Preview
Filing # 106501190 E-Filed 04/21/2020 12:13:09 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.
/
NOTICE OF FILING HEARING TRANSCRIPT
Plaintiff hereby gives notice of filing the transcript from the hearing on Defendant’s Motion
for Summary Judgment, held on September 20, 2019.
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,
lleon@hinshawlaw.com, and Siobhan E.P. Grant, SGrant@hinshawlaw.com, Hinshaw &
Culbertson LLP, 2525 Ponce de Leon Blvd., 4th Floor, Coral Gables, FL 33134, on this 21st day
of April, 2020.
/s/ Brent Steinberg
BRANDON G. CATHEY
Florida Bar No.: 941891
BRENT G. STEINBERG
Florida Bar No.: 0085453
SWOPE, RODANTE P.A.
1234 E. 5th Avenue
Tampa, Florida 33605
TEL: (813) 273-0017
FAX: (813) 223-3678
Team2eservice@swopelaw.com
Attorneys for Plaintiff
Page 1
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2019-003916-CA-01
JOHN HUGHES, III et al
Plaintiffs,
-vs-
ROMAN FLICKER et al,
Defendants.
_____________________________/
HEARING BEFORE THE HONORABLE JOHN THORNTON
Friday, September 20, 2019
9:00 a.m. - 9:37 a.m.
MIAMI-DADE COUNTY COURTHOUSE
73 West Flagler Street, Courtroom 1500
Miami, Florida
Digitally Reported By:
WITNIR ALVERA
Court Reporter
Page 2
1 APPEARANCES:
2
On behalf of the Plaintiffs:
3 SWOPE RODANTE, P.A.
1234 East 5th Street
4 Tampa, Florida 33605
813.273.0017
5 brents@swopelaw.com
BY: BRENT G. STEINBERG, ESQUIRE
6
7 On behalf of the Plaintiffs:
SWOPE RODANTE, P.A.
8 1234 East 5th Street
Tampa, Florida 33605
9 813.273.0017
danielg@swopelaw.com
10 BY: DANIEL GREENE, ESQUIRE
11
On behalf of the Defendants:
12 HINSHAW & CULBERTSON
2525 Ponce de Leon Boulevard
13 4th Floor
14 Coral Gables, Florida 33134
15 305.428.5118
16 sgrant@hinshawlaw.com
17 BY: SIOBHAN E. GRANT, ESQUIRE
18
19
20
21
22
23
24
25 - - -
Page 3
1 PROCEEDINGS
2 THE COURT: You-all ready?
3 MS. GRANT: Yes, your Honor.
4 MR. STEINBERG: Yes, your Honor.
5 THE COURT: All right. Were here on
6 Hughes verses Flicker, 19-3916.
7 Let me have appearances, please.
8 MR. STEINBERG: This is Brent
9 Steinberg, and along with me is Daniel
10 Greene, on behalf of the Plaintiff.
11 THE COURT: All right. Good
12 morning.
13 MR. GREENE: Good morning.
14 MS. GRANT: Siobhan Grant on behalf
15 of Mid-Continent Casualty.
16 THE COURT: Okay. Good morning.
17 MS. GRANT: Good morning, your
18 Honor.
19 THE COURT: All right. So it's
20 Mid-Continent's motion for summary
21 judgement.
22 Let me hear from you.
23 MS. GRANT: Does your Honor have any
24 particular areas that your Honor would like
25 to hear first, or should I just proceed
Page 4
1 with my argument?
2 THE COURT: No. I mean, I -- I've
3 got to tell you -- and you-all can talk me
4 off the ledge -- but what I'm inclined to
5 do -- I haven't heard, and I'll keep an
6 open mind -- what I'm inclined to do is
7 respectfully deny the motion for summary
8 judgement and grant the motion for leave to
9 amend.
10 But I don't want to take the wind
11 out of anybody's sails; so, you know, talk
12 me off -- feel free to try to talk me off
13 the ledge in that regard.
14 MS. GRANT: Okay. I'm trying to
15 think.
16 Well, your Honor, I think that the
17 motion for summary judgement can be ruled
18 on at this time. It's important to keep in
19 mind that on the duty to defend, the world
20 of facts that we have for the duty to
21 defend is already set in stone.
22 The world of facts on the duty to
23 defend comes from the underlying complaint,
24 and I would note there has been a default
25 final judgement entered regarding the
Page 5
1 allegations in that complaint.
2 So at this time, those -- the
3 well-pled facts of that underlying
4 complaint are Mr. Flicker is -- is stuck
5 with those facts, And he's estopped from
6 contradicting those facts.
7 So I understand that they may want
8 to amend to perhaps add additional facts,
9 but regarding the duty to defend, we have
10 the set of facts that we need. We don't
11 need any additional facts.
12 Regarding the motion for summary
13 judgement, I -- I would like to argue the
14 motion for summary judgement and highlight
15 a few things.
16 THE COURT: All right.
17 MS. GRANT: I think it's important
18 to remember that this is a commercial
19 general liability policy. And the purpose
20 of a CGL policy -- if you don't mind, I'll
21 refer to it as a CGL policy.
22 THE COURT: No. I'm -- I used to be
23 in the --
24 MS. GRANT: Okay.
25 THE COURT: -- complex litigation
Page 6
1 division; so I'm very familiar.
2 MS. GRANT: Okay. So -- well, I
3 apologize if I seem redundant, but I --
4 THE COURT: No, no. Go ahead,
5 please.
6 MS. GRANT: Thank you, your Honor.
7 The purpose of the CGL policy, I
8 think was expressed very well in the
9 Revarato case (phonetic spelling). And the
10 purpose is -- and the reason why the
11 premium is paid is to protect against
12 liability to the public, as distinguished
13 from liability from your own employees,
14 whether or not they're protected by
15 Workers' Comp insurance.
16 That's the facts that we have in
17 this instance. And that's why Flicker
18 Construction purchased the CGL policy from
19 Mid Continent.
20 I'll also like to emphasis we have
21 to keep in mind why Mr. Perea was on the
22 premises. He was on the premises to
23 perform a job function. He was there for
24 work as a statutory employee.
25 As I said before, the duty to defend
Page 7
1 the world of facts, we have those facts.
2 No amendment to the complaint is going to
3 add any additional facts to that -- any
4 additional facts that could be argued that
5 would acquire an amendment for the
6 complaint.
7 So now I'll go through the motion
8 for summary judgement in greater detail.
9 As alluded to before, the purpose of
10 the insurance policy was to protect against
11 third parties. Workers' Compensation
12 insurance is what's intended to protect
13 against your employees, which is exactly
14 why CGL policies have an exclusion for
15 Workers' Compensation and for work
16 performed by employees.
17 That's the insurance company saying
18 to the insured, if you're going to have
19 people doing work for you, you need to go
20 somewhere else and find insurance for that
21 purpose. We are only protecting you for
22 third parties, the general public that's on
23 your property, not for your employees.
24 Mr. Perea was an employee.
25 In the underlining complaint, the
Page 8
1 allegations of the complaint say that
2 Mr. Perea was retained to perform tile
3 installation at a seafood store. He wasn't
4 there as a member of the general public.
5 He was there to work. So, again, Workers'
6 Compensation or the employee exclusion are
7 going to apply to him because he was there
8 to work.
9 The underlining complaint also
10 references Mr. Flicker's position.
11 Mr. Flicker -- or Flicker Construction,
12 rather, was in control of the construction
13 that was there to be performed, going by
14 the allegations of the complaint.
15 The underlying complaint, which
16 again, Flicker Construction is a staff from
17 contradicting -- regarding -- as far as the
18 duty to defend is concerned.
19 The underlying complaint also
20 alleges that Flicker Construction was
21 acting through its employees or agents.
22 These would be Mr. Perea.
23 So Flicker Construction, as far as
24 the underlying complaint is concerned, was
25 the entity in charge, and Flicker's
Page 9
1 Construction, therefore, had the
2 responsibility for purchasing the insurance
3 and insuring the people that were on the
4 property for working.
5 I understand that opposing counsel
6 places a lot of emphasis on the fact that
7 Mr. Jimenez was the entity who Mr. Perea
8 was in contact with -- which is something
9 we can get into regarding the issue of
10 indemnification; however, I think the Arpen
11 (phonetic spelling) case and the Omara
12 (phonetic spelling) case made clear that
13 you could have a statutory employee.
14 And the purpose of having a
15 statutory employee under the Workers'
16 Compensation law is to shift -- to make
17 sure that the general contractor still
18 remains the party who is liable for
19 purchasing the -- the Workers' Compensation
20 Insurance and still remains a party who, to
21 the general public, we're assigning the
22 liability.
23 That's one reason why the general
24 contractor has to put the permit out on the
25 front of the property, so you know who's
Page 10
1 responsible for that property.
2 And I believe in the Omara
3 decision -- I think it was well-articulated
4 were the general contractor stated that it
5 was his license that was used. His license
6 and his -- his name was on the permit that
7 was on the front of the building; and,
8 therefore, ultimately he was the party that
9 was responsible for the construction of
10 that property.
11 Just the exact same thing we have
12 here. It was Flicker whose name was on the
13 permit. Flicker was the party who was held
14 out to the public to be the general
15 contractor of that property; therefore,
16 since he was held out as the general
17 contractor, it was his responsibility to
18 purchase Workers' Compensation Insurance
19 for Mr. Perea.
20 It doesn't matter that he didn't.
21 He still had that obligation, and the law
22 doesn't allow that obligation to be shifted
23 to Mid-Continent because that's not the
24 purpose of CGL policy.
25 The CGL policy was not intended to
Page 11
1 protect workers on the property while work
2 was being performed, which is exactly what
3 we have here.
4 I think, regarding the leave to
5 amend, as I said, to the extent we're
6 arguing duty to defend, we can't add any
7 additional facts on the leave to amend.
8 I also believe that the counts that
9 Counsel chooses -- is asking to add on the
10 motion for leave to amend, which also isn't
11 noticed today. But since your Honor has
12 referenced it --
13 THE COURT: I did read it. I
14 haven't seen any, you know, opposition as
15 far as that's concerned.
16 MS. GRANT: We did prepare a
17 response in opposition. I apologize. It
18 was filed late. I have a copy for your
19 Honor.
20 THE COURT: Oh, no. I mean it
21 wasn't scheduled --
22 MS. GRANT: Okay.
23 THE COURT: -- for today. But I --
24 you know.
25 MS. GRANT: I don't expect your
Page 12
1 Honor to read the whole response in
2 opposition, so I'll just go through the
3 highlights of our --
4 THE COURT: Okay.
5 MS. GRANT: -- our opposition, since
6 it's on your Honor's mind.
7 THE COURT: Okay.
8 MS. GRANT: I would note that on the
9 eve of summary judgement, when the facts
10 that could have been added to the
11 complaint --
12 THE COURT: That does concern me, I
13 must confess. You know.
14 MS. GRANT: They've been known for
15 two years, your Honor. This could have
16 been amended at any time. A new complaint
17 was filed on this matter January 2019. It
18 could have been added then. Doing it now
19 on the eve of summary judgement is nothing
20 more than a delay tactic to push off
21 summary judgement.
22 And I -- I -- I think it's just an
23 ambush. I don't think it's appropriate,
24 especially when I don't believe that the
25 allegations of the amended compliant add
Page 13
1 anything.
2 Also note that the count that they
3 are trying to add, I believe an amendment
4 would be futile in this instance. And
5 they're trying to add a count for breach of
6 the duty to defend. And I think there's an
7 argument to be made that count is time
8 barred, as well.
9 If the final judgement was entered
10 in the underlying action in July of 2013,
11 and, therefore, it's said it's a breach of
12 the insurance contract, the five-year
13 statute of limitations would apply. And I
14 believe that, therefore, the amendment
15 would have needed to be done by 2018.
16 Again, I also -- I just don't see
17 how the amendment adds anything to the
18 facts that we already have in place.
19 I think your Honor could make a
20 ruling as to whether or not Mid-Continent
21 was required -- had a duty to defend. We
22 already have those -- we already have those
23 facts.
24 Making a ruling based on the facts
25 that we already have and finding in favor
Page 14
1 of Mid-Continent, whether or not they
2 wanted to add a 5th count for breach of the
3 duty to defend, they're contradictory. And
4 I don't think we need any additional facts
5 to make that ruling at this time.
6 I'll let opposing counsel respond to
7 that.
8 THE COURT: Okay. Fine.
9 MR. STEINBERG: Well, your Honor,
10 would you like me to address the motion for
11 summary judgment or --
12 THE COURT: Please. Yes.
13 MR. STEINBERG: Very well, your
14 Honor.
15 So I see you have before you the
16 notebook that we've provided.
17 THE COURT: Yes.
18 MR. STEINBERG: I did my best to
19 condense our 28 days -- 28-page response
20 down to a 2-page outline.
21 THE COURT: Okay.
22 MR. STEINBERG: If I can provide
23 that to the Court and Opposing Counsel.
24 THE COURT: All right.
25 MR. STEINBERG: And this is going to
Page 15
1 walk through, essentially, the issues that
2 are before the Court and, you know, our
3 position on those issues.
4 So at the top here, your Honor, you
5 see this is the pertinent -- the two
6 pertinent exclusions. We have the Workers'
7 Comp exclusion and 10 then the employee
8 liability exclusion.
9 That's the language from the policy,
10 and it's attached, too, if you want to see
11 it in greater detail. But that is the
12 pertinent language.
13 So, essentially, the issues before
14 the Court on both the duty to defend and
15 the duty to indemnify are, was Flicker
16 Construction obligated to provide Workers'
17 Compensation benefits to Mr. Perea. And
18 that, of course, goes to the first
19 exclusion; and then to the second
20 exclusion, was Perea an employee of Flicker
21 Construction?
22 So looking at the underlying
23 complaint, we couldn't answer either of
24 those questions. And because it was
25 possible that Flicker was not obligated to
Page 16
1 provide Workers' Compensation, and because
2 it was possible that Mr. Perea wasn't an
3 employee, that means Mid-Continent had a
4 duty to defend.
5 Now, if you look to the truth -- to
6 the actual facts that, as your Honor likely
7 noted from your preliminary comments,
8 there's a factual dispute about whether
9 Mr. Perea was a statutory employee, and
10 then, by extension, whether Flicker
11 Construction was obligated to provide
12 Workers' Compensation benefits.
13 And, of course, that fact dispute
14 would be the reason the Court has denied
15 summary judgment on the duty to indemnify.
16 It seems your Honor is well
17 prepared, so I don't want to belabor
18 anything more than necessary. So at any
19 point, cut me off if you've heard enough.
20 But if I could have you turn to
21 Tab 3, we have the Advanced Systems -- no.
22 I'm sorry, your Honor. That's my
23 Continent's notebook you're holding.
24 THE COURT: You know what; you're
25 right. Yes.
Page 17
1 MR. STEINBERG: That's the notebook
2 that we provided to you.
3 THE COURT: Yes.
4 MR. STEINBERG: So Tab 3, you see
5 there's the Advanced Systems versus Gotham
6 Insurance Company case. And I'm looking
7 at -- I guess it's the fourth page of the
8 handout, and there's some highlighting.
9 This sets forth the general law on the duty
10 to defend.
11 We agree with Mid-Continent that the
12 duty to defend is determined solely by
13 looking at the allegations in the
14 underlying complaint, and we agree with
15 Mid-Continent that our pending motion to --
16 for leave to amend the complaint would have
17 no affect on this Court's ability to rule
18 on the duty to defend.
19 But your Honor, I'm sure, is well
20 aware of this law. But, generally, of
21 course, the Court is only supposed to look
22 at the four corners of the underlying
23 complaint and the four corners of the
24 insurance policy, as the Cou
Preview
Filing # 106501190 E-Filed 04/21/2020 12:13:09 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. / NOTICE OF FILING HEARING TRANSCRIPT Plaintiff hereby gives notice of filing the transcript from the hearing on Defendant’s Motion for Summary Judgment, held on September 20, 2019. 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, lleon@hinshawlaw.com, and Siobhan E.P. Grant, SGrant@hinshawlaw.com, Hinshaw & Culbertson LLP, 2525 Ponce de Leon Blvd., 4th Floor, Coral Gables, FL 33134, on this 21st day of April, 2020. /s/ Brent Steinberg BRANDON G. CATHEY Florida Bar No.: 941891 BRENT G. STEINBERG Florida Bar No.: 0085453 SWOPE, RODANTE P.A. 1234 E. 5th Avenue Tampa, Florida 33605 TEL: (813) 273-0017 FAX: (813) 223-3678 Team2eservice@swopelaw.com Attorneys for Plaintiff Page 1 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2019-003916-CA-01 JOHN HUGHES, III et al Plaintiffs, -vs- ROMAN FLICKER et al, Defendants. _____________________________/ HEARING BEFORE THE HONORABLE JOHN THORNTON Friday, September 20, 2019 9:00 a.m. - 9:37 a.m. MIAMI-DADE COUNTY COURTHOUSE 73 West Flagler Street, Courtroom 1500 Miami, Florida Digitally Reported By: WITNIR ALVERA Court Reporter Page 2 1 APPEARANCES: 2 On behalf of the Plaintiffs: 3 SWOPE RODANTE, P.A. 1234 East 5th Street 4 Tampa, Florida 33605 813.273.0017 5 brents@swopelaw.com BY: BRENT G. STEINBERG, ESQUIRE 6 7 On behalf of the Plaintiffs: SWOPE RODANTE, P.A. 8 1234 East 5th Street Tampa, Florida 33605 9 813.273.0017 danielg@swopelaw.com 10 BY: DANIEL GREENE, ESQUIRE 11 On behalf of the Defendants: 12 HINSHAW & CULBERTSON 2525 Ponce de Leon Boulevard 13 4th Floor 14 Coral Gables, Florida 33134 15 305.428.5118 16 sgrant@hinshawlaw.com 17 BY: SIOBHAN E. GRANT, ESQUIRE 18 19 20 21 22 23 24 25 - - - Page 3 1 PROCEEDINGS 2 THE COURT: You-all ready? 3 MS. GRANT: Yes, your Honor. 4 MR. STEINBERG: Yes, your Honor. 5 THE COURT: All right. Were here on 6 Hughes verses Flicker, 19-3916. 7 Let me have appearances, please. 8 MR. STEINBERG: This is Brent 9 Steinberg, and along with me is Daniel 10 Greene, on behalf of the Plaintiff. 11 THE COURT: All right. Good 12 morning. 13 MR. GREENE: Good morning. 14 MS. GRANT: Siobhan Grant on behalf 15 of Mid-Continent Casualty. 16 THE COURT: Okay. Good morning. 17 MS. GRANT: Good morning, your 18 Honor. 19 THE COURT: All right. So it's 20 Mid-Continent's motion for summary 21 judgement. 22 Let me hear from you. 23 MS. GRANT: Does your Honor have any 24 particular areas that your Honor would like 25 to hear first, or should I just proceed Page 4 1 with my argument? 2 THE COURT: No. I mean, I -- I've 3 got to tell you -- and you-all can talk me 4 off the ledge -- but what I'm inclined to 5 do -- I haven't heard, and I'll keep an 6 open mind -- what I'm inclined to do is 7 respectfully deny the motion for summary 8 judgement and grant the motion for leave to 9 amend. 10 But I don't want to take the wind 11 out of anybody's sails; so, you know, talk 12 me off -- feel free to try to talk me off 13 the ledge in that regard. 14 MS. GRANT: Okay. I'm trying to 15 think. 16 Well, your Honor, I think that the 17 motion for summary judgement can be ruled 18 on at this time. It's important to keep in 19 mind that on the duty to defend, the world 20 of facts that we have for the duty to 21 defend is already set in stone. 22 The world of facts on the duty to 23 defend comes from the underlying complaint, 24 and I would note there has been a default 25 final judgement entered regarding the Page 5 1 allegations in that complaint. 2 So at this time, those -- the 3 well-pled facts of that underlying 4 complaint are Mr. Flicker is -- is stuck 5 with those facts, And he's estopped from 6 contradicting those facts. 7 So I understand that they may want 8 to amend to perhaps add additional facts, 9 but regarding the duty to defend, we have 10 the set of facts that we need. We don't 11 need any additional facts. 12 Regarding the motion for summary 13 judgement, I -- I would like to argue the 14 motion for summary judgement and highlight 15 a few things. 16 THE COURT: All right. 17 MS. GRANT: I think it's important 18 to remember that this is a commercial 19 general liability policy. And the purpose 20 of a CGL policy -- if you don't mind, I'll 21 refer to it as a CGL policy. 22 THE COURT: No. I'm -- I used to be 23 in the -- 24 MS. GRANT: Okay. 25 THE COURT: -- complex litigation Page 6 1 division; so I'm very familiar. 2 MS. GRANT: Okay. So -- well, I 3 apologize if I seem redundant, but I -- 4 THE COURT: No, no. Go ahead, 5 please. 6 MS. GRANT: Thank you, your Honor. 7 The purpose of the CGL policy, I 8 think was expressed very well in the 9 Revarato case (phonetic spelling). And the 10 purpose is -- and the reason why the 11 premium is paid is to protect against 12 liability to the public, as distinguished 13 from liability from your own employees, 14 whether or not they're protected by 15 Workers' Comp insurance. 16 That's the facts that we have in 17 this instance. And that's why Flicker 18 Construction purchased the CGL policy from 19 Mid Continent. 20 I'll also like to emphasis we have 21 to keep in mind why Mr. Perea was on the 22 premises. He was on the premises to 23 perform a job function. He was there for 24 work as a statutory employee. 25 As I said before, the duty to defend Page 7 1 the world of facts, we have those facts. 2 No amendment to the complaint is going to 3 add any additional facts to that -- any 4 additional facts that could be argued that 5 would acquire an amendment for the 6 complaint. 7 So now I'll go through the motion 8 for summary judgement in greater detail. 9 As alluded to before, the purpose of 10 the insurance policy was to protect against 11 third parties. Workers' Compensation 12 insurance is what's intended to protect 13 against your employees, which is exactly 14 why CGL policies have an exclusion for 15 Workers' Compensation and for work 16 performed by employees. 17 That's the insurance company saying 18 to the insured, if you're going to have 19 people doing work for you, you need to go 20 somewhere else and find insurance for that 21 purpose. We are only protecting you for 22 third parties, the general public that's on 23 your property, not for your employees. 24 Mr. Perea was an employee. 25 In the underlining complaint, the Page 8 1 allegations of the complaint say that 2 Mr. Perea was retained to perform tile 3 installation at a seafood store. He wasn't 4 there as a member of the general public. 5 He was there to work. So, again, Workers' 6 Compensation or the employee exclusion are 7 going to apply to him because he was there 8 to work. 9 The underlining complaint also 10 references Mr. Flicker's position. 11 Mr. Flicker -- or Flicker Construction, 12 rather, was in control of the construction 13 that was there to be performed, going by 14 the allegations of the complaint. 15 The underlying complaint, which 16 again, Flicker Construction is a staff from 17 contradicting -- regarding -- as far as the 18 duty to defend is concerned. 19 The underlying complaint also 20 alleges that Flicker Construction was 21 acting through its employees or agents. 22 These would be Mr. Perea. 23 So Flicker Construction, as far as 24 the underlying complaint is concerned, was 25 the entity in charge, and Flicker's Page 9 1 Construction, therefore, had the 2 responsibility for purchasing the insurance 3 and insuring the people that were on the 4 property for working. 5 I understand that opposing counsel 6 places a lot of emphasis on the fact that 7 Mr. Jimenez was the entity who Mr. Perea 8 was in contact with -- which is something 9 we can get into regarding the issue of 10 indemnification; however, I think the Arpen 11 (phonetic spelling) case and the Omara 12 (phonetic spelling) case made clear that 13 you could have a statutory employee. 14 And the purpose of having a 15 statutory employee under the Workers' 16 Compensation law is to shift -- to make 17 sure that the general contractor still 18 remains the party who is liable for 19 purchasing the -- the Workers' Compensation 20 Insurance and still remains a party who, to 21 the general public, we're assigning the 22 liability. 23 That's one reason why the general 24 contractor has to put the permit out on the 25 front of the property, so you know who's Page 10 1 responsible for that property. 2 And I believe in the Omara 3 decision -- I think it was well-articulated 4 were the general contractor stated that it 5 was his license that was used. His license 6 and his -- his name was on the permit that 7 was on the front of the building; and, 8 therefore, ultimately he was the party that 9 was responsible for the construction of 10 that property. 11 Just the exact same thing we have 12 here. It was Flicker whose name was on the 13 permit. Flicker was the party who was held 14 out to the public to be the general 15 contractor of that property; therefore, 16 since he was held out as the general 17 contractor, it was his responsibility to 18 purchase Workers' Compensation Insurance 19 for Mr. Perea. 20 It doesn't matter that he didn't. 21 He still had that obligation, and the law 22 doesn't allow that obligation to be shifted 23 to Mid-Continent because that's not the 24 purpose of CGL policy. 25 The CGL policy was not intended to Page 11 1 protect workers on the property while work 2 was being performed, which is exactly what 3 we have here. 4 I think, regarding the leave to 5 amend, as I said, to the extent we're 6 arguing duty to defend, we can't add any 7 additional facts on the leave to amend. 8 I also believe that the counts that 9 Counsel chooses -- is asking to add on the 10 motion for leave to amend, which also isn't 11 noticed today. But since your Honor has 12 referenced it -- 13 THE COURT: I did read it. I 14 haven't seen any, you know, opposition as 15 far as that's concerned. 16 MS. GRANT: We did prepare a 17 response in opposition. I apologize. It 18 was filed late. I have a copy for your 19 Honor. 20 THE COURT: Oh, no. I mean it 21 wasn't scheduled -- 22 MS. GRANT: Okay. 23 THE COURT: -- for today. But I -- 24 you know. 25 MS. GRANT: I don't expect your Page 12 1 Honor to read the whole response in 2 opposition, so I'll just go through the 3 highlights of our -- 4 THE COURT: Okay. 5 MS. GRANT: -- our opposition, since 6 it's on your Honor's mind. 7 THE COURT: Okay. 8 MS. GRANT: I would note that on the 9 eve of summary judgement, when the facts 10 that could have been added to the 11 complaint -- 12 THE COURT: That does concern me, I 13 must confess. You know. 14 MS. GRANT: They've been known for 15 two years, your Honor. This could have 16 been amended at any time. A new complaint 17 was filed on this matter January 2019. It 18 could have been added then. Doing it now 19 on the eve of summary judgement is nothing 20 more than a delay tactic to push off 21 summary judgement. 22 And I -- I -- I think it's just an 23 ambush. I don't think it's appropriate, 24 especially when I don't believe that the 25 allegations of the amended compliant add Page 13 1 anything. 2 Also note that the count that they 3 are trying to add, I believe an amendment 4 would be futile in this instance. And 5 they're trying to add a count for breach of 6 the duty to defend. And I think there's an 7 argument to be made that count is time 8 barred, as well. 9 If the final judgement was entered 10 in the underlying action in July of 2013, 11 and, therefore, it's said it's a breach of 12 the insurance contract, the five-year 13 statute of limitations would apply. And I 14 believe that, therefore, the amendment 15 would have needed to be done by 2018. 16 Again, I also -- I just don't see 17 how the amendment adds anything to the 18 facts that we already have in place. 19 I think your Honor could make a 20 ruling as to whether or not Mid-Continent 21 was required -- had a duty to defend. We 22 already have those -- we already have those 23 facts. 24 Making a ruling based on the facts 25 that we already have and finding in favor Page 14 1 of Mid-Continent, whether or not they 2 wanted to add a 5th count for breach of the 3 duty to defend, they're contradictory. And 4 I don't think we need any additional facts 5 to make that ruling at this time. 6 I'll let opposing counsel respond to 7 that. 8 THE COURT: Okay. Fine. 9 MR. STEINBERG: Well, your Honor, 10 would you like me to address the motion for 11 summary judgment or -- 12 THE COURT: Please. Yes. 13 MR. STEINBERG: Very well, your 14 Honor. 15 So I see you have before you the 16 notebook that we've provided. 17 THE COURT: Yes. 18 MR. STEINBERG: I did my best to 19 condense our 28 days -- 28-page response 20 down to a 2-page outline. 21 THE COURT: Okay. 22 MR. STEINBERG: If I can provide 23 that to the Court and Opposing Counsel. 24 THE COURT: All right. 25 MR. STEINBERG: And this is going to Page 15 1 walk through, essentially, the issues that 2 are before the Court and, you know, our 3 position on those issues. 4 So at the top here, your Honor, you 5 see this is the pertinent -- the two 6 pertinent exclusions. We have the Workers' 7 Comp exclusion and 10 then the employee 8 liability exclusion. 9 That's the language from the policy, 10 and it's attached, too, if you want to see 11 it in greater detail. But that is the 12 pertinent language. 13 So, essentially, the issues before 14 the Court on both the duty to defend and 15 the duty to indemnify are, was Flicker 16 Construction obligated to provide Workers' 17 Compensation benefits to Mr. Perea. And 18 that, of course, goes to the first 19 exclusion; and then to the second 20 exclusion, was Perea an employee of Flicker 21 Construction? 22 So looking at the underlying 23 complaint, we couldn't answer either of 24 those questions. And because it was 25 possible that Flicker was not obligated to Page 16 1 provide Workers' Compensation, and because 2 it was possible that Mr. Perea wasn't an 3 employee, that means Mid-Continent had a 4 duty to defend. 5 Now, if you look to the truth -- to 6 the actual facts that, as your Honor likely 7 noted from your preliminary comments, 8 there's a factual dispute about whether 9 Mr. Perea was a statutory employee, and 10 then, by extension, whether Flicker 11 Construction was obligated to provide 12 Workers' Compensation benefits. 13 And, of course, that fact dispute 14 would be the reason the Court has denied 15 summary judgment on the duty to indemnify. 16 It seems your Honor is well 17 prepared, so I don't want to belabor 18 anything more than necessary. So at any 19 point, cut me off if you've heard enough. 20 But if I could have you turn to 21 Tab 3, we have the Advanced Systems -- no. 22 I'm sorry, your Honor. That's my 23 Continent's notebook you're holding. 24 THE COURT: You know what; you're 25 right. Yes. Page 17 1 MR. STEINBERG: That's the notebook 2 that we provided to you. 3 THE COURT: Yes. 4 MR. STEINBERG: So Tab 3, you see 5 there's the Advanced Systems versus Gotham 6 Insurance Company case. And I'm looking 7 at -- I guess it's the fourth page of the 8 handout, and there's some highlighting. 9 This sets forth the general law on the duty 10 to defend. 11 We agree with Mid-Continent that the 12 duty to defend is determined solely by 13 looking at the allegations in the 14 underlying complaint, and we agree with 15 Mid-Continent that our pending motion to -- 16 for leave to amend the complaint would have 17 no affect on this Court's ability to rule 18 on the duty to defend. 19 But your Honor, I'm sure, is well 20 aware of this law. But, generally, of 21 course, the Court is only supposed to look 22 at the four corners of the underlying 23 complaint and the four corners of the 24 insurance policy, as the Cou