Preview
Filing # 145507485 E-Filed 03/10/2022 09:38:45 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
DEAUVILLE HOTEL PROPERTY, LLC,
Plaintiff,
CASE NO. 2019-016336-CA-01 (43)
vs.
ENDURANCE AMERICAN SPECIALTY
INSURANCE COMPANY, FIRST
SPECIALTY INSURANCE CORPORATION,
GREAT AMERICAN INSURANCE
COMPANY OF NY, TRANE U.S., INC.,
TIRONE ELECTRIC, INC., and EDD HELMS
AIR CONDITIONING, INC.,
Defendants.
/
TRANE U.S. INC.,
Cross-Plaintiff,
vs.
DEAUVILLE HOTEL PROPERTY, LLC,
TIRONE ELECTRIC, INC., and EDD HELMS
AIR CONDITIONING, INC.,
Cross-Defendants.
______________________________________/
TRANE U.S., INC.’S MOTION FOR PRETRIAL RULING ON JURY INSTRUCTIONS
AND SPECIAL INTERROGATORY VERDICT FORM & FOR RECONSIDERATION
OR CLARIFICATION OF TRANE U.S., INC.’S SUMMARY JUDGMENT MOTIONS
Trane U.S., Inc. (“Trane”), respectfully requests that this Court issue an order, before trial,
ruling on the jury instructions and verdict form. Trane also respectfully requests that this Court
reconsider its Order on Trane’s Motion for Final Summary Judgment Against Plaintiff, Deauville
Hotel Property, LLC re: Independent Tort Doctrine (“Independent Tort Doctrine Motion”), Doc.
No. 1510 (Feb. 14, 2022), and reconsider and clarify its oral ruling on Trane’s Renewed Motion
for Partial Summary Judgment (“Limitation of Liability Motion”), Doc. No. 1268 (Oct. 25, 2021),
at the hearing held on November 22, 2021 (“November Hearing”). In support, Trane states as
follows:
INTRODUCTION
In light of the Parties’ attempts to narrow the issues for trial and to help the Court decide
the effect of the independent tort doctrine, as well as of the Limitation of Liability Clause in the
two Rental Agreements between Trane and Deauville, Trane seeks a ruling on the jury instructions
and verdict form so that in their opening statements the Parties can properly frame the issues for
the jury.
The legal questions and factual issues that will predominate during the trial presentations
will undoubtedly include the independent tort doctrine and the Limitation of Liability Clause.
Given the implications for the jury instructions and verdict form—and for the trial as a whole—
Trane also requests reconsideration the Court’s Order on Trane’s Independent Tort Doctrine
Motion and reconsideration and clarification of the Court’s oral ruling on Trane’s Limitation of
Liability Motion.
RELEVANT PROCEDURAL HISTORY
In October 2021, Trane filed a motion for summary judgment based on, among other
things, the independent tort doctrine (Filing #137485153). The Court heard the Independent Tort
Doctrine Motion at a hearing held on January 12, 2022 (see Independent Tort Doctrine Hr’g Tr.,
attached as Exhibit A). At the hearing, the court denied the motion, noting that the doctrine does
not bar a tort involving services outside of those to be performed under a contract (see id. at 19:07–
20:04). The Court indicated that “[t]he jury will be asked whether all the services rendered by
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Trane were within the scope of and contemplated by this contract” and that if the jury answers in
the affirmative “we might have an independent tort issue” (id. at 19:23–20:02). The Court’s
February 14 order on the motion (Filing # 143902463) stated only that it denied the motion “for
the reasons set forth on the record.”
Trane also filed its Renewed Motion for Partial Summary Judgment in October 2021
(Filing #137234297). The motion argued that Trane’s two Rental Agreements with Deauville limit
Trane’s liability to the total amount Deauville paid under the Rental Agreements and excludes
certain categories of damages, such as punitive damages and damages for business interruption,
lost revenue, and lost profits. The Court held a hearing on the Limitation of Liability Motion on
November 22, 2021 (see Limitation of Liability Hr’g Tr., attached as Exhibit B). At the hearing,
the Court denied the motion, but warned the parties not to “read too much into this denial of a
motion for summary judgment” (id. at 85:05–10). The Court indicated that it “may ask the jury to
answer [whether the products or services that resulted in this accident were done under the
agreement] by way of a special interrogatory, or [] may rule as a matter of law” (id. at 83:02–15).
The Court did not issue a written order.
On February 15, 2022, at a hearing on Trane’s motion to strike amended summary-
judgment motions brought by Edd Helms Air Conditioning, Inc., the Court noted that it would not
entertain summary-judgment motions filed after the deadline for filing such motions (see Trane’s
Mot. to Strike Hr’g Tr. at 19:01–19:10, attached as Exhibit D). The Court confirmed, however,
that the Parties “can always file a motion for reconsideration of an interlocutory ruling” (id. at
30:11–30:16). See Silverstone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (The Court has “inherent
authority to reconsider and, if deemed appropriate, alter or retract any of its non-final rulings prior
to entry of the final judgment[.]”); see also AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123,
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1125 (Fla. 3d DCA 2008) (finding that a trial court has authority to reconsider an order on summary
judgment).
ARGUMENT
I. A RULING ON JURY INSTRUCTIONS AND THE VERDICT FORM IS
NECESSARY TO DEFINE THE PARAMATERS OF THE ISSUES TO BE TRIED
AND TO ALLOW THE PARTIES TO FRAME THE ISSUES FOR THE JURY
The jury instructions and verdict form, and knowledge of them before the trial, would help
focus the parties on the issues to be tried, particularly as they pertain to the independent-tort
doctrine and to the limitation-of-liability issues.
At the hearings on these motions, the Court indicated that it would either decide as a matter
of law whether Trane’s services found to be the proximate cause of Plaintiff’s damages were
contemplated or outlined in the two Rental Agreements or that itwould instruct and pose the
question to the jury via special interrogatory (see Ex. A. at 19:23–20:02; Ex. B. at 83:02–15).
Florida Rule of Civil Procedure 1.470(b) provides:
The court shall orally instruct the jury before or after the arguments of counsel and
may provide appropriate instructions during the trial. If the instructions are given
prior to final argument, the presiding judge shall give the jury final procedural
instructions after final arguments are concluded and prior to deliberations. The
court shall provide each juror with a written set of the instructions for his or her use
in deliberations. The court shall file a copy of such instructions.
Fla. R. Civ. P. 1.470(b). Thus, the Court can instruct the jury before or after the Parties’ arguments.
But Trane requests that the Court rule on the instructions and verdict form—at least those
pertaining to the independent-tort doctrine and the limitation-of-liability provision—before trial
begins. Doing so would allow the Parties to tailor their arguments and presentation of evidence in
accordance with the instructions. In turn, this “extra effort” would “aid the jury to apply the law
to the facts.” Francis v. La Pierre, 390 So. 2d 470, 472 (Fla. 5th DCA 1980).
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II. THIS COURT SHOULD RECONSIDER ITS RULING ON TRANE’S MOTION
FOR SUMMARY JUDGMENT REGARDING THE INDEPENDENT TORT
DOCTRINE
Trane requests that this Court reconsider its ruling about the applicability of the
independent tort doctrine because A) Plaintiff cannot identify a duty that is not an obligation under
the Rental Agreements and that would give rise to an independent tort; and B) like Florida, North
Carolina also precludes tort claims that are dependent on the contractual obligations of the parties.
We expound on these points below.
A. Plaintiff Cannot Identify an Extra-Contractual Duty That Would Give Rise to a
Viable Independent Tort
At the hearing on this motion, this Court ruled that if “Trane[] assumed obligations and
duties that were not required or specified by its contract, . . . and performed services that it was not
obligated to perform under the contract, that is conduct that can be outside of the contract, and not
barred by the independent tort doctrine” (Ex. A at 19:07–19).
But Deauville identifies no non-contractual duties Trane assumed and negligently
breached, thereby causing Deauville damage:
To the extent the jury finds, as Plaintiff has argued, that providing a transformer other than
the one listed in the First Rental Agreement was negligent and caused Deauville damage,
the duty to provide a 1000 KVA Transformer 480/208v arose directly from the First Rental
Agreement (see Combined Rental Agreements and Terms and Conditions, attached as
Exhibit C, at 2 (“To provide (1) 500 Ton Air-Cooled Chiller Package,” including a “1000
KVA Transformer 480/208v); id. at 6 (“[I]f Customer permits or accepts performance,
these [rental] terms and conditions will be deemed accepted by Customer.”)).1
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The two Rental Agreements incorporating the Trane Rental Terms and Conditions, as well as
communications related to Trane’s proposal and Deauville’s acceptance, are exhibits to the
Independent Tort Doctrine Motion (Exhibits 4, 6, 7, and 10) and the Limitation of Liability
Motion (Exhibits 4, 5, 6 and 10). For ease of reference, Exhibit C to this motion includes the
combined Rental Agreements and the Trane Rental Terms and Conditions.
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To the extent the jury finds that, after Machin—at Deauville’s instructions—installed the
chiller and transformer, Trane negligently performed its “start-up” services and caused
Deauville damage, the duty to perform those services with due care was expressly
bargained for in the First Rental Agreement (see id. at 2 (“Labor: Start-up only Included”)).
To the extent the jury finds that, on July 19, 2017, Trane was vicariously negligent and
caused Deauville damage when its subcontractor Edd Helms replaced burnt cables after
Deauville alerted Trane about them, the duty to perform those services with due care arises
from the First Rental Agreement (see Ex. C at 1 (“Trane hereby rents to Customer, and
Customer hereby rents from Trane, . . . pursuant to . . . the Trane Rental Terms and
Conditions . . . incorporated into this Agreement.”); id. at 6 (Trane, in its own judgment,
may determine that “repairs or replacements” are “required” in order “to make the unit
operate properly due to improper installation by Customer, abuse, misuse, or unusual
wear,” “during or immediately following the rental” and that such repairs or replacements
“will be charged to Customer.”); id. (“Upon Customer’s notice to Trane, Trane shall
provide emergency repair service that may be necessary[.]”).
To the extent the jury finds that Trane was vicariously negligent and caused Deauville
damage when its subcontractor, Tirone, negligently performed set-up and turnkey services
for the transformer and the newly rented generator, the duty to perform those services with
due care was expressly bargained-for in the Second Rental Agreement (see id. at 3 (“Labor:
1st Turnkey Generator Set-up: No Charge. 1st Turnkey Transformer Set-up: $1,500.00[.]”).
In sum, all the duties Plaintiff alleges Trane breached arise from the Rental Agreements. They
cannot give rise to an independent tort.2 See Elec. Sec. Sys. Corp. v. S. Bell Tl. & Tel. Co., 482
2
At the Limitation of Liability Hearing, counsel for Plaintiff intimated that he would be telling the
jury that Trane did not “want [Plaintiff] to know what damage that [sic] occurred” and that Trane
“didn’t even tell [Plaintiff]” about the “large transformer” Trane had provided (see Ex. B at 58:13–
58:18). In short, Plaintiff’s counsel argues that because Trane purportedly “hid” the type of
transformer it provided, which Plaintiff claims was inadequate, Trane wanted to hide the damage
the transformer caused. But this argument is illogical and not grounded in fact. Plaintiff fails to
explain how Trane could have hidden from Machin—which Plaintiff hired to install the
transformer—the transformer Machin did in fact install. Nor does Plaintiff even attempt to explain
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So. 2d 518, 519 (Fla. 3d DCA 1986) (“A breach of contract, alone, cannot constitute a cause of
action in tort. . . . It is only when the breach of contract is attended by some additional conduct
which amounts to an independent tort that such breach can constitute negligence.”); Nat’l Fire Ins.
Co. v. Johnson Controls Fire Prot. LP, No. 19-14050-CIV, 2019 U.S. Dist. LEXIS 236081, at *4
(S.D. Fla. Apr. 17, 2019) (“[A] plaintiff may not pursue a tort theory of relief where a contract
created the duty to act, performance is measured against the contractual obligations, and the
contract provides the remedy for defective performance.”), report and recommendation adopted
by No. 2:19-14050-ROSENBERG/MAYNARD, 2019 U.S. Dist. LEXIS 236087, at*1 (S.D. Fla.
June 14, 2019).
B. North Carolina Common Law—Like Florida’s Independent Tort Doctrine—
Precludes Tort Claims Dependent on the Parties’ Contractual Obligations
Trane’s motion noted that the independent-tort doctrine is “a well settled rule of contract
law” barring recovery in tort for a contract dispute in Florida, unless the tort is independent of any
breach of contract (Independent Tort Doctrine Mot. at 14). In North Carolina, the issue is one of
tort law. See Asheville Contracting Co. v. Wilson, 303 S.E.2d 365, 373 (N.C. Ct. App. 1983)
(“Under general principles of the law of torts, a breach of contract does not in and of itself provide
the basis for liability in tort. Ordinarily, an action in tort must be grounded on a violation of a duty
imposed by operation of law, and the right invaded must be one that the law provides without
regard to the contractual relationship of the parties, rather than one based on an agreement between
the parties.”). But whether the doctrine is one of contract law or tort law the rule is the same.
In North Carolina, the independent tort doctrine is treated as an exception to the economic-
loss rule. See Crescent Univ. City Venture, LLC, v. Trussway Mfg., Inc., 852 S.E.2d 98, 101 (N.C.
the fact that it was Plaintiff who called Trane about the burnt wires, or why Trane would hide its
performance of the services it had agreed to provide under the Rental Agreements.
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2020) (The “common feature” of “case precedent establishing that a promisor to a contract can be
held liable in tort for personal property damage caused by the promisor’s negligence,” despite the
economic loss rule, is “the breach of an extra-contractual duty, relationship, or bailment.”); Gen.
Cas. Co. v. Murphy-Hoffman Co., No. 5:20-CV-376-D, 2020 U.S. Dist. LEXIS 195881, at *5 (“No
tort action lies ‘against a party to a contract who . . . fails to properly perform the terms of the
contract, even if the failure to perform was due to the negligent or intentional conduct of that party,
when the injury resulting from the breach is damage to the subject matter of the contract.’”)
(quoting Lord v. Customized Specialty, Inc., 643 S.E.2d 28, 30–31 (N.C. Ct. App. 2007)).
North Carolina’s independent-tort doctrine, like Florida’s, bars Deauville’s tort claims
because the duties Deauville claims Trane breached arise from the Rental Agreements. See
Beaufort Builders, Inc. v. White Plains Church Ministries, Inc., 783 S.E.2d 35 (N.C. Ct. App.
2016). In Beaufort Builders, White Plains contracted with Beaufort Builders, Inc., a construction
company, to build a church. Id. at 36. When it was unable to obtain a certificate of occupancy
because the concrete foundation for the church was shorter than the FEMA-required height of
seven feet, White Plains brought a third-party complaint for negligence individually against
Charles F. Cherry, co-owner and President of Beaufort Builders, and counterclaims against
Beaufort Builders. Id. at 36, 38. A surveyor White Plains hired—like Deauville hired Machin—
had marked and obtained an elevation certificate reflecting the mark he made for the pad
foundation at a height of eight feet, but two individuals working under Cherry had removed about
four inches of dirt, believing that the concrete for the foundation would be poured at seven-and-a-
half feet as a result. Id. at 37. It was later revealed that the surveyor who made the mark at eight
feet made an error in his initial calculations. See id.
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White Plains argued that the contract was only between it and Beaufort Builders and that
“the Contract did not specifically authorize [Mr.] Cherry” to perform the services he undertook,
mainly “move dirt from the site of the [pad] foundation.” Id. at 41–42. The North Carolina Court
of Appeals nevertheless affirmed the trial court’s amended judgment notwithstanding the verdict.
It precluded White Plains “from recovery on a theory of negligence against [Mr.] Cherry
individually as president of Beaufort Builders, Inc. . . [,] for economic injury resulting from the
construction of a [church] that was the subject of a contract between plaintiff and Beaufort
Builders,” not between Plaintiff and Defendant Mr. Cherry. 783 S.E.2d at 36.
In addition to Mr. Cherry’s role as president and co-owner of Beaufort Builders, the court
found it important that Mr. Cherry’s “presence at the construction site at all relevant times was due
to his company’s performance of its contract with White Plains” and that “all of the acts he
undertook while at the site were related to the essential component of Beaufort Builders’
contractual obligation to White Plains.” Id. at 41–42. Similarly, Trane’s and its subcontractors’
presence and the acts they took at Deauville were all in aid of Trane’s contractual obligations under
the Rental Agreements. Thus, Deauville is barred from recovering under a theory of negligence.
See Beaufort Builders, 783 S.E.2d at 39 (“It is well settled that ‘no negligence claim exists where
all rights and remedies have been set forth in a contractual relationship.’”) (citation omitted).
III. THIS COURT SHOULD RECONSIDER OR CLARIFY ITS RULING ON
TRANE’S MOTION ON THE LIMITATION-OF-LIABILITY CLAUSE
Trane likewise requests reconsideration or clarification of the Court’s ruling on the
limitation-of-liability clause because A) that provision is unambiguous; B) the relevant material
facts about the services Trane provided are undisputed; and C) whether the services Trane provided
were actually within the services outlined in the Rental Agreements is a matter of contract
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interpretation and a question of law that can be decided before the jury decides whether the services
Trane provided Deauville were negligently performed. We expound on these points below.
A. The Limitation of Liability Clause in the Rental Agreements is Unambiguous and
Enforceable
The Limitation of Liability Clause in the Rental Agreements reads:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT
SHALL TRANE BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY
DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS
INTERRUPTION, LOST DATA, LOST REVENUE, LOST PROFITS, LOST
DOLLAR SAVINGS, OR LOST ENERGY USE SAVINGS, EVEN IF A
PARTY HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF
SAME WERE REASONABLY FORESEEABLE AND REGARDLESS OF
WHETHER THE CAUSE OF ACTION IS FRAMED IN CONTRACT,
NEGLIGENCE, ANY OTHER TORT, WARRANTY, STRICT LIABILITY,
OR PRODUCT LIABILITY). In no event will Trane’s liability in connection
with the provision of products or services or otherwise under this Agreement
exceed the amount paid to Trane by Customer under the Agreement.
(Ex. C at 7). The Clause clearly states that Trane’s liability in connection with “the provision of
products or services or otherwise under th[e] Agreement” is limited to the amounts Deauville paid
(see id.). This Court has already found that the Clause is clear and unambiguous (Limitation of
Liability Mot. at 14 n.5 (citing hearing transcript from October 28, 2020)).
Because the Clause is unambiguous, it should be enforced according to its plain meaning.
See Nesbitt v. Cribbs, No. COA09-866, 2010 N.C. App. LEXIS 481, at *14–15 (NC. Ct. App.
Mar. 16, 2010) (“[W]hen the language of a contract is not ambiguous, no factual issue
appears and only a question of law which is appropriate for summary judgment is
presented to the court.”) (cleaned up). As the North Carolina Supreme Court has stated
regarding limitation-of-liability clauses, “[p]eople should be entitled to contract on their own terms
without the indulgence of paternalism by courts in the alleviation of one side or another from the
10
effects of a bad bargain. Also, they should be permitted to enter into contracts that actually may
be unreasonable or which may lead to hardship on one side.” Blaylock Grading Co., LLP v. Smith,
658 S.E.2d 680, 682 (N.C. Ct. App. 2008) (quoting Gas House, Inc. v. Southern Bell Telephone &
Telegraph Company, 289 N.C. 175, 176-77, 221 S.E.2d 499, 500-01 (1976), overruled on other
grounds by State ex rel. Utils. Comm’n. v. Southern Bell Tel. & Tel. Co., 299 S.E.2d 763 (N.C.
1983)).
This is especially true when—as with Deauville and Trane—the parties “are sophisticated,
professional parties who conducted business at arms’ length, and the ‘result’ of the contract does
not elicit a ‘profound sense of injustice.’” Blaylock Grading, 658 S.E. at 683. Indeed, both parties’
counsel helped negotiate drafts of the agreements (Ex. B at 35:21-36:09 (“[T]his contract was
negotiated by lawyers, lawyers for the plaintiff and lawyers for Trane.”)). See Strum v. Exxon., 15
F.3d 327, 330 (4th Cir. 1994) (applying North Carolina contract law and explaining that the parties
“deserved the chance to lay out their obligations and to limit their liabilities through the medium
of contract” and that defendant “did not bargain for the risk of an open-ended jury award,” but did
bargain instead “for liability limited to damages that might arise from deficient performance under
the agreement”).
B. The Material Facts Outlining the Services Trane Provided are Undisputed
The Court can decide the applicability of the Clause as a matter of law because the relevant
material facts about the services Trane provided to Deauville are undisputed.
As to the First Rental Agreement, it is undisputed that the rental equipment included a 500
Ton Air-Cooled Chiller 480v and a 1000 KVA Transformer 480/208v, along with some other
11
equipment (see SOF ¶ 12);3 that the rental included only “start-up” labor (id. ¶ 13); that Deauville
hired its own contractor, Machin, to install the temporary Chiller and temporary Transformer and
connect it to the Deauville power system (id. ¶ 15); that on July 14, 2017, after Machin installed
the Chiller and Transformer, a Trane Service Technician went to Deauville to provide the “start-
up” service (id. ¶ 16); and that on July 19, 2017, Trane sent its subcontractor, Edd Helms, to replace
burnt cables after Deauville informed Trane that smoke was observed coming from cables between
the Transformer and the hotel (id. ¶ 17).
As to the Second Rental Agreement, it is undisputed that the rental equipment included
only a temporary Generator to power the temporary Chiller (see SOF ¶ 18); that the rental included
turnkey labor, which included set-up labor—not just start-up labor—for the temporary Generator,
and turnkey labor for the previously rented temporary Transformer set-up (id. ¶ 20); that Trane
subcontracted the turnkey labor to Tirone (id. ¶ 21); that on July 23, 2017, Tirone disconnected
the temporary Chiller from the temporary Generator and reconnected the temporary Chiller to the
temporary Transformer (id. ¶ 22); and that on July 25, 2017, the fire alarm system at Deauville
called the Fire Department (id. ¶ 24).
It is also undisputed that the terms and conditions incorporated into both Rental
Agreements state that they apply to “any rental of equipment to [Deauville]”] (Ex. C. at 6), and
contemplate Trane performing installation and electrical work, if needed, as occurred here (see
id.).
Plaintiff seeks to obscure the legal issue of whether the Clause applies with its argument
that Trane performed electrical work without a license (see Ex. B at 52:11–53:11), but even in the
3
“SOF” refers to the paragraph of the Statement of Undisputed Material Facts in Trane’s
Limitation of Liability Motion (Filing #137234297).
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unlikely event Plaintiff is successful in proving this point, it is a separate issue that has no bearing
on the Court’s ability to rule, as a matter of law, on this Clause. Again, the Parties do not dispute
that Trane provided the above services—whether directly or through subcontractors, whether
Trane was licensed or not. Nor do the Parties dispute the content of any of the provisions in the
Rental Agreements. As such, the Court can decide whether these services were performed “in
connection with the provision of products or services or otherwise under the [Rental Agreements].”
C. Whether Trane’s Services Were Within the Scope of the Rental Agreements is a
Matter of Law that Can be Decided Before a Negligence Decision
At the hearing on this motion, the Court stated that “the jury is going to decide after hearing
all the expert testimony what the cause of this was, what the precise act or series of acts that caused
this incident are,” after which “the Court, [] as a matter of law, will decide whether this limitation
of liability is triggered or if . . . there is a sufficient factual dispute[, or] ask the jury to answer that
by way of a special interrogatory” (Ex. B at 83:02–15). Trane seeks clarification about the Court’s
statement that the jury should decide negligence and causation before the Court decides whether
the Clause is triggered. Whether the services Trane provided were contemplated in the Rental
Agreements is a legal issue that can be decided before trial. See DEC Elec., Inc. v. Raphael Constr.
Corp., 558 So. 2d 427, 428 (Fla. 1990) (“Ordinarily the interpretation of a written contract is
a matter of law to be determined by the court.”); Goodyear v. Goodyear, 126 S.E.2d 113, 118
(N.C. 1962) (“The general rule is that where the entire contract is in writing and the intention of
the parties is to be gathered from it, the effect of the instrument is a question of law.”). The jury
need not first determine whether any of the services Trane provided were performed negligently
and caused the incident. And a decision on this legal issue will further narrow the issues for trial
and help the jury focus on necessary fact-finding (see supra Part I).
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CONCLUSION
For the reasons stated above and in Trane’s respective motions, Trane respectfully requests
that this Court (1) issue an order ruling on the jury instructions and verdict form; (2) reconsider its
order on and grant Trane’s motion as to the Independent Tort Doctrine; and (3) reconsider and
clarify its oral ruling on and grant Trane’s motion as to the Limitation of Liability Clause .
Dated: March 10, 2022 Respectfully submitted,
/s/Schuyler A. Smith
Raoul G. Cantero Schuyler A. Smith
Florida Bar No. 552356 Florida Bar No. 70710
Sara E. Cendejas Jamie Kainalu Nakoa
Florida Bar No. 125516 Florida Bar No. 1010799
WHITE & CASE LLP Bradley A. Silverman
200 S. Biscayne Blvd., Suite 4900 Florida Bar No. 105333
Miami, Florida 33131-2352 Jerry D. Hamilton
Telephone: (305) 371-2700 Florida Bar No. 970700
Facsimile: (305) 358-5744 HAMILTON MILLER &
E-mail: rcantero@whitecase.com BIRTHISEL LLP
E-mail: sara.cendejas@whitecase.com 150 S.E. Second Avenue, Suite 1200
Miami, FL 33131
Telephone: (305) 379-3682
Facsimile: (305) 379-3690
E-mail: ssmith@hamiltonmillerlaw.com
E-mail: jnakoa@hamiltonmillerlaw.com
E-mail: bsilverman@hamiltonmillerlaw.com
E-mail: jhamilton@hamiltonmillerlaw.com
P. Brandon Perkins Lowell P. Karr
Florida Bar No. 568635 Florida Bar No. 115501
CAMPBELL CONROY & O’NEIL VG LAW GROUP, LLP
150 S. Pine Island Road, Suite 300 633 SE 3rd Avenue, Suite 302
Plantation, Florida 33324 Ft. Lauderdale, Florida 33301
Telephone: (954) 998-1855 Telephone: (954) 500-2422
Facsimile: (617) 241-5115 E-mail: lkarr@vg.law
E-mail: BPerkins@CampbellTrialLawyers.com
Co-Counsel for Trane U.S. Inc.
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CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing has been filed with the Clerk of Court and served
electronically via Florida Court’s e-Filing Portal on this 10th day of March 2022 on the following:
Gonzalo Dorta Melissa M. Sims
Matias Dorta Evelyn Merchant
DORTA LAW Judith B. Goldstein
334 Minorca Avenue BERK, MERCHANT & SIMS, PLC.
Coral Gables, Florida 33134 2 Alhambra Plaza, Suite 700
Telephone: (305) 441-2299 Coral Gables, FL 33134
Facsimile: (305) 441-8849 Telephone: (786) 338-2900
E-mail: grd@dortalaw.com Facsimile: (786) 338-2888
E-mail; jgonzalez@dortalaw.com E-mail: msims@berklawfirm.com
E-mail: emerchant@berklawfirm.com
Counsel for Deauville Hotel Property, LLC E-mail: jgoldstein@berklawfirm.com
Anthony Accetta Counsel for Defendant First Specialty
Law Offices of Anthony Accetta, P.A. Insurance Corporation
135 San Lorenzo Avenue
Penthouse 820
Coral Gables, FL 33146
Telephone: (305) 448-4LAW
E-mail: law@anthonyaccetta.com
Counsel for Plaintiff/Cross-Defendant, Deauville
Hotel Property, LLC
Bruce S. Rogow Jared S. Ross
Tara A. Campion Robert Horwitz
BRUCE S. ROGOW, P.A. Diane H. Tutt
100 N.E. 3rd Avenue, Suite 1000 CONROY SIMBERG
Ft. Lauderdale, FL 33301 1801 Centrepark Drive East, Suite 200
Telephone: (954) 767-8909 West Palm Beach, FL 33401
Facsimile: (954) 764-1530 Telephone: (561) 697-8088
E-mail: brogow@rogowlaw.com; Facsimile: (561) 697-8664
E-mail: tcampion@rogowlaw.com E-mail: eservicehwd@conroysimberg.com
E-mail: eservicewpb@conroysimberg.com
Counsel for Deauville Hotel Property, LLC E-mail: Jross@conroysimberg.com
E-mail: rhorwitz@conroysimberg.com
E-mail: dtutt@conroysimberg.com
Counsel for Defendant Tirone Electric
15
Meghan C. Moore Lazaro Vazquez
Michael E. Iles LAW OFFICE OF LAZARO VAZQUEZ,
Nicole A. Josephy P.A.
FLASTER GREENBERG PC 145 Almeria Avenue Coral Gables, FL 33134
1200 N. Federal Hwy, Suite 312 Telephone (305) 456-1784
Boca Raton, FL 33432 E-Mail: lazaro@vazquezpa.com
Telephone: (561) 961-4508 E-Mail: lidia@vazquezpa.com
E-mail: Meghan.Moore@flastergreenberg.com
E-mail: Michael.Iles@flastergreenberg.com Counsel for Deauville Hotel Property LLC
E-mail: Nicole.Josephy@flastergreenberg.com
Counsel for Deauville Hotel Property, LLC
Geoffrey B. Marks Kevin C. Schumacher
LAW OFFICES OF GEOFFREY B. MARKS Andrew W. Berube
6960 Sunrise Drive COLE SCOTT & KISSANE, P.A.
Coral Gables, Florida 33133 9150 South Dadeland Blvd., Suite 400
Telephone: (305) 442-2701 Miami, FL 33156
Facsimile: (305) 442-2801 Telephone: (305) 350-5300
E-mail: Gmarks@gbmlegal.com Facsimile: (305) 373-2294
E-mail: Service@gbmlegal.com Email: Kevin.schumacher@csklegal.com
E-mail: Andrew.Berube@csklegal.com
Counsel for Deauville Hotel Property LLC E-mail: Construction.Miami@csklegal.com
Counsel for Edd Helms Air Conditioning
Perry R. Goodman William D. Wilson
Brooke O. Turetzk MOUND COTTON WOLLAN &
MOUND COTTON WOLLAN & GREENGRASS LLP
GREENGRASS LLP 30A Vreeland Road
110 E. Broward Blvd., Suite 610 Florham Park, NJ 07932
Fort Lauderdale, FL 33301 Telephone: (973) 494-0600
Telephone: (954) 467-5800/(754) 799-2615 Email: wwilson@moundcotton.com
E-mail: pgoodman@moundcotton.com;
E-mail: bturetzky@moundcotton.com Counsel for Defendant Great American
Insurance Company of New York
Counsel for Defendant Great American Insurance
Company of New York
By: /s/Raoul G. Cantero
Raoul G. Cantero
16
EXHIBIT A
· · · · IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
· · · · · · · IN AND FOR MIAMI-DADE COUNTY, FLORIDA
· · · · · · · · ·CASE NO.: 2019-016336-CA-01 (43)
· · ·DEAUVILLE HOTEL PROPERTY, LLC,
· · · · · · · ·Plaintiff,
· · ·vs.
· · ·ENDURANCE AMERICAN SPECIALTY
· · ·INSURANCE COMPANY, FIRST
· · ·SPECIALTY INSURANCE CORPORATION,
· · ·GREAT AMERICAN INSURANCE COMPANY
· · ·OF NY, TRANE U.S., INC, TIRONE
· · ·ELECTRIC, INC., and EDD HELMS
· · ·AIR CONDITIONING, INC.,
· · · · · · · ·Defendants.
· · ·_______________________________/
·
· · ·TRANE U.S., INC.,
· · · · · · · ·Cross-Plaintiff,
· · ·vs.
· · ·DEAUVILLE HOTEL PROPERTY, LLC,
· · ·TIRONE ELECTRIC, INC., and
· · ·EDD HELMS AIR CONDITIONING, INC.,
· · · · · · · ·Cross-Defendants
· · ·_______________________________/
Preview
Filing # 145507485 E-Filed 03/10/2022 09:38:45 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA DEAUVILLE HOTEL PROPERTY, LLC, Plaintiff, CASE NO. 2019-016336-CA-01 (43) vs. ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, FIRST SPECIALTY INSURANCE CORPORATION, GREAT AMERICAN INSURANCE COMPANY OF NY, TRANE U.S., INC., TIRONE ELECTRIC, INC., and EDD HELMS AIR CONDITIONING, INC., Defendants. / TRANE U.S. INC., Cross-Plaintiff, vs. DEAUVILLE HOTEL PROPERTY, LLC, TIRONE ELECTRIC, INC., and EDD HELMS AIR CONDITIONING, INC., Cross-Defendants. ______________________________________/ TRANE U.S., INC.’S MOTION FOR PRETRIAL RULING ON JURY INSTRUCTIONS AND SPECIAL INTERROGATORY VERDICT FORM & FOR RECONSIDERATION OR CLARIFICATION OF TRANE U.S., INC.’S SUMMARY JUDGMENT MOTIONS Trane U.S., Inc. (“Trane”), respectfully requests that this Court issue an order, before trial, ruling on the jury instructions and verdict form. Trane also respectfully requests that this Court reconsider its Order on Trane’s Motion for Final Summary Judgment Against Plaintiff, Deauville Hotel Property, LLC re: Independent Tort Doctrine (“Independent Tort Doctrine Motion”), Doc. No. 1510 (Feb. 14, 2022), and reconsider and clarify its oral ruling on Trane’s Renewed Motion for Partial Summary Judgment (“Limitation of Liability Motion”), Doc. No. 1268 (Oct. 25, 2021), at the hearing held on November 22, 2021 (“November Hearing”). In support, Trane states as follows: INTRODUCTION In light of the Parties’ attempts to narrow the issues for trial and to help the Court decide the effect of the independent tort doctrine, as well as of the Limitation of Liability Clause in the two Rental Agreements between Trane and Deauville, Trane seeks a ruling on the jury instructions and verdict form so that in their opening statements the Parties can properly frame the issues for the jury. The legal questions and factual issues that will predominate during the trial presentations will undoubtedly include the independent tort doctrine and the Limitation of Liability Clause. Given the implications for the jury instructions and verdict form—and for the trial as a whole— Trane also requests reconsideration the Court’s Order on Trane’s Independent Tort Doctrine Motion and reconsideration and clarification of the Court’s oral ruling on Trane’s Limitation of Liability Motion. RELEVANT PROCEDURAL HISTORY In October 2021, Trane filed a motion for summary judgment based on, among other things, the independent tort doctrine (Filing #137485153). The Court heard the Independent Tort Doctrine Motion at a hearing held on January 12, 2022 (see Independent Tort Doctrine Hr’g Tr., attached as Exhibit A). At the hearing, the court denied the motion, noting that the doctrine does not bar a tort involving services outside of those to be performed under a contract (see id. at 19:07– 20:04). The Court indicated that “[t]he jury will be asked whether all the services rendered by 2 Trane were within the scope of and contemplated by this contract” and that if the jury answers in the affirmative “we might have an independent tort issue” (id. at 19:23–20:02). The Court’s February 14 order on the motion (Filing # 143902463) stated only that it denied the motion “for the reasons set forth on the record.” Trane also filed its Renewed Motion for Partial Summary Judgment in October 2021 (Filing #137234297). The motion argued that Trane’s two Rental Agreements with Deauville limit Trane’s liability to the total amount Deauville paid under the Rental Agreements and excludes certain categories of damages, such as punitive damages and damages for business interruption, lost revenue, and lost profits. The Court held a hearing on the Limitation of Liability Motion on November 22, 2021 (see Limitation of Liability Hr’g Tr., attached as Exhibit B). At the hearing, the Court denied the motion, but warned the parties not to “read too much into this denial of a motion for summary judgment” (id. at 85:05–10). The Court indicated that it “may ask the jury to answer [whether the products or services that resulted in this accident were done under the agreement] by way of a special interrogatory, or [] may rule as a matter of law” (id. at 83:02–15). The Court did not issue a written order. On February 15, 2022, at a hearing on Trane’s motion to strike amended summary- judgment motions brought by Edd Helms Air Conditioning, Inc., the Court noted that it would not entertain summary-judgment motions filed after the deadline for filing such motions (see Trane’s Mot. to Strike Hr’g Tr. at 19:01–19:10, attached as Exhibit D). The Court confirmed, however, that the Parties “can always file a motion for reconsideration of an interlocutory ruling” (id. at 30:11–30:16). See Silverstone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (The Court has “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its non-final rulings prior to entry of the final judgment[.]”); see also AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 3 1125 (Fla. 3d DCA 2008) (finding that a trial court has authority to reconsider an order on summary judgment). ARGUMENT I. A RULING ON JURY INSTRUCTIONS AND THE VERDICT FORM IS NECESSARY TO DEFINE THE PARAMATERS OF THE ISSUES TO BE TRIED AND TO ALLOW THE PARTIES TO FRAME THE ISSUES FOR THE JURY The jury instructions and verdict form, and knowledge of them before the trial, would help focus the parties on the issues to be tried, particularly as they pertain to the independent-tort doctrine and to the limitation-of-liability issues. At the hearings on these motions, the Court indicated that it would either decide as a matter of law whether Trane’s services found to be the proximate cause of Plaintiff’s damages were contemplated or outlined in the two Rental Agreements or that itwould instruct and pose the question to the jury via special interrogatory (see Ex. A. at 19:23–20:02; Ex. B. at 83:02–15). Florida Rule of Civil Procedure 1.470(b) provides: The court shall orally instruct the jury before or after the arguments of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions. Fla. R. Civ. P. 1.470(b). Thus, the Court can instruct the jury before or after the Parties’ arguments. But Trane requests that the Court rule on the instructions and verdict form—at least those pertaining to the independent-tort doctrine and the limitation-of-liability provision—before trial begins. Doing so would allow the Parties to tailor their arguments and presentation of evidence in accordance with the instructions. In turn, this “extra effort” would “aid the jury to apply the law to the facts.” Francis v. La Pierre, 390 So. 2d 470, 472 (Fla. 5th DCA 1980). 4 II. THIS COURT SHOULD RECONSIDER ITS RULING ON TRANE’S MOTION FOR SUMMARY JUDGMENT REGARDING THE INDEPENDENT TORT DOCTRINE Trane requests that this Court reconsider its ruling about the applicability of the independent tort doctrine because A) Plaintiff cannot identify a duty that is not an obligation under the Rental Agreements and that would give rise to an independent tort; and B) like Florida, North Carolina also precludes tort claims that are dependent on the contractual obligations of the parties. We expound on these points below. A. Plaintiff Cannot Identify an Extra-Contractual Duty That Would Give Rise to a Viable Independent Tort At the hearing on this motion, this Court ruled that if “Trane[] assumed obligations and duties that were not required or specified by its contract, . . . and performed services that it was not obligated to perform under the contract, that is conduct that can be outside of the contract, and not barred by the independent tort doctrine” (Ex. A at 19:07–19). But Deauville identifies no non-contractual duties Trane assumed and negligently breached, thereby causing Deauville damage: To the extent the jury finds, as Plaintiff has argued, that providing a transformer other than the one listed in the First Rental Agreement was negligent and caused Deauville damage, the duty to provide a 1000 KVA Transformer 480/208v arose directly from the First Rental Agreement (see Combined Rental Agreements and Terms and Conditions, attached as Exhibit C, at 2 (“To provide (1) 500 Ton Air-Cooled Chiller Package,” including a “1000 KVA Transformer 480/208v); id. at 6 (“[I]f Customer permits or accepts performance, these [rental] terms and conditions will be deemed accepted by Customer.”)).1 1 The two Rental Agreements incorporating the Trane Rental Terms and Conditions, as well as communications related to Trane’s proposal and Deauville’s acceptance, are exhibits to the Independent Tort Doctrine Motion (Exhibits 4, 6, 7, and 10) and the Limitation of Liability Motion (Exhibits 4, 5, 6 and 10). For ease of reference, Exhibit C to this motion includes the combined Rental Agreements and the Trane Rental Terms and Conditions. 5 To the extent the jury finds that, after Machin—at Deauville’s instructions—installed the chiller and transformer, Trane negligently performed its “start-up” services and caused Deauville damage, the duty to perform those services with due care was expressly bargained for in the First Rental Agreement (see id. at 2 (“Labor: Start-up only Included”)). To the extent the jury finds that, on July 19, 2017, Trane was vicariously negligent and caused Deauville damage when its subcontractor Edd Helms replaced burnt cables after Deauville alerted Trane about them, the duty to perform those services with due care arises from the First Rental Agreement (see Ex. C at 1 (“Trane hereby rents to Customer, and Customer hereby rents from Trane, . . . pursuant to . . . the Trane Rental Terms and Conditions . . . incorporated into this Agreement.”); id. at 6 (Trane, in its own judgment, may determine that “repairs or replacements” are “required” in order “to make the unit operate properly due to improper installation by Customer, abuse, misuse, or unusual wear,” “during or immediately following the rental” and that such repairs or replacements “will be charged to Customer.”); id. (“Upon Customer’s notice to Trane, Trane shall provide emergency repair service that may be necessary[.]”). To the extent the jury finds that Trane was vicariously negligent and caused Deauville damage when its subcontractor, Tirone, negligently performed set-up and turnkey services for the transformer and the newly rented generator, the duty to perform those services with due care was expressly bargained-for in the Second Rental Agreement (see id. at 3 (“Labor: 1st Turnkey Generator Set-up: No Charge. 1st Turnkey Transformer Set-up: $1,500.00[.]”). In sum, all the duties Plaintiff alleges Trane breached arise from the Rental Agreements. They cannot give rise to an independent tort.2 See Elec. Sec. Sys. Corp. v. S. Bell Tl. & Tel. Co., 482 2 At the Limitation of Liability Hearing, counsel for Plaintiff intimated that he would be telling the jury that Trane did not “want [Plaintiff] to know what damage that [sic] occurred” and that Trane “didn’t even tell [Plaintiff]” about the “large transformer” Trane had provided (see Ex. B at 58:13– 58:18). In short, Plaintiff’s counsel argues that because Trane purportedly “hid” the type of transformer it provided, which Plaintiff claims was inadequate, Trane wanted to hide the damage the transformer caused. But this argument is illogical and not grounded in fact. Plaintiff fails to explain how Trane could have hidden from Machin—which Plaintiff hired to install the transformer—the transformer Machin did in fact install. Nor does Plaintiff even attempt to explain 6 So. 2d 518, 519 (Fla. 3d DCA 1986) (“A breach of contract, alone, cannot constitute a cause of action in tort. . . . It is only when the breach of contract is attended by some additional conduct which amounts to an independent tort that such breach can constitute negligence.”); Nat’l Fire Ins. Co. v. Johnson Controls Fire Prot. LP, No. 19-14050-CIV, 2019 U.S. Dist. LEXIS 236081, at *4 (S.D. Fla. Apr. 17, 2019) (“[A] plaintiff may not pursue a tort theory of relief where a contract created the duty to act, performance is measured against the contractual obligations, and the contract provides the remedy for defective performance.”), report and recommendation adopted by No. 2:19-14050-ROSENBERG/MAYNARD, 2019 U.S. Dist. LEXIS 236087, at*1 (S.D. Fla. June 14, 2019). B. North Carolina Common Law—Like Florida’s Independent Tort Doctrine— Precludes Tort Claims Dependent on the Parties’ Contractual Obligations Trane’s motion noted that the independent-tort doctrine is “a well settled rule of contract law” barring recovery in tort for a contract dispute in Florida, unless the tort is independent of any breach of contract (Independent Tort Doctrine Mot. at 14). In North Carolina, the issue is one of tort law. See Asheville Contracting Co. v. Wilson, 303 S.E.2d 365, 373 (N.C. Ct. App. 1983) (“Under general principles of the law of torts, a breach of contract does not in and of itself provide the basis for liability in tort. Ordinarily, an action in tort must be grounded on a violation of a duty imposed by operation of law, and the right invaded must be one that the law provides without regard to the contractual relationship of the parties, rather than one based on an agreement between the parties.”). But whether the doctrine is one of contract law or tort law the rule is the same. In North Carolina, the independent tort doctrine is treated as an exception to the economic- loss rule. See Crescent Univ. City Venture, LLC, v. Trussway Mfg., Inc., 852 S.E.2d 98, 101 (N.C. the fact that it was Plaintiff who called Trane about the burnt wires, or why Trane would hide its performance of the services it had agreed to provide under the Rental Agreements. 7 2020) (The “common feature” of “case precedent establishing that a promisor to a contract can be held liable in tort for personal property damage caused by the promisor’s negligence,” despite the economic loss rule, is “the breach of an extra-contractual duty, relationship, or bailment.”); Gen. Cas. Co. v. Murphy-Hoffman Co., No. 5:20-CV-376-D, 2020 U.S. Dist. LEXIS 195881, at *5 (“No tort action lies ‘against a party to a contract who . . . fails to properly perform the terms of the contract, even if the failure to perform was due to the negligent or intentional conduct of that party, when the injury resulting from the breach is damage to the subject matter of the contract.’”) (quoting Lord v. Customized Specialty, Inc., 643 S.E.2d 28, 30–31 (N.C. Ct. App. 2007)). North Carolina’s independent-tort doctrine, like Florida’s, bars Deauville’s tort claims because the duties Deauville claims Trane breached arise from the Rental Agreements. See Beaufort Builders, Inc. v. White Plains Church Ministries, Inc., 783 S.E.2d 35 (N.C. Ct. App. 2016). In Beaufort Builders, White Plains contracted with Beaufort Builders, Inc., a construction company, to build a church. Id. at 36. When it was unable to obtain a certificate of occupancy because the concrete foundation for the church was shorter than the FEMA-required height of seven feet, White Plains brought a third-party complaint for negligence individually against Charles F. Cherry, co-owner and President of Beaufort Builders, and counterclaims against Beaufort Builders. Id. at 36, 38. A surveyor White Plains hired—like Deauville hired Machin— had marked and obtained an elevation certificate reflecting the mark he made for the pad foundation at a height of eight feet, but two individuals working under Cherry had removed about four inches of dirt, believing that the concrete for the foundation would be poured at seven-and-a- half feet as a result. Id. at 37. It was later revealed that the surveyor who made the mark at eight feet made an error in his initial calculations. See id. 8 White Plains argued that the contract was only between it and Beaufort Builders and that “the Contract did not specifically authorize [Mr.] Cherry” to perform the services he undertook, mainly “move dirt from the site of the [pad] foundation.” Id. at 41–42. The North Carolina Court of Appeals nevertheless affirmed the trial court’s amended judgment notwithstanding the verdict. It precluded White Plains “from recovery on a theory of negligence against [Mr.] Cherry individually as president of Beaufort Builders, Inc. . . [,] for economic injury resulting from the construction of a [church] that was the subject of a contract between plaintiff and Beaufort Builders,” not between Plaintiff and Defendant Mr. Cherry. 783 S.E.2d at 36. In addition to Mr. Cherry’s role as president and co-owner of Beaufort Builders, the court found it important that Mr. Cherry’s “presence at the construction site at all relevant times was due to his company’s performance of its contract with White Plains” and that “all of the acts he undertook while at the site were related to the essential component of Beaufort Builders’ contractual obligation to White Plains.” Id. at 41–42. Similarly, Trane’s and its subcontractors’ presence and the acts they took at Deauville were all in aid of Trane’s contractual obligations under the Rental Agreements. Thus, Deauville is barred from recovering under a theory of negligence. See Beaufort Builders, 783 S.E.2d at 39 (“It is well settled that ‘no negligence claim exists where all rights and remedies have been set forth in a contractual relationship.’”) (citation omitted). III. THIS COURT SHOULD RECONSIDER OR CLARIFY ITS RULING ON TRANE’S MOTION ON THE LIMITATION-OF-LIABILITY CLAUSE Trane likewise requests reconsideration or clarification of the Court’s ruling on the limitation-of-liability clause because A) that provision is unambiguous; B) the relevant material facts about the services Trane provided are undisputed; and C) whether the services Trane provided were actually within the services outlined in the Rental Agreements is a matter of contract 9 interpretation and a question of law that can be decided before the jury decides whether the services Trane provided Deauville were negligently performed. We expound on these points below. A. The Limitation of Liability Clause in the Rental Agreements is Unambiguous and Enforceable The Limitation of Liability Clause in the Rental Agreements reads: NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL TRANE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION, LOST DATA, LOST REVENUE, LOST PROFITS, LOST DOLLAR SAVINGS, OR LOST ENERGY USE SAVINGS, EVEN IF A PARTY HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF SAME WERE REASONABLY FORESEEABLE AND REGARDLESS OF WHETHER THE CAUSE OF ACTION IS FRAMED IN CONTRACT, NEGLIGENCE, ANY OTHER TORT, WARRANTY, STRICT LIABILITY, OR PRODUCT LIABILITY). In no event will Trane’s liability in connection with the provision of products or services or otherwise under this Agreement exceed the amount paid to Trane by Customer under the Agreement. (Ex. C at 7). The Clause clearly states that Trane’s liability in connection with “the provision of products or services or otherwise under th[e] Agreement” is limited to the amounts Deauville paid (see id.). This Court has already found that the Clause is clear and unambiguous (Limitation of Liability Mot. at 14 n.5 (citing hearing transcript from October 28, 2020)). Because the Clause is unambiguous, it should be enforced according to its plain meaning. See Nesbitt v. Cribbs, No. COA09-866, 2010 N.C. App. LEXIS 481, at *14–15 (NC. Ct. App. Mar. 16, 2010) (“[W]hen the language of a contract is not ambiguous, no factual issue appears and only a question of law which is appropriate for summary judgment is presented to the court.”) (cleaned up). As the North Carolina Supreme Court has stated regarding limitation-of-liability clauses, “[p]eople should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the 10 effects of a bad bargain. Also, they should be permitted to enter into contracts that actually may be unreasonable or which may lead to hardship on one side.” Blaylock Grading Co., LLP v. Smith, 658 S.E.2d 680, 682 (N.C. Ct. App. 2008) (quoting Gas House, Inc. v. Southern Bell Telephone & Telegraph Company, 289 N.C. 175, 176-77, 221 S.E.2d 499, 500-01 (1976), overruled on other grounds by State ex rel. Utils. Comm’n. v. Southern Bell Tel. & Tel. Co., 299 S.E.2d 763 (N.C. 1983)). This is especially true when—as with Deauville and Trane—the parties “are sophisticated, professional parties who conducted business at arms’ length, and the ‘result’ of the contract does not elicit a ‘profound sense of injustice.’” Blaylock Grading, 658 S.E. at 683. Indeed, both parties’ counsel helped negotiate drafts of the agreements (Ex. B at 35:21-36:09 (“[T]his contract was negotiated by lawyers, lawyers for the plaintiff and lawyers for Trane.”)). See Strum v. Exxon., 15 F.3d 327, 330 (4th Cir. 1994) (applying North Carolina contract law and explaining that the parties “deserved the chance to lay out their obligations and to limit their liabilities through the medium of contract” and that defendant “did not bargain for the risk of an open-ended jury award,” but did bargain instead “for liability limited to damages that might arise from deficient performance under the agreement”). B. The Material Facts Outlining the Services Trane Provided are Undisputed The Court can decide the applicability of the Clause as a matter of law because the relevant material facts about the services Trane provided to Deauville are undisputed. As to the First Rental Agreement, it is undisputed that the rental equipment included a 500 Ton Air-Cooled Chiller 480v and a 1000 KVA Transformer 480/208v, along with some other 11 equipment (see SOF ¶ 12);3 that the rental included only “start-up” labor (id. ¶ 13); that Deauville hired its own contractor, Machin, to install the temporary Chiller and temporary Transformer and connect it to the Deauville power system (id. ¶ 15); that on July 14, 2017, after Machin installed the Chiller and Transformer, a Trane Service Technician went to Deauville to provide the “start- up” service (id. ¶ 16); and that on July 19, 2017, Trane sent its subcontractor, Edd Helms, to replace burnt cables after Deauville informed Trane that smoke was observed coming from cables between the Transformer and the hotel (id. ¶ 17). As to the Second Rental Agreement, it is undisputed that the rental equipment included only a temporary Generator to power the temporary Chiller (see SOF ¶ 18); that the rental included turnkey labor, which included set-up labor—not just start-up labor—for the temporary Generator, and turnkey labor for the previously rented temporary Transformer set-up (id. ¶ 20); that Trane subcontracted the turnkey labor to Tirone (id. ¶ 21); that on July 23, 2017, Tirone disconnected the temporary Chiller from the temporary Generator and reconnected the temporary Chiller to the temporary Transformer (id. ¶ 22); and that on July 25, 2017, the fire alarm system at Deauville called the Fire Department (id. ¶ 24). It is also undisputed that the terms and conditions incorporated into both Rental Agreements state that they apply to “any rental of equipment to [Deauville]”] (Ex. C. at 6), and contemplate Trane performing installation and electrical work, if needed, as occurred here (see id.). Plaintiff seeks to obscure the legal issue of whether the Clause applies with its argument that Trane performed electrical work without a license (see Ex. B at 52:11–53:11), but even in the 3 “SOF” refers to the paragraph of the Statement of Undisputed Material Facts in Trane’s Limitation of Liability Motion (Filing #137234297). 12 unlikely event Plaintiff is successful in proving this point, it is a separate issue that has no bearing on the Court’s ability to rule, as a matter of law, on this Clause. Again, the Parties do not dispute that Trane provided the above services—whether directly or through subcontractors, whether Trane was licensed or not. Nor do the Parties dispute the content of any of the provisions in the Rental Agreements. As such, the Court can decide whether these services were performed “in connection with the provision of products or services or otherwise under the [Rental Agreements].” C. Whether Trane’s Services Were Within the Scope of the Rental Agreements is a Matter of Law that Can be Decided Before a Negligence Decision At the hearing on this motion, the Court stated that “the jury is going to decide after hearing all the expert testimony what the cause of this was, what the precise act or series of acts that caused this incident are,” after which “the Court, [] as a matter of law, will decide whether this limitation of liability is triggered or if . . . there is a sufficient factual dispute[, or] ask the jury to answer that by way of a special interrogatory” (Ex. B at 83:02–15). Trane seeks clarification about the Court’s statement that the jury should decide negligence and causation before the Court decides whether the Clause is triggered. Whether the services Trane provided were contemplated in the Rental Agreements is a legal issue that can be decided before trial. See DEC Elec., Inc. v. Raphael Constr. Corp., 558 So. 2d 427, 428 (Fla. 1990) (“Ordinarily the interpretation of a written contract is a matter of law to be determined by the court.”); Goodyear v. Goodyear, 126 S.E.2d 113, 118 (N.C. 1962) (“The general rule is that where the entire contract is in writing and the intention of the parties is to be gathered from it, the effect of the instrument is a question of law.”). The jury need not first determine whether any of the services Trane provided were performed negligently and caused the incident. And a decision on this legal issue will further narrow the issues for trial and help the jury focus on necessary fact-finding (see supra Part I). 13 CONCLUSION For the reasons stated above and in Trane’s respective motions, Trane respectfully requests that this Court (1) issue an order ruling on the jury instructions and verdict form; (2) reconsider its order on and grant Trane’s motion as to the Independent Tort Doctrine; and (3) reconsider and clarify its oral ruling on and grant Trane’s motion as to the Limitation of Liability Clause . Dated: March 10, 2022 Respectfully submitted, /s/Schuyler A. Smith Raoul G. Cantero Schuyler A. Smith Florida Bar No. 552356 Florida Bar No. 70710 Sara E. Cendejas Jamie Kainalu Nakoa Florida Bar No. 125516 Florida Bar No. 1010799 WHITE & CASE LLP Bradley A. Silverman 200 S. Biscayne Blvd., Suite 4900 Florida Bar No. 105333 Miami, Florida 33131-2352 Jerry D. Hamilton Telephone: (305) 371-2700 Florida Bar No. 970700 Facsimile: (305) 358-5744 HAMILTON MILLER & E-mail: rcantero@whitecase.com BIRTHISEL LLP E-mail: sara.cendejas@whitecase.com 150 S.E. Second Avenue, Suite 1200 Miami, FL 33131 Telephone: (305) 379-3682 Facsimile: (305) 379-3690 E-mail: ssmith@hamiltonmillerlaw.com E-mail: jnakoa@hamiltonmillerlaw.com E-mail: bsilverman@hamiltonmillerlaw.com E-mail: jhamilton@hamiltonmillerlaw.com P. Brandon Perkins Lowell P. Karr Florida Bar No. 568635 Florida Bar No. 115501 CAMPBELL CONROY & O’NEIL VG LAW GROUP, LLP 150 S. Pine Island Road, Suite 300 633 SE 3rd Avenue, Suite 302 Plantation, Florida 33324 Ft. Lauderdale, Florida 33301 Telephone: (954) 998-1855 Telephone: (954) 500-2422 Facsimile: (617) 241-5115 E-mail: lkarr@vg.law E-mail: BPerkins@CampbellTrialLawyers.com Co-Counsel for Trane U.S. Inc. 14 CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been filed with the Clerk of Court and served electronically via Florida Court’s e-Filing Portal on this 10th day of March 2022 on the following: Gonzalo Dorta Melissa M. Sims Matias Dorta Evelyn Merchant DORTA LAW Judith B. Goldstein 334 Minorca Avenue BERK, MERCHANT & SIMS, PLC. Coral Gables, Florida 33134 2 Alhambra Plaza, Suite 700 Telephone: (305) 441-2299 Coral Gables, FL 33134 Facsimile: (305) 441-8849 Telephone: (786) 338-2900 E-mail: grd@dortalaw.com Facsimile: (786) 338-2888 E-mail; jgonzalez@dortalaw.com E-mail: msims@berklawfirm.com E-mail: emerchant@berklawfirm.com Counsel for Deauville Hotel Property, LLC E-mail: jgoldstein@berklawfirm.com Anthony Accetta Counsel for Defendant First Specialty Law Offices of Anthony Accetta, P.A. Insurance Corporation 135 San Lorenzo Avenue Penthouse 820 Coral Gables, FL 33146 Telephone: (305) 448-4LAW E-mail: law@anthonyaccetta.com Counsel for Plaintiff/Cross-Defendant, Deauville Hotel Property, LLC Bruce S. Rogow Jared S. Ross Tara A. Campion Robert Horwitz BRUCE S. ROGOW, P.A. Diane H. Tutt 100 N.E. 3rd Avenue, Suite 1000 CONROY SIMBERG Ft. Lauderdale, FL 33301 1801 Centrepark Drive East, Suite 200 Telephone: (954) 767-8909 West Palm Beach, FL 33401 Facsimile: (954) 764-1530 Telephone: (561) 697-8088 E-mail: brogow@rogowlaw.com; Facsimile: (561) 697-8664 E-mail: tcampion@rogowlaw.com E-mail: eservicehwd@conroysimberg.com E-mail: eservicewpb@conroysimberg.com Counsel for Deauville Hotel Property, LLC E-mail: Jross@conroysimberg.com E-mail: rhorwitz@conroysimberg.com E-mail: dtutt@conroysimberg.com Counsel for Defendant Tirone Electric 15 Meghan C. Moore Lazaro Vazquez Michael E. Iles LAW OFFICE OF LAZARO VAZQUEZ, Nicole A. Josephy P.A. FLASTER GREENBERG PC 145 Almeria Avenue Coral Gables, FL 33134 1200 N. Federal Hwy, Suite 312 Telephone (305) 456-1784 Boca Raton, FL 33432 E-Mail: lazaro@vazquezpa.com Telephone: (561) 961-4508 E-Mail: lidia@vazquezpa.com E-mail: Meghan.Moore@flastergreenberg.com E-mail: Michael.Iles@flastergreenberg.com Counsel for Deauville Hotel Property LLC E-mail: Nicole.Josephy@flastergreenberg.com Counsel for Deauville Hotel Property, LLC Geoffrey B. Marks Kevin C. Schumacher LAW OFFICES OF GEOFFREY B. MARKS Andrew W. Berube 6960 Sunrise Drive COLE SCOTT & KISSANE, P.A. Coral Gables, Florida 33133 9150 South Dadeland Blvd., Suite 400 Telephone: (305) 442-2701 Miami, FL 33156 Facsimile: (305) 442-2801 Telephone: (305) 350-5300 E-mail: Gmarks@gbmlegal.com Facsimile: (305) 373-2294 E-mail: Service@gbmlegal.com Email: Kevin.schumacher@csklegal.com E-mail: Andrew.Berube@csklegal.com Counsel for Deauville Hotel Property LLC E-mail: Construction.Miami@csklegal.com Counsel for Edd Helms Air Conditioning Perry R. Goodman William D. Wilson Brooke O. Turetzk MOUND COTTON WOLLAN & MOUND COTTON WOLLAN & GREENGRASS LLP GREENGRASS LLP 30A Vreeland Road 110 E. Broward Blvd., Suite 610 Florham Park, NJ 07932 Fort Lauderdale, FL 33301 Telephone: (973) 494-0600 Telephone: (954) 467-5800/(754) 799-2615 Email: wwilson@moundcotton.com E-mail: pgoodman@moundcotton.com; E-mail: bturetzky@moundcotton.com Counsel for Defendant Great American Insurance Company of New York Counsel for Defendant Great American Insurance Company of New York By: /s/Raoul G. Cantero Raoul G. Cantero 16 EXHIBIT A · · · · IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT · · · · · · · IN AND FOR MIAMI-DADE COUNTY, FLORIDA · · · · · · · · ·CASE NO.: 2019-016336-CA-01 (43) · · ·DEAUVILLE HOTEL PROPERTY, LLC, · · · · · · · ·Plaintiff, · · ·vs. · · ·ENDURANCE AMERICAN SPECIALTY · · ·INSURANCE COMPANY, FIRST · · ·SPECIALTY INSURANCE CORPORATION, · · ·GREAT AMERICAN INSURANCE COMPANY · · ·OF NY, TRANE U.S., INC, TIRONE · · ·ELECTRIC, INC., and EDD HELMS · · ·AIR CONDITIONING, INC., · · · · · · · ·Defendants. · · ·_______________________________/ · · · ·TRANE U.S., INC., · · · · · · · ·Cross-Plaintiff, · · ·vs. · · ·DEAUVILLE HOTEL PROPERTY, LLC, · · ·TIRONE ELECTRIC, INC., and · · ·EDD HELMS AIR CONDITIONING, INC., · · · · · · · ·Cross-Defendants · · ·_______________________________/