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Filing # 132782723 E-Filed 08/16/2021 05:23:10 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 2019-CA-003916
JOHN HUGHES, III, as receiver of Flicker
Construction, Inc., an inactive Florida
corporation,
Plaintiff,
vs.
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
____________________________________/
RESPONSE IN OPPOSITION TO MOTION FOR ENTRY OF FINAL JUDGMENT AND
INCORPORATED MOTION FOR RECONSIDERATION OF JULY 30, 2021 ORDER
Defendant, MID-CONTINENT CASUALTY INSURANCE COMPANY (“MCC”),
through undersigned counsel and pursuant to the applicable Florida Rules of Civil Procedure and
this Court’s inherent authority, hereby responds in opposition to Plaintiff’s, JOHN HUGHES, III,
as receiver of Flicker Construction, Inc., an inactive Florida corporation (“Plaintiff’), Motion for
Entry of Final Judgment. As grounds, MCC incorporates its request that this Court reconsider its
Order dated July 30, 2021 (the “July 2021 Order”), which finds that MCC owes a duty to defend
and indemnify pursuant to MCC’s general liability policy of insurance. In support, MCC states as
follows:
INTRODUCTION
The issues in this case are whether MCC owed a duty to defend and indemnify its insured,
Flicker Construction, Inc. (“Flicker Construction”), pursuant to a general liability policy of
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CASE NO.: 2019-CA-003916
insurance in effect at the time of the underlying plaintiff’s accident. This Court concluded in its
July 2021 Order that it does. See (Exhibit A, July 2021 Order). As a result of this Court’s July
2021 Order, Plaintiff has now moved for entry of final judgment on defense and indemnity costs,
in the total sum of $970,920.13, inclusive of post-judgment interest. See (Motion for Entry of
Final Judgment, filed on July 30, 2021).
This Court should deny plaintiff’s request for entry of final judgment. As is discussed
below, the July 2021 Order overlooks or misapprehends certain facts and law relevant to the issues
in this case and which conclusively establish that MCC did not breach a duty to defend and does
not owe Plaintiff a duty to indemnify. This Court has the inherent authority to reconsider its
interlocutory rulings, such as those contained in the July 2021 Order. Respectfully, the Court
should exercise its discretion in this case by rehearing the issues addressed in the parties’ motions
for summary judgment and articulated in the July 2021 Order. In doing so, this Court should also
deny Plaintiff’s request for entry of final judgment as it is premature at this time.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
I. THE UNDERLYING LITIGATION.
The present litigation arises out of underlying litigation against Flicker Construction for
personal injuries sustained by Manuel Perea. See (Exhibit B, Underlying Complaint, filed on Nov.
3, 2010 (the “Underlying Complaint”)). No other defendants were sued in the underlying
litigation.
The Underlying Complaint asserts one cause of action against Flicker Construction. See
(Exhibit B, ¶¶ 7-10). Relevant to this litigation, the Underlying Complaint makes the following
allegations against Flicker Construction:
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CASE NO.: 2019-CA-003916
4. On or about September 6, 2010, PEREA was either directly or indirectly
retained by FLICKER [Construction] to perform bathroom tile installation at Kosta
Seafood & More . . . .
* * *
8. At the above described time and place, FLICKER [Construction] was in control
of the construction being performed within the above described premises, which
was being performed at the direction and under the supervision of Flicker
[Construction].”
(Exhibit B, Underlying Complaint, ¶¶ 4 & 8). 1
The Underlying Final Judgment was entered on a default, after a jury trial relating solely
to damages. See (Exhibit C, Verdict, entered on June 25, 2013); (Exhibit D, Underlying Final
Judgment, dated July 10, 2013). No findings of fact were made, and the verdict determined only
“the amount of Manual Perea’s damages” in the past and future, totaling $631,180.12. See
(Exhibit C). The Underlying Final Judgment was entered on July 10, 2013, in the sum of
$636,219.28. See (Exhibit D). A receiver was ultimately appointed on behalf of Flicker
Construction for the purposes of post-judgment collection efforts. See (Order Appointing
Receiver, Book 29505, Page 2606, recorded on Feb. 11, 2015).
II. THE DECLARATORY JUDGMENT ACTION.
a. The Pleadings And Policy.
On February 6, 2019, Plaintiff John Hughes, III, as Receiver of Flicker Construction, Inc.
(“Plaintiff”) commenced this litigation action against Defendants Roman Flicker and Flicker
Construction. The operative pleading is the Amended Complaint. See (Exhibit E, Amended
Complaint, deemed filed on Sept. 20, 2019).
1
All bold italicized emphasis added.
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Relevant here, the Amended Complaint asserts that coverage exists pursuant to MCC’s
general liability policy of insurance that was issued to Flicker Construction, policy number 04-
GL-000784399, for the policy period from March 12, 2010 to March 12, 2011 (the “Policy”). See
(Exhibit E, pp. 9-13 & attached Exhibit 4). The Amended Complaint asserts two causes of action
against MCC for breach of itsduty to indemnify (Count IV); and breach of its duty to defend
(Count V). (Exhibit E, pp. 9-13).
MCC answered the Amended Complaint, denying its allegations and affirmatively
alleging, among others, that coverage is not afforded by the Policy based upon the Workers
Compensation Exclusion and Employee Liability Exclusion:
2. There is no coverage under the [Policy] to the extent the claims asserted
against MCC or Flicker Construction] are precluded by the workers’ compensation
exclusion . . . and prior to Manuel Perea’s injury Flicker Construction was required
to maintain workers compensation insurance for its employees.
3. There is no coverage under the [Policy] to the extent the claims asserted
against [MCC] are precluded by the employer’s liability exclusion as Manuel Perea
was an actual or statutory employee of Flicker Construction.
(Exhibit F, Answer and Affirmative Defenses, dated Oct. 10, 2019, pp. 7-8, ¶¶ 2-3).
Specifically, the Workers Compensation Exclusion and Employee Liability Exclusion read
as follows:
2. Exclusions
This insurance does not apply to:
* * *
d. Worker’s Compensation And Similar Laws
Any obligation of the insured under a workers’ compensation, disability benefits or
unemployment compensation law or any similar law.
e. Employer’s Liability
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Bodily injury to:
1. An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s business; or
2. The spouse, child, parent, brother or sister of that “employee” as a consequence
of Paragraph 1 above.
This exclusion applies whether the insured may be liable as an employer or in any
other capacity and to any obligation to share damages with or repay someone else
who must pay damages because of the inquiry. This exclusion does not apply to
liability assumed by the insured under an “insured contract.”
(Exhibit G, Policy, Form CG 00 01 12 07, Page 1-2 of 15). The Policy defines “employee” to
include “a ‘leased worker’. ‘Employee’ does not include a ‘temporary worker.’” (Exhibit G,
Policy, Form CG 00 01 12 07, Page 12-13 of 15). The Policy defines “Temporary worker” and
“Volunteer worker” as follows:
19. “Temporary worker” means a person who is furnished to you to substitute for a
permanent “employee” on leave or to meet seasonal or short-term workload
conditions.
20. “Volunteer worker” means a person who is not your “employee”, and who
donates his or her work and acts at the direction of and within the scope of duties
determined by you, and is not paid a fee, salary or other compensation by you or
anyone else for their work performed for you.”
(Exhibit G, Policy, Form CG 00 01 12 07, Page 13 of 15).
b. The Motions For Summary Judgment And This Court’s Orders.
Over the course of litigation, the parties filed multiple motions for summary judgment,
including: (i) MCC’s Motion for Summary Judgment on its duty to defend and indemnify, filed
on June 21, 2019, and denied without prejudice, on Sept. 20, 2019, with Plaintiff being permitted
leave to amend the complaint; (ii) Plaintiff’s Motion for Partial Summary Judgment on the duty to
defend, filed Oct. 10, 2019, which was granted on June 15, 2020; and (iii) MCC’s Cross-Motion
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for Summary Judgment on Plaintiff’s Amended Complaint, filed Apr. 2, 2020, which was denied
on June 15, 2020; (iv) Plaintiff’s Motion for Partial Summary Judgment on the duty to defend,
filed Mar. 17, 2021, which was granted on July 30, 2021; and (v) MCC’s Motion for
Reconsideration of the Court’s prior summary judgment rulings and Renewed Cross-Motion for
Summary Judgment on the Duty to Indemnify, filed Apr. 7, 2021, which was denied on July 30,
2021. See (Exhibit H, Plaintiff’s Motion for Partial Summary Judgment on the duty to defend,
filed Mar. 17, 2021); (Exhibit I, MCC’s Motion for Reconsideration and Cross-Motion for
Summary Judgment, filed on Apr. 7, 2021 2).
The main issues addressed to this Court were (a) what inferences, if any, could be read into
the Underlying Complaint; and (b) the relationship between the underlying plaintiff, Perea, and
Flicker Construction. Importantly, if Flicker Construction was obligated to provide Perea with
workers’ compensation insurance, or if Perea was otherwise an “employee” of Flicker
Construction (as defined by the Policy), then Perea’s claim was excluded from coverage under the
Policy and Plaintiff’s claims against MCC failed. See generally (Exhibits H-I).
In support of coverage, Plaintiff argued that MCC owed a duty to defend because it is
“entirely possible” from the allegations in the Underlying Complaint that (a) Flicker Construction
and Perera were in horizontal privity (as opposed to vertical privity); (b) Perea may have been
ineligible for worker’s compensation benefits; or (c) that Perea was a volunteer or temporary
worker. Under any of these circumstances, Plaintiff argues that a duty to defend would exist.
(Exhibit H). In support of his position, Plaintiff relied upon “hypotheticals” to support his position
regarding MCC’s duty to defend. (Exhibit H); see also (Exhibit A, p. 4 (acknowledging Plaintiff’s
2
MCC incorporates by reference and relies upon for all purposes the evidence addressed
in its April 7, 2021 Motion and accompanying exhibits.
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reliance on “hypotheticals”)). At no time, however, has Plaintiff sought summary judgment on
MCC’s duty to indemnify. See, e.g., (Exhibit H); (Exhibit J, June 2, 2021 Hearing Tr. 21:14-17
(focusing on Plaintiff’s motion, which counsel admits was directed to the “breach of duty to
defend”)).
MCC, on the other hand, argued that the undisputed evidence established that Flicker
Construction was the general contractor for the project and, as a result, the analysis of Mid-
Continent Casualty Co. v. Arpin & Sons, LLC, 824 F. App’x 644 (11th Cir. 2020) (hereinafter
“Arpin”), applied to exclude coverage for Perea’s allegations. MCC also agued that the
Underlying Complaint cannot be fairly read to treat Perea as a “volunteer” as opposed to an
“employee” of MCC. (Exhibit I). Unlike Plaintiff’s reliance on hypotheticals, MCC relied upon
substantial and undisputed evidence obtained through discovery in this litigation, including (i)
testimony of Roman Flicker, who testified that Flicker Construction was the qualifier and general
contractor for the project; (ii) testimony of Jose Rafael Jimenez, who testified that Flicker
Construction was the “contractor” and “supervised” the project; (iii) testimony of Manuel Perea,
who testified that he was paid for the tile work that he performed at the project; (iv) the Policy;
and (v) the building permit records identifying Flicker Construction as the general contractor. See
(Exhibit I).
c. The Court’s June 2020 Order and July 2021 Order.
Relevant to this Motion are the Court’s Orders entered on June 15, 2020 and July 30, 2021.
See (Exhibit K, Order, filed on June 15, 2020 (the “June 2020 Order”)); (Exhibit A).
In the June 2020 Order, the Court undertook a detailed analysis of MCC’s duty to defend,
but not MCC’s duty to indemnify. (Exhibit K, pp. 4- 8). As part of its analysis, this Court
addressed whether the two Policy exclusions apply, finding the allegations in the Underlying
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Complaint to be “vague.” (Exhibit K, pp. 5-6). With regard to the Workers’ Compensation
Exclusion, the June 2020 Order finds that the allegations contained in the Underlying Complaint
“are subject to other reasonable interpretations, such as the exceptions to coverage set forth in the
[workers’ compensation] statute.” (Exhibit K, pp. 5-6). As to the Employee Liability Exclusion,
the Court’s focus was on the definition of the term “retain” and the fact that “there is nothing in
the Underlying Complaint that determines whether Perea was a temporary worker as defined by
the policy.” (Exhibit K, p. 6).
The Court also addressed MCC’s reliance on extrinsic evidence and acknowledged that “if
those facts are undisputed, and, had they been pled in the complaint, they clearly would have
placed the claims outside the scope of coverage.” (Exhibit K, p. 7). Despite this, the Court
concluded that it could not consider extrinsic facts because any such facts did not make it
“manifestly obvious” that the claim fell outside the scope of coverage. (Exhibit K, p. 7).
In the July 2021 Order, the Court analyzed “(1) whether the Court can consider extrinsic
evidence, i.e., the building records; (2) whether the Court can properly take judicial notice of the
building permits; (3) whether the facts alleged in the underlying complaint support Plaintiff’s
hypotheticals; and (4) whether Flicker Construction was the general contractor.” The Court then
made findings regarding whether MCC “(1) breached its duty to defend; (2) had a duty to
indemnify; and (3) acted in bad faith.” (Exhibit A, p. 4).
As part of the July 2021 Order, the Court considered the merits of Plaintiff’s
“hypotheticals” and whether they could be inferred from the allegations in the Underlying
Complaint. (Exhibit A, pp. 7-9). Based upon the Court’s analysis, it concluded that Plaintiff’s
suggested hypotheticals pertaining to a workers’ compensation exception or whether Perea was a
volunteer were unsupported by the facts. (Exhibit A, pp. 7-8). On the other hand, however, this
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CASE NO.: 2019-CA-003916
Court concluded that Plaintiff’s hypotheticals as to whether Perea could have been a “temporary
worker” and whether Perea and Flicker Construction were in horizontal or vertical privity were
supported by the facts. (Exhibit A, pp. 8-9).
The Court then considered MCC’s reliance on the building records and the federal Arpin
opinion. (Exhibit A, pp. 10-12). The Court distinguished Arpin and the First District Court of
Appeal opinion Orama v. Dunmire, 552 So. 2d 924 (Fla. 1st DCA 1989) (hereinafter “Orama”),
concluding that Flicker Construction’s act of pulling permits does not make it the general
contractor for the project. (Exhibit A pp. 10-12).
With regard to the duty to indemnify, the Court considered the evidence presented and
concluded that “it could have been Jimenez and not Flicker Construction who was the general
contractor.” (Exhibit A, pp. 13-14). The July 2021 Order concludes that a duty to indemnify
exists because “the facts do not lead to the reasonable conclusion that Flicker Construction was
the general contractor, the Employee Liability exclusion does not apply because in not being the
general contractor, Mr. Perea was not his employee and as such the Worker’s Compensation policy
exclusion does not apply because Flicker Construction was not required to obtain Worker’s
Compensation insurance for Mr. Perea.” (Exhibit A, p. 14). Although there is no cause of action
for bad faith pled against MCC, the July 2021 Order also addressed “bad faith,” observing that
“Plaintiff has recently alleged bad faith against MCC,” but declining to rule upon it as it “was not
argued at the June 2, 2021, hearing.” (Exhibit A, p. 14); see also (Exhibit E, pp. 9-13).
ARGUMENT
I. LEGAL STANDARD FOR RECONSIDERATION.
The July 2021 Order is interlocutory in nature; however, this Court has the “inherent
authority to reconsider . . . any of its interlocutory rulings prior to the entry of a final judgment or
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final order in the cause.” Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987). The
purpose of such a motion is to permit the Court to “alter or retract any of its nonfinal rulings prior
to entry of the final judgment or order terminating an action . . .” Taufer v. Wells Fargo Bank, N.A.,
278 So. 3d 335, 336-37 (Fla. 3d DCA 2019). As discussed below, reconsideration of this Court’s
July 2021 Order and June 2020 Order is warranted in this case.
II. LEGAL STANDARD FOR SUMMARY JUDGMENT.
As noted in this Court’s July 2021 Order, the Florida Supreme Court recently amended
rule 1.510, implementing the federal summary judgment standard. See In re Amends. Fla. R. of
Civ. P. 1.510, 317 So. 3d 72 (Fla. 2021); In re Amends. Fla. R. of Civ. P. 1.510, 309 So. 3d 192
(Fla. 2020). This is the standard that applies to the summary judgment motions at issue in this
case. See (Exhibit A, p. 14 n.1). Accordingly, federal case law defining and interpreting the
federal summary-judgment standard now controls in Florida state court: “Florida litigants and
judges will get the full benefit of the large body of case law interpreting and applying federal rule
56…. [Florida state] courts applying the new rule must be guided not only by the Celotex trilogy,
but by the overall body of case law interpreting federal rule 56…. [O]ur act of transplanting federal
rule 56 brings with it the ‘old soil’ of case law interpreting that rule.” In re Amends. Fla. R. of Civ.
P. 1.510, 2021 Fla. LEXIS 682, at *8, 12-13; see also, e.g., Wiggins v. Tigrent, Inc., 147 So. 3d
76, 82 (Fla. 2d DCA2014) (“Because the Florida Rules of Civil Procedure are modeled after the
Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent
and operative effect of various provisions of the rules.”).
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Under revised rule 1.510, its federal cognate (rule 56), and the now-governing federal case
law concerning the Celotex trilogy3, entry of summary judgment is only appropriate where: (1)
there is no genuine issue of material fact concerning the particular issue/claim/defense; and (2) the
movant is entitled to judgment as a matter of law on that issue/claim/defense. In re Amends. Fla.
R. of Civ. P. 1.510, 317 So. 3d 72 ; In re Amends. Fla. R. Civ. P. 1.510, 309 So. 3d at 192; Fla.
R. Civ. P. 1.510(a); Fed. R. Civ. P. 56(a); Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760
So. 2d 126, 130-31 (Fla. 2000). Pursuant to the newly adopted summary judgment standard, the
movant bears the burden of establishing that the evidence does not present any genuine issue of
material fact and that judgment is warranted as a matter of law. See Fla. R. Civ. P. 1.510(a) & (c).
Courts “generally must ‘view the facts and draw reasonable inferences in the light most favorable
to the party opposing the [summary-judgment] motion.’ Scott v. Harris, 550 U.S. 372, 378 (2007).
It is only after the movant meets his burden that the burden shifts to the opponent to affirmatively
demonstrate that a material, genuine factual dispute precludes the entry of summary judgment. In
re Amends. Fla. R. of Civ. P. 1.510, 2021 Fla. LEXIS 682, at *6-16; In re Amends. Fla. R. Civ. P.
1.510, 309 So. 3d at 192-95; Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035-38 (Fla.
3d DCA 2019); Carbonell v. BellSouth Telcoms., 675 So. 2d 705, 706 (Fla. 3d DCA 1996).
Plaintiff in this case has not met his initial burden to establish entitlement to summary
judgment. See Celotex Corp. v. Catrett, 106 S. Ct. 2548, 91 L. Ed. 265, 477 U.S. 317, 321-22 (1986)
(“[T]he party opposing the motion for summary judgment bears the burden of responding only after
the moving party has met its burden of coming forward with proof of the absence of any genuine issue
of material fact”). On the contrary, the July 2021 Order highlights the material issues of fact that exist.
3
Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
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And, “[i]f there is a conflict between the parties’ allegations or evidence, the nonmoving party’s
evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s
favor.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir. 2007), citing Shotz v. City of
Plantation, 344 F. 3d 1161, 1164 (11th Cir. 2003).
III. RECONSIDERATION OF MCC’S CROSS-MOTION ON ITS DUTY TO
DEFEND AND INDEMNIFY IS NECESSARY; THE ORAMA AND ARPIN
DECISIONS ARE DIRECTLY APPLICABLE TO THIS CASE.
The July 2021 Order undertook a detailed analysis of the Orama and Arpin decision,
ultimately concluding that they are factually distinguishable and inapplicable to this case. See
(Exhibit A, pp. 10-12). The Orama and Arpin decisions are not “distinguishable” from, but are
directly applicable to, the facts in this case. See (Exhibit A, pp. 10-12).
In Orama, the court addressed whether an injured party was entitled to worker’s
compensation benefits as either an employee or statutory employee of a contractor. See id. at 924.
Factually relevant here, the contractor had an unwritten agreement with the another party which
allowed the unlicensed party to obtain building permits. See id. The testimony also revealed that
the contractor’s line of credit was used to obtain supplies and that he was “supervising the overall
construction of the job”; however, the contractor did not accept any payment for the actual work
done. Id. at 925.
The Orama Court first considered whether the injured party was an employee of the
contractor. See id. at 925. The court concluded that the evidence was disputed as to whether an
employer-employee relationship existed. See id. at 925. In so holding, the court explained that
the “primary test for determining whether the relationship exists is the degree of control exercised.”
Id.
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The Orama Court next considered whether a statutory employer relationship existed. See
id. As the court observed, the “unrefuted evidence established . . . that an agreement was made
with the owner whereby [the contractor] would use his license as a general contractor in order to
obtain the construction permits. [The contractor] thus assumed the legal position of general
contractor for the job.” Id. at 925. Although the Orama Court initially considered other
conflicting evidence pertaining to the employment relationship, it did not rely on this evidence to
find that the contractor was the injured party’s statutory employer. See id. Instead, the court relied
exclusively on the contractor’s status as a general contractor for the project. See id. Ultimately,
the Orama Court squarely held that by the act of allowing another to “use his license as a general
contractor in order to obtain the construction permits [that contractor] assumed the position of
general contractor for the job.” Orama, 552 So. 2d at 925.
The Arpin Court later construed Orama in the context of a Worker’s Compensation
Exclusion similar to that at issue here. See Arpin, 824 Fed. Appx. at 649-52. Undertaking a
detailed analysis of Orama, the Arpin Court came to the same conclusion: “As general contractor
[Arpin] retained the ultimate and overriding responsibility for the job.” Arpin, 824 Fed. Appx. at
650 (quoting Orama).
Important to the discussion here, both Orama and Arpin declined to subscribe to the
position that “something more” was required to be defined as the general contractor; instead, both
Courts agreed that a party can be held to be a general contractor when only “nominally” serving
in such a capacity. See Arpin, 824 Fed. Appx. at 651 (discussing Orama and acknowledging that
the Orama Court “did not rely on these extra ways in which the contractor was involved to
conclude that he was a statutory employer”). Thus, the Orama and Arpin Courts came to the
opposite conclusion of this Court, that: “[T]he simple fact of applying and obtaining the building
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permits results in Flicker Construction being the general contractor.” (Exhibit A, p. 12). But see
Orama, 552 So. 2d at 925; Arpin, 824 Fed. Appx. at 650.
The July 2021 Order at issue here concludes that Orama and Arpin are “distinguishable”
from this case. (Exhibit A, p. 12). There is, however, no meaningful distinction. The only
relevant question is whether the person or entity was the general contractor for the project.
As is discussed in further detail below, the allegations contained in the Underlying
Complaint, along with the building permit records, conclusively establish for the purposes of a
determination of MCC’s duty to defend, that Flicker Construction is the general contractor. As a
result, MCC does not owe a duty to defend, warranting reconsideration of the June 2020 Order
and July 2021 Order and entitling MCC to summary judgment in its favor on this ground.
Further, it is MCC’s position that it is also entitled to summary judgment on its duty to
indemnify, based upon the holdings in Orama and Arpin, along with the undisputed record
evidence. Accordingly, this Court should, likewise, reconsider its July 2021 Order and enter
summary judgment in MCC’s favor on its duty to indemnify. To the extent, however, that this
Court disagrees, it is still possible to enter summary judgment in favor of MCC on the duty to
defend. As the Arpin Court noted, “[f]acts adduced during discovery or trial may show a duty to
indemnify even if the allegations in a complaint failed to demonstrate a duty to defend.” Arpin,
824 Fed. Appx. at n.6.
IV. PLAINTIFF DID NOT REQUEST SUMMARY JUDGMENT ON MCC’S DUTY
TO INDEMNIFY FLICKER CONSTRUCTION; RECONSIDERATION OF
THE JULY 2021 ORDER IS NECESSARY ON THIS BASIS AS IT WAS
IMPROPER TO GRANT SUMMARY JUDGMENT ON AN UNNOTICED
ISSUE.
Florida law requires that a party be given notice and an opportunity to be heard before
summary judgment can be granted. See Fla. R. Civ. P. 1.510(f). Although rule 1.510(f) permits
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Telephone: 954.728.1280, Facsimile: 954.728.1282
CASE NO.: 2019-CA-003916
summary judgment be granted in favor of the non-moving party or upon grounds not raised by a
party, the parties must still have notice and an opportunity to prepare the specific issues that will
be argued at the hearing. Here, MCC argued that summary judgment should have been granted in
its favor on the issue of indemnity; however, at no point prior to the hearing did Plaintiff argued
that summary judgment was warranted in his favor. On the contrary, Plaintiff was unwavering in
his position that “a fact dispute” exists and that the Court should “find that there are material issues
of disputed fact for the jury to decide on this duty to indemnify . . . .” (Exhibit J, Tr. 24:2-25:5,
26:19-27:1).
Florida law is clear that “it is reversible error to enter summary judgment on a ground not
raised with particularity in the motion.” Gee v. U.S. Bank N.A., 72 So. 3d 211, 214-15 (Fla. 5th
DCA 2011). The purpose of this rule is “to prevent ‘ambush.’” Id. at 215; see also Casa Inv. Co.
v. Nestor, 8 So. 3d 1219, 1221 (Fla. 3d DCA 2009) (“The purpose of this rule is ‘to prevent
“ambush” by allowing the nonmoving party to be prepared for the issues that will be argued at the
summary judgment hearing.”), quoting City of Cooper City v. Sunshine Wireless Co., 654 So. 2d
283 (Fla. 4th DCA 1993); Rossman v. Wallick, 301 So. 3d 493, n.2 (Fla. 5th DCA 2020)
(explaining that the rule is meant “to eliminate surprise and to afford the parties ‘a full and fair
opportunity to argue the issues’”), quoting H.B. Adams Distribs. Inc. v. Admiral Air of Sarasota
Cty., Inc., 805 So. 2d 852, 854 (Fla. 2d DCA 2001). Although rule 1.510 was recently amended,
adopting the federal summary judgment standard, its tenets remain the same. Interpreting federal
rule 56, the federal courts have likewise held that a “[f]ailure to abide by Rule 56’s notice
requirement constitutes reversible error.” Sequeira v. Steinlauf, 759 Fed. Appx. 792, 794 (11th
Cir. 2018).
4846-6192-0502.3
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LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301
Telephone: 954.728.1280, Facsimile: 954.728.1282
CASE NO.: 2019-CA-003916
The July 2021 Order specifically finds that “MCC has a duty to indemnify Flicker
Construction.” (Exhibit A, p. 14). Notwithstanding this finding, Plaintiff’s motion did not seek
summary judgment on the duty to indemnify; the only relief requested by Plaintiff in the motion
was for partial summary judgment on the duty to defend. See (Exhibit H, p. 2 (seeking, in the
wherefore clause, “partial summary judgment determining that [MCC] breached its duty to defend
Flicker Construction . . . .”)). Given that Plaintiff never requested entry of summary judgment on
the duty to indemnify, it was error for this Court to enter an order finding that MCC had a duty to
indemnify without notice and an opportunity to be heard.
Accordingly, reconsideration is necessary on the issue of MCC’s duty to indemnify Flicker
Construction. Correspondingly, Plaintiff is not entitled to entry of final judgment on the matter of
indemnity, as requested in Plaintiff’s Motion for Entry of Final Judgment.
V. IN THE ALTERNATIVE, RECONSIDERATION OF MCC’S DUTY TO
INDEMNIFY IS NECESSARY BECAUSE A GENUINE ISSUE OF MATERIAL
FACT EXISTS REQUIRING A TRIAL BY JURY.
a. A Court May Not Weigh Evidence Or Resolve Issues Of Material Fact On
Summary Judgment.
A trial court may not weigh evidence or resolve issues of fact; the trial court’s role on
summary judgment is reserved simply to determine whether any such factual issues exist. The
United States Court of Appeals for the Eleventh Circuit recently discussed the rule applicable to a
trial court’s evaluation of summary judgment motions:
Summary judgment is not a time for fact-finding; the task is reserved for trial. . . .
Rather, on summary judgment, the district court must accept as fact all allegations
the non-moving party makes, provided they are sufficiently supported by evidence
of record. . . . So when competing narratives emerge on key events, courts are not
at liberty to pick which side they think is more credible. . . .
We must also bear in mind that, in identifying the relevant facts to resolve a motion
for summary judgment, a district court must “view all evidence and make all
reasonable inferences in favor of” the non-moving party. . . . And if a reasonable
4846-6192-0502.3
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LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301
Preview
Filing # 132782723 E-Filed 08/16/2021 05:23:10 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO.: 2019-CA-003916 JOHN HUGHES, III, as receiver of Flicker Construction, Inc., an inactive Florida corporation, Plaintiff, vs. ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. ____________________________________/ RESPONSE IN OPPOSITION TO MOTION FOR ENTRY OF FINAL JUDGMENT AND INCORPORATED MOTION FOR RECONSIDERATION OF JULY 30, 2021 ORDER Defendant, MID-CONTINENT CASUALTY INSURANCE COMPANY (“MCC”), through undersigned counsel and pursuant to the applicable Florida Rules of Civil Procedure and this Court’s inherent authority, hereby responds in opposition to Plaintiff’s, JOHN HUGHES, III, as receiver of Flicker Construction, Inc., an inactive Florida corporation (“Plaintiff’), Motion for Entry of Final Judgment. As grounds, MCC incorporates its request that this Court reconsider its Order dated July 30, 2021 (the “July 2021 Order”), which finds that MCC owes a duty to defend and indemnify pursuant to MCC’s general liability policy of insurance. In support, MCC states as follows: INTRODUCTION The issues in this case are whether MCC owed a duty to defend and indemnify its insured, Flicker Construction, Inc. (“Flicker Construction”), pursuant to a general liability policy of 4846-6192-0502.3 1 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 insurance in effect at the time of the underlying plaintiff’s accident. This Court concluded in its July 2021 Order that it does. See (Exhibit A, July 2021 Order). As a result of this Court’s July 2021 Order, Plaintiff has now moved for entry of final judgment on defense and indemnity costs, in the total sum of $970,920.13, inclusive of post-judgment interest. See (Motion for Entry of Final Judgment, filed on July 30, 2021). This Court should deny plaintiff’s request for entry of final judgment. As is discussed below, the July 2021 Order overlooks or misapprehends certain facts and law relevant to the issues in this case and which conclusively establish that MCC did not breach a duty to defend and does not owe Plaintiff a duty to indemnify. This Court has the inherent authority to reconsider its interlocutory rulings, such as those contained in the July 2021 Order. Respectfully, the Court should exercise its discretion in this case by rehearing the issues addressed in the parties’ motions for summary judgment and articulated in the July 2021 Order. In doing so, this Court should also deny Plaintiff’s request for entry of final judgment as it is premature at this time. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND I. THE UNDERLYING LITIGATION. The present litigation arises out of underlying litigation against Flicker Construction for personal injuries sustained by Manuel Perea. See (Exhibit B, Underlying Complaint, filed on Nov. 3, 2010 (the “Underlying Complaint”)). No other defendants were sued in the underlying litigation. The Underlying Complaint asserts one cause of action against Flicker Construction. See (Exhibit B, ¶¶ 7-10). Relevant to this litigation, the Underlying Complaint makes the following allegations against Flicker Construction: 4846-6192-0502.3 2 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 4. On or about September 6, 2010, PEREA was either directly or indirectly retained by FLICKER [Construction] to perform bathroom tile installation at Kosta Seafood & More . . . . * * * 8. At the above described time and place, FLICKER [Construction] was in control of the construction being performed within the above described premises, which was being performed at the direction and under the supervision of Flicker [Construction].” (Exhibit B, Underlying Complaint, ¶¶ 4 & 8). 1 The Underlying Final Judgment was entered on a default, after a jury trial relating solely to damages. See (Exhibit C, Verdict, entered on June 25, 2013); (Exhibit D, Underlying Final Judgment, dated July 10, 2013). No findings of fact were made, and the verdict determined only “the amount of Manual Perea’s damages” in the past and future, totaling $631,180.12. See (Exhibit C). The Underlying Final Judgment was entered on July 10, 2013, in the sum of $636,219.28. See (Exhibit D). A receiver was ultimately appointed on behalf of Flicker Construction for the purposes of post-judgment collection efforts. See (Order Appointing Receiver, Book 29505, Page 2606, recorded on Feb. 11, 2015). II. THE DECLARATORY JUDGMENT ACTION. a. The Pleadings And Policy. On February 6, 2019, Plaintiff John Hughes, III, as Receiver of Flicker Construction, Inc. (“Plaintiff”) commenced this litigation action against Defendants Roman Flicker and Flicker Construction. The operative pleading is the Amended Complaint. See (Exhibit E, Amended Complaint, deemed filed on Sept. 20, 2019). 1 All bold italicized emphasis added. 4846-6192-0502.3 3 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 Relevant here, the Amended Complaint asserts that coverage exists pursuant to MCC’s general liability policy of insurance that was issued to Flicker Construction, policy number 04- GL-000784399, for the policy period from March 12, 2010 to March 12, 2011 (the “Policy”). See (Exhibit E, pp. 9-13 & attached Exhibit 4). The Amended Complaint asserts two causes of action against MCC for breach of itsduty to indemnify (Count IV); and breach of its duty to defend (Count V). (Exhibit E, pp. 9-13). MCC answered the Amended Complaint, denying its allegations and affirmatively alleging, among others, that coverage is not afforded by the Policy based upon the Workers Compensation Exclusion and Employee Liability Exclusion: 2. There is no coverage under the [Policy] to the extent the claims asserted against MCC or Flicker Construction] are precluded by the workers’ compensation exclusion . . . and prior to Manuel Perea’s injury Flicker Construction was required to maintain workers compensation insurance for its employees. 3. There is no coverage under the [Policy] to the extent the claims asserted against [MCC] are precluded by the employer’s liability exclusion as Manuel Perea was an actual or statutory employee of Flicker Construction. (Exhibit F, Answer and Affirmative Defenses, dated Oct. 10, 2019, pp. 7-8, ¶¶ 2-3). Specifically, the Workers Compensation Exclusion and Employee Liability Exclusion read as follows: 2. Exclusions This insurance does not apply to: * * * d. Worker’s Compensation And Similar Laws Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law. e. Employer’s Liability 4846-6192-0502.3 4 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 Bodily injury to: 1. An “employee” of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured’s business; or 2. The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph 1 above. This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the inquiry. This exclusion does not apply to liability assumed by the insured under an “insured contract.” (Exhibit G, Policy, Form CG 00 01 12 07, Page 1-2 of 15). The Policy defines “employee” to include “a ‘leased worker’. ‘Employee’ does not include a ‘temporary worker.’” (Exhibit G, Policy, Form CG 00 01 12 07, Page 12-13 of 15). The Policy defines “Temporary worker” and “Volunteer worker” as follows: 19. “Temporary worker” means a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions. 20. “Volunteer worker” means a person who is not your “employee”, and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you.” (Exhibit G, Policy, Form CG 00 01 12 07, Page 13 of 15). b. The Motions For Summary Judgment And This Court’s Orders. Over the course of litigation, the parties filed multiple motions for summary judgment, including: (i) MCC’s Motion for Summary Judgment on its duty to defend and indemnify, filed on June 21, 2019, and denied without prejudice, on Sept. 20, 2019, with Plaintiff being permitted leave to amend the complaint; (ii) Plaintiff’s Motion for Partial Summary Judgment on the duty to defend, filed Oct. 10, 2019, which was granted on June 15, 2020; and (iii) MCC’s Cross-Motion 4846-6192-0502.3 5 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 for Summary Judgment on Plaintiff’s Amended Complaint, filed Apr. 2, 2020, which was denied on June 15, 2020; (iv) Plaintiff’s Motion for Partial Summary Judgment on the duty to defend, filed Mar. 17, 2021, which was granted on July 30, 2021; and (v) MCC’s Motion for Reconsideration of the Court’s prior summary judgment rulings and Renewed Cross-Motion for Summary Judgment on the Duty to Indemnify, filed Apr. 7, 2021, which was denied on July 30, 2021. See (Exhibit H, Plaintiff’s Motion for Partial Summary Judgment on the duty to defend, filed Mar. 17, 2021); (Exhibit I, MCC’s Motion for Reconsideration and Cross-Motion for Summary Judgment, filed on Apr. 7, 2021 2). The main issues addressed to this Court were (a) what inferences, if any, could be read into the Underlying Complaint; and (b) the relationship between the underlying plaintiff, Perea, and Flicker Construction. Importantly, if Flicker Construction was obligated to provide Perea with workers’ compensation insurance, or if Perea was otherwise an “employee” of Flicker Construction (as defined by the Policy), then Perea’s claim was excluded from coverage under the Policy and Plaintiff’s claims against MCC failed. See generally (Exhibits H-I). In support of coverage, Plaintiff argued that MCC owed a duty to defend because it is “entirely possible” from the allegations in the Underlying Complaint that (a) Flicker Construction and Perera were in horizontal privity (as opposed to vertical privity); (b) Perea may have been ineligible for worker’s compensation benefits; or (c) that Perea was a volunteer or temporary worker. Under any of these circumstances, Plaintiff argues that a duty to defend would exist. (Exhibit H). In support of his position, Plaintiff relied upon “hypotheticals” to support his position regarding MCC’s duty to defend. (Exhibit H); see also (Exhibit A, p. 4 (acknowledging Plaintiff’s 2 MCC incorporates by reference and relies upon for all purposes the evidence addressed in its April 7, 2021 Motion and accompanying exhibits. 4846-6192-0502.3 6 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 reliance on “hypotheticals”)). At no time, however, has Plaintiff sought summary judgment on MCC’s duty to indemnify. See, e.g., (Exhibit H); (Exhibit J, June 2, 2021 Hearing Tr. 21:14-17 (focusing on Plaintiff’s motion, which counsel admits was directed to the “breach of duty to defend”)). MCC, on the other hand, argued that the undisputed evidence established that Flicker Construction was the general contractor for the project and, as a result, the analysis of Mid- Continent Casualty Co. v. Arpin & Sons, LLC, 824 F. App’x 644 (11th Cir. 2020) (hereinafter “Arpin”), applied to exclude coverage for Perea’s allegations. MCC also agued that the Underlying Complaint cannot be fairly read to treat Perea as a “volunteer” as opposed to an “employee” of MCC. (Exhibit I). Unlike Plaintiff’s reliance on hypotheticals, MCC relied upon substantial and undisputed evidence obtained through discovery in this litigation, including (i) testimony of Roman Flicker, who testified that Flicker Construction was the qualifier and general contractor for the project; (ii) testimony of Jose Rafael Jimenez, who testified that Flicker Construction was the “contractor” and “supervised” the project; (iii) testimony of Manuel Perea, who testified that he was paid for the tile work that he performed at the project; (iv) the Policy; and (v) the building permit records identifying Flicker Construction as the general contractor. See (Exhibit I). c. The Court’s June 2020 Order and July 2021 Order. Relevant to this Motion are the Court’s Orders entered on June 15, 2020 and July 30, 2021. See (Exhibit K, Order, filed on June 15, 2020 (the “June 2020 Order”)); (Exhibit A). In the June 2020 Order, the Court undertook a detailed analysis of MCC’s duty to defend, but not MCC’s duty to indemnify. (Exhibit K, pp. 4- 8). As part of its analysis, this Court addressed whether the two Policy exclusions apply, finding the allegations in the Underlying 4846-6192-0502.3 7 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 Complaint to be “vague.” (Exhibit K, pp. 5-6). With regard to the Workers’ Compensation Exclusion, the June 2020 Order finds that the allegations contained in the Underlying Complaint “are subject to other reasonable interpretations, such as the exceptions to coverage set forth in the [workers’ compensation] statute.” (Exhibit K, pp. 5-6). As to the Employee Liability Exclusion, the Court’s focus was on the definition of the term “retain” and the fact that “there is nothing in the Underlying Complaint that determines whether Perea was a temporary worker as defined by the policy.” (Exhibit K, p. 6). The Court also addressed MCC’s reliance on extrinsic evidence and acknowledged that “if those facts are undisputed, and, had they been pled in the complaint, they clearly would have placed the claims outside the scope of coverage.” (Exhibit K, p. 7). Despite this, the Court concluded that it could not consider extrinsic facts because any such facts did not make it “manifestly obvious” that the claim fell outside the scope of coverage. (Exhibit K, p. 7). In the July 2021 Order, the Court analyzed “(1) whether the Court can consider extrinsic evidence, i.e., the building records; (2) whether the Court can properly take judicial notice of the building permits; (3) whether the facts alleged in the underlying complaint support Plaintiff’s hypotheticals; and (4) whether Flicker Construction was the general contractor.” The Court then made findings regarding whether MCC “(1) breached its duty to defend; (2) had a duty to indemnify; and (3) acted in bad faith.” (Exhibit A, p. 4). As part of the July 2021 Order, the Court considered the merits of Plaintiff’s “hypotheticals” and whether they could be inferred from the allegations in the Underlying Complaint. (Exhibit A, pp. 7-9). Based upon the Court’s analysis, it concluded that Plaintiff’s suggested hypotheticals pertaining to a workers’ compensation exception or whether Perea was a volunteer were unsupported by the facts. (Exhibit A, pp. 7-8). On the other hand, however, this 4846-6192-0502.3 8 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 Court concluded that Plaintiff’s hypotheticals as to whether Perea could have been a “temporary worker” and whether Perea and Flicker Construction were in horizontal or vertical privity were supported by the facts. (Exhibit A, pp. 8-9). The Court then considered MCC’s reliance on the building records and the federal Arpin opinion. (Exhibit A, pp. 10-12). The Court distinguished Arpin and the First District Court of Appeal opinion Orama v. Dunmire, 552 So. 2d 924 (Fla. 1st DCA 1989) (hereinafter “Orama”), concluding that Flicker Construction’s act of pulling permits does not make it the general contractor for the project. (Exhibit A pp. 10-12). With regard to the duty to indemnify, the Court considered the evidence presented and concluded that “it could have been Jimenez and not Flicker Construction who was the general contractor.” (Exhibit A, pp. 13-14). The July 2021 Order concludes that a duty to indemnify exists because “the facts do not lead to the reasonable conclusion that Flicker Construction was the general contractor, the Employee Liability exclusion does not apply because in not being the general contractor, Mr. Perea was not his employee and as such the Worker’s Compensation policy exclusion does not apply because Flicker Construction was not required to obtain Worker’s Compensation insurance for Mr. Perea.” (Exhibit A, p. 14). Although there is no cause of action for bad faith pled against MCC, the July 2021 Order also addressed “bad faith,” observing that “Plaintiff has recently alleged bad faith against MCC,” but declining to rule upon it as it “was not argued at the June 2, 2021, hearing.” (Exhibit A, p. 14); see also (Exhibit E, pp. 9-13). ARGUMENT I. LEGAL STANDARD FOR RECONSIDERATION. The July 2021 Order is interlocutory in nature; however, this Court has the “inherent authority to reconsider . . . any of its interlocutory rulings prior to the entry of a final judgment or 4846-6192-0502.3 9 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 final order in the cause.” Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987). The purpose of such a motion is to permit the Court to “alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . .” Taufer v. Wells Fargo Bank, N.A., 278 So. 3d 335, 336-37 (Fla. 3d DCA 2019). As discussed below, reconsideration of this Court’s July 2021 Order and June 2020 Order is warranted in this case. II. LEGAL STANDARD FOR SUMMARY JUDGMENT. As noted in this Court’s July 2021 Order, the Florida Supreme Court recently amended rule 1.510, implementing the federal summary judgment standard. See In re Amends. Fla. R. of Civ. P. 1.510, 317 So. 3d 72 (Fla. 2021); In re Amends. Fla. R. of Civ. P. 1.510, 309 So. 3d 192 (Fla. 2020). This is the standard that applies to the summary judgment motions at issue in this case. See (Exhibit A, p. 14 n.1). Accordingly, federal case law defining and interpreting the federal summary-judgment standard now controls in Florida state court: “Florida litigants and judges will get the full benefit of the large body of case law interpreting and applying federal rule 56…. [Florida state] courts applying the new rule must be guided not only by the Celotex trilogy, but by the overall body of case law interpreting federal rule 56…. [O]ur act of transplanting federal rule 56 brings with it the ‘old soil’ of case law interpreting that rule.” In re Amends. Fla. R. of Civ. P. 1.510, 2021 Fla. LEXIS 682, at *8, 12-13; see also, e.g., Wiggins v. Tigrent, Inc., 147 So. 3d 76, 82 (Fla. 2d DCA2014) (“Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the rules.”). 4846-6192-0502.3 10 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 Under revised rule 1.510, its federal cognate (rule 56), and the now-governing federal case law concerning the Celotex trilogy3, entry of summary judgment is only appropriate where: (1) there is no genuine issue of material fact concerning the particular issue/claim/defense; and (2) the movant is entitled to judgment as a matter of law on that issue/claim/defense. In re Amends. Fla. R. of Civ. P. 1.510, 317 So. 3d 72 ; In re Amends. Fla. R. Civ. P. 1.510, 309 So. 3d at 192; Fla. R. Civ. P. 1.510(a); Fed. R. Civ. P. 56(a); Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000). Pursuant to the newly adopted summary judgment standard, the movant bears the burden of establishing that the evidence does not present any genuine issue of material fact and that judgment is warranted as a matter of law. See Fla. R. Civ. P. 1.510(a) & (c). Courts “generally must ‘view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary-judgment] motion.’ Scott v. Harris, 550 U.S. 372, 378 (2007). It is only after the movant meets his burden that the burden shifts to the opponent to affirmatively demonstrate that a material, genuine factual dispute precludes the entry of summary judgment. In re Amends. Fla. R. of Civ. P. 1.510, 2021 Fla. LEXIS 682, at *6-16; In re Amends. Fla. R. Civ. P. 1.510, 309 So. 3d at 192-95; Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035-38 (Fla. 3d DCA 2019); Carbonell v. BellSouth Telcoms., 675 So. 2d 705, 706 (Fla. 3d DCA 1996). Plaintiff in this case has not met his initial burden to establish entitlement to summary judgment. See Celotex Corp. v. Catrett, 106 S. Ct. 2548, 91 L. Ed. 265, 477 U.S. 317, 321-22 (1986) (“[T]he party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact”). On the contrary, the July 2021 Order highlights the material issues of fact that exist. 3 Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 4846-6192-0502.3 11 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 And, “[i]f there is a conflict between the parties’ allegations or evidence, the nonmoving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s favor.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir. 2007), citing Shotz v. City of Plantation, 344 F. 3d 1161, 1164 (11th Cir. 2003). III. RECONSIDERATION OF MCC’S CROSS-MOTION ON ITS DUTY TO DEFEND AND INDEMNIFY IS NECESSARY; THE ORAMA AND ARPIN DECISIONS ARE DIRECTLY APPLICABLE TO THIS CASE. The July 2021 Order undertook a detailed analysis of the Orama and Arpin decision, ultimately concluding that they are factually distinguishable and inapplicable to this case. See (Exhibit A, pp. 10-12). The Orama and Arpin decisions are not “distinguishable” from, but are directly applicable to, the facts in this case. See (Exhibit A, pp. 10-12). In Orama, the court addressed whether an injured party was entitled to worker’s compensation benefits as either an employee or statutory employee of a contractor. See id. at 924. Factually relevant here, the contractor had an unwritten agreement with the another party which allowed the unlicensed party to obtain building permits. See id. The testimony also revealed that the contractor’s line of credit was used to obtain supplies and that he was “supervising the overall construction of the job”; however, the contractor did not accept any payment for the actual work done. Id. at 925. The Orama Court first considered whether the injured party was an employee of the contractor. See id. at 925. The court concluded that the evidence was disputed as to whether an employer-employee relationship existed. See id. at 925. In so holding, the court explained that the “primary test for determining whether the relationship exists is the degree of control exercised.” Id. 4846-6192-0502.3 12 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 The Orama Court next considered whether a statutory employer relationship existed. See id. As the court observed, the “unrefuted evidence established . . . that an agreement was made with the owner whereby [the contractor] would use his license as a general contractor in order to obtain the construction permits. [The contractor] thus assumed the legal position of general contractor for the job.” Id. at 925. Although the Orama Court initially considered other conflicting evidence pertaining to the employment relationship, it did not rely on this evidence to find that the contractor was the injured party’s statutory employer. See id. Instead, the court relied exclusively on the contractor’s status as a general contractor for the project. See id. Ultimately, the Orama Court squarely held that by the act of allowing another to “use his license as a general contractor in order to obtain the construction permits [that contractor] assumed the position of general contractor for the job.” Orama, 552 So. 2d at 925. The Arpin Court later construed Orama in the context of a Worker’s Compensation Exclusion similar to that at issue here. See Arpin, 824 Fed. Appx. at 649-52. Undertaking a detailed analysis of Orama, the Arpin Court came to the same conclusion: “As general contractor [Arpin] retained the ultimate and overriding responsibility for the job.” Arpin, 824 Fed. Appx. at 650 (quoting Orama). Important to the discussion here, both Orama and Arpin declined to subscribe to the position that “something more” was required to be defined as the general contractor; instead, both Courts agreed that a party can be held to be a general contractor when only “nominally” serving in such a capacity. See Arpin, 824 Fed. Appx. at 651 (discussing Orama and acknowledging that the Orama Court “did not rely on these extra ways in which the contractor was involved to conclude that he was a statutory employer”). Thus, the Orama and Arpin Courts came to the opposite conclusion of this Court, that: “[T]he simple fact of applying and obtaining the building 4846-6192-0502.3 13 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 permits results in Flicker Construction being the general contractor.” (Exhibit A, p. 12). But see Orama, 552 So. 2d at 925; Arpin, 824 Fed. Appx. at 650. The July 2021 Order at issue here concludes that Orama and Arpin are “distinguishable” from this case. (Exhibit A, p. 12). There is, however, no meaningful distinction. The only relevant question is whether the person or entity was the general contractor for the project. As is discussed in further detail below, the allegations contained in the Underlying Complaint, along with the building permit records, conclusively establish for the purposes of a determination of MCC’s duty to defend, that Flicker Construction is the general contractor. As a result, MCC does not owe a duty to defend, warranting reconsideration of the June 2020 Order and July 2021 Order and entitling MCC to summary judgment in its favor on this ground. Further, it is MCC’s position that it is also entitled to summary judgment on its duty to indemnify, based upon the holdings in Orama and Arpin, along with the undisputed record evidence. Accordingly, this Court should, likewise, reconsider its July 2021 Order and enter summary judgment in MCC’s favor on its duty to indemnify. To the extent, however, that this Court disagrees, it is still possible to enter summary judgment in favor of MCC on the duty to defend. As the Arpin Court noted, “[f]acts adduced during discovery or trial may show a duty to indemnify even if the allegations in a complaint failed to demonstrate a duty to defend.” Arpin, 824 Fed. Appx. at n.6. IV. PLAINTIFF DID NOT REQUEST SUMMARY JUDGMENT ON MCC’S DUTY TO INDEMNIFY FLICKER CONSTRUCTION; RECONSIDERATION OF THE JULY 2021 ORDER IS NECESSARY ON THIS BASIS AS IT WAS IMPROPER TO GRANT SUMMARY JUDGMENT ON AN UNNOTICED ISSUE. Florida law requires that a party be given notice and an opportunity to be heard before summary judgment can be granted. See Fla. R. Civ. P. 1.510(f). Although rule 1.510(f) permits 4846-6192-0502.3 14 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 summary judgment be granted in favor of the non-moving party or upon grounds not raised by a party, the parties must still have notice and an opportunity to prepare the specific issues that will be argued at the hearing. Here, MCC argued that summary judgment should have been granted in its favor on the issue of indemnity; however, at no point prior to the hearing did Plaintiff argued that summary judgment was warranted in his favor. On the contrary, Plaintiff was unwavering in his position that “a fact dispute” exists and that the Court should “find that there are material issues of disputed fact for the jury to decide on this duty to indemnify . . . .” (Exhibit J, Tr. 24:2-25:5, 26:19-27:1). Florida law is clear that “it is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Gee v. U.S. Bank N.A., 72 So. 3d 211, 214-15 (Fla. 5th DCA 2011). The purpose of this rule is “to prevent ‘ambush.’” Id. at 215; see also Casa Inv. Co. v. Nestor, 8 So. 3d 1219, 1221 (Fla. 3d DCA 2009) (“The purpose of this rule is ‘to prevent “ambush” by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing.”), quoting City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283 (Fla. 4th DCA 1993); Rossman v. Wallick, 301 So. 3d 493, n.2 (Fla. 5th DCA 2020) (explaining that the rule is meant “to eliminate surprise and to afford the parties ‘a full and fair opportunity to argue the issues’”), quoting H.B. Adams Distribs. Inc. v. Admiral Air of Sarasota Cty., Inc., 805 So. 2d 852, 854 (Fla. 2d DCA 2001). Although rule 1.510 was recently amended, adopting the federal summary judgment standard, its tenets remain the same. Interpreting federal rule 56, the federal courts have likewise held that a “[f]ailure to abide by Rule 56’s notice requirement constitutes reversible error.” Sequeira v. Steinlauf, 759 Fed. Appx. 792, 794 (11th Cir. 2018). 4846-6192-0502.3 15 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301 Telephone: 954.728.1280, Facsimile: 954.728.1282 CASE NO.: 2019-CA-003916 The July 2021 Order specifically finds that “MCC has a duty to indemnify Flicker Construction.” (Exhibit A, p. 14). Notwithstanding this finding, Plaintiff’s motion did not seek summary judgment on the duty to indemnify; the only relief requested by Plaintiff in the motion was for partial summary judgment on the duty to defend. See (Exhibit H, p. 2 (seeking, in the wherefore clause, “partial summary judgment determining that [MCC] breached its duty to defend Flicker Construction . . . .”)). Given that Plaintiff never requested entry of summary judgment on the duty to indemnify, it was error for this Court to enter an order finding that MCC had a duty to indemnify without notice and an opportunity to be heard. Accordingly, reconsideration is necessary on the issue of MCC’s duty to indemnify Flicker Construction. Correspondingly, Plaintiff is not entitled to entry of final judgment on the matter of indemnity, as requested in Plaintiff’s Motion for Entry of Final Judgment. V. IN THE ALTERNATIVE, RECONSIDERATION OF MCC’S DUTY TO INDEMNIFY IS NECESSARY BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTS REQUIRING A TRIAL BY JURY. a. A Court May Not Weigh Evidence Or Resolve Issues Of Material Fact On Summary Judgment. A trial court may not weigh evidence or resolve issues of fact; the trial court’s role on summary judgment is reserved simply to determine whether any such factual issues exist. The United States Court of Appeals for the Eleventh Circuit recently discussed the rule applicable to a trial court’s evaluation of summary judgment motions: Summary judgment is not a time for fact-finding; the task is reserved for trial. . . . Rather, on summary judgment, the district court must accept as fact all allegations the non-moving party makes, provided they are sufficiently supported by evidence of record. . . . So when competing narratives emerge on key events, courts are not at liberty to pick which side they think is more credible. . . . We must also bear in mind that, in identifying the relevant facts to resolve a motion for summary judgment, a district court must “view all evidence and make all reasonable inferences in favor of” the non-moving party. . . . And if a reasonable 4846-6192-0502.3 16 LEWIS BRISBOIS BISGAARD & SMITH LLP, 110 SE 6th Street, Suite 2600, Fort Lauderdale, FL 33301