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Filing # 129994820 E-Filed 07/02/2021 01:09:55 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
JOHN HUGHES, III, as receiver of Flicker
Construction, Inc., an inactive Florida CASE NO. 2019-CA-003916
corporation,
Plaintiff,
vs.
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
MCC’S SECOND SUPPLEMENT TO OMNIBUS MOTION IN LIMINE
Pursuant to the Court’s December 13, 2019 Uniform Order Setting Cause for Jury Trial,
Mediation, and Pre-Trial Instructions and the Court’s September 12, 2020 Order Resetting Trial,
Mid-Continent Casualty Company files this Second Supplement to its previously filed Omnibus
Motion in Limine (“Motion”). By filing this Motion, MCC does not intend—and does not—
waive its dispositive arguments pending before the Court regarding the duty to defend and duty
to indemnify. The grounds for this Motion are set forth in the following incorporated
Memorandum of Law.
MEMORANDUM OF LAW
I. Procedural standards for motions in limine
MCC incorporates all the procedural standards set forth in its Omnibus Motion in Limine
herein.
IX. This Court should preclude evidence at trial regarding damages resulting from any
breach of contract.
MCC incorporates the entirety of its Supplement to Omnibus Motion in Limine herein.
0979020\308492521.V1
X. This Court should preclude evidence at trial regarding damages resulting from any
breach of contract.
Based on discussions with Plaintiff’s counsel regarding the damages sought by Plaintiff,
including the manner in which such damages intend to be presented to the jury, MCC is
compelled to prepare this motion in limine. To the extent this Court finds that MCC had a duty to
defend Flicker Construction (and no duty to indemnify Flicker Construction), it is Plaintiff’s
position that the jury is to determine damages by re-trying the Underlying Action. Plaintiff relies
upon MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla. 3d DCA
1997) and Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d
DCA 1986) to support this position. These cases are easily distinguished from the facts and law
here.
First, in MCO, the Court addressed a case in which a “lump sum” judgment was entered
against the insured where the jury had not been asked to distinguish between covered and
uncovered claims. As such, there was a question as to whether the carrier was responsible for
paying the entire judgment. That is not the situation here, as the Underlying Final Judgment is
not a mixture of covered versus uncovered damages.
Under Florida law, and only as it respects a lump sum verdict with covered and
uncovered damages, to determine whether a judgment is covered by insurance policy, the initial
burden is on the insurer “to establish that the judgment entered against its insureds and sought to
be collected included damages for noncovered acts.” Duke v. Hoch, 468 F.2d 973, 976 (5th
Cir. 1972). Once the insurer makes such a showing, “the burden of apportioning or allocating
these damages is on the party seeking to recover from the insurer.” U.S. Concrete Pipe Co. v.
Bould, 437 So. 2d 1061, 1065 (Fla. 1983); Duke, 468 F.3d at 977. However, the insured is
relieved of this burden if the insurer failed to fully advise the insured in the underlying action of
2
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both the divergence of their respective interests as well as the availability of a special verdict
form to earmark the losses as either covered or non-covered damages. Duke, 468 F.3d at 977-80.
Clearly, MCO does not apply here. The only issue here is whether or not the Underlying
Final Judgment is covered under the policy. There are no considerations regarding any
apportionment of the Underlying Final Judgment. Ultimately, depending upon the Court’s
rulings and/or the jury’s verdict, the Final Judgment will either be covered or uncovered—there
will be no apportionment of the Underlying Final Judgment.
Plaintiff seeks to borrow the law regarding apportioning lump sum verdicts for the
purpose of re-trying the Underlying Action, which is not applicable here. Even if the jury here
was to apportion the Underlying Final Judgment, the jury is always bound by the total amount of
the Underlying Final Judgment that was determined by the Underlying jury. In other words, the
Underlying Action, including the total amount of the Underlying Final Judgment can never be
re-tried in the coverage action to determine an entirely different judgment amount. The only
exception, which is not present here, is when the jury in the coverage action is tasked with
apportioning the amount of the judgment into covered versus uncovered parts. See Bould, 437
So. 2d at 1065 (“[I]f the evidence raises a question as to whether the entire claim is beyond the
coverage of the policy, the burden is upon the insurer to show that there is no coverage.”)
Moreover, the jury tasked with apportioning the judgment is limited to hearing no more evidence
than what was presented at the Underlying Trial. That is, the jury in the coverage action
essentially “stands in the shoes” of the jury from the Underlying Trial.
Simply put, Plaintiff is not permitted to re-try the underlying action under any
circumstances—legally or factually—and this Court should preclude all evidence—documentary
and testimonial—from the jury.
3
0979020\308492521.V1
Regarding Plaintiff’s reliance on Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n,
483 So. 2d 513, 516 (Fla. 3d DCA 1986), this case is premised on bad faith. Rather than repeat
its prior arguments, MCC fully incorporates the entirety of its Supplement to Omnibus Motion in
Limine herein as it argument to the improper attempt to introduce bad faith evidence to the jury.
Based on the foregoing, MCC respectfully requests this Court preclude Plaintiff from
introducing any evidence at trial—testimonial or evidentiary—regarding damages allegedly
sustained by Flicker Construction.
CERTIFICATE OF SERVICE
I CERTIFY that the foregoing document is being filed via the Florida Court’s E-portal
filing system on July 2, 2021 which will automatically generate copies to all counsel of record.
HINSHAW & CULBERTSON LLP
_/s/ Edward T. Sylvester
Edward T. Sylvester
Florida Bar No. 51612
esylvester@hinshawlaw.com
2525 Ponce de Leon Boulevard, 4th Floor
Coral Gables, FL 33134
Telephone: 305-358-7747
Facsimile: 305-577-1063
Counsel for Mid-Continent Casualty Company
4
0979020\308492521.V1
Preview
Filing # 129994820 E-Filed 07/02/2021 01:09:55 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION JOHN HUGHES, III, as receiver of Flicker Construction, Inc., an inactive Florida CASE NO. 2019-CA-003916 corporation, Plaintiff, vs. ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / MCC’S SECOND SUPPLEMENT TO OMNIBUS MOTION IN LIMINE Pursuant to the Court’s December 13, 2019 Uniform Order Setting Cause for Jury Trial, Mediation, and Pre-Trial Instructions and the Court’s September 12, 2020 Order Resetting Trial, Mid-Continent Casualty Company files this Second Supplement to its previously filed Omnibus Motion in Limine (“Motion”). By filing this Motion, MCC does not intend—and does not— waive its dispositive arguments pending before the Court regarding the duty to defend and duty to indemnify. The grounds for this Motion are set forth in the following incorporated Memorandum of Law. MEMORANDUM OF LAW I. Procedural standards for motions in limine MCC incorporates all the procedural standards set forth in its Omnibus Motion in Limine herein. IX. This Court should preclude evidence at trial regarding damages resulting from any breach of contract. MCC incorporates the entirety of its Supplement to Omnibus Motion in Limine herein. 0979020\308492521.V1 X. This Court should preclude evidence at trial regarding damages resulting from any breach of contract. Based on discussions with Plaintiff’s counsel regarding the damages sought by Plaintiff, including the manner in which such damages intend to be presented to the jury, MCC is compelled to prepare this motion in limine. To the extent this Court finds that MCC had a duty to defend Flicker Construction (and no duty to indemnify Flicker Construction), it is Plaintiff’s position that the jury is to determine damages by re-trying the Underlying Action. Plaintiff relies upon MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla. 3d DCA 1997) and Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986) to support this position. These cases are easily distinguished from the facts and law here. First, in MCO, the Court addressed a case in which a “lump sum” judgment was entered against the insured where the jury had not been asked to distinguish between covered and uncovered claims. As such, there was a question as to whether the carrier was responsible for paying the entire judgment. That is not the situation here, as the Underlying Final Judgment is not a mixture of covered versus uncovered damages. Under Florida law, and only as it respects a lump sum verdict with covered and uncovered damages, to determine whether a judgment is covered by insurance policy, the initial burden is on the insurer “to establish that the judgment entered against its insureds and sought to be collected included damages for noncovered acts.” Duke v. Hoch, 468 F.2d 973, 976 (5th Cir. 1972). Once the insurer makes such a showing, “the burden of apportioning or allocating these damages is on the party seeking to recover from the insurer.” U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1065 (Fla. 1983); Duke, 468 F.3d at 977. However, the insured is relieved of this burden if the insurer failed to fully advise the insured in the underlying action of 2 0979020\308492521.V1 both the divergence of their respective interests as well as the availability of a special verdict form to earmark the losses as either covered or non-covered damages. Duke, 468 F.3d at 977-80. Clearly, MCO does not apply here. The only issue here is whether or not the Underlying Final Judgment is covered under the policy. There are no considerations regarding any apportionment of the Underlying Final Judgment. Ultimately, depending upon the Court’s rulings and/or the jury’s verdict, the Final Judgment will either be covered or uncovered—there will be no apportionment of the Underlying Final Judgment. Plaintiff seeks to borrow the law regarding apportioning lump sum verdicts for the purpose of re-trying the Underlying Action, which is not applicable here. Even if the jury here was to apportion the Underlying Final Judgment, the jury is always bound by the total amount of the Underlying Final Judgment that was determined by the Underlying jury. In other words, the Underlying Action, including the total amount of the Underlying Final Judgment can never be re-tried in the coverage action to determine an entirely different judgment amount. The only exception, which is not present here, is when the jury in the coverage action is tasked with apportioning the amount of the judgment into covered versus uncovered parts. See Bould, 437 So. 2d at 1065 (“[I]f the evidence raises a question as to whether the entire claim is beyond the coverage of the policy, the burden is upon the insurer to show that there is no coverage.”) Moreover, the jury tasked with apportioning the judgment is limited to hearing no more evidence than what was presented at the Underlying Trial. That is, the jury in the coverage action essentially “stands in the shoes” of the jury from the Underlying Trial. Simply put, Plaintiff is not permitted to re-try the underlying action under any circumstances—legally or factually—and this Court should preclude all evidence—documentary and testimonial—from the jury. 3 0979020\308492521.V1 Regarding Plaintiff’s reliance on Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986), this case is premised on bad faith. Rather than repeat its prior arguments, MCC fully incorporates the entirety of its Supplement to Omnibus Motion in Limine herein as it argument to the improper attempt to introduce bad faith evidence to the jury. Based on the foregoing, MCC respectfully requests this Court preclude Plaintiff from introducing any evidence at trial—testimonial or evidentiary—regarding damages allegedly sustained by Flicker Construction. CERTIFICATE OF SERVICE I CERTIFY that the foregoing document is being filed via the Florida Court’s E-portal filing system on July 2, 2021 which will automatically generate copies to all counsel of record. HINSHAW & CULBERTSON LLP _/s/ Edward T. Sylvester Edward T. Sylvester Florida Bar No. 51612 esylvester@hinshawlaw.com 2525 Ponce de Leon Boulevard, 4th Floor Coral Gables, FL 33134 Telephone: 305-358-7747 Facsimile: 305-577-1063 Counsel for Mid-Continent Casualty Company 4 0979020\308492521.V1