fla.4th DCA 1985).To the extent that evidence is relevant,
it will nevertheless be ruled inadmissible if its probativevalue is substantially
outweighed by the
danger of unfair prejudicetoward Plaintiff and would likelymislead or confuse the jury.Fla. Stat.
§90.403 (2013).
The jury in this matter will be charged to make a determination of Defendant's liability
under the policyand the amount of the Plaintiffs' damages. The wealth, income or abilityof the
Plaintiffs to pay for the damages themselves has no bearing on the issues to be determined by the
fact-finder and should therefore not be discussed in front ofthejury.Samuels v. Torres, 29 So.3d
1193, 1196 (Fla.5th DCA 2010) ("Intedectionof the wealth or poverty of any party has been
consistently
held by the courts to be irrelevant to the issue of compensatory damages in a personal
injurycase based on negligence[...I.").
Like any other insured, the subjectinsurance policy was purchased from Defendant by
Plaintiffs so that Plaintiffs would not need to advance the money for repairsif the property ever
sustained a loss. Suggestingto ajurythat this particular
insured may be able to personallyadvance
the cost for repairsand then, if more is needed, Defendant could just issue another payment is
contrary the terms of the policyand is contrary to well-established law. Id. ('[T]helaw has long
requiredthat the rich man and the poor man stand before the jury as equals so that all parties
receive a verdict unaffected by their economic status.").
Kenneth Philyawv. Universal PropertyCasualtyInsurance Company
Case No. CACE-19-024738
The generalrule in Florida is that no party shall make reference to any party'swealth or
poverty duringthe course of a trial. Chin v. Caiaffa,42 So. 3d 300, 308 (Fla.3d DCA 2010).The
Third District Court of Appeals and "the courts of this state long have recognizedthe danger
inherent in such commentary... and have often held itto constitute reversible error." Id.;Samuels,
29 So. 3d at 1196 ("Integection
ofthe wealth or poverty of anyparty has been consistently
held by
the courts to be... highlyprejudicialbecause it diverts the jury from a fair assessment ofdamages,
and a basis for reversal.").
As with all civil cases, the jurorsin this case will be specifically
instructed:
In reaching your verdict, do not let bias, sympathy, prejudice,public
opinion,or any other sentiment for or againstany party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Fla. Std. Jury Instr. (Contractand Business Cases),"Closing Instructions" - Section 700. Thus,
the jury'sverdict at trial must be based solelyon competent, admissible testimonyand evidence
that is relevant to whether Defendant fullyindemnified Plaintiff for the damages sustained as a
result of the subject water loss pursuant to the terms and conditions of the insurance contract.
There is absolutelyno reason for either party to comment about the wealth or poverty of any
party in this matter. The policyrequiresthat Defendant pay the full amount for repairs,
not for
Plaintiffs to do so and then get reimbursed after the expense for the repairshas been incurred.
Defendant must not be permittedto attempt to confuse the issues by interjecting
matters at trial
relatingto Plaintiffs' financial worth, including but not limited to any of the subjectmatters
identified in paragraph 3 of this Motion, as this can only result in invokinga juror'ssentiments or
potential
bias towards the Plaintiff,
and invite the juryto consider impertinentmatters.
WHEREFORE, Plaintiffs,respectfullyrequest that this Honorable Court grant Plaintiff' s
First Motion in Limine and preclude Defendant, UNIVERSAL PROPERTY & CASUALTY
Kenneth Philyawv. Universal PropertyCasualtyInsurance Company
Case No. CACE-19-024738
INSURANCE COMPANY, its counsel and/or any witnesses from presenting any evidence,
testimony,commentary, argument, and/or making inferences at trial pertainingto Plaintiff' s
income, ability
to pay for the repairs,the notion that Defendant will pay more if the repairscost
more, and/or that Plaintiffs can do the repairsand come back or make a subsequent claim if the
repairscost more than what has been paid.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished by
email and/or ePortal this
st
1
day of November, 2021 to: Shari Scalone, Esquire,Kim Vaughan
Lerner, LLC, 312 SE 17th Street,Suite 300, Fort Lauderdale, FL 33316;
and emailservice@kvllaw.com.
By:
/s/ Alexander J. Santana
ALEXANDER J. SANTANA, ESQ.
Florida Bar No: 89584
THE MINEO SALCEDO LAW FIRM, P.A.
Attorneys for Plaintiff
5600 Davie Road
Davie, FL
33314
T: (954)463-8100 / F: (954)463-8106
asantana@mineolaw.com
alexandrar@mineolaw.com
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Filing# 137652445 E-Filed 1 1/01/2021 02:59:05 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA KENNETH PHILYAW and KHALLEE CASE NO: CACE 19-024738 NICOLE THAME, Plaintiffs, VS. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i PLAINTIFFS' SECOND MOTION IN LIMINE PRECLUDING ANY EVIDENCE, COMMENTARY, AND/OR INFERENCES REGARDING PLAINTIFF'S INCOME OR ABILITY TO PAY FOR THE REPAIRS AND INCORPORATED MEMORANDUM OF LAW The Plaintiffs, KENNETH PHILYAW and KHALLEE NICOLE THAME, by and through their undersigned counsel, and hereby move this Honorable Court for entry of an order,in limine, precludingDefendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY " (hereinafter"Defendant"), its counsel, and/or any witnesses from presenting any evidence, testimony, commentary, argument, and/or making inferences at trial pertainingto Plaintiffs income or abilityto pay for the repairs.As grounds thereof,Plaintiffs state as follows: This is an action for breach of contract arisingfrom an insurance claim made by Plaintiffs under a policy issued by his insurer,Defendant. This insurance contract was in effect when Plaintiff's insured property located at 15231 SW 18?,th Street,Miramar, FL 33027 (hereinafter referred to as the "Property")sustained damages as a result of a water loss caused by a plumbing leak during the policy period held by Universal (hereinafterreferred to as the "loss" or the "claim"). *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/01/2021 02:59:05 PM.**** Kenneth Philyawv. Universal PropertyCasualtyInsurance Company Case No. CACE-19-024738 Although Defendant eventuallyacknowledged that the loss was the result of a covered peril, it paid significantly less than what Plaintiffs are owed under the policy.Thus, the issue to be determined at trial can be summarized as whether Defendant has fullyindemnified Plaintiffs for their claim in accordance with the terms and conditions of the policy. It is anticipated that Defendant, throughwitnesses and/or its counsel,may attempt to present evidence or raise arguments to the jury at trial,either directlyor indirectly, relatingto Plaintiffs' income or wealth including,but not limited to: a. Plaintiffs' income and/or rate of pay; b. Whether Plaintiffs is able to personallyadvance the money perform the repairsto the property relating to the subjectloss;and/or c. Whether Plaintiffs could incur the cost of the repairshimself and then "come back" or make a subsequent claim with Defendant if the repairscost more than what has been paid. Plaintiffs, throughthis motion in limine,seeks to prevent any such argument, evidence, or reference from being presentedto the jury as it: (1)has no relevancyor bearingon any issues in this case, and (2)the relevancy,if any, would be significantly outweighed by the danger of unfair prejudice, misleadingthe jury,or confusingthe issues. A motion in limine seeks to prohibitany reference to offendingevidence at trial by first having its admissibility determined outside the presence of the jury.Rosa v. Florida Power & Light Co., 636 So. 2d 60, 61 (Fla.2d DCA 1994). Its purpose is to move the case toward a conclusion on the merits. Id. A motion in limine also givesthe trial judge notice of the movant's positionin order to "preventthe introduction of improper evidence, the mere mention of which at trial would be prejudicial." Dailey v. Multicon Dev., Inc.,417 So. ld 1106, 1107 (Fla.4th DCA 1982).Thus, "[a]motion in limine would test not onlythreshold relevancy...but also whether the Kenneth Philyawv. Universal PropertyCasualtyInsurance Company Case No. CACE-19-024738 probativevalue of the evidence is outweighed by danger of unfair prejudice."Adkins v. Seaboard Coast Line R. Co., 351 So. 2d 1088, 1093 (Fla.2d DCA 1977). Relevant evidence is evidence that tends to prove or disprove a material fact. Fla. Stat. §90.401 (2013). Evidence on a purely collateral issue that would only serve to confuse and mislead the jury is too remote, i.e. not relevant,and should therefore be excluded. Donahue v. Albertson's Inc.,472 So. 2d 482, 483 (Fla.4th DCA 1985).To the extent that evidence is relevant, it will nevertheless be ruled inadmissible if its probativevalue is substantially outweighed by the danger of unfair prejudicetoward Plaintiff and would likelymislead or confuse the jury.Fla. Stat. §90.403 (2013). The jury in this matter will be charged to make a determination of Defendant's liability under the policyand the amount of the Plaintiffs' damages. The wealth, income or abilityof the Plaintiffs to pay for the damages themselves has no bearing on the issues to be determined by the fact-finder and should therefore not be discussed in front ofthejury.Samuels v. Torres, 29 So.3d 1193, 1196 (Fla.5th DCA 2010) ("Intedectionof the wealth or poverty of any party has been consistently held by the courts to be irrelevant to the issue of compensatory damages in a personal injurycase based on negligence[...I."). Like any other insured, the subjectinsurance policy was purchased from Defendant by Plaintiffs so that Plaintiffs would not need to advance the money for repairsif the property ever sustained a loss. Suggestingto ajurythat this particular insured may be able to personallyadvance the cost for repairsand then, if more is needed, Defendant could just issue another payment is contrary the terms of the policyand is contrary to well-established law. Id. ('[T]helaw has long requiredthat the rich man and the poor man stand before the jury as equals so that all parties receive a verdict unaffected by their economic status."). Kenneth Philyawv. Universal PropertyCasualtyInsurance Company Case No. CACE-19-024738 The generalrule in Florida is that no party shall make reference to any party'swealth or poverty duringthe course of a trial. Chin v. Caiaffa,42 So. 3d 300, 308 (Fla.3d DCA 2010).The Third District Court of Appeals and "the courts of this state long have recognizedthe danger inherent in such commentary... and have often held itto constitute reversible error." Id.;Samuels, 29 So. 3d at 1196 ("Integection ofthe wealth or poverty of anyparty has been consistently held by the courts to be... highlyprejudicialbecause it diverts the jury from a fair assessment ofdamages, and a basis for reversal."). As with all civil cases, the jurorsin this case will be specifically instructed: In reaching your verdict, do not let bias, sympathy, prejudice,public opinion,or any other sentiment for or againstany party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you. Fla. Std. Jury Instr. (Contractand Business Cases),"Closing Instructions" - Section 700. Thus, the jury'sverdict at trial must be based solelyon competent, admissible testimonyand evidence that is relevant to whether Defendant fullyindemnified Plaintiff for the damages sustained as a result of the subject water loss pursuant to the terms and conditions of the insurance contract. There is absolutelyno reason for either party to comment about the wealth or poverty of any party in this matter. The policyrequiresthat Defendant pay the full amount for repairs, not for Plaintiffs to do so and then get reimbursed after the expense for the repairshas been incurred. Defendant must not be permittedto attempt to confuse the issues by interjecting matters at trial relatingto Plaintiffs' financial worth, including but not limited to any of the subjectmatters identified in paragraph 3 of this Motion, as this can only result in invokinga juror'ssentiments or potential bias towards the Plaintiff, and invite the juryto consider impertinentmatters. WHEREFORE, Plaintiffs,respectfullyrequest that this Honorable Court grant Plaintiff' s First Motion in Limine and preclude Defendant, UNIVERSAL PROPERTY & CASUALTY Kenneth Philyawv. Universal PropertyCasualtyInsurance Company Case No. CACE-19-024738 INSURANCE COMPANY, its counsel and/or any witnesses from presenting any evidence, testimony,commentary, argument, and/or making inferences at trial pertainingto Plaintiff' s income, ability to pay for the repairs,the notion that Defendant will pay more if the repairscost more, and/or that Plaintiffs can do the repairsand come back or make a subsequent claim if the repairscost more than what has been paid. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished by email and/or ePortal this st 1 day of November, 2021 to: Shari Scalone, Esquire,Kim Vaughan Lerner, LLC, 312 SE 17th Street,Suite 300, Fort Lauderdale, FL 33316; and emailservice@kvllaw.com. By: /s/ Alexander J. Santana ALEXANDER J. SANTANA, ESQ. Florida Bar No: 89584 THE MINEO SALCEDO LAW FIRM, P.A. Attorneys for Plaintiff 5600 Davie Road Davie, FL 33314 T: (954)463-8100 / F: (954)463-8106 asantana@mineolaw.com alexandrar@mineolaw.com