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Filing # 135391538 E-Filed 09/27/2021 03:32:14 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
JOHN HUGHES, III, as receiver of Flicker CASE NO.: 2019-CA-003916
Construction, Inc., an inactive Florida
corporation,
Plaintiff,
vs.
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
NOTICE OF FILING
Defendant, MID-CONTINENT CASUALTY INSURANCE COMPANY, by and through
undersigned counsel, hereby files a copy of the transcript of hearing via Zoom before the Honorable
Oscar Rodriguez-Fonts taken on September 22, 2019.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27th day of September, 2021, a true and correct copy of
the foregoing has been furnished by E-service through the Florida Courts E-Filing Portal to all
counsel of record on the attached service list.
LEWIS BRISBOIS BISGAARD &
SMITH LLP
Counsel for Defendant, Mid-Continent
Casualty Company,
110 SE 6th Street, Suite 2600
Fort Lauderdale, Florida 33301
Telephone: 954.939.3367
Facsimile: 954.728.1282
BY: /s/ Edward T. Sylvester
EDWARD T. SYLVESTER, ESQ.
FBN: 51612
Edward.Sylvester@lewisbrisbois.com
KATHRYN L. ENDER, ESQ.
FBN: 50803
Kethryn.Ender@lewisbrisbois.com
SERVICE LIST
Brandon G. Cathey, Esq. James H. Wyman, Esq.
Brent G. Steinberg, Esq. HINSHAW & CULBERTSON LLP
SWOPE RODANTE, P.A. 2525 Ponce De Leon Blvd., 4th Floor
1234 East 5th Avenue Coral Gables, FL 33134
Tampa, Florida 33605 Phone: 305-358-7747
team2eservice@swopelaw.com Fax: 305-577-1063
eservice@swopelaw.com jwyman@hinshawlaw.com
Counsel for Plaintiff aromero@hinshawlaw.com
Co-Counsel for Defendant, Mid-Continent
Casualty Company
Page 1
THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
CASE NO: 2019-003916-CA-01
JOHN HUGHES, III, et al., )
)
Plaintiffs, )
)
vs. )
)
ROMAN FLICKER, et al., )
)
Defendants. )
______________________________/ )
HEARING VIA ZOOM BEFORE THE HONORABLE
OSCAR RODRIGUEZ-FONTS
WEDNESDAY, SEPTEMBER 22, 2021
10:30 a.m. - 11:00 a.m.
Transcribed by:
Lucie Masi,
Certified Shorthand Reporter
Page 2
1 APPEARANCES:
2 On behalf of the Plaintiff Hughes:
BRENT G. STEINBERG, ESQUIRE
3 brents@swopelaw.com
JACOB SCHUSTER, ESQUIRE
4 SWOPE RODANTE, P.A.
1234 EAST 5TH AVENUE
5 TAMPA, FL 33605-0017
813-273-0017
6
7 On behalf of the Defendant Mid-Continent:
EDWARD T. SYLVESTER, JR., ESQUIRE
8 edward.sylvester@lewisbrisbois.com
KATHRYN L. ENDER, ATTORNEY-AT-LAW
9 kathryn.ender@lewisbrisbois.com
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
10 110 SOUTHEAST 6TH STREET, SUITE 2600
FORT LAUDERDALE, FL 33301
11 954-728-1280
12 JAMES H. WYMAN, ESQUIRE
jwyman@hinshawlaw.com
13 HINSHAW & CULBERTSON, LLP
2525 PONCE DE LEON BOULEVARD,
14 BUILDING FLOOR 4
CORAL GABLES, FL 33134-6044
15 305-358-7747
16
17
18
19
20
21
22
23
24
25
Page 3
1 (Whereupon, the following proceedings
2 were had:)
3 MR. STEINBERG: Good morning, Your
4 Honor.
5 MR. SYLVESTER: Good morning, Your
6 Honor.
7 MR. SCHUSTER: Good morning.
8 THE COURT: We're here on the case of
9 John Hughes III, et al., versus Roman Flicker,
10 et al., Case Number 2019-3916-CA-01. This is
11 Motion for Entry of Final Judgment.
12 Would the attorneys please note your
13 presence, beginning with Plaintiff first?
14 MR. STEINBERG: Good morning, Your
15 Honor. This is Brent Steinberg with Swope
16 Rodante on behalf of the Plaintiff. And along
17 with me is our newest attorney who, as of
18 yesterday, is an attorney, Jacob Schuster.
19 He's just observing.
20 THE COURT: Mr. Schuster, welcome to --
21 as a member to The Florida Bar.
22 Is he a new attorney to The Bar, or a
23 new attorney to the firm?
24 MR. STEINBERG: Both.
25 THE COURT: Oh, okay. Well, welcome
Page 4
1 come both -- well, I can't welcome him to your
2 firm, but I can welcome him as a member of The
3 Bar.
4 So congratulations.
5 MR. STEINBERG: All right.
6 MR. SYLVESTER: Good morning, Your
7 Honor. Edward Sylvester on behalf of
8 Mid-Continent. I have with me today Mr. James
9 Wyman on behalf of Hinshaw & Culbertson, and
10 Katy Ender, also with Lewis Brisbois with me,
11 and she will be making argument for
12 Mid-Continent today.
13 THE COURT: Okay. And I see we have a
14 court reporter.
15 THE REPORTER: Yes, Your Honor.
16 THE COURT: So just be mindful of the
17 time. This was set for 30 minutes. So if the
18 movant will take 14 minutes and leave a middle
19 for rebuttal, and the other side gets 15
20 minutes.
21 MR. STEINBERG: Certainly, Your Honor.
22 May I proceed?
23 THE COURT: Please.
24 MR. STEINBERG: So, as you likely
25 remember, this is the second time we're here
Page 5
1 on our Motion for Entry of Final Judgment.
2 We're moving for Final Judgment because
3 your July 30th Order effectively ended the
4 case. You ruled that the Defendant
5 Mid-Continent Casualty owes a duty to
6 indemnify.
7 And that means that Mid-Continent has to
8 pay off the Judgment that was entered against
9 the policyholder, Flicker Construction.
10 So unless you recede from that Order,
11 this case is over and we're entitled to Final
12 Judgment.
13 A very quick refresher on how we got
14 here. Flicker Construction had a liability
15 insurance policy with Mid-Continent Casualty,
16 and Flicker gets sued by a guy named Manuel
17 Pereira, who is injured at a worksite.
18 Mid-Continent refuses to defend Flicker
19 Construction, and the Court has determined as
20 a matter of law that Mid-Continent breached
21 its contractual duty to defend Flicker by not
22 defending from the Pereira lawsuit.
23 And because Mid-Continent refused to
24 defend, Flicker got defaulted.
25 Pereira has a jury trial, and there's
Page 6
1 damages. The jury awards him $636,000,
2 roughly.
3 That was in 2013. Meanwhile, Flicker
4 Construction goes out of business, and my
5 client, the receiver, gets appointed and files
6 this lawsuit against Mid-Continent in 2015.
7 There were trips to the Third DCA and
8 the Federal --
9 THE COURT: So your client stepped into
10 the shoes of the company?
11 MR. STEINBERG: Precisely, Your Honor.
12 THE COURT: Okay.
13 MR. STEINBERG: There were trips to the
14 Third DCA and Federal Court. But as of 2019,
15 which is why there's a 2019 case number, this
16 Court got the case back again.
17 And there are two Counts in our
18 Complaint, breach of duty to defend and breach
19 of duty to indemnify. And we've been set for
20 trial multiple times. We're set again in
21 November.
22 But it's our position that in light of
23 your July 30th Order, we don't need a trial
24 because you've already ruled as a matter of
25 law that Mid-Continent owes a duty to
Page 7
1 indemnify, which means that they have to pay
2 off the Judgment that was entered against
3 Flicker Construction in the --
4 THE COURT: Has an appeal been taken up
5 on the Court Order?
6 MR. STEINBERG: No, there hasn't. But
7 that -- I mean, I don't want to speak for
8 Defense counsel, but that would be an
9 interlocutory Order, because it was an Order
10 granting Summary Judgment.
11 So if there was going to be an appeal,
12 in my view it would be appropriate after the
13 entry of a Final Judgment.
14 So as of today, the Judgment from the
15 underlying case is $977,643.31 with all that
16 preJudgment interest running from 2013.
17 I point that out just to say we're still
18 within the million dollar policy limits that
19 were purchased by Flicker Construction, so
20 that's the background.
21 Now Mid-Continent is opposing our Motion
22 for two reasons.
23 One, they're arguing that the Court
24 committed a procedural error by granting
25 Summary Judgment on the indemnity issue on its
Page 8
1 own Motion.
2 And then, two, they're arguing that
3 there's a genuine dispute of material fact on
4 this indemnity issue for the jury to decide.
5 So I'm going to address those two issues
6 in that order, starting with the procedural
7 issue for the Court.
8 So Mid-Continent's arguing that the
9 Court erred by granting Summary Judgment on
10 the duty to indemnify because we didn't
11 affirmatively move for Summary Judgment on
12 that issue.
13 We were opposing Mid-Continent's Summary
14 Judgment Motion, which the Court denied,
15 rejecting Mid-Continent's argument that the
16 construction permit made Flicker Construction
17 a general contractor as a matter of law.
18 But under the new Summary Judgment Rule,
19 Rule 1.510(f), the Court had the authority to
20 grant Summary Judgment to us, the nonmovant.
21 And Your Honor, if I could just do a
22 screen share to pull up the rule.
23 THE COURT: Go ahead.
24 MR. STEINBERG: (Indicating). I have
25 highlighted here Subsection F.
Page 9
1 You see it says, "After giving notice
2 and a reasonable time to respond, the Court
3 may grant Summary Judgment for a nonmovant."
4 So the question is whether or not
5 Mid-Continent had notice and a reasonable time
6 to respond.
7 And there is a Federal case I cited at
8 the last hearing, but I'll cite it again,
9 called Tolwin versus Phoenix Insurance
10 Company, 855 Federal Appendix 474 from this
11 year.
12 And they're construing the Federal Rule
13 of Civil Procedure 56(f), saying, "A District
14 Court may grant Summary Judgment sua sponte
15 after giving the parties notice and a
16 reasonable time to respond," so the same
17 language as our rule.
18 And then you see it says, "When a legal
19 issue has been fully developed and the
20 evidentiary record is complete, Summary
21 Judgment is entirely appropriate even if no
22 formal notice has been provided."
23 So this is a Federal case interpreting
24 the Federal Rule, which is verbatim to the
25 Florida Rule. It would be highly persuasive.
Page 10
1 And in our case, we have a legal issue
2 that's been fully developed.
3 I think this is the probably fifth time
4 we've some a hearing on the indemnity issue,
5 so it's got to be as well-developed as any
6 legal issue's ever going to be.
7 We also have a complete evidentiary
8 record, so there is no issue for the Court to
9 grant Summary Judgment on the Motion.
10 But on top of that, if there was ever
11 any concern about whether Mid-Continent had
12 notice and a reasonable opportunity to
13 respond, the Court has cured that issue.
14 Because we had a hearing on August 19th,
15 where we were moving for Entry of Final
16 Judgment in light of the July 30th Order.
17 And Your Honor deferred ruling on it,
18 and you requested additional hearing time, the
19 hearing today, on this indemnity issue to
20 allow Mid-Continent a full opportunity to
21 present it's argument.
22 So in the past month, Mid-Continent has
23 not filed any additional record evidence.
24 They're not asking for additional time.
25 Whatever's in the record now is all that
Page 11
1 will ever be in the record, and we've been
2 litigating this case for six years. Discovery
3 has been exhaustive.
4 So at this point, there really can't be
5 any question that Mid-Continent's had notice
6 and a reasonable opportunity to respond.
7 Meaning, that the Court had the
8 authority -- has the authority under Rule
9 1.510(f) to grant us, the nonmovant, Summary
10 Judgment on the indemnity issue, so that's the
11 procedural issue.
12 Now I want to talk about the substantive
13 issue. The substantive issue is whether or
14 not there's a genuine issue of material fact
15 about the duty to indemnify.
16 So the background on this is this:
17 Everyone agrees that Mid-Continent owes a duty
18 to indemnify under its policy, unless an
19 exclusion applies.
20 And everyone agrees that Mid-Continent
21 bears the burden of proving that exclusion.
22 And everyone agrees that exclusion
23 applies only if Flicker Construction, the
24 policyholder, was the statutory employer of
25 the injured guy, Manuel Pereira.
Page 12
1 So the question either for this Court on
2 Summary Judgment, or for the jury ultimately,
3 is whether Mid-Continent can meet its burden
4 of proving that Flicker Construction was a
5 statutory provider of Pereira.
6 If Flicker was the statutory employer,
7 then the exclusion applies and Mid-Continent
8 does not owe a duty to indemnify.
9 If Flicker Construction was not the
10 statutory employer, then the exclusion does
11 not apply and Mid-Continent does owe a duty to
12 indemnify under the policy.
13 And the Court has already held as a
14 matter of law that Flicker cannot be a
15 statutory employer unless it had a contract
16 with the restaurant owners to perform work and
17 then sublet a portion of that work to another
18 person.
19 And I'm going to screen share again, and
20 I'm going to pull up your July 30th Order.
21 Just to quote you, this is from Page 10,
22 "To be a contractor under" -- and then it says
23 the statute that is applicable here, Section
24 440.10(1)(b) -- "One must have a contractual
25 obligation to perform some work for another.
Page 13
1 Further, to establish a statutory employment
2 relationship, the entity claimed to be a
3 contractor must have incurred a contractual
4 obligation to a third party and must have
5 delegated or sublet a part of its contractual
6 obligation to a subcontractor whose employee
7 is injured."
8 So that is what the Court has ruled, is
9 the governing law.
10 That is what we've been arguing for the
11 last I guess six years.
12 And here, the undisputed evidence in the
13 record demonstrates that there is no contract
14 between Flicker Construction and the
15 restaurant owners.
16 Flicker and the restaurant owners
17 testified that they didn't have a contract
18 with one another.
19 And one of the owners, a guy name Moises
20 Thackery, said that his contract was with
21 Ralph Jimenez.
22 And all of these depositions are in the
23 record. They've been filed multiple times.
24 Then you've got the testimony of Ralph
25 Jimenez. And the Court might recall that
Page 14
1 Jimenez was Roman Flicker's friend, the guy
2 who didn't have a contractor's license. But
3 Roman Flicker was trying to help out his buddy
4 Jimenez, by lending him his general
5 contractor's license so that Jimenez could do
6 the work on this project.
7 And so Flicker uses his license to get
8 Jimenez the building permit. But other than
9 that, Flicker's totally uninvolved and for all
10 intents and purposes Jimenez is functioning as
11 a general contractor.
12 And Jimenez doesn't know whether Flicker
13 Construction had a contract with the owners.
14 He testified that he assumes Flicker and
15 the restaurant owners had a contract with one
16 another, but he didn't remember one way or the
17 other.
18 He either never knew, or he doesn't
19 remember now.
20 So his testimony on this issue of
21 whether or not there was a contract is just
22 speculation.
23 And Jimenez's speculation, A, shouldn't
24 be admissible.
25 But, B, doesn't create a genuine issue
Page 15
1 of material fact.
2 Now at the last hearing, Ms. Ender put
3 up on the PowerPoint some statements that I
4 made from the June hearing, and this was when
5 we were opposing Mid-Continent's Summary
6 Judgment on the duty to indemnify.
7 And I had said in opposition to their
8 Motion on the same issue that the Court had to
9 deny it because there was a fact dispute, or
10 something to that effect.
11 Now of course, my argument, argument of
12 counsel, is not record evidence.
13 But after the Court's July Order, I went
14 and looked back in the record evidence and
15 then I admittedly really studied the
16 differences between the old Summary Judgment
17 Rule, which is at the time we filed the
18 Motion, and the new Summary Judgment standard,
19 which is what applied at the time of the
20 hearing.
21 And I realized that the Court is
22 correct, that there are no genuine issues of
23 material fact under the new standard. So to
24 the extent I ever suggested otherwise at that
25 June hearing, I misspoke.
Page 16
1 Now there may be some fact disputes, but
2 the question is are they genuine disputes as
3 to material facts such that a reasonable jury
4 could conclude in favor of Mid-Continent
5 Casualty.
6 That's the question under the new
7 standard, like the directed verdict, as I'm
8 sure Your Honor is well aware.
9 Now --
10 THE COURT: Took a whole CJE seminar on
11 it too.
Preview
Filing # 135391538 E-Filed 09/27/2021 03:32:14 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA JOHN HUGHES, III, as receiver of Flicker CASE NO.: 2019-CA-003916 Construction, Inc., an inactive Florida corporation, Plaintiff, vs. ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. NOTICE OF FILING Defendant, MID-CONTINENT CASUALTY INSURANCE COMPANY, by and through undersigned counsel, hereby files a copy of the transcript of hearing via Zoom before the Honorable Oscar Rodriguez-Fonts taken on September 22, 2019. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27th day of September, 2021, a true and correct copy of the foregoing has been furnished by E-service through the Florida Courts E-Filing Portal to all counsel of record on the attached service list. LEWIS BRISBOIS BISGAARD & SMITH LLP Counsel for Defendant, Mid-Continent Casualty Company, 110 SE 6th Street, Suite 2600 Fort Lauderdale, Florida 33301 Telephone: 954.939.3367 Facsimile: 954.728.1282 BY: /s/ Edward T. Sylvester EDWARD T. SYLVESTER, ESQ. FBN: 51612 Edward.Sylvester@lewisbrisbois.com KATHRYN L. ENDER, ESQ. FBN: 50803 Kethryn.Ender@lewisbrisbois.com SERVICE LIST Brandon G. Cathey, Esq. James H. Wyman, Esq. Brent G. Steinberg, Esq. HINSHAW & CULBERTSON LLP SWOPE RODANTE, P.A. 2525 Ponce De Leon Blvd., 4th Floor 1234 East 5th Avenue Coral Gables, FL 33134 Tampa, Florida 33605 Phone: 305-358-7747 team2eservice@swopelaw.com Fax: 305-577-1063 eservice@swopelaw.com jwyman@hinshawlaw.com Counsel for Plaintiff aromero@hinshawlaw.com Co-Counsel for Defendant, Mid-Continent Casualty Company Page 1 THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA CASE NO: 2019-003916-CA-01 JOHN HUGHES, III, et al., ) ) Plaintiffs, ) ) vs. ) ) ROMAN FLICKER, et al., ) ) Defendants. ) ______________________________/ ) HEARING VIA ZOOM BEFORE THE HONORABLE OSCAR RODRIGUEZ-FONTS WEDNESDAY, SEPTEMBER 22, 2021 10:30 a.m. - 11:00 a.m. Transcribed by: Lucie Masi, Certified Shorthand Reporter Page 2 1 APPEARANCES: 2 On behalf of the Plaintiff Hughes: BRENT G. STEINBERG, ESQUIRE 3 brents@swopelaw.com JACOB SCHUSTER, ESQUIRE 4 SWOPE RODANTE, P.A. 1234 EAST 5TH AVENUE 5 TAMPA, FL 33605-0017 813-273-0017 6 7 On behalf of the Defendant Mid-Continent: EDWARD T. SYLVESTER, JR., ESQUIRE 8 edward.sylvester@lewisbrisbois.com KATHRYN L. ENDER, ATTORNEY-AT-LAW 9 kathryn.ender@lewisbrisbois.com LEWIS, BRISBOIS, BISGAARD & SMITH, LLP 10 110 SOUTHEAST 6TH STREET, SUITE 2600 FORT LAUDERDALE, FL 33301 11 954-728-1280 12 JAMES H. WYMAN, ESQUIRE jwyman@hinshawlaw.com 13 HINSHAW & CULBERTSON, LLP 2525 PONCE DE LEON BOULEVARD, 14 BUILDING FLOOR 4 CORAL GABLES, FL 33134-6044 15 305-358-7747 16 17 18 19 20 21 22 23 24 25 Page 3 1 (Whereupon, the following proceedings 2 were had:) 3 MR. STEINBERG: Good morning, Your 4 Honor. 5 MR. SYLVESTER: Good morning, Your 6 Honor. 7 MR. SCHUSTER: Good morning. 8 THE COURT: We're here on the case of 9 John Hughes III, et al., versus Roman Flicker, 10 et al., Case Number 2019-3916-CA-01. This is 11 Motion for Entry of Final Judgment. 12 Would the attorneys please note your 13 presence, beginning with Plaintiff first? 14 MR. STEINBERG: Good morning, Your 15 Honor. This is Brent Steinberg with Swope 16 Rodante on behalf of the Plaintiff. And along 17 with me is our newest attorney who, as of 18 yesterday, is an attorney, Jacob Schuster. 19 He's just observing. 20 THE COURT: Mr. Schuster, welcome to -- 21 as a member to The Florida Bar. 22 Is he a new attorney to The Bar, or a 23 new attorney to the firm? 24 MR. STEINBERG: Both. 25 THE COURT: Oh, okay. Well, welcome Page 4 1 come both -- well, I can't welcome him to your 2 firm, but I can welcome him as a member of The 3 Bar. 4 So congratulations. 5 MR. STEINBERG: All right. 6 MR. SYLVESTER: Good morning, Your 7 Honor. Edward Sylvester on behalf of 8 Mid-Continent. I have with me today Mr. James 9 Wyman on behalf of Hinshaw & Culbertson, and 10 Katy Ender, also with Lewis Brisbois with me, 11 and she will be making argument for 12 Mid-Continent today. 13 THE COURT: Okay. And I see we have a 14 court reporter. 15 THE REPORTER: Yes, Your Honor. 16 THE COURT: So just be mindful of the 17 time. This was set for 30 minutes. So if the 18 movant will take 14 minutes and leave a middle 19 for rebuttal, and the other side gets 15 20 minutes. 21 MR. STEINBERG: Certainly, Your Honor. 22 May I proceed? 23 THE COURT: Please. 24 MR. STEINBERG: So, as you likely 25 remember, this is the second time we're here Page 5 1 on our Motion for Entry of Final Judgment. 2 We're moving for Final Judgment because 3 your July 30th Order effectively ended the 4 case. You ruled that the Defendant 5 Mid-Continent Casualty owes a duty to 6 indemnify. 7 And that means that Mid-Continent has to 8 pay off the Judgment that was entered against 9 the policyholder, Flicker Construction. 10 So unless you recede from that Order, 11 this case is over and we're entitled to Final 12 Judgment. 13 A very quick refresher on how we got 14 here. Flicker Construction had a liability 15 insurance policy with Mid-Continent Casualty, 16 and Flicker gets sued by a guy named Manuel 17 Pereira, who is injured at a worksite. 18 Mid-Continent refuses to defend Flicker 19 Construction, and the Court has determined as 20 a matter of law that Mid-Continent breached 21 its contractual duty to defend Flicker by not 22 defending from the Pereira lawsuit. 23 And because Mid-Continent refused to 24 defend, Flicker got defaulted. 25 Pereira has a jury trial, and there's Page 6 1 damages. The jury awards him $636,000, 2 roughly. 3 That was in 2013. Meanwhile, Flicker 4 Construction goes out of business, and my 5 client, the receiver, gets appointed and files 6 this lawsuit against Mid-Continent in 2015. 7 There were trips to the Third DCA and 8 the Federal -- 9 THE COURT: So your client stepped into 10 the shoes of the company? 11 MR. STEINBERG: Precisely, Your Honor. 12 THE COURT: Okay. 13 MR. STEINBERG: There were trips to the 14 Third DCA and Federal Court. But as of 2019, 15 which is why there's a 2019 case number, this 16 Court got the case back again. 17 And there are two Counts in our 18 Complaint, breach of duty to defend and breach 19 of duty to indemnify. And we've been set for 20 trial multiple times. We're set again in 21 November. 22 But it's our position that in light of 23 your July 30th Order, we don't need a trial 24 because you've already ruled as a matter of 25 law that Mid-Continent owes a duty to Page 7 1 indemnify, which means that they have to pay 2 off the Judgment that was entered against 3 Flicker Construction in the -- 4 THE COURT: Has an appeal been taken up 5 on the Court Order? 6 MR. STEINBERG: No, there hasn't. But 7 that -- I mean, I don't want to speak for 8 Defense counsel, but that would be an 9 interlocutory Order, because it was an Order 10 granting Summary Judgment. 11 So if there was going to be an appeal, 12 in my view it would be appropriate after the 13 entry of a Final Judgment. 14 So as of today, the Judgment from the 15 underlying case is $977,643.31 with all that 16 preJudgment interest running from 2013. 17 I point that out just to say we're still 18 within the million dollar policy limits that 19 were purchased by Flicker Construction, so 20 that's the background. 21 Now Mid-Continent is opposing our Motion 22 for two reasons. 23 One, they're arguing that the Court 24 committed a procedural error by granting 25 Summary Judgment on the indemnity issue on its Page 8 1 own Motion. 2 And then, two, they're arguing that 3 there's a genuine dispute of material fact on 4 this indemnity issue for the jury to decide. 5 So I'm going to address those two issues 6 in that order, starting with the procedural 7 issue for the Court. 8 So Mid-Continent's arguing that the 9 Court erred by granting Summary Judgment on 10 the duty to indemnify because we didn't 11 affirmatively move for Summary Judgment on 12 that issue. 13 We were opposing Mid-Continent's Summary 14 Judgment Motion, which the Court denied, 15 rejecting Mid-Continent's argument that the 16 construction permit made Flicker Construction 17 a general contractor as a matter of law. 18 But under the new Summary Judgment Rule, 19 Rule 1.510(f), the Court had the authority to 20 grant Summary Judgment to us, the nonmovant. 21 And Your Honor, if I could just do a 22 screen share to pull up the rule. 23 THE COURT: Go ahead. 24 MR. STEINBERG: (Indicating). I have 25 highlighted here Subsection F. Page 9 1 You see it says, "After giving notice 2 and a reasonable time to respond, the Court 3 may grant Summary Judgment for a nonmovant." 4 So the question is whether or not 5 Mid-Continent had notice and a reasonable time 6 to respond. 7 And there is a Federal case I cited at 8 the last hearing, but I'll cite it again, 9 called Tolwin versus Phoenix Insurance 10 Company, 855 Federal Appendix 474 from this 11 year. 12 And they're construing the Federal Rule 13 of Civil Procedure 56(f), saying, "A District 14 Court may grant Summary Judgment sua sponte 15 after giving the parties notice and a 16 reasonable time to respond," so the same 17 language as our rule. 18 And then you see it says, "When a legal 19 issue has been fully developed and the 20 evidentiary record is complete, Summary 21 Judgment is entirely appropriate even if no 22 formal notice has been provided." 23 So this is a Federal case interpreting 24 the Federal Rule, which is verbatim to the 25 Florida Rule. It would be highly persuasive. Page 10 1 And in our case, we have a legal issue 2 that's been fully developed. 3 I think this is the probably fifth time 4 we've some a hearing on the indemnity issue, 5 so it's got to be as well-developed as any 6 legal issue's ever going to be. 7 We also have a complete evidentiary 8 record, so there is no issue for the Court to 9 grant Summary Judgment on the Motion. 10 But on top of that, if there was ever 11 any concern about whether Mid-Continent had 12 notice and a reasonable opportunity to 13 respond, the Court has cured that issue. 14 Because we had a hearing on August 19th, 15 where we were moving for Entry of Final 16 Judgment in light of the July 30th Order. 17 And Your Honor deferred ruling on it, 18 and you requested additional hearing time, the 19 hearing today, on this indemnity issue to 20 allow Mid-Continent a full opportunity to 21 present it's argument. 22 So in the past month, Mid-Continent has 23 not filed any additional record evidence. 24 They're not asking for additional time. 25 Whatever's in the record now is all that Page 11 1 will ever be in the record, and we've been 2 litigating this case for six years. Discovery 3 has been exhaustive. 4 So at this point, there really can't be 5 any question that Mid-Continent's had notice 6 and a reasonable opportunity to respond. 7 Meaning, that the Court had the 8 authority -- has the authority under Rule 9 1.510(f) to grant us, the nonmovant, Summary 10 Judgment on the indemnity issue, so that's the 11 procedural issue. 12 Now I want to talk about the substantive 13 issue. The substantive issue is whether or 14 not there's a genuine issue of material fact 15 about the duty to indemnify. 16 So the background on this is this: 17 Everyone agrees that Mid-Continent owes a duty 18 to indemnify under its policy, unless an 19 exclusion applies. 20 And everyone agrees that Mid-Continent 21 bears the burden of proving that exclusion. 22 And everyone agrees that exclusion 23 applies only if Flicker Construction, the 24 policyholder, was the statutory employer of 25 the injured guy, Manuel Pereira. Page 12 1 So the question either for this Court on 2 Summary Judgment, or for the jury ultimately, 3 is whether Mid-Continent can meet its burden 4 of proving that Flicker Construction was a 5 statutory provider of Pereira. 6 If Flicker was the statutory employer, 7 then the exclusion applies and Mid-Continent 8 does not owe a duty to indemnify. 9 If Flicker Construction was not the 10 statutory employer, then the exclusion does 11 not apply and Mid-Continent does owe a duty to 12 indemnify under the policy. 13 And the Court has already held as a 14 matter of law that Flicker cannot be a 15 statutory employer unless it had a contract 16 with the restaurant owners to perform work and 17 then sublet a portion of that work to another 18 person. 19 And I'm going to screen share again, and 20 I'm going to pull up your July 30th Order. 21 Just to quote you, this is from Page 10, 22 "To be a contractor under" -- and then it says 23 the statute that is applicable here, Section 24 440.10(1)(b) -- "One must have a contractual 25 obligation to perform some work for another. Page 13 1 Further, to establish a statutory employment 2 relationship, the entity claimed to be a 3 contractor must have incurred a contractual 4 obligation to a third party and must have 5 delegated or sublet a part of its contractual 6 obligation to a subcontractor whose employee 7 is injured." 8 So that is what the Court has ruled, is 9 the governing law. 10 That is what we've been arguing for the 11 last I guess six years. 12 And here, the undisputed evidence in the 13 record demonstrates that there is no contract 14 between Flicker Construction and the 15 restaurant owners. 16 Flicker and the restaurant owners 17 testified that they didn't have a contract 18 with one another. 19 And one of the owners, a guy name Moises 20 Thackery, said that his contract was with 21 Ralph Jimenez. 22 And all of these depositions are in the 23 record. They've been filed multiple times. 24 Then you've got the testimony of Ralph 25 Jimenez. And the Court might recall that Page 14 1 Jimenez was Roman Flicker's friend, the guy 2 who didn't have a contractor's license. But 3 Roman Flicker was trying to help out his buddy 4 Jimenez, by lending him his general 5 contractor's license so that Jimenez could do 6 the work on this project. 7 And so Flicker uses his license to get 8 Jimenez the building permit. But other than 9 that, Flicker's totally uninvolved and for all 10 intents and purposes Jimenez is functioning as 11 a general contractor. 12 And Jimenez doesn't know whether Flicker 13 Construction had a contract with the owners. 14 He testified that he assumes Flicker and 15 the restaurant owners had a contract with one 16 another, but he didn't remember one way or the 17 other. 18 He either never knew, or he doesn't 19 remember now. 20 So his testimony on this issue of 21 whether or not there was a contract is just 22 speculation. 23 And Jimenez's speculation, A, shouldn't 24 be admissible. 25 But, B, doesn't create a genuine issue Page 15 1 of material fact. 2 Now at the last hearing, Ms. Ender put 3 up on the PowerPoint some statements that I 4 made from the June hearing, and this was when 5 we were opposing Mid-Continent's Summary 6 Judgment on the duty to indemnify. 7 And I had said in opposition to their 8 Motion on the same issue that the Court had to 9 deny it because there was a fact dispute, or 10 something to that effect. 11 Now of course, my argument, argument of 12 counsel, is not record evidence. 13 But after the Court's July Order, I went 14 and looked back in the record evidence and 15 then I admittedly really studied the 16 differences between the old Summary Judgment 17 Rule, which is at the time we filed the 18 Motion, and the new Summary Judgment standard, 19 which is what applied at the time of the 20 hearing. 21 And I realized that the Court is 22 correct, that there are no genuine issues of 23 material fact under the new standard. So to 24 the extent I ever suggested otherwise at that 25 June hearing, I misspoke. Page 16 1 Now there may be some fact disputes, but 2 the question is are they genuine disputes as 3 to material facts such that a reasonable jury 4 could conclude in favor of Mid-Continent 5 Casualty. 6 That's the question under the new 7 standard, like the directed verdict, as I'm 8 sure Your Honor is well aware. 9 Now -- 10 THE COURT: Took a whole CJE seminar on 11 it too.