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Filing # 140383951 E-Filed 12/14/2021 06:31:43 PM
KINGDOM CHIROPRACTIC IN THE COUNTY COURT IN AND FOR
a/a/o Juliana Lafleur HILLSBOROUGH COUNTY, FLORIDA
Plaintiff,
CASE NO.: 21-CC-034152 DIV M
vs.
INFINITY AUTO INSURANCE COMPANY
Defendant,
______________________________/
MOTION IN LIMINE
COMES NOW Plaintiff, KINGDOM CHIROPRACTIC a/a/o Juliana Lafleur, by and
through the undersigned counsel, and files this Motion in Limine. In support of its Motion,
Plaintiff states as follows:
1. INFINITY AUTO INSURANCE COMPANY (hereinafter referred to as
“Defendant”) must be precluded from referring to the accident in question as a “fender-bender”
or by any other pejorative term. There is no accident re-constructionist or expert to testify to the
nature, extent or severity of the accident and all comments regarding same should be precluded.
In the case of Mathieu v. Schnitzer, 559 So.2d 1244 (Fla. 4th DCA 1990), the Appellate
Court found that damage found on a car in relation to pedestrian’s injuries and what that
evidence indicated to a trained investigator was not within the common understanding of an
average layman. To qualify as an expert in a given area, it must be shown that the witness has
acquired special knowledge of the subject matter whether by study or though experience. Lake
Hospital & Clinic, Inc. v. Silverman, 551 So. 2d 538 (Fla. 4th DCA 1989). No individual, neither
a representative nor an attorney, from INFINITY AUTO INSURANCE COMPANY has such
expertise and there is no such person listed on Defendant’s pretrial catalog. Therefore, no witness
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
Case No.: 21-CC-034152 DIV M
can give any testimony concerning impact or the need for emergency treatment at the scene.
Accordingly, Plaintiff seeks a Motion in Limine precluding such reference in any manner
whatsoever.
2. Defendant may attempt to allege or infer some kind of fraud which is not pleaded.
It is a well– established point of law that fraud must be plead with specificity. See Fla. Rules of
Civil Procedure 1.120(b). See Bankers Mutual Cap. Corp. v. US Fidelity & Guaranty Co., 786
So.2d 485 (Fla. 4th 2001); Peninsular Florida Dist. Council v. Pan Am. Invest & Dev. Corp., 450
So. 2d 1231 (Fla. 4th DCA 1984). The elements of fraud are: 1) misrepresentation of a material
fact; 2) knowledge that misrepresentation is false; 3) intention that the other party rely on said
misrepresentation; 4) justifiable reliance and; 5) resulting injury or damage. See Eastern Cement
v. Halliburton Co., 600 So. 2d 469 (Fla. 4th DCA 1992); Arnold v. Week, 388 So. 2d 269 (Fla.
4th DCA 1980). Pleading fraud without particularity in an affirmative defense does not raise the
issue of fraud for trail. Cady v. Chevy Case S. & L. Assoc., 528 So.2d 136 (1988). Moreover,
elements not pled may not be inferred from context. Myers v. Myers, 652 So. 2d 1214 (Fla. 5 th
DCA 1995). Failure to allege fraud with particularity is grounds for dismissal of the claim.
General Dynamics Corp. v. Hewitt, 225 So. 2d 561 (Fla. 3rd DCA 1979). INFINITY AUTO
INSURANCE COMPANY must be precluded from inferring or claiming any kind of fraud
which is inadmissible as a matter of law at trial and which has not been plead and is not factually
supported in any manner whatsoever.
3. Defendant should be precluded from any mention that the claimant went to see an
attorney or that an attorney referred him to the medical facility in question. It is not relevant and
its prejudicial value far outweighs its probative value. Any questions regarding the time period or
circumstances under which the claimant hired an attorney is not relevant to this suit. Watson v.
[2711-00179/37866068/1]
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
Case No.: 21-CC-034152 DIV M
Builders Square 563 So.2d. 721 (4th DCA 1990). There is no allegation that the claimant is
litigious and therefore no relevance to him seeking the assistance of an attorney or how itwas
that he came to seek medical treatment.
4. Any mention, comment, reference, suggestion or question that the patient and
plaintiff are dishonest or are committing insurance fraud or that their claims are suspect or that
any claims were referred to the Special Investigation Unit (SIU) or the reasons why it was
referred to SIU. Statements in a proof of loss must be willful and fraudulent before they will
render the policy void for fraud and the insurer has the burden to establish the knowing and
willful misrepresentations were material to its risk. See Rogers v. Auto-Owners Ins. Co. 379 So.
2d 700 (Fla. 2d DCA), cert dend., 388 So.2d 1109 (Fla.1980) (insurer burden to establish
knowing and willful misrepresented facts material to company’s risk); and E. G. Berkshire Mut.
Ins. Co. v. Moppet, 378 F.2d 1007, 1012 ( 5th Cir. 1967) (overestimation of value of goods, and
mistake for an error in judgment on the fixing of values will not render the insurance contract
void unless “the proof of the false swearing was such that no other conclusion can be drawn than
that a purposeful misrepresentation was intended”).
5. Any mention, comment, reference, suggestion or question to the patient’s desire
for treatment being motivated by the attorneys, claim building or establishment of the tort
threshold in a personal injury case.
6. Any mention, comment, reference, suggestion or question to the financial status
of the patient should be precluded.
7. Any mention, comment, reference, suggestion or question to any claims that the
patient has ever made including unemployment, workers compensation, or jury claims
[2711-00179/37866068/1]
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
Case No.: 21-CC-034152 DIV M
whatsoever subsequent to the accident date in question and completion of treatment should be
precluded.
8. Any mention, comment, reference, suggestion or question if this suit or judgment
in this suit would have any effect upon the insurance rates, premium or charges, either generally
or as particularly applied to the Defendant as a result of this matter should also be precluded.
9. Defendant should be prohibited from making any mention, comment or reference
to an “insurance crisis.” Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989).
10. Defendant should be prohibited from making any mention, comment, reference or
asking any questions encouraging the jury to “send a message” by its verdict to act as the voice
of the community or to use its verdict to punish the plaintiff and patient. Eagle- Picher Industries
Inc. v. Cox. 481 So.2d 517 (Fla. 3rd DCA 1985); Florida Crushed Stone Co. v. Johnson, 546
So.2d.1102 (Fla. 5th DCA 1989);Brumage v. Plummer, 502 So.2d.966 (Fla.3rd DCA 1987);
Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989); and Sacred Heart Hospital of Pensacola
v. Stone, 650 So.2d 676(Fla. 1sr DCA 1995).
11. Defendant is limited to its viable affirmative defenses and cannot raise any issue
not specifically plead. Plaintiff does not agree to litigate any affirmative defenses not plead and
viable and seeks a motion in limine from any mention, in any way, shape, or form, of any of
these grounds for denying the claim. See Book v. City of Winter Park, 718 So.2d.945 (Fla. 5th
DCA 1998). Therefore, Plaintiff seeks an instruction precluding Defendant from blurting out
reasons for non-payment that have not been properly plead.
The Third District Court of Appeals has repeatedly expressed its displeasure when a party
is permitted to ambush its opponent at trial with issues not raised by the pleadings and not
intended to be litigated at trial. In the case of Sobel v. Jefferson Stores, Inc., 459 So.2d 433 (Fla.
[2711-00179/37866068/1]
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4
Case No.: 21-CC-034152 DIV M
3d DCA 1984), Chief Judge Alan Schwartz noted the Court’s astonishment at the granting of a
directed verdict by the trail court that the plaintiffs had failed to affirmatively show the defendant
was liable for the negligent operation of one of its stores where the accident occurred, after a
hung jury failed to return a verdict on a slip and fall case. Chief Judge Schwartz stated the
following:
Although Jefferson Stores, Inc.’s answer contained a general
denial of all of the allegations of the complaint, including the
routine one that it operated the Jefferson store in question, its
defense of the case, which it conducted throughout discovery
and at trial from opening statement to the end of the plaintiff’s
case totally without reference to any claim that it was not the
responsible entity- including producing as its corporate
representative for deposition and trial the employee who was
on the scene in the store when Mrs. Sobel fell- clearly waived
and stopped it from asserting any such contention when it
leaped from ambush with the claim of a failure of proof only
after plaintiffs had rested. Argenbright v. J.M. Fields Co., 196
so2d 190 (Fla.3d DCA 1967), cert. denied, 201 So.2d
895(Fla.1967); Holyoke mutual Ins. Co. In Salem v. Concrete
Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA 1981)m pet. for
rev. denied, 402 So.2d 609 ( Fla.1981); Salcedo v. Asociacion
Cubana,Inc., 368 So.2d 1337 (Fla.3d DCA 1979), cert.denied,
378 So.2d 342 (Fla.1979).
12. Defendant is precluded from making any reference to a police report or comments
made to or by the investigating officer or comments made at the scene of the accident by any
person, witness or party to the accident pursuant to F.S. 316.066(4).
13. Defendant should be prohibited from challenging Plaintiff’s counsel to explain to
the jury why it did not call certain witnesses, or why deposed witnesses were not at trial,or
making other references to matters outside the record. Riggins v. Mariner Boat Works, 545 so.2d
430 (Fla. 2d DCA 1989); and Sacred Heart Hospital of Pensacola v. Stone. supra.
[2711-00179/37866068/1]
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5
Case No.: 21-CC-034152 DIV M
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Mail
on December 14, 2021 to Amanda Duran, Esq., Law Office of Leslie M. Goodman &
Associates, at browardlegal@ipacc.com.
LANDAU & ASSOCIATES, P.A.
1619 NW 136th Avenue
Suite 2C
Sunrise, FL 33323
Telephone (954) 744-8383
Facsimile (954) 391-7805
Email: efilings@pip-lawyers.com
By:
JASON GRAY, ESQ.
Florida Bar No. 94011
[2711-00179/37866068/1]
12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6
Preview
Filing # 140383951 E-Filed 12/14/2021 06:31:43 PM KINGDOM CHIROPRACTIC IN THE COUNTY COURT IN AND FOR a/a/o Juliana Lafleur HILLSBOROUGH COUNTY, FLORIDA Plaintiff, CASE NO.: 21-CC-034152 DIV M vs. INFINITY AUTO INSURANCE COMPANY Defendant, ______________________________/ MOTION IN LIMINE COMES NOW Plaintiff, KINGDOM CHIROPRACTIC a/a/o Juliana Lafleur, by and through the undersigned counsel, and files this Motion in Limine. In support of its Motion, Plaintiff states as follows: 1. INFINITY AUTO INSURANCE COMPANY (hereinafter referred to as “Defendant”) must be precluded from referring to the accident in question as a “fender-bender” or by any other pejorative term. There is no accident re-constructionist or expert to testify to the nature, extent or severity of the accident and all comments regarding same should be precluded. In the case of Mathieu v. Schnitzer, 559 So.2d 1244 (Fla. 4th DCA 1990), the Appellate Court found that damage found on a car in relation to pedestrian’s injuries and what that evidence indicated to a trained investigator was not within the common understanding of an average layman. To qualify as an expert in a given area, it must be shown that the witness has acquired special knowledge of the subject matter whether by study or though experience. Lake Hospital & Clinic, Inc. v. Silverman, 551 So. 2d 538 (Fla. 4th DCA 1989). No individual, neither a representative nor an attorney, from INFINITY AUTO INSURANCE COMPANY has such expertise and there is no such person listed on Defendant’s pretrial catalog. Therefore, no witness 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 Case No.: 21-CC-034152 DIV M can give any testimony concerning impact or the need for emergency treatment at the scene. Accordingly, Plaintiff seeks a Motion in Limine precluding such reference in any manner whatsoever. 2. Defendant may attempt to allege or infer some kind of fraud which is not pleaded. It is a well– established point of law that fraud must be plead with specificity. See Fla. Rules of Civil Procedure 1.120(b). See Bankers Mutual Cap. Corp. v. US Fidelity & Guaranty Co., 786 So.2d 485 (Fla. 4th 2001); Peninsular Florida Dist. Council v. Pan Am. Invest & Dev. Corp., 450 So. 2d 1231 (Fla. 4th DCA 1984). The elements of fraud are: 1) misrepresentation of a material fact; 2) knowledge that misrepresentation is false; 3) intention that the other party rely on said misrepresentation; 4) justifiable reliance and; 5) resulting injury or damage. See Eastern Cement v. Halliburton Co., 600 So. 2d 469 (Fla. 4th DCA 1992); Arnold v. Week, 388 So. 2d 269 (Fla. 4th DCA 1980). Pleading fraud without particularity in an affirmative defense does not raise the issue of fraud for trail. Cady v. Chevy Case S. & L. Assoc., 528 So.2d 136 (1988). Moreover, elements not pled may not be inferred from context. Myers v. Myers, 652 So. 2d 1214 (Fla. 5 th DCA 1995). Failure to allege fraud with particularity is grounds for dismissal of the claim. General Dynamics Corp. v. Hewitt, 225 So. 2d 561 (Fla. 3rd DCA 1979). INFINITY AUTO INSURANCE COMPANY must be precluded from inferring or claiming any kind of fraud which is inadmissible as a matter of law at trial and which has not been plead and is not factually supported in any manner whatsoever. 3. Defendant should be precluded from any mention that the claimant went to see an attorney or that an attorney referred him to the medical facility in question. It is not relevant and its prejudicial value far outweighs its probative value. Any questions regarding the time period or circumstances under which the claimant hired an attorney is not relevant to this suit. Watson v. [2711-00179/37866068/1] 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 Case No.: 21-CC-034152 DIV M Builders Square 563 So.2d. 721 (4th DCA 1990). There is no allegation that the claimant is litigious and therefore no relevance to him seeking the assistance of an attorney or how itwas that he came to seek medical treatment. 4. Any mention, comment, reference, suggestion or question that the patient and plaintiff are dishonest or are committing insurance fraud or that their claims are suspect or that any claims were referred to the Special Investigation Unit (SIU) or the reasons why it was referred to SIU. Statements in a proof of loss must be willful and fraudulent before they will render the policy void for fraud and the insurer has the burden to establish the knowing and willful misrepresentations were material to its risk. See Rogers v. Auto-Owners Ins. Co. 379 So. 2d 700 (Fla. 2d DCA), cert dend., 388 So.2d 1109 (Fla.1980) (insurer burden to establish knowing and willful misrepresented facts material to company’s risk); and E. G. Berkshire Mut. Ins. Co. v. Moppet, 378 F.2d 1007, 1012 ( 5th Cir. 1967) (overestimation of value of goods, and mistake for an error in judgment on the fixing of values will not render the insurance contract void unless “the proof of the false swearing was such that no other conclusion can be drawn than that a purposeful misrepresentation was intended”). 5. Any mention, comment, reference, suggestion or question to the patient’s desire for treatment being motivated by the attorneys, claim building or establishment of the tort threshold in a personal injury case. 6. Any mention, comment, reference, suggestion or question to the financial status of the patient should be precluded. 7. Any mention, comment, reference, suggestion or question to any claims that the patient has ever made including unemployment, workers compensation, or jury claims [2711-00179/37866068/1] 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 Case No.: 21-CC-034152 DIV M whatsoever subsequent to the accident date in question and completion of treatment should be precluded. 8. Any mention, comment, reference, suggestion or question if this suit or judgment in this suit would have any effect upon the insurance rates, premium or charges, either generally or as particularly applied to the Defendant as a result of this matter should also be precluded. 9. Defendant should be prohibited from making any mention, comment or reference to an “insurance crisis.” Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989). 10. Defendant should be prohibited from making any mention, comment, reference or asking any questions encouraging the jury to “send a message” by its verdict to act as the voice of the community or to use its verdict to punish the plaintiff and patient. Eagle- Picher Industries Inc. v. Cox. 481 So.2d 517 (Fla. 3rd DCA 1985); Florida Crushed Stone Co. v. Johnson, 546 So.2d.1102 (Fla. 5th DCA 1989);Brumage v. Plummer, 502 So.2d.966 (Fla.3rd DCA 1987); Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989); and Sacred Heart Hospital of Pensacola v. Stone, 650 So.2d 676(Fla. 1sr DCA 1995). 11. Defendant is limited to its viable affirmative defenses and cannot raise any issue not specifically plead. Plaintiff does not agree to litigate any affirmative defenses not plead and viable and seeks a motion in limine from any mention, in any way, shape, or form, of any of these grounds for denying the claim. See Book v. City of Winter Park, 718 So.2d.945 (Fla. 5th DCA 1998). Therefore, Plaintiff seeks an instruction precluding Defendant from blurting out reasons for non-payment that have not been properly plead. The Third District Court of Appeals has repeatedly expressed its displeasure when a party is permitted to ambush its opponent at trial with issues not raised by the pleadings and not intended to be litigated at trial. In the case of Sobel v. Jefferson Stores, Inc., 459 So.2d 433 (Fla. [2711-00179/37866068/1] 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 Case No.: 21-CC-034152 DIV M 3d DCA 1984), Chief Judge Alan Schwartz noted the Court’s astonishment at the granting of a directed verdict by the trail court that the plaintiffs had failed to affirmatively show the defendant was liable for the negligent operation of one of its stores where the accident occurred, after a hung jury failed to return a verdict on a slip and fall case. Chief Judge Schwartz stated the following: Although Jefferson Stores, Inc.’s answer contained a general denial of all of the allegations of the complaint, including the routine one that it operated the Jefferson store in question, its defense of the case, which it conducted throughout discovery and at trial from opening statement to the end of the plaintiff’s case totally without reference to any claim that it was not the responsible entity- including producing as its corporate representative for deposition and trial the employee who was on the scene in the store when Mrs. Sobel fell- clearly waived and stopped it from asserting any such contention when it leaped from ambush with the claim of a failure of proof only after plaintiffs had rested. Argenbright v. J.M. Fields Co., 196 so2d 190 (Fla.3d DCA 1967), cert. denied, 201 So.2d 895(Fla.1967); Holyoke mutual Ins. Co. In Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA 1981)m pet. for rev. denied, 402 So.2d 609 ( Fla.1981); Salcedo v. Asociacion Cubana,Inc., 368 So.2d 1337 (Fla.3d DCA 1979), cert.denied, 378 So.2d 342 (Fla.1979). 12. Defendant is precluded from making any reference to a police report or comments made to or by the investigating officer or comments made at the scene of the accident by any person, witness or party to the accident pursuant to F.S. 316.066(4). 13. Defendant should be prohibited from challenging Plaintiff’s counsel to explain to the jury why it did not call certain witnesses, or why deposed witnesses were not at trial,or making other references to matters outside the record. Riggins v. Mariner Boat Works, 545 so.2d 430 (Fla. 2d DCA 1989); and Sacred Heart Hospital of Pensacola v. Stone. supra. [2711-00179/37866068/1] 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 Case No.: 21-CC-034152 DIV M CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Mail on December 14, 2021 to Amanda Duran, Esq., Law Office of Leslie M. Goodman & Associates, at browardlegal@ipacc.com. LANDAU & ASSOCIATES, P.A. 1619 NW 136th Avenue Suite 2C Sunrise, FL 33323 Telephone (954) 744-8383 Facsimile (954) 391-7805 Email: efilings@pip-lawyers.com By: JASON GRAY, ESQ. Florida Bar No. 94011 [2711-00179/37866068/1] 12/14/2021 6:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6