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Filing# 182051792 E-Filed 09/18/2023 03:19:02 PM
THE CIRCUIT COURT OF THE 17TH
IN
JUDICIAL CIRCUIT IN AND FOR
ELORS ETIENNE AND ADJANIE BROWARD COUNTY, FLORIDA
ETIENNE,
CASE NO. CACE-21-010707
Plaintiffs,
V
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
PLAINTIFF'SMOTION IN LIMINE TO EXCLUDE EVIDENCE, REFERENCE OR
TESTIMONY TO SETTLEMENT DISCUSSIONS BETWEEN THE PARTIES
Plaintiffs,ELORS ETIENNE AND ADJANIE ETIENNE , by and
(the "Plaintiff'),
through its undersigned counsel and pursuant to all applicableFlorida Rules of Civil Procedure,
requests the Court
respectfully to enter an Order grantingthis Motion in Limine excludingfrom
the admission into evidence and prohibitingDefendant, it's attorneys, and its witnesses, from
to, commenting on or alludingto, during the proceedings (includingpre-trial
testifying matters,
jury selection, arguments, trial testimony, and jury instructions and deliberations,or while
otherwise in the presence ofjurors,any of the following matters:
1. commencing and over the course of the pending litigation,
Prior to litigation there
have been several settlement discussions between the parties.
Any such discussions are clearly
inadrnissible.
Federal Rule of Evidence 408 provides:
"
Evidence of (1) furnishing,offering,or promising to furnish,or (2) accepting,
offering,or promising to accept, a valuable consideration in compromising or
attemptingto compromise a claim which was disputed as to either validityor
amount, is not admissible to prove liability
for or invalidityof the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/18/2023 03:19:02 PM.****
likewise not admissible This rule also does not requireexclusion when the
...
evidence is offered for another purpose, such as proving bias or prejudiceof a
witness, negativinga contention of undue delay,or proving an effort to obstruct
a criminal investigation
or prosecution.."
The Federal rules of evidence provide a freedom for the partiesto discuss compromise
without the fear of those same discussions later being used againstthem. The policybehind this
rule which excludes evidence of compromise or offers to compromise is to encourage freedom of
discussions with regardto compromise. A#iliatedA#Ps.,Inc. v. Aluminum Co. ofAmerica, 56 F.3d
ird
521 (3 Cir. 1995).Courts have consistently
held that Fed. R. Evid. 408 prohibitsall partiesfrom
where the evidence
introducingevidence relatingto settlement discussions specifically is being
or the validityor amount of the claim. See,
offered to establish liability e.g., Trebor Sportswear
Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506 (2ndCir. 1989); Neier v. U.S., 127 B.R. 669
of Kansas 1991),Buckman
(District v. Bombardier Corp., 893 F.Supp. 547 (E.D.N.C. 1995).
For example, in Trebor, a breach of contract action,the Court grantedDefendants' Motion
for Summary Judgment statingthe claim was barred by the Statute of Frauds. Id. at 509. On appeal,
the Plaintiffs sought to introduce written documents evidencinga contract between the parties,
and
the documents were disregardedby the court because they constituted inadmissible evidence of a
settlement offer. Id. at 510. The Court held that since satisfying
the Statute ofFrauds was so closely
intertwined with the validityof Plaintiffs' claims, "admission of the documents even initially
for
the purpose of meeting the Statute of Frauds requirementwould militate againstthe publicpolicy
considerations which favor settlement negotiations
and which underlie Rule 408." Id. at 510 Cf.
ith
FiberglassInsulators, Inc. v. Dupuy, 856 F.ld 651, 655 (A Cir. 1988).
Here, it is believed that Defendant may attempt to introduce evidence of a settlement
negotiationsbetween the parties.However, this Court should not permit any introduction of
whatsoever.
settlement negotiations When the issue is doubtful,the better practiceis to exclude
2
evidence of compromises or compromise offers. Bradbuo v.
PhillipsPetroleum Co., 815 F.2d
th
1356 (10 Cir. 1987).
1. Under Fed. R. Evid. 408, evidence of settlement negotiations are wholly
inadmissible. Accordingly, any evidence of or reference to settlement discussions or the lack
thereof in the presence of any jurorshould be excluded.
2. Furthermore, Florida Statute §90.408 directlyaddresses compromise and offers to
compromise and states that:
Evidence of an offer to compromise a claim which was disputed as to validityor
amount, as well as any relevant conduct or statements made in negotiations
or absence of liability
concerning a compromise, is inadmissible to prove liability
for the claim or its value.
3 For these reasons, Plaintiff asks that the Court enter an Order excluding any
evidence or discussions of (including,
but not necessarily
limited to):
a. Any mediations that may or may not have taken place and the discussions
and results of that mediation;
b. The fact that settlement discussions took place prior to or during the
pendency of the lawsuit in the instant case;
c. The words mentioned during any settlement discussion;
d. The fact that a proposal for settlement or offer of judgment between the
partieshas been made in this case;
e. The content of any proposalfor settlement or offer ofjudgment between the
in
parties this case;
f. Any failure by any party to settle this matter; and
g. Damages calculations prepared for any mediation or settlement negotiation,
as well as the basis for those calculations.
3
4. This type of evidence is inadmissible both, on a state and federal level.
Furthermore, this type of evidence is irrelevant and unfairlyprejudicial
and is,therefore,
violative of Florida Rules of Evidence 90.401 and 90.403.
CONCLUSION AND PRAYER
WHEREFORE, Plaintiffs,ELORS ETIENNE AND ADJANIE ETIENNE , respectfully
requests that this Honorable Court grant this Motion in Limine and prevent the introduction of
testimony and evidence referenced herein, along with any other relief this Court deems necessary,
justor proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoingwas furnished via electronic mail
to: Rafael Reyes, Esq., Universal Property and Casualty Insurance Company, 1110 West
Comrnerical Blvd.,, Fort Lauderdale, FL 33309,
rr0308@universalproperty.com;vb0221@universalproperty.comiupciceservice01@universalprop
erty.com on September 18, 2023.
Respectfullysubmitted,
FELDMAN & LOPEZ, P.A.
9990 SW 77th Avenue
Miami, FL 33156
Phone: (305) 779-5904
By: Carolina Lopez
/s/
Carolina Lopez, Esq.
Florida Bar No. 1000488
com
service@feldmanandlopez.
4
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Filing# 182051792 E-Filed 09/18/2023 03:19:02 PM THE CIRCUIT COURT OF THE 17TH IN JUDICIAL CIRCUIT IN AND FOR ELORS ETIENNE AND ADJANIE BROWARD COUNTY, FLORIDA ETIENNE, CASE NO. CACE-21-010707 Plaintiffs, V UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i PLAINTIFF'SMOTION IN LIMINE TO EXCLUDE EVIDENCE, REFERENCE OR TESTIMONY TO SETTLEMENT DISCUSSIONS BETWEEN THE PARTIES Plaintiffs,ELORS ETIENNE AND ADJANIE ETIENNE , by and (the "Plaintiff'), through its undersigned counsel and pursuant to all applicableFlorida Rules of Civil Procedure, requests the Court respectfully to enter an Order grantingthis Motion in Limine excludingfrom the admission into evidence and prohibitingDefendant, it's attorneys, and its witnesses, from to, commenting on or alludingto, during the proceedings (includingpre-trial testifying matters, jury selection, arguments, trial testimony, and jury instructions and deliberations,or while otherwise in the presence ofjurors,any of the following matters: 1. commencing and over the course of the pending litigation, Prior to litigation there have been several settlement discussions between the parties. Any such discussions are clearly inadrnissible. Federal Rule of Evidence 408 provides: " Evidence of (1) furnishing,offering,or promising to furnish,or (2) accepting, offering,or promising to accept, a valuable consideration in compromising or attemptingto compromise a claim which was disputed as to either validityor amount, is not admissible to prove liability for or invalidityof the claim or its amount. Evidence of conduct or statements made in compromise negotiations is 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/18/2023 03:19:02 PM.**** likewise not admissible This rule also does not requireexclusion when the ... evidence is offered for another purpose, such as proving bias or prejudiceof a witness, negativinga contention of undue delay,or proving an effort to obstruct a criminal investigation or prosecution.." The Federal rules of evidence provide a freedom for the partiesto discuss compromise without the fear of those same discussions later being used againstthem. The policybehind this rule which excludes evidence of compromise or offers to compromise is to encourage freedom of discussions with regardto compromise. A#iliatedA#Ps.,Inc. v. Aluminum Co. ofAmerica, 56 F.3d ird 521 (3 Cir. 1995).Courts have consistently held that Fed. R. Evid. 408 prohibitsall partiesfrom where the evidence introducingevidence relatingto settlement discussions specifically is being or the validityor amount of the claim. See, offered to establish liability e.g., Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506 (2ndCir. 1989); Neier v. U.S., 127 B.R. 669 of Kansas 1991),Buckman (District v. Bombardier Corp., 893 F.Supp. 547 (E.D.N.C. 1995). For example, in Trebor, a breach of contract action,the Court grantedDefendants' Motion for Summary Judgment statingthe claim was barred by the Statute of Frauds. Id. at 509. On appeal, the Plaintiffs sought to introduce written documents evidencinga contract between the parties, and the documents were disregardedby the court because they constituted inadmissible evidence of a settlement offer. Id. at 510. The Court held that since satisfying the Statute ofFrauds was so closely intertwined with the validityof Plaintiffs' claims, "admission of the documents even initially for the purpose of meeting the Statute of Frauds requirementwould militate againstthe publicpolicy considerations which favor settlement negotiations and which underlie Rule 408." Id. at 510 Cf. ith FiberglassInsulators, Inc. v. Dupuy, 856 F.ld 651, 655 (A Cir. 1988). Here, it is believed that Defendant may attempt to introduce evidence of a settlement negotiationsbetween the parties.However, this Court should not permit any introduction of whatsoever. settlement negotiations When the issue is doubtful,the better practiceis to exclude 2 evidence of compromises or compromise offers. Bradbuo v. PhillipsPetroleum Co., 815 F.2d th 1356 (10 Cir. 1987). 1. Under Fed. R. Evid. 408, evidence of settlement negotiations are wholly inadmissible. Accordingly, any evidence of or reference to settlement discussions or the lack thereof in the presence of any jurorshould be excluded. 2. Furthermore, Florida Statute §90.408 directlyaddresses compromise and offers to compromise and states that: Evidence of an offer to compromise a claim which was disputed as to validityor amount, as well as any relevant conduct or statements made in negotiations or absence of liability concerning a compromise, is inadmissible to prove liability for the claim or its value. 3 For these reasons, Plaintiff asks that the Court enter an Order excluding any evidence or discussions of (including, but not necessarily limited to): a. Any mediations that may or may not have taken place and the discussions and results of that mediation; b. The fact that settlement discussions took place prior to or during the pendency of the lawsuit in the instant case; c. The words mentioned during any settlement discussion; d. The fact that a proposal for settlement or offer of judgment between the partieshas been made in this case; e. The content of any proposalfor settlement or offer ofjudgment between the in parties this case; f. Any failure by any party to settle this matter; and g. Damages calculations prepared for any mediation or settlement negotiation, as well as the basis for those calculations. 3 4. This type of evidence is inadmissible both, on a state and federal level. Furthermore, this type of evidence is irrelevant and unfairlyprejudicial and is,therefore, violative of Florida Rules of Evidence 90.401 and 90.403. CONCLUSION AND PRAYER WHEREFORE, Plaintiffs,ELORS ETIENNE AND ADJANIE ETIENNE , respectfully requests that this Honorable Court grant this Motion in Limine and prevent the introduction of testimony and evidence referenced herein, along with any other relief this Court deems necessary, justor proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoingwas furnished via electronic mail to: Rafael Reyes, Esq., Universal Property and Casualty Insurance Company, 1110 West Comrnerical Blvd.,, Fort Lauderdale, FL 33309, rr0308@universalproperty.com;vb0221@universalproperty.comiupciceservice01@universalprop erty.com on September 18, 2023. Respectfullysubmitted, FELDMAN & LOPEZ, P.A. 9990 SW 77th Avenue Miami, FL 33156 Phone: (305) 779-5904 By: Carolina Lopez /s/ Carolina Lopez, Esq. Florida Bar No. 1000488 com service@feldmanandlopez. 4 5