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Filing # 129806723 E-Filed 06/30/2021 12:14:49 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 TO DEFENDANT’S OMNIBUS MOTION IN LIMINE
Plaintiff hereby responds to Defendant MCC’s Omnibus Motion in Limine, dated June 4,
2021, and states:
1. Evidence regarding interpretation of MCC’s Policy
Plaintiff agrees it would be improper for any witness, especially a lay witness, to provide
his or her legal interpretation of provisions within the MCC insurance policy. Plaintiff also agrees
the Court, not witnesses, should provide the jury with the law governing this action. That does not
mean, however, that the insurance policy is inadmissible, as MCC argues.
At a minimum, the policy is relevant to establish that Flicker Construction and MCC were
in a contractual relationship with one another, and the terms and duration of that relationship. The
policy is the contract which Plaintiff contends has been breached. Clearly the contract is relevant
evidence in a breach of contract action.
2. Evidence regarding MCC’s claim file or MCC’s claim handling
Plaintiff agrees that the issue of whether MCC acted in bad faith is not pending before the
Court or being tried to the jury. Thus, Plaintiff agrees that MCC’s internal “claim file” documents
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relating to its investigation or analysis of the coverage issue are inadmissible at trial. Plaintiff also
agrees that questions about MCC’s general business practices are not relevant to the matters being
tried to the jury.
But MCC’s requested relief is overbroad. Contrary to MCC’s representations otherwise,
the issue of whether MCC breached its duty to defend Flicker Construction from the lawsuit filed
by Manuel Perea remains pending before the Court. This will necessarily require some evidence
relating to MCC’s claim handling – i.e., MCC’s denial of coverage and refusal to defend. MCC’s
written communications with third parties are relevant to this issue.
3. Evidence regarding the amount of damages
MCC claims the trial will be “limited to the determination of whether Flicker Construction
constitutes a general contractor.” MCC is incorrect.
Count V of Plaintiff’s operative complaint alleges that MCC breached its duty to defend,
causing Plaintiff to suffer damages. “If the insurer breaches its duty to defend, it—like any other
party who fails to perform its contractual obligations—becomes liable for all damages naturally
flowing from the breach.” Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513,
516 (Fla. 3d DCA 1986); see also MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So.
2d 1114, 1116 (Fla. 3d DCA 1997). Those damages are recoverable irrespective of whether MCC
also breached its duty to indemnify (which turns on whether Flicker Construction was the statutory
employer of Perea).
As Plaintiff alleges in Count V of his complaint, had MCC defended Flicker Construction
from the Perea lawsuit, “the amount of the Final Judgment would have been lower, or the Final
Judgment would not have been entered at all.” The amount of the final judgments is relevant to
that inquiry. MCC does not argue otherwise.
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4. Evidence regarding Perea’s injuries
Similarly, MCC argues evidence regarding Perea’s injuries are irrelevant because the trial
will be limited to the “determination of whether Flicker Construction constitutes a general
contractor.” Again, MCC is incorrect.
An insurer, in handling the defense of claims against its insured, has a duty to use the same
degree of care and diligence as a person of ordinary care and prudence should exercise in the
management of his own business. Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785
(Fla. 1980). An insurer breaches its duty to defend when it fails to provide its insured with an
adequate defense. See MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114,
1116 (Fla. 3d DCA 1997); Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513,
516 (Fla. 3d DCA 1986).
What constitutes an “adequate” defense will vary depending on the facts and circumstances
of the case, but a liability insurer who owes a duty to defend must, at a minimum (a) retain and
pay a competent, qualified attorney to investigate and defend the insured from the liability claim;
and (b) pay reasonable litigation expenses associated with the defense. See Kapral v. GEICO
Indem. Co., 723 Fed. Appx. 768, 771 (11th Cir. 2018) (granting directed verdict for the insurer on
inadequate defense claim because there was no evidence that retained “counsel was not competent
or qualified to defend him in the personal injury suit”); Aaron v. Allstate Ins. Co., 559 So. 2d 275,
276 (Fla. 4th DCA 1990) (recognizing the plaintiff stated a cause of action for an improper or
inadequate defense where he alleged the insurer refused to pay for an appeal against the advice of
counsel); Aetna Ins. Co. v. Borrell-Bigby Elec. Co., Inc., 541 So. 2d 139, 141 (Fla. 2d DCA 1989)
(“Where good faith grounds exist, the insurer is obligated to appeal from an adverse judgment.”).
Here, the undisputed evidence is that MCC denied coverage and refused to defend Flicker
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Construction from Perea’s lawsuit. Thus, the jury will be asked to award Plaintiff compensatory
damages – the amount of money which will put Flicker Construction in as good a position as it
would have been if MCC had not breached its duty to defend and which naturally result from the
breach. See MCO Envtl., Inc., 689 So. 2d at 1116; Carrousel Concessions, Inc., 483 So. 2d at 516.
When determining compensatory damages, the jury must consider whether, if MCC had
provided an adequate defense, Flicker Construction would have obtained a more favorable
outcome in the lawsuit filed by Manuel Perea. That will necessarily require the jury to consider
not only the issue of fault (i.e., who is responsible for the spiral staircase falling on Mr. Perea) but
also the issue of Mr. Perea’s damages. It is akin to the “case within a case” inquiry in litigation
malpractice cases. See Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (“To be liable for
malpractice arising out of litigation, the attorney must be the proximate cause of the adverse
outcome of the underlying action which results in damage to the client.”); Rivero v. Howard, 218
So. 3d 992, 994 n.1 (Fla. 3d DCA 2017) (“Legal malpractice actions of this nature are sometimes
referred to as ‘a case within a case’ because, in order to establish causation for purposes of the
malpractice action, the plaintiff must prove that, but for the attorney's negligence, the plaintiff
would have prevailed on the underlying claim”).
Accordingly, Mr. Perea’s injuries are clearly relevant to the inquiry of whether Flicker
Construction’s liability would have been lower, had MCC not breached its duty to defend.
5. Evidence regarding Roman Flicker’s exemption from Worker’s Compensation
Plaintiff does not intend to argue that the MCC policy provides coverage because Roman
Flicker elected to be exempt from the worker’s compensation laws. If, however, Mr. Perea elected
to be exempt, he would not qualify as an “employee for any reason.” See § 440.02(15)(d)8, Fla.
Stat. (2010). That would render the two exclusions at issue (the Workers’ Compensation
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Exclusion and the Employer’s Liability Exclusion) inapplicable, even if Flicker Construction
otherwise would have qualified as Mr. Perea’s statutory employer.
In any event, Roman Flicker’s election to be exempt from worker’s compensation
coverage would be relevant if the Court denies Plaintiff’s second motion in limine and allows
MCC to introduce evidence of Plaintiff’s allegation that Roman Flicker breached his fiduciary
duty by failing to procure worker’s compensation coverage. MCC should not be allowed to argue
that Mr. Flicker violated the law by failing to procure worker’s compensation coverage while
simultaneously being allowed to preclude evidence that Mr. Flicker was not required to do so.
6. Improper “conscience of the community” or “Golden Rule” arguments
Plaintiff does not intend to make any improper “conscience of the community” or “Golden
Rule” arguments during closing argument. Of course, the parties may disagree about whether a
certain argument violates those rules.
MCC must contemporaneously object if it believes a statement made by Plaintiff’s counsel
during closing is improper. See, e.g., Murphy v. Int'l Robotics Sys., Inc., 710 So. 2d 587, 589 (Fla.
4th DCA 1998), approved sub nom. Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)
(“The contemporaneous objection rule is well established in Florida in regard to argument of
counsel. There must be an objection at the time the remarks are made.”). To the extent MCC is
requesting the Court prospectively rule whether a hypothetical argument would violate these rules
if uttered during closing, the Court should decline to do so.
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, esylvester@hinshawlaw.com,
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lleon@hinshawlaw.com, and kcongdon@hinshawlaw.com, Hinshaw & Culbertson, LLP, 2525
Ponce de Leon Boulevard, 4th Floor, Coral Gables, Florida 33134, on this 30th day of June, 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
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Preview
Filing # 129806723 E-Filed 06/30/2021 12:14:49 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 TO DEFENDANT’S OMNIBUS MOTION IN LIMINE Plaintiff hereby responds to Defendant MCC’s Omnibus Motion in Limine, dated June 4, 2021, and states: 1. Evidence regarding interpretation of MCC’s Policy Plaintiff agrees it would be improper for any witness, especially a lay witness, to provide his or her legal interpretation of provisions within the MCC insurance policy. Plaintiff also agrees the Court, not witnesses, should provide the jury with the law governing this action. That does not mean, however, that the insurance policy is inadmissible, as MCC argues. At a minimum, the policy is relevant to establish that Flicker Construction and MCC were in a contractual relationship with one another, and the terms and duration of that relationship. The policy is the contract which Plaintiff contends has been breached. Clearly the contract is relevant evidence in a breach of contract action. 2. Evidence regarding MCC’s claim file or MCC’s claim handling Plaintiff agrees that the issue of whether MCC acted in bad faith is not pending before the Court or being tried to the jury. Thus, Plaintiff agrees that MCC’s internal “claim file” documents 1 relating to its investigation or analysis of the coverage issue are inadmissible at trial. Plaintiff also agrees that questions about MCC’s general business practices are not relevant to the matters being tried to the jury. But MCC’s requested relief is overbroad. Contrary to MCC’s representations otherwise, the issue of whether MCC breached its duty to defend Flicker Construction from the lawsuit filed by Manuel Perea remains pending before the Court. This will necessarily require some evidence relating to MCC’s claim handling – i.e., MCC’s denial of coverage and refusal to defend. MCC’s written communications with third parties are relevant to this issue. 3. Evidence regarding the amount of damages MCC claims the trial will be “limited to the determination of whether Flicker Construction constitutes a general contractor.” MCC is incorrect. Count V of Plaintiff’s operative complaint alleges that MCC breached its duty to defend, causing Plaintiff to suffer damages. “If the insurer breaches its duty to defend, it—like any other party who fails to perform its contractual obligations—becomes liable for all damages naturally flowing from the breach.” Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986); see also MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla. 3d DCA 1997). Those damages are recoverable irrespective of whether MCC also breached its duty to indemnify (which turns on whether Flicker Construction was the statutory employer of Perea). As Plaintiff alleges in Count V of his complaint, had MCC defended Flicker Construction from the Perea lawsuit, “the amount of the Final Judgment would have been lower, or the Final Judgment would not have been entered at all.” The amount of the final judgments is relevant to that inquiry. MCC does not argue otherwise. 2 4. Evidence regarding Perea’s injuries Similarly, MCC argues evidence regarding Perea’s injuries are irrelevant because the trial will be limited to the “determination of whether Flicker Construction constitutes a general contractor.” Again, MCC is incorrect. An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). An insurer breaches its duty to defend when it fails to provide its insured with an adequate defense. See MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla. 3d DCA 1997); Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986). What constitutes an “adequate” defense will vary depending on the facts and circumstances of the case, but a liability insurer who owes a duty to defend must, at a minimum (a) retain and pay a competent, qualified attorney to investigate and defend the insured from the liability claim; and (b) pay reasonable litigation expenses associated with the defense. See Kapral v. GEICO Indem. Co., 723 Fed. Appx. 768, 771 (11th Cir. 2018) (granting directed verdict for the insurer on inadequate defense claim because there was no evidence that retained “counsel was not competent or qualified to defend him in the personal injury suit”); Aaron v. Allstate Ins. Co., 559 So. 2d 275, 276 (Fla. 4th DCA 1990) (recognizing the plaintiff stated a cause of action for an improper or inadequate defense where he alleged the insurer refused to pay for an appeal against the advice of counsel); Aetna Ins. Co. v. Borrell-Bigby Elec. Co., Inc., 541 So. 2d 139, 141 (Fla. 2d DCA 1989) (“Where good faith grounds exist, the insurer is obligated to appeal from an adverse judgment.”). Here, the undisputed evidence is that MCC denied coverage and refused to defend Flicker 3 Construction from Perea’s lawsuit. Thus, the jury will be asked to award Plaintiff compensatory damages – the amount of money which will put Flicker Construction in as good a position as it would have been if MCC had not breached its duty to defend and which naturally result from the breach. See MCO Envtl., Inc., 689 So. 2d at 1116; Carrousel Concessions, Inc., 483 So. 2d at 516. When determining compensatory damages, the jury must consider whether, if MCC had provided an adequate defense, Flicker Construction would have obtained a more favorable outcome in the lawsuit filed by Manuel Perea. That will necessarily require the jury to consider not only the issue of fault (i.e., who is responsible for the spiral staircase falling on Mr. Perea) but also the issue of Mr. Perea’s damages. It is akin to the “case within a case” inquiry in litigation malpractice cases. See Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (“To be liable for malpractice arising out of litigation, the attorney must be the proximate cause of the adverse outcome of the underlying action which results in damage to the client.”); Rivero v. Howard, 218 So. 3d 992, 994 n.1 (Fla. 3d DCA 2017) (“Legal malpractice actions of this nature are sometimes referred to as ‘a case within a case’ because, in order to establish causation for purposes of the malpractice action, the plaintiff must prove that, but for the attorney's negligence, the plaintiff would have prevailed on the underlying claim”). Accordingly, Mr. Perea’s injuries are clearly relevant to the inquiry of whether Flicker Construction’s liability would have been lower, had MCC not breached its duty to defend. 5. Evidence regarding Roman Flicker’s exemption from Worker’s Compensation Plaintiff does not intend to argue that the MCC policy provides coverage because Roman Flicker elected to be exempt from the worker’s compensation laws. If, however, Mr. Perea elected to be exempt, he would not qualify as an “employee for any reason.” See § 440.02(15)(d)8, Fla. Stat. (2010). That would render the two exclusions at issue (the Workers’ Compensation 4 Exclusion and the Employer’s Liability Exclusion) inapplicable, even if Flicker Construction otherwise would have qualified as Mr. Perea’s statutory employer. In any event, Roman Flicker’s election to be exempt from worker’s compensation coverage would be relevant if the Court denies Plaintiff’s second motion in limine and allows MCC to introduce evidence of Plaintiff’s allegation that Roman Flicker breached his fiduciary duty by failing to procure worker’s compensation coverage. MCC should not be allowed to argue that Mr. Flicker violated the law by failing to procure worker’s compensation coverage while simultaneously being allowed to preclude evidence that Mr. Flicker was not required to do so. 6. Improper “conscience of the community” or “Golden Rule” arguments Plaintiff does not intend to make any improper “conscience of the community” or “Golden Rule” arguments during closing argument. Of course, the parties may disagree about whether a certain argument violates those rules. MCC must contemporaneously object if it believes a statement made by Plaintiff’s counsel during closing is improper. See, e.g., Murphy v. Int'l Robotics Sys., Inc., 710 So. 2d 587, 589 (Fla. 4th DCA 1998), approved sub nom. Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000) (“The contemporaneous objection rule is well established in Florida in regard to argument of counsel. There must be an objection at the time the remarks are made.”). To the extent MCC is requesting the Court prospectively rule whether a hypothetical argument would violate these rules if uttered during closing, the Court should decline to do so. 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, esylvester@hinshawlaw.com, 5 lleon@hinshawlaw.com, and kcongdon@hinshawlaw.com, Hinshaw & Culbertson, LLP, 2525 Ponce de Leon Boulevard, 4th Floor, Coral Gables, Florida 33134, on this 30th day of June, 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 6