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Filing # 130489978 E-Filed 07/12/2021 05:01:35 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
JOHN HUGHES, III, as Receiver of
FLICKER CONSTRUCTION, INC.,
Plaintiff,
v. CASE NO.: 2019-003916-CA-01
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT MID-CONTINENT
CASUALTY COMPANY’S MOTION TO CONTINUE HEARING ON MOTIONS IN
LIMINE AND CONTINUE TRIAL
Plaintiff hereby responds in opposition to Defendant Mid-Continent Casualty Company’s
Motion to Continue Hearing on Motions in Limine and Continue Trial, and states:
1. This lawsuit was filed on September 2, 2015. The only reason it bears a 2019 case
number is because the clerk required a new case number following this Court’s granting of MCC’s
motion to sever the claims against it from the claims against Roman Flicker. The procedural
history is complicated and largely irrelevant to the instant motion, but for the court’s edification,
the case was delayed by about a year because of MCC’s improper removal of this action to federal
court.
2. This matter has been set for trial twice previously, on dockets in February 2020 and
October 2020. 1
3. MCC now moves for a continuance because of its pending “dispositive motions.”
It bears repeating that the Court has twice previously denied substantively identical motions.
1
Plaintiff acknowledges that he did not object to the prior continuances. The first continuance
was due to Plaintiff’s counsel’s trial conflict and the second was due to COVID-19.
1
4. Judge Thornton denied MCC’s first motion for final summary judgment on
September 20, 2019, following an hour-long hearing. 2 That motion sought a declaration that MCC
owed no duty to defend or indemnify its insured, Flicker Construction, from the claims made by
Manuel Perea – the precise relief MCC now seeks (for a third time).
5. After Judge Thornton retired, MCC filed its second motion for summary judgment,
seeking the exact same relief and making the same arguments as the original motion. After a 1.5-
hour hearing on this motion and Plaintiff’s competing motion for partial summary judgment on
the duty to defend, this Court issued an 8-page order on June 15, 2020. That order denied MCC’s
motions, finding that MCC owed a duty to defend as a matter of law and that there were disputed
issues of material fact regarding whether MCC owed a duty to indemnify.
6. Undeterred, on April 7, 2021, MCC filed the “pending dispositive motions,” in
which MCC seeks reconsideration of the Court’s June 15, 2020 order and again – for a third time
– seeking final summary judgment on the duty to defend and indemnify. The legal argument and
record evidence was essentially the same as the prior two motions. The only thing that changed
was that the Eleventh Circuit issued a ruling which MCC believes is helpful to them in Mid-
Continent Cas. Co. v. Arpin & Sons, LLC, 824 Fed. Appx. 644 (11th Cir. 2020).
7. Of course, Florida, not federal, courts get to decide issues of Florida law. See, e.g.,
Rad Source Techs., Inc. v. Essex Ins. Co., 902 So. 2d 264, 266 (Fla. 4th DCA 2005) (“The rules
of stare decisis do not require this court to follow federal court decisions that construe Florida's
substantive law.”). And Arpin relies on a case called Orama v. Dunmire, 552 So. 2d 924 (Fla. 1st
DCA 1989) – the case which Judge Thornton explicitly ruled during the September 2019 hearing
2
The transcripts and orders referenced herein have been filed and emailed to the Court multiple
times previously. Hence, Plaintiff is refraining from filing them as attachments to this Response.
2
did not entitle MCC to summary judgment. MCC also argued during the April 22, 2020 hearing
that it was entitled to summary judgment as a matter of law under Orama and the trial court
decision in Arpin (subsequently affirmed on appeal), and Judge Rodriguez-Fonts implicitly
rejected that argument in his June 2020 order, declining to reconsider Judge Thornton’s ruling
from 9 months earlier.
8. MCC now moves for a continuance pretending as if the Court has never ruled
upon its “pending dispositive motions.” The truth is that the Court has denied them twice
previously. Of course, the Court is free to reconsider any prior non-final order, including rulings
on summary judgment. But the fact that the Court has not yet had the opportunity to rule on
MCC’s motion for a third time should not deny Plaintiff of his day in court.
9. Finally, the Court should deny MCC’s motion for continuance because it does not
comply with Rule 1.460, as it is not “signed by the party requesting the continuance.”
10. Accordingly, the Court should deny MCC’s motion for continuance.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
filed and furnished by e-mail to Edward T. Sylvester, Edward.Sylvester@lewisbrisbois.com, and
Kevin Vannatta, Kevin.Vannatta@lewisbrisbois.com, Lewis Brisbois Bisgaard & Smith, LLP,
110 S.E. 6th Street, Suite 2600, Fort Lauderdale, FL 33301, on this 12th day of July, 2021.
/s/ Brent Steinberg
BRENT G. STEINBERG
Florida Bar No.: 0085453
SWOPE, RODANTE P.A.
1234 E. 5th Avenue
Tampa, FL 33605
Tel: (813) 273-0017
Fax: (813) 223-3678
Team2eservice@swopelaw.com
Appeals@swopelaw.com
Attorneys for Plaintiff
3
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Filing # 130489978 E-Filed 07/12/2021 05:01:35 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., Plaintiff, v. CASE NO.: 2019-003916-CA-01 ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT MID-CONTINENT CASUALTY COMPANY’S MOTION TO CONTINUE HEARING ON MOTIONS IN LIMINE AND CONTINUE TRIAL Plaintiff hereby responds in opposition to Defendant Mid-Continent Casualty Company’s Motion to Continue Hearing on Motions in Limine and Continue Trial, and states: 1. This lawsuit was filed on September 2, 2015. The only reason it bears a 2019 case number is because the clerk required a new case number following this Court’s granting of MCC’s motion to sever the claims against it from the claims against Roman Flicker. The procedural history is complicated and largely irrelevant to the instant motion, but for the court’s edification, the case was delayed by about a year because of MCC’s improper removal of this action to federal court. 2. This matter has been set for trial twice previously, on dockets in February 2020 and October 2020. 1 3. MCC now moves for a continuance because of its pending “dispositive motions.” It bears repeating that the Court has twice previously denied substantively identical motions. 1 Plaintiff acknowledges that he did not object to the prior continuances. The first continuance was due to Plaintiff’s counsel’s trial conflict and the second was due to COVID-19. 1 4. Judge Thornton denied MCC’s first motion for final summary judgment on September 20, 2019, following an hour-long hearing. 2 That motion sought a declaration that MCC owed no duty to defend or indemnify its insured, Flicker Construction, from the claims made by Manuel Perea – the precise relief MCC now seeks (for a third time). 5. After Judge Thornton retired, MCC filed its second motion for summary judgment, seeking the exact same relief and making the same arguments as the original motion. After a 1.5- hour hearing on this motion and Plaintiff’s competing motion for partial summary judgment on the duty to defend, this Court issued an 8-page order on June 15, 2020. That order denied MCC’s motions, finding that MCC owed a duty to defend as a matter of law and that there were disputed issues of material fact regarding whether MCC owed a duty to indemnify. 6. Undeterred, on April 7, 2021, MCC filed the “pending dispositive motions,” in which MCC seeks reconsideration of the Court’s June 15, 2020 order and again – for a third time – seeking final summary judgment on the duty to defend and indemnify. The legal argument and record evidence was essentially the same as the prior two motions. The only thing that changed was that the Eleventh Circuit issued a ruling which MCC believes is helpful to them in Mid- Continent Cas. Co. v. Arpin & Sons, LLC, 824 Fed. Appx. 644 (11th Cir. 2020). 7. Of course, Florida, not federal, courts get to decide issues of Florida law. See, e.g., Rad Source Techs., Inc. v. Essex Ins. Co., 902 So. 2d 264, 266 (Fla. 4th DCA 2005) (“The rules of stare decisis do not require this court to follow federal court decisions that construe Florida's substantive law.”). And Arpin relies on a case called Orama v. Dunmire, 552 So. 2d 924 (Fla. 1st DCA 1989) – the case which Judge Thornton explicitly ruled during the September 2019 hearing 2 The transcripts and orders referenced herein have been filed and emailed to the Court multiple times previously. Hence, Plaintiff is refraining from filing them as attachments to this Response. 2 did not entitle MCC to summary judgment. MCC also argued during the April 22, 2020 hearing that it was entitled to summary judgment as a matter of law under Orama and the trial court decision in Arpin (subsequently affirmed on appeal), and Judge Rodriguez-Fonts implicitly rejected that argument in his June 2020 order, declining to reconsider Judge Thornton’s ruling from 9 months earlier. 8. MCC now moves for a continuance pretending as if the Court has never ruled upon its “pending dispositive motions.” The truth is that the Court has denied them twice previously. Of course, the Court is free to reconsider any prior non-final order, including rulings on summary judgment. But the fact that the Court has not yet had the opportunity to rule on MCC’s motion for a third time should not deny Plaintiff of his day in court. 9. Finally, the Court should deny MCC’s motion for continuance because it does not comply with Rule 1.460, as it is not “signed by the party requesting the continuance.” 10. Accordingly, the Court should deny MCC’s motion for continuance. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed and furnished by e-mail to Edward T. Sylvester, Edward.Sylvester@lewisbrisbois.com, and Kevin Vannatta, Kevin.Vannatta@lewisbrisbois.com, Lewis Brisbois Bisgaard & Smith, LLP, 110 S.E. 6th Street, Suite 2600, Fort Lauderdale, FL 33301, on this 12th day of July, 2021. /s/ Brent Steinberg BRENT G. STEINBERG Florida Bar No.: 0085453 SWOPE, RODANTE P.A. 1234 E. 5th Avenue Tampa, FL 33605 Tel: (813) 273-0017 Fax: (813) 223-3678 Team2eservice@swopelaw.com Appeals@swopelaw.com Attorneys for Plaintiff 3