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Filing # 127493000 E-Filed 05/25/2021 02:02:12 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 CA 01 (27)
corporation,
Plaintiff,
vs.
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
MID-CONTINENT CASUALTY COMPANY’S RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING MID-
CONTINENT CASUALTY COMPANY’S BREACH OF THE DUTY TO DEFEND
Comes now Mid-Continent Casualty Company (“MCC”), by and through the
undersigned counsel, and hereby files this response in opposition to Plaintiff’s Motion for Partial
Summary Judgment Regarding MCC’s Breach of the Duty to Defend (“Motion”), and in support,
states as follows:
Plaintiff’s Motion seeks an order from the Court that MCC breached its duty to defend
Flicker Construction for the complaint filed in the matter captioned, Manuel Perea v. Flicker
Construction, Inc., No. 2010-CA-058782 (Fla. 11th Cir. Ct.) (“Underlying Complaint”).
Plaintiff’s Motion further states that MCC’s duty to defend Flicker Construction was already
determined by the Court in itsOrder of June 15, 2020. As the Court is aware, however, MCC
filed a combined Motion for Reconsideration of the Court’s June 15, 2020 Order regarding the
Court’s June 15, 2020 Order (“Reconsideration Motion”) and Cross-Motion for Summary
Judgment regarding the duty to indemnify (“Cross-Motion”). The crux of MCC’s argument in
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CASE NO. 2019-CA-003916 CA 01 (27)
opposition to Plaintiff’s Motion here is encapsulated within MCC’s Reconsideration Motion
including exhibits A-F to the Reconsideration Motion and exhibit J to the Cross-Motion. Except
as discussed below, MCC fully incorporates its Reconsideration Motion, including exhibits A-F,
J filed on April 7, 2021, and MCC fully incorporates Reply in support of its Reconsideration
Motion filed on May 25, 2021. Accordingly, the Court should—in accordance with the
Reconsideration Motion—deny Plaintiff’s Motion.
Regarding paragraph 5 of Plaintiff’s Motion, MCC does not dispute it received a copy of
underlying complaint—although not necessarily the copy attached as Plaintiff’s Exhibit 2. Also
regarding paragraph 5, MCC does not dispute that communications took place with Mr. Perea’s
attorney and does not dispute that it issued a disclaimer to Flicker Construction for the
Underlying Complaint, but MCC denies that such communications, including Plaintiff’s exhibits
3-5, are relevant to whether a duty to defend exists. See Continental Concrete, Inc. v. Lakes at La
Paz III,Ltd. Pshp., 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (stating “A material fact, for
summary judgment purposes, is a fact that is essential to the resolution of the legal questions
raised in the case.”). Regarding paragraph 6, MCC again does not dispute that it disclaimed
coverage to Flicker Construction for the Underlying Complaint, but again, such testimony is not
relevant to determining the duty to defend. See id.
To the extent that Plaintiff’s reference to the MCC corporate representative’s deposition
transcript is some kind of attempt to impute bad faith onto MCC, such position is wholly
improper, out of context and not consistent with the remainder of Mr. Brader’s testimony. The
Florida Supreme Court has long required two conditions be met before a bad faith claim under
§624.155 can be asserted: (1) there must be a determination of liability under the policy, and (2)
the amount of damages owed on the contract must be decided. Vest v. Travelers Ins. Co., 753
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CASE NO. 2019-CA-003916 CA 01 (27)
So.2d 1270, 1276 (Fla. 2000). Put differently, “[w]hen a plaintiff does not and cannot allege that
there has been a final determination of both the insurer’s liability and the amount of damages
owed by the insurer, the plaintiff’s bad faith claim is premature.” Lime Bay Condo. Inc. v. State
Farm Fla. Ins. Co., 94 So. 3d 698, 699 (Fla. 4th DCA 2012). The Supreme Court has also
enunciated, “it is necessary for a plaintiff to allege that a determination has been made with
regard to ‘the existence of liability’” – absent such a determination a bad faith cause of action
“cannot exist.’” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1234
(Fla. 2006) (discussing in the third-party context).
Based on the foregoing, including the incorporated Reconsideration Motion and
identified exhibits, the only fair reading of the Underlying Complaint, bolstered by the salient
and undisputed extrinsic fact that Flicker Construction pulled all of the permits for the Project at
issue, is that Flicker Construction was not just a statutory employer, but was also Mr. Perea’s
statutory employer. As such, Mr. Perea’s claims are excluded by both the Policy’s workers’
compensation exclusion and employer’s liability exclusions, and MCC had no duty to defend
Flicker Construction in the Underlying Action. The Court, should deny Plaintiff’s Motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 25, 2021, a true and correct copy of the foregoing has
been filed via the E-Filing System and served on 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, Florida 33134
(T) 305-358-7747; (F) 305-577-1063
Counsel for MCC
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Filing # 127493000 E-Filed 05/25/2021 02:02:12 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 CA 01 (27) corporation, Plaintiff, vs. ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / MID-CONTINENT CASUALTY COMPANY’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING MID- CONTINENT CASUALTY COMPANY’S BREACH OF THE DUTY TO DEFEND Comes now Mid-Continent Casualty Company (“MCC”), by and through the undersigned counsel, and hereby files this response in opposition to Plaintiff’s Motion for Partial Summary Judgment Regarding MCC’s Breach of the Duty to Defend (“Motion”), and in support, states as follows: Plaintiff’s Motion seeks an order from the Court that MCC breached its duty to defend Flicker Construction for the complaint filed in the matter captioned, Manuel Perea v. Flicker Construction, Inc., No. 2010-CA-058782 (Fla. 11th Cir. Ct.) (“Underlying Complaint”). Plaintiff’s Motion further states that MCC’s duty to defend Flicker Construction was already determined by the Court in itsOrder of June 15, 2020. As the Court is aware, however, MCC filed a combined Motion for Reconsideration of the Court’s June 15, 2020 Order regarding the Court’s June 15, 2020 Order (“Reconsideration Motion”) and Cross-Motion for Summary Judgment regarding the duty to indemnify (“Cross-Motion”). The crux of MCC’s argument in 0979020\308216454.v1 CASE NO. 2019-CA-003916 CA 01 (27) opposition to Plaintiff’s Motion here is encapsulated within MCC’s Reconsideration Motion including exhibits A-F to the Reconsideration Motion and exhibit J to the Cross-Motion. Except as discussed below, MCC fully incorporates its Reconsideration Motion, including exhibits A-F, J filed on April 7, 2021, and MCC fully incorporates Reply in support of its Reconsideration Motion filed on May 25, 2021. Accordingly, the Court should—in accordance with the Reconsideration Motion—deny Plaintiff’s Motion. Regarding paragraph 5 of Plaintiff’s Motion, MCC does not dispute it received a copy of underlying complaint—although not necessarily the copy attached as Plaintiff’s Exhibit 2. Also regarding paragraph 5, MCC does not dispute that communications took place with Mr. Perea’s attorney and does not dispute that it issued a disclaimer to Flicker Construction for the Underlying Complaint, but MCC denies that such communications, including Plaintiff’s exhibits 3-5, are relevant to whether a duty to defend exists. See Continental Concrete, Inc. v. Lakes at La Paz III,Ltd. Pshp., 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (stating “A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case.”). Regarding paragraph 6, MCC again does not dispute that it disclaimed coverage to Flicker Construction for the Underlying Complaint, but again, such testimony is not relevant to determining the duty to defend. See id. To the extent that Plaintiff’s reference to the MCC corporate representative’s deposition transcript is some kind of attempt to impute bad faith onto MCC, such position is wholly improper, out of context and not consistent with the remainder of Mr. Brader’s testimony. The Florida Supreme Court has long required two conditions be met before a bad faith claim under §624.155 can be asserted: (1) there must be a determination of liability under the policy, and (2) the amount of damages owed on the contract must be decided. Vest v. Travelers Ins. Co., 753 Page 2 of 3 0979020\308216454.v1 CASE NO. 2019-CA-003916 CA 01 (27) So.2d 1270, 1276 (Fla. 2000). Put differently, “[w]hen a plaintiff does not and cannot allege that there has been a final determination of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiff’s bad faith claim is premature.” Lime Bay Condo. Inc. v. State Farm Fla. Ins. Co., 94 So. 3d 698, 699 (Fla. 4th DCA 2012). The Supreme Court has also enunciated, “it is necessary for a plaintiff to allege that a determination has been made with regard to ‘the existence of liability’” – absent such a determination a bad faith cause of action “cannot exist.’” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1234 (Fla. 2006) (discussing in the third-party context). Based on the foregoing, including the incorporated Reconsideration Motion and identified exhibits, the only fair reading of the Underlying Complaint, bolstered by the salient and undisputed extrinsic fact that Flicker Construction pulled all of the permits for the Project at issue, is that Flicker Construction was not just a statutory employer, but was also Mr. Perea’s statutory employer. As such, Mr. Perea’s claims are excluded by both the Policy’s workers’ compensation exclusion and employer’s liability exclusions, and MCC had no duty to defend Flicker Construction in the Underlying Action. The Court, should deny Plaintiff’s Motion. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 25, 2021, a true and correct copy of the foregoing has been filed via the E-Filing System and served on 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, Florida 33134 (T) 305-358-7747; (F) 305-577-1063 Counsel for MCC Page 3 of 3 0979020\308216454.v1