Preview
Filing # 181664704 E-Filed 09/12/2023 05:06:36 PM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT, IN AND FOR MIAMI
DADE COUNTY, FLORIDA
CASE NO: 2022-003240-CA-01
MAGIC CITY AUTO GROUP, LLC A/A/O
AMATO GOCSMAN ALBERT ALDO
ALEXANDER,
Plaintiff,
vs.
DIRECT GENERAL INSURANCE
COMPANY,
Defendant.
__________________________________/
DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT
Defendant, DIRECT GENERAL INSURANCE COMPANY, through its undersigned
counsel, pursuant to Rule 1.480 of the Florida Rules of Civil Procedure, files this its Motion
to Set Aside Verdict, and as grounds therefore would state as follows:
1. This is a first party breach of contract action seeking insurance benefits
allegedly owed to Magic City Auto Group, LLC a/a/o Albert Amato Gocsman (the
“Plaintiff”) under an insurance policy for property damage to a 2012 Ferrari.
2. The Court conducted a jury trial on this matter on August 28, 2023.
3. Despite this action being plead as a breach of contract, the Court did not
require the Plaintiff to prove the elements of a breach of contract action. The Court limited
the Plaintiff’s burden of proof to establishing the Actual Cash Value (hereafter “ACV”) of
the 2012 Ferrari.
4. During the trial the Plaintiff called a single witness, the corporate
1
representative of Turo, Inc1, Todd Armstrong. Exhibit A, Trial Transcript, p. 130, lines 3 –
9.
5. Plaintiff introduced a Market Valuation Report prepared by CCC One
(hereafter “Valuation Report”).2 Plaintiff also elicited testimony from Mr. Armstrong
regarding the content of that Valuation Report and another document entitled Turo Claim
Tool Kit.3
6. Without the admission of the Valuation Report and the testimony of Mr.
Armstrong based on it, Plaintiff presented no evidence as to the ACV of the 2012 Ferrari.
7. Defendant objected to the admission of the Valuation Report as
inadmissible hearsay.
8. Plaintiff sought the admission of the Valuation Report as business record of
Turo under Florida Statute §90.803 (6) commonly referred to the “business records
exception”.
9. Mr. Armstrong did not possess personal knowledge of Turo’s regular
business practices relating to the creation and retention of the records at issue. See
Jackson v. Household Fin. Corp. III, 298 So.3d 531, 536 (Fla. 2020).
10. Turo had no part in the creation of the Valuation Report. Exhibit A, p. 137,
lines 5 – 11. It was created by CCC One, whom Turo has no relation to. Exhibit A, p. 138,
lines 16 – 25.
11. It would be impossible for Mr. Armstrong, as an employee of Turo, to have
1
Turo is the peer-to-peer car sharing application that Natalia Zorin utilized to share the 2012 Ferrari with
Plaintiff’s assignor, Albert Amato Gocsman.
2
The Valuation Report and Turo Claim Tool Kit were the subjects of a Motion in Limine filed by the
Defendant. The Court refused to consider the Motion in Limine prior to the start of trial. Exhibit B, Motion
in Limine to Exclude the CCC One Market Valuation Report and the Turo Claim Toolkit for Auto Loss, Tax
and Fees as Hearsay and Improper Opinion Testimony; Exhibit A, p. 111, line 19 – p. 113, line 23.
3 Mr. Armstrong was permitted to testify regarding the content of the Turo Claim Tool Kit over the
objections of Defendant and without the Turo Claim Tool Kit being admitted into evidence.
2
personal knowledge of CCC One’s regular business practices relating to the creation or
retention of the Valuation Report because he never worked for CCC One. Exhibit A, p.
159, lines 17 – 19.
12. Mr. Armstrong did not know the name of the person who created the report
or even what company he worked for.
Q: And you know who actually prepared the report?
A: I don’t know the name of the individual, but I would have to
say it was an employee of Sedgwick.
13. Mr. Armstrong had no personal knowledge as to how CCC One determined
the ACV of the 2012 Ferrari. Exhibit A, p. 159, line 20 – p. 160, line 16.
14. Not only was the Valuation Report itself inadmissible hearsay but the
information contained within the report was hearsay as well.
15. The TURO Claim Toolkit for Auto Total Loss Tax and Fees is unauthored
and includes values and calculations based on the CCC One Market Valuation Report.
See Exhibit B and Exhibit A, p. 159, lines 3 – 16.
16. Mr. Armstrong was permitted to testify as to the contents of the Turo Claim
Toolkit over Defendant’s objections. Exhibit A, p. 156, line 22 – p. 158, line 15.
17. Mr. Armstrong should not have been permitted to testify as to the contents
of the Turo Claim Toolkit before it was first admitted into evidence. Plaintiff never qualified
the document as a business record or admitted it into evidence; therefore, Mr.
Armstrong’s testimony regarding the Turo Claim Tool Kit should be stricken.
18. Testimony based on what other people or documents say, when offered for
the truth of the matter, is hearsay, and without an exception to the hearsay rule, is
inadmissible. See Roberts v. Direct Gen. Ins. Co., 337 So.3d 889, 891 (Fla. 2d DCA
2022); Fla. Stat. §90.805 (2023).
3
19. The CCC One Market Valuation Report is self-described as reflecting “CCC
Intelligent Solutions Inc.’s opinion as to the value of the loss unit, based on information
provided to CCC by SEDGWICK” created by CCC Intelligent Solutions Inc. See Exhibit
“B”, CCCOne Market Valuation Report.
20. Notwithstanding the inadmissibility of the Valuation Report as hearsay, the
content of Valuation Report represents an opinion as to the ACV of the 2012 Ferrari and
“is inadmissible under paragraph (a) unless such opinion or diagnosis would be
admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to
testify to the opinion directly.” Fla. Stat. §90.803(6)(b) (2023).
21. Here, the opinions contained in the Valuation Report regarding the alleged
value of the 2012 Ferrari require special knowledge and experience and cannot be
introduced by a lay witness.
22. There was no testimony offered that the author of the Valuation Report
possessed the “knowledge, skill, experience, training, or education” necessary to provide
an opinion as to the ACV of the 2012 Ferrari.
23. Without calling and qualifying the author of the Valuation Report as an
expert, the Valuation Report represents improper opinion testimony by a lay witness.
24. Allowing a lay witness to testify to the value of property based upon
information provided by a third-party source is an abuse of discretion. See Bekins Van
Lines v. Schaeffer, 630 So. 2d 633 (Fla. 4th DCA 1994).
25. Without the admission of the Valuation Report, the corporate representative
should not have been allowed to testify as to the ACV. “[I]t is well established that a trial
court reversibly errs by allowing a witness to testify as to the contents of a business record
when the business record itself is not entered into evidence.” See Mesa v. Citizens
4
Property Ins. Corp., 358 So.3d 452, 456 (Fla. 3d DCA 2023).
26. Therefore, the CCC One Market Valuation Report and the TURO Claim
Toolkit for Auto Total Loss Tax and Fees, and any testimony about those documents or
the information contained therein, are inadmissible hearsay and improper opinion
evidence, and should be stricken.
27. Without the Valuation Report and the testimony based upon it, the Plaintiff
presented no evidence at trial as to the actual cash value of the 2012 Ferrari; therefore,
no proper view of the evidence could sustain the jury’s verdict in favor of the Plaintiff in
the amount of $150,469.30.
28. Defendant moved for a directed verdict based upon the Plaintiff’s failure to
establish it was entitled to any damages as a result of the alleged breach of contract.
Exhibit A, p. 229, line 20 – p. 230, line 15.
29. In addition, Defendant moved for a directed based upon the admission of
inadmissible hearsay evidence and improper opinion testimony by a layperson. Exhibit
A, p. 230, line 17 – p. 231, line 9; p. 232, line 11 – p. 249, line.
30. The Court denied Defendant’s Motion for Directed Verdict.
WHEREFORE, Defendant respectfully requests this Honorable Court grant this
Motion for Judgment Notwithstanding the Verdict as follows:
a. Plaintiff failed to lay the proper foundation to have the Valuation Report,
prepared by a third-party, admitted as a business record of Turo;
b. Todd Armstrong, as Turo’s corporate representative did not possess personal
knowledge as to CCC One’s regular business practices of creating and
retaining records such as the Market Valuation Report;
5
c. The CCC One Market Valuation Report is inadmissible hearsay;
d. The CCC One Market Valuation Report represents opinion testimony that
required the author of the report to be qualified as an expert under Fla. Stat.
§90.702;
e. Striking Mr. Armstrong’s testimony regarding the content of the CCC One
Market Valuation Report and the actual cash value of the 2012 Ferrari;
f. The Turo Claim Tool Kit is inadmissible hearsay that Plaintiff failed to lay the
foundation for as a business record and was never admitted into evidence;
g. Striking Todd Armstrong’s testimony regarding the actual cash value stated in
the Turo Claim Tool Kit;
h. Finding that Plaintiff offered no admissible testimony or evidence as to the
actual cash value of the 2012 Ferrari;
i. Holding that in viewing the admissible evidence and all inferences of fact in the
light most favorable to the Plaintiff no proper view of the evidence could sustain
the verdict in favor of the Plaintiff;
j. Setting aside the jury’s verdict for the Plaintiff in the amount of $150,469.30;
and
k. Entering a verdict in favor of Direct General Insurance Company; and all other
relief the Court deems just and proper.
MEMORANDUM OF LAW
I. Turo did not create the Valuation Report and Todd Armstrong did not
possess personal knowledge as to the regular business practices of
CCC One in creating and retaining the Market Valuation Report.
6
The Market Valuation Report relied upon by Plaintiff represents classic hearsay in
that it contains out of court statements offered for the truth of the matter asserted. See
Fla. Stat. §90.801 (2023). Hearsay is inadmissible except as provided by statute. See
Fla. Stat. §90.802 (2023). Defendant objected to the admission of the Valuation Report
at trial as inadmissible hearsay. The Court admitted the Valuation Report as a business
record over the objections of Defendant.
Florida Statute §90.803 (6) contains the statutory exception for “records of
regularly conducted business activity” commonly referred to as the “business records”
exception. See Fla. Stat. §90.803(6) (2023).
To secure admissibility under [Florida's business-records] exception, the
proponent must show that (1) the record was made at or near the time of
the event; (2) was made by or from information transmitted by a person with
knowledge; (3) was kept in the ordinary course of a regularly conducted
business activity; and (4) that it was a regular practice of that business to
make such a record.
See Jackson v. Household Fin. Corp. III, 298 So.3d 531, 539 (Fla. 2020).
Plaintiff was not required to call the person who actually created the record, but it was
required to call a “qualified witness with knowledge of each of the elements.” Id at 536.
A qualified witness, therefore, is anyone with personal knowledge of the
organization's regular business practices relating to creating and retaining
the record(s) at issue. Id. § 803.6, at 1111. This knowledge will necessarily
come from the witness's training or experience, or, most likely, a
combination of both.
Id.
Plaintiff called Todd Armstrong, an employee of Turo, as Turo’s corporate
representative at trial to testify as to the ACV of the 2012 Ferrari. After Defendant
objected to the Valuation Report as inadmissible hearsay, Plaintiff sought to qualify the
Valuation Report as a business record of Turo through the testimony of Mr. Armstrong.
7
Mr. Armstrong did not handle or assess property damage claims as part of his job duties
at Turo. Mr. Armstrong primarily handles “user disputes, when for example, if a host is
unhappy with a reimbursement payout, or a Turo guest is unhappy with being charged
for something.” Exhibit “A, p. 131, lines 2 – 13. Mr. Armstrong was only “familiar with the
manner in which Turo handles and assesses property damage claims … in general
terms.” Id. at p. 132, lines 6 – 10. Mr. Armstrong did not testify that he had any personal
knowledge of Turo’s regular business practices relating to the creation and retention of
the records at issue. He further testified that he had no personal knowledge as to how
CCC One even created the Valuation Report.
Q: Do you have any information regarding the process by which they
determine what the actual cash value of the vehicle is?
A: Only to the extent that they explain it in a few paragraphs on the
report itself.
Q: Okay. So then you don’t have any personal knowledge regarding
how they determine the actual cash value of the vehicle?
A: No. I’ve not [sic]employed at CCC-1.
Exhibit A, p. 159, line 20 – p. 160, line 3.
Without any personal knowledge of CCC One’s regular practices in creating and retaining
Market Valuation Reports, Mr. Armstrong is not the type of “qualified witness” necessary
to admit the Valuation Report under the business records with the exception to hearsay.
II. There was no testimony establishing that the author of the report had
any knowledge of the information contained within the Valuation
Report.
Plaintiff introduced the Valuation Report prepared by CCC One through Todd
Armstrong, the corporate representative from Turo. Turo did not create the Valuation
Report. Mr. Armstrong had no information regarding the individual from CCC One who
8
created the Valuation Report or whether the information contained within it was accurate.
He did not even know when the Valuation Report or Turo Claim Tool Kit were created.
Exhibit A, p. 133, line 25 – p. 134, line 6. “[T]he fact that a document is incorporated into
a business's records does not automatically bring the document within the business
records exception to the hearsay rule.” See Landmark Am. Ins. Co. v. Pin-Pon Corp., 155
So.3d 432, 442 (Fla. 4th DCA 2015) (hereafter referred to as “Pin-Pon”).
The facts surrounding the improper admission of a cost estimate created by a third
party in Pin-Pon are analogous to the case sub judice.
Pin-Pon sought to admit Exhibit 98 through the testimony of the architect.
The architect testified that in the normal course of business, he gives his
report to a contractor or a cost consultant to obtain pricing for a project. He
explained that the numbers he obtains from a contractor or cost consultant
are reliable and that he depends upon them in the normal course of
business. He further testified that Pin-Pon's representative obtained the
cost estimates from the contractor for the items in the code upgrade letter,
as is normally done in the course of his business. He stated that he
maintained a copy of this report in his records, it was part of his business
practice "to maintain reports like this one" in his records, and that the
numbers obtained were reliable within the industry. He admitted that all the
documents in Exhibit 98, with the exception of one, were created by
individuals outside his firm.
See Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So. 3d 432, 440 (Fla. 4th
DCA 2015).
“"To the extent the individual making the record does not have personal knowledge of the
information contained therein, the second prong of the predicate requires the information
to have been supplied by an individual who does have personal knowledge of the
information and who was acting in the course of a regularly conducted business activity."
Id at 441 (quoting Brooks v. State, 918 So.2d 181, 193 (Fla. 2005), receded from on other
grounds by State v. Sturdivant, 94 So.3d 434 (Fla. 2012)). The author of the report was
not an employee of Turo. Exhibit A, p. 139, lines 1 – 4. He was an employee of CCC
9
One. Mr. Armstrong testified that he did not know the name of the individual who prepared
the Valuation Report. He incorrectly assumed that the author of the Valuation Report was
an employee of Sedgwick.
Q: Do you know if that individual at Sedgwick has enough knowledge to
create such a report?
A: We would – we trust Sedgwick to provide us with someone who was
able to do that.
Q: Would you have to defer to Sedgwick on that then?
A: Yes.
Q: So, you would not know if the person created this report had enough
knowledge, skill, expertise, and training to prepare this report?
A: I don’t know
Exhibit A, p. 137, line 25 – p. 138, line 15.
Mr. Armstrong’s testimony failed to satisfy the second requirement of the business
records exception that the author of the Valuation Report had any knowledge of the
information contained within it. Just as in Pin-Pon, this failure is fatal to Plaintiff’s efforts
to qualify the Valuation Report as a business record of Turo.
Here, Pin-Pon failed to show that all the records in Exhibit 98 were made by
or from information transmitted by a person with knowledge. The architect
could not testify as to when 25 of the 26 documents were made. And he
had no information as to whether the person who made the documents had
knowledge or received information from a person with knowledge. While it
was not necessary for Pin-Pon to call the person who actually prepared the
business records, we find that Pin-Pon did not establish that the architect
was either in charge of the activity constituting the usual business practice
or was well enough acquainted with the activity to give the testimony.
Although the documents in Exhibit 98 might have qualified as the general
contractor's business records, the mere fact that these documents were
incorporated into the architect's file did not bring those documents within
the business records exception. In short, Pin-Pon failed to lay the necessary
foundation for the admission of Exhibit 98 as a business record.
Pin-Pon at 442.
10
Mr. Armstrong did not know when the Valuation Report was created. He did not know
the identity of the author. He did not know whether the author of the Valuation Report
worked for Sedgwick or CCCOne. He did not know whether the author of the valuation
report had knowledge or received information from a person with knowledge. Mr.
Armstrong was neither in charge of the creation of the Valuation Report or well enough
acquainted with it to give the testimony. Just because the Valuation Report was part of
Turo’s file does not mean it qualifies as Turo’s business record. Plaintiff failed to lay the
necessary foundation for the admission of the Valuation Report as a business record and
it should be stricken, along with any testimony based upon the information contained
within it.
III. It was not the regular practice of Turo to make records such as the
Valuation Report.
As a written estimate, the Valuation Report may qualify as a business record but,
in order for it to qualify as a business record of Turo, the production of the Valuation
Report must be a regularly conducted business activity of Turo.
Turo is a car sharing platform whereon a person creates a listing for a vehicle he
or she would like to share in return for financial compensation. Exhibit A. p. 131, lines 20
– 25. Turo is not in the business of preparing estimates or determining ACV. In fact, Turo
outsources these types of activities to Sedgwick, who is a contractor that provides
damage appraisals. Id at p. 137, lines 5 – 20. It was Sedgwick that provided information
to CCC One. Id at p. 138, lines 16 – 20. It was CCC One that created this document, not
Turo. Mr. Armstrong was unsure where Turo received the record from stating: “I believe
we received it from CCC-1.” Id at p. 138. Because Turo is not in the business of creating
these types of reports, the Valuation Report does not become a “business record” of Turo
11
simply because it is in its file.
IV. The determination of Actual Cash Value requires expert testimony.
The Third District Court of Appeals has held that “actual cash value” is
synonymous with market value or fair market value.
We find that the controlling language is not ambiguous. The expression
"actual cash value" is an often-used appraisal term, generally synonymous
with "market value" or "fair market value."
See American Reliance Ins. Co. v. Perez, 689 So.2d 290, 291 (Fla. 3d
DCA 1997).
This follows the Florida Supreme Court definition of ACV. In Trinidad v. Fla. Peninsula
Ins. Co., 121 So.3d 433, 428 (Fla. 2013), the Florida Supreme Court stated, “actual cash
value is generally defined as ‘fair market value’ or ‘[r]eplacement cost minus normal
depreciation,’ where depreciation is defined as a ‘decline in an asset's value because of
use, wear, obsolescence, or age.’" At issue at trial in this case4 was the ACV of an exotic
sports car the value of which is outside the knowledge of a common person. “Where fair
market value is at issue, expert testimony is necessary to prove the value thereof.” See
Port Lago Club, Inc. v. Warren, 476 So.2d 1330, 1334); see also McDonald Air
Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA)(“No witness testifying
to value stated that he was familiar with the condition of the equipment in question, nor
was any hypothetical question propounded so that a qualified person could testify to the
market value of these machines.”).
The Valuation Report represents an opinion as to the ACV of the 2012 Ferrari, it
is not a fact. Mr. Armstrong was not disclosed nor was he qualified as an expert witness.
4 Based upon the Court’s pre-trial ruling as to Plaintiff’s burden of proof.
12
The Florida Rules of Evidence permit a layperson to provide opinion testimony under
certain circumstances.
If a witness is not testifying as an expert, the witness’s testimony about what
he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy,
communicate what he or she has perceived to the trier of fact without
testifying in terms of inferences or opinions and the witness’s use of
inferences or opinions will not mislead the trier of fact to the prejudice of the
objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill,
experience, or training.
Fla. Stat. §90.701 (2023)
There can be no dispute that the Valuation Report and the opinions contained therein
require special knowledge, skill, experience or training. If it did not, then there would be
no reason for Turo to hire Sedgwick; or, for Sedgwick, a global claims administrator to
hire CCC One. This need for special knowledge, skill, experience, or training triggers the
requirements of Florida Statute §90.702, which governs the testimony of expert
witnesses:
If scientific, technical, or other specialized knowledge will assist the trier of
fact in understanding the evidence or in determining a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts
of the case.
Plaintiff cannot circumvent the rules of evidence by introducing the Valuation Report and
the opinions contained therein as a “business record.” Without first demonstrating the
declarant was qualified to provide opinion testimony, the ACV stated in the Valuation
13
Report represents improper opinion testimony and should be stricken.
Conclusion
Without the Valuation Report or the testimony related to it, Plaintiff failed to
establish the ACV of the 2012 Ferrari and failed to meet its burden at trial. Defendant
moved for a directed verdict based on the Plaintiff’s failure to establish entitlement to any
damages and the ACV of the 2012 Ferrari. The proper remedy in this situation is for the
Court to set aside the verdict. "A party's failure to prove a required element of a cause of
action . . . ordinarily does not allow the party a new trial . . . on remand in order to remedy
the shortcoming and try again." See Levy v. Ben-Shmuel, 255 So. 3d 493, 497 (Fla. 3d
DCA 2018). For the reasons set forth more fully above, Defendants Motion for Judgment
Notwithstanding the Verdict should be granted and verdict entered in favor of Defendant.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
via E-Service to Carlos Santisteban Jr., Esq.; (eservice@csjrlaw.com and
carlos@csjrlaw.com) on September 12, 2023.
Attorneys for Defendant
McFarlane Law
210 N. University Drive, 6th Floor
Coral Springs, Florida 33071
(954) 340-0005 Broward
(954) 340-0055 Facsimile
PLEADING SERVICE E-MAIL ADDRESS
pleadingservice@mcfarlanedolanlaw.com
By: /s/ William J. McFarlane, III
William J. McFarlane, III, Esquire
Florida Bar No.: 768601
Jason Scarberry, Esquire
Florida Bar No: 693375
14
Exhibit A
Page 1
1 IN THE CIRCUIT COURT
2 OF THE ELEVENTH JUDICIAL CIRCUIT
3 IN AND FOR MIAMI-DADE COUNTY, FLORIDA
4 CIRCUIT CIVIL DIVISION
5 ________________________________
6 MAGIC CITY AUTO GROUP, LLC
7 A/A/O AMATO GOCSMAN
8 ALBERT ALDO ALEXANDER,
9 Plaintiff,
10 v. Case No. 2022-003240-CA-01
11 DIRECT GENERAL INSURANCE COMPANY,
12 Defendant.
13 ________________________________
14 TRIAL
15
16 DATE: Monday, August 28, 2022
17 TIME: 9:00 a.m. - 3:00 p.m.
18 BEFORE: Honorable William Thomas
19 LOCATION: Dade County Courthouse
20 73 West Flagler Street
21 Room 635
22 Miami, Florida 33130
23 REPORTED BY Nate Toro, Notary Public
24 JOB NO.: 6081476
25
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 2
1 APPEARANCES
2
3 ON BEHALF OF THE PLAINTIFFS:
4 Carlos Santisteban, Esquire
5 Carlos Santisteban, Jr. PA
6 6080 Bird Road
7 Suite 9
8 Miami, Florida 33155
9 carlos@csjrlaw.com
10
11
12 ON BEHALF OF THE DEFENDANTS:
13 Jason Scarberry, Esquire
14 Joseph Clancy, Esquire
15 Mcfarlane Dolan & Prince
16 210 North University Drive
17 6th Floor
18 Coral Springs, Florida 33071
19 jscarberry@mcfarlanedolanlaw.com
20 jclancy@mcfarlanedolanlaw.com
21
22 ALSO PRESENT: Natalia Zarina, Alex Gonzalez,
23 Myra Montero
24
25
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 3
1 P R O C E E D I N G
2 Thereupon, the following proceedings were had:
3 THE COURT: Announce for the record
4 please, Plaintiff?
5 MR. SANTISTEBAN: Carlos Santisteban and
6 Douglas Eaton for the Plaintiff Magic City Auto
7 Group. I'm going to be assisted by Alex
8 Gonzalez from our law firm.
9 THE COURT: Defense?
10 MR. SCARBERRY: Good morning, Your Honor.
11 Jason Scarberry and Joseph Clancy here from
12 McFarlane Dolan & Prince on behalf of the
13 Defendant, Direct General, our corporate
14 representative Mr. Larry Montero.
15 THE COURT: Okay. What do I tell the
16 jurors this case is about, sir?
17 MR. SANTISTEBAN: The case is about a --
18 we were here -- we were before Your Honor,
19 about a week ago, we were talking about Turo,
20 what appeared to be a car sharing app. I don't
21 know if Your Honor recalls, so --
22 MR. SCARBERRY: Airbnb of --
23 MR. SANTISTEBAN: The Airbnb of cars,
24 yeah. My client's a car rental company. It
25 rented a Ferrari through the Turo app to
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 4
1 Defendant's insured. While the Defendant's
2 insured was operating a Ferrari, Ferrari gets
3 into an accident. Magic City, the Plaintiff
4 takes an assignment of benefit. A claim is
5 opened for collision --
6 THE COURT: I apologize. I'm sorry; I'm
7 sorry. Your client is who?
8 MR. SANTISTEBAN: My client's a car rental
9 company.
10 THE COURT: Turo?
11 MR. SANTISTEBAN: My client is Turo. But
12 for the Plaintiff in this case is Magic City
13 Auto Group, who is a car rental company. Magic
14 City Auto Group has a Ferrari in its fleet that
15 was rented through the Turo app.
16 THE COURT: Okay, okay.
17 MR. SANTISTEBAN: The Defendant's insured
18 rented the Ferrari through the Turo app gets
19 into an accident. Magic City opens up a claim
20 for collision benefits with Direct General.
21 That claim is denied. Magic City takes an
22 assignment of benefits from the insured. Files
23 this instant case seeking collision coverage
24 benefits for the damages caused to the Ferrari.
25 THE COURT: All right. Magic City opens
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 5
1 up a claim with Direct, and I'm assuming Direct
2 is their insurance carrier?
3 MR. SANTISTEBAN: Direct is the renter,
4 our renter's insurance carrier.
5 THE COURT: Okay. Your renter's insurance
6 carrier. Direct denies the claim.
7 MR. SANTISTEBAN: Correct.
8 THE COURT: When Direct denies the claim
9 -- okay. Your client takes an assignment of
10 benefits.
11 MR. SANTISTEBAN: Correct.
12 THE COURT: Okay. And what do you do once
13 you get the assignment of -- you filed this
14 case?
15 MR. SANTISTEBAN: Yes, sir.
16 THE COURT: Okay. And what are you -- so
17 you're alleging that --
18 MR. SANTISTEBAN: It's a breach of
19 contract.
20 THE COURT: Okay. But is Direct the --
21 you represent Direct?
22 MR. SCARBERRY: Yes, sir.
23 THE COURT: Oh, okay, okay. So you're
24 filing a breach of contract against Direct for
25 denying the claim?
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 6
1 MR. SANTISTEBAN: Correct.
2 MR. SCARBERRY: First party property, Your
3 Honor based on --
4 MR. SANTISTEBAN: One of those interesting
5 cases.
6 MR. SCARBERRY: Yeah. Sorry about that.
7 MR. SANTISTEBAN: Judge Rebull grants
8 summary judgment for the Plaintiff. And finds
9 that the policy affords coverage.
10 THE COURT: So what are we trying?
11 MR. SANTISTEBAN: There may be a sticking
12 point. I'll let the Defense speak to that.
13 From the Plaintiff's perspective, we're trying
14 a damages case. How much is -- what is the
15 value of the Ferrari at the time of the loss.
16 MR. SCARBERRY: And we have a different
17 view of the case, Your Honor.
18 THE COURT: Okay. Why don't you give me
19 your view.
20 MR. SCARBERRY: Yes, sir. As I mentioned,
21 just to re-capsulate it, it's a first party
22 property case based upon damage to a vehicle,
23 right. Plaintiff has an assignment of
24 benefits; there's an assignee. That's the
25 general gist of it. There were competing
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 7
1 motions for summary judgment. And Judge, we
2 argued that --
3 THE COURT: By the way, I'm taking notes.
4 I'm not like -- I'm listening to you, but I'm
5 taking notes.
6 MR. SCARBERRY: Yes, no problem. Judge
7 Rebull, found that a phrase in the exclusion
8 was ambiguous and interpreted it narrowly,
9 finding that that exclusion does not exclude
10 coverage under the policy.
11 THE COURT: So Judge Rebull found that
12 whatever exclusion you said prevents any
13 coverage under the policy, does not apply to
14 the facts of this case?
15 MR. SCARBERRY: That's correct, sir.
16 THE COURT: Okay, go ahead. Yes.
17 MR. SCARBERRY: He found that it was
18 ambiguous. It's not like, you know, competing
19 interpretations you find in favor of coverage,
20 not in favor of not having coverage,
21 essentially. We did file the motion for
22 reconsideration with Your Honor regarding that
23 issue. It involves some new case law, which
24 has not been ruled upon yet. Our position is
25 that this is a breach of contract action, and
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 8
1 the Plaintiff pled it as a breach of contract
2 action. So the Plaintiff needs to establish
3 the elements of a breach of contract. That
4 would mean that there was a policy in effect,
5 that there was a material breach of that
6 policy, and that the Plaintiff suffered damages
7 related to that material breach. That is our
8 position.
9 THE COURT: Okay. How does the summary
10 judgment, assuming that your motion for
11 reconsideration is denied --
12 MR. SCARBERRY: Yes, sir.
13 THE COURT: -- how does the summary
14 judgment by Judge Rebull impact what you say
15 they have to prove? Step outside please --
16 potential juror.
17 MR. SCARBERRY: If they were to establish
18 that they filed a valid claim, that claim was
19 improperly denied, that would be a material
20 breach of policy. I mean, everyone can agree
21 upon that. If a claim is submitted and it's
22 improperly denied, it can be a material breach
23 of the policy.
24 THE COURT: But I guess what I'm asking is
25 that they seem to be of the opinion that all we
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 9
1 have to try are the issue of damages because of
2 what Judge Rebull did in the summary judgment
3 ruling.
4 MR. SCARBERRY: Correct.
5 THE COURT: You say no. Even if Judge
6 Rebull's ruling is correct, do they still have
7 to prove something as to liability?
8 MR. SCARBERRY: Right. Well --
9 THE COURT: I say liability, I should say
10 as to the -- as to whether or not there was a
11 breach.
12 MR. SCARBERRY: Yes, sir. It's partially
13 our position and we argued the motion in limine
14 two weeks ago regarding evidence of the claim
15 submitted by Magic City. You had a long day,
16 Your Honor. We were called at like almost 3:00
17 P.M. And I think you said you'd been on since
18 8:30, so I don't, I don't begrudge you for not
19 remembering specifically. We filed a motion in
20 limine to keep out Magic City's -- the facts
21 regarding Magic City's claim in this matter,
22 because we didn't think it was a valid claim
23 and it's not relevant to them as an assignee.
24 The Judge denied our motion. So they are
25 permitted to present evidence and testimony
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 10
1 regarding the claim submitted by Magic City.
2 And the claim denied to Magic City, okay. It's
3 our position that that does not constitute a
4 breach of contract.
5 THE COURT: So what did Judge Rebull say
6 when he granted the summary judgment?
7 MR. SCARBERRY: He said that the, that the
8 phrase any person in the exclusion was limited
9 to just the insured. And because of that, that
10 the exclusion did not apply. So the policy
11 would provide coverage for the Ferrari being
12 operated by the insured as a non-owner.
13 THE COURT: So then if he found that the
14 policy would provide coverage, assuming that
15 that ruling remains, they don't have to
16 establish that the policy provides coverage,
17 right. But I guess your argument it is, is
18 that even if the policy provides coverage, they
19 still have to show that they submitted a claim
20 to the insurance company, and that the
21 insurance company denied the claim?
22 MR. SCARBERRY: Right. And another,
23 another twist on this is that Magic City was
24 not the owner of the vehicle. The owner was
25 another individual. So does Magic City even
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 11
1 have a claim in this matter?
2 THE COURT: Well, I don't know why it
3 matters if they have the assignment of
4 benefits.
5 MR. SCARBERRY: Well they have an
6 assignment of benefits from our insured.
7 MR. SANTISTEBAN: And the owner of the
8 vehicle.
9 MR. SCARBERRY: But our insured didn't own
10 the vehicle either. So who has the claim in
11 this case? And it's their burden to establish.
12 THE COURT: Okay. So my question to you
13 is -- and really I just want to know to see
14 what I could tell the jurors. But my question
15 to you is, assuming that Judge Rebull's order
16 remains, Counsel is saying -- even though he
17 takes exception to Judge Rebull's finding,
18 counsel says you still have to establish that
19 you submitted a valid claim to the insurance
20 company and the insurance company denied the
21 claim. It's not just about damages.
22 MR. SANTISTEBAN: Understood. And Mr.
23 Eaton argued that motion in limine, so I'm
24 going to allow him to take the lead on this.
25 MR. EATON: So those facts are undisputed,
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 12
1 Your Honor.
2 THE COURT: Say what?
3 MR. EATON: They're undisputed. So we
4 move for summary judgment on the breach of
5 contract. Judge Rebull granted the motion, but
6 he said, I'm finding coverage. So it's -- if
7 you look at the order -- it's not entirely here
8 -- we think it should be granted on its
9 entirety, because there's no dispute that a
10 claim was submitted and it was denied. And the
11 reason it was denied was because they said the
12 raised this exclusion. Judge has ruled that
13 that exclusion did not apply.
14 THE COURT: Do you have a denial letter?
15 MR. EATON: Yes.
16 MR. SANTISTEBAN: Yes.
17 THE COURT: And does it -- well so, okay.
18 So there really is no dispute that assuming
19 that there is a denial letter, they say they
20 have a denial letter. They say they submitted
21 a claim to you and that you reviewed the claim
22 and, for whatever the reasons you made the
23 decision that there was no coverage. So you
24 denied the claim. They're saying that's not in
25 dispute, that that happened. And so -- and
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 13
1 Judge Rebull found that there was coverage.
2 You denied coverage. Judge Rebull found as a
3 matter of law, there was coverage. So the only
4 issue that remains is damages.
5 MR. SCARBERRY: I mean, I respectfully
6 disagree. Your Honor. There is a case right,
7 it was the Joe Cool case that I recited in my
8 motion in limine, and the denial of the motion
9 in limine, only allows them to present the
10 evidence. It doesn't rule on the legal, on the
11 legal standard that's within Joe Cool. And in
12 the Joe Cool case, an individual filed the
13 claim that was not adjusted by the insurance
14 company, and they were basically was denied by
15 inaction on the insurance company's part.
16 After they did not -- after this inaction
17 becomes a denial, constructive denial, they get
18 an assignment of benefits and filed a lawsuit
19 without ever providing the assignment of
20 benefits to the insurance company.
21 THE COURT: Well, that's different. I
22 think that's a different. Meaning that if your
23 argument is, that okay a claim was submitted to
24 us. We reviewed the claim and we denied the
25 claim. The Court is instructing you, ladies
Veritext Legal Solutions
800-726-7007 305-376-8800
Page 14
1 and gentlemen of the jury, that as a matter of
2 law, there is coverage under this policy for
3 this vehicle. However, the defense's position
4 is, is that once you received the assignment of
5 benefits, you have some obligation to do
6 something. And I don't know why they would
7 have an obligation to do anything because I
8 mean, assignment of benefits, they take nothing
9 more than what the true party in interest would
10 have, assuming that it is the true party in
11 interest that gave them the assignment. And so
12 I'm not sure what they would be required to
13 tell you.
14 MR. SCARBERRY: Well, they're only --
15 they're not here as Magic City.
Preview
Filing # 181664704 E-Filed 09/12/2023 05:06:36 PM IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI DADE COUNTY, FLORIDA CASE NO: 2022-003240-CA-01 MAGIC CITY AUTO GROUP, LLC A/A/O AMATO GOCSMAN ALBERT ALDO ALEXANDER, Plaintiff, vs. DIRECT GENERAL INSURANCE COMPANY, Defendant. __________________________________/ DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Defendant, DIRECT GENERAL INSURANCE COMPANY, through its undersigned counsel, pursuant to Rule 1.480 of the Florida Rules of Civil Procedure, files this its Motion to Set Aside Verdict, and as grounds therefore would state as follows: 1. This is a first party breach of contract action seeking insurance benefits allegedly owed to Magic City Auto Group, LLC a/a/o Albert Amato Gocsman (the “Plaintiff”) under an insurance policy for property damage to a 2012 Ferrari. 2. The Court conducted a jury trial on this matter on August 28, 2023. 3. Despite this action being plead as a breach of contract, the Court did not require the Plaintiff to prove the elements of a breach of contract action. The Court limited the Plaintiff’s burden of proof to establishing the Actual Cash Value (hereafter “ACV”) of the 2012 Ferrari. 4. During the trial the Plaintiff called a single witness, the corporate 1 representative of Turo, Inc1, Todd Armstrong. Exhibit A, Trial Transcript, p. 130, lines 3 – 9. 5. Plaintiff introduced a Market Valuation Report prepared by CCC One (hereafter “Valuation Report”).2 Plaintiff also elicited testimony from Mr. Armstrong regarding the content of that Valuation Report and another document entitled Turo Claim Tool Kit.3 6. Without the admission of the Valuation Report and the testimony of Mr. Armstrong based on it, Plaintiff presented no evidence as to the ACV of the 2012 Ferrari. 7. Defendant objected to the admission of the Valuation Report as inadmissible hearsay. 8. Plaintiff sought the admission of the Valuation Report as business record of Turo under Florida Statute §90.803 (6) commonly referred to the “business records exception”. 9. Mr. Armstrong did not possess personal knowledge of Turo’s regular business practices relating to the creation and retention of the records at issue. See Jackson v. Household Fin. Corp. III, 298 So.3d 531, 536 (Fla. 2020). 10. Turo had no part in the creation of the Valuation Report. Exhibit A, p. 137, lines 5 – 11. It was created by CCC One, whom Turo has no relation to. Exhibit A, p. 138, lines 16 – 25. 11. It would be impossible for Mr. Armstrong, as an employee of Turo, to have 1 Turo is the peer-to-peer car sharing application that Natalia Zorin utilized to share the 2012 Ferrari with Plaintiff’s assignor, Albert Amato Gocsman. 2 The Valuation Report and Turo Claim Tool Kit were the subjects of a Motion in Limine filed by the Defendant. The Court refused to consider the Motion in Limine prior to the start of trial. Exhibit B, Motion in Limine to Exclude the CCC One Market Valuation Report and the Turo Claim Toolkit for Auto Loss, Tax and Fees as Hearsay and Improper Opinion Testimony; Exhibit A, p. 111, line 19 – p. 113, line 23. 3 Mr. Armstrong was permitted to testify regarding the content of the Turo Claim Tool Kit over the objections of Defendant and without the Turo Claim Tool Kit being admitted into evidence. 2 personal knowledge of CCC One’s regular business practices relating to the creation or retention of the Valuation Report because he never worked for CCC One. Exhibit A, p. 159, lines 17 – 19. 12. Mr. Armstrong did not know the name of the person who created the report or even what company he worked for. Q: And you know who actually prepared the report? A: I don’t know the name of the individual, but I would have to say it was an employee of Sedgwick. 13. Mr. Armstrong had no personal knowledge as to how CCC One determined the ACV of the 2012 Ferrari. Exhibit A, p. 159, line 20 – p. 160, line 16. 14. Not only was the Valuation Report itself inadmissible hearsay but the information contained within the report was hearsay as well. 15. The TURO Claim Toolkit for Auto Total Loss Tax and Fees is unauthored and includes values and calculations based on the CCC One Market Valuation Report. See Exhibit B and Exhibit A, p. 159, lines 3 – 16. 16. Mr. Armstrong was permitted to testify as to the contents of the Turo Claim Toolkit over Defendant’s objections. Exhibit A, p. 156, line 22 – p. 158, line 15. 17. Mr. Armstrong should not have been permitted to testify as to the contents of the Turo Claim Toolkit before it was first admitted into evidence. Plaintiff never qualified the document as a business record or admitted it into evidence; therefore, Mr. Armstrong’s testimony regarding the Turo Claim Tool Kit should be stricken. 18. Testimony based on what other people or documents say, when offered for the truth of the matter, is hearsay, and without an exception to the hearsay rule, is inadmissible. See Roberts v. Direct Gen. Ins. Co., 337 So.3d 889, 891 (Fla. 2d DCA 2022); Fla. Stat. §90.805 (2023). 3 19. The CCC One Market Valuation Report is self-described as reflecting “CCC Intelligent Solutions Inc.’s opinion as to the value of the loss unit, based on information provided to CCC by SEDGWICK” created by CCC Intelligent Solutions Inc. See Exhibit “B”, CCCOne Market Valuation Report. 20. Notwithstanding the inadmissibility of the Valuation Report as hearsay, the content of Valuation Report represents an opinion as to the ACV of the 2012 Ferrari and “is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.” Fla. Stat. §90.803(6)(b) (2023). 21. Here, the opinions contained in the Valuation Report regarding the alleged value of the 2012 Ferrari require special knowledge and experience and cannot be introduced by a lay witness. 22. There was no testimony offered that the author of the Valuation Report possessed the “knowledge, skill, experience, training, or education” necessary to provide an opinion as to the ACV of the 2012 Ferrari. 23. Without calling and qualifying the author of the Valuation Report as an expert, the Valuation Report represents improper opinion testimony by a lay witness. 24. Allowing a lay witness to testify to the value of property based upon information provided by a third-party source is an abuse of discretion. See Bekins Van Lines v. Schaeffer, 630 So. 2d 633 (Fla. 4th DCA 1994). 25. Without the admission of the Valuation Report, the corporate representative should not have been allowed to testify as to the ACV. “[I]t is well established that a trial court reversibly errs by allowing a witness to testify as to the contents of a business record when the business record itself is not entered into evidence.” See Mesa v. Citizens 4 Property Ins. Corp., 358 So.3d 452, 456 (Fla. 3d DCA 2023). 26. Therefore, the CCC One Market Valuation Report and the TURO Claim Toolkit for Auto Total Loss Tax and Fees, and any testimony about those documents or the information contained therein, are inadmissible hearsay and improper opinion evidence, and should be stricken. 27. Without the Valuation Report and the testimony based upon it, the Plaintiff presented no evidence at trial as to the actual cash value of the 2012 Ferrari; therefore, no proper view of the evidence could sustain the jury’s verdict in favor of the Plaintiff in the amount of $150,469.30. 28. Defendant moved for a directed verdict based upon the Plaintiff’s failure to establish it was entitled to any damages as a result of the alleged breach of contract. Exhibit A, p. 229, line 20 – p. 230, line 15. 29. In addition, Defendant moved for a directed based upon the admission of inadmissible hearsay evidence and improper opinion testimony by a layperson. Exhibit A, p. 230, line 17 – p. 231, line 9; p. 232, line 11 – p. 249, line. 30. The Court denied Defendant’s Motion for Directed Verdict. WHEREFORE, Defendant respectfully requests this Honorable Court grant this Motion for Judgment Notwithstanding the Verdict as follows: a. Plaintiff failed to lay the proper foundation to have the Valuation Report, prepared by a third-party, admitted as a business record of Turo; b. Todd Armstrong, as Turo’s corporate representative did not possess personal knowledge as to CCC One’s regular business practices of creating and retaining records such as the Market Valuation Report; 5 c. The CCC One Market Valuation Report is inadmissible hearsay; d. The CCC One Market Valuation Report represents opinion testimony that required the author of the report to be qualified as an expert under Fla. Stat. §90.702; e. Striking Mr. Armstrong’s testimony regarding the content of the CCC One Market Valuation Report and the actual cash value of the 2012 Ferrari; f. The Turo Claim Tool Kit is inadmissible hearsay that Plaintiff failed to lay the foundation for as a business record and was never admitted into evidence; g. Striking Todd Armstrong’s testimony regarding the actual cash value stated in the Turo Claim Tool Kit; h. Finding that Plaintiff offered no admissible testimony or evidence as to the actual cash value of the 2012 Ferrari; i. Holding that in viewing the admissible evidence and all inferences of fact in the light most favorable to the Plaintiff no proper view of the evidence could sustain the verdict in favor of the Plaintiff; j. Setting aside the jury’s verdict for the Plaintiff in the amount of $150,469.30; and k. Entering a verdict in favor of Direct General Insurance Company; and all other relief the Court deems just and proper. MEMORANDUM OF LAW I. Turo did not create the Valuation Report and Todd Armstrong did not possess personal knowledge as to the regular business practices of CCC One in creating and retaining the Market Valuation Report. 6 The Market Valuation Report relied upon by Plaintiff represents classic hearsay in that it contains out of court statements offered for the truth of the matter asserted. See Fla. Stat. §90.801 (2023). Hearsay is inadmissible except as provided by statute. See Fla. Stat. §90.802 (2023). Defendant objected to the admission of the Valuation Report at trial as inadmissible hearsay. The Court admitted the Valuation Report as a business record over the objections of Defendant. Florida Statute §90.803 (6) contains the statutory exception for “records of regularly conducted business activity” commonly referred to as the “business records” exception. See Fla. Stat. §90.803(6) (2023). To secure admissibility under [Florida's business-records] exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. See Jackson v. Household Fin. Corp. III, 298 So.3d 531, 539 (Fla. 2020). Plaintiff was not required to call the person who actually created the record, but it was required to call a “qualified witness with knowledge of each of the elements.” Id at 536. A qualified witness, therefore, is anyone with personal knowledge of the organization's regular business practices relating to creating and retaining the record(s) at issue. Id. § 803.6, at 1111. This knowledge will necessarily come from the witness's training or experience, or, most likely, a combination of both. Id. Plaintiff called Todd Armstrong, an employee of Turo, as Turo’s corporate representative at trial to testify as to the ACV of the 2012 Ferrari. After Defendant objected to the Valuation Report as inadmissible hearsay, Plaintiff sought to qualify the Valuation Report as a business record of Turo through the testimony of Mr. Armstrong. 7 Mr. Armstrong did not handle or assess property damage claims as part of his job duties at Turo. Mr. Armstrong primarily handles “user disputes, when for example, if a host is unhappy with a reimbursement payout, or a Turo guest is unhappy with being charged for something.” Exhibit “A, p. 131, lines 2 – 13. Mr. Armstrong was only “familiar with the manner in which Turo handles and assesses property damage claims … in general terms.” Id. at p. 132, lines 6 – 10. Mr. Armstrong did not testify that he had any personal knowledge of Turo’s regular business practices relating to the creation and retention of the records at issue. He further testified that he had no personal knowledge as to how CCC One even created the Valuation Report. Q: Do you have any information regarding the process by which they determine what the actual cash value of the vehicle is? A: Only to the extent that they explain it in a few paragraphs on the report itself. Q: Okay. So then you don’t have any personal knowledge regarding how they determine the actual cash value of the vehicle? A: No. I’ve not [sic]employed at CCC-1. Exhibit A, p. 159, line 20 – p. 160, line 3. Without any personal knowledge of CCC One’s regular practices in creating and retaining Market Valuation Reports, Mr. Armstrong is not the type of “qualified witness” necessary to admit the Valuation Report under the business records with the exception to hearsay. II. There was no testimony establishing that the author of the report had any knowledge of the information contained within the Valuation Report. Plaintiff introduced the Valuation Report prepared by CCC One through Todd Armstrong, the corporate representative from Turo. Turo did not create the Valuation Report. Mr. Armstrong had no information regarding the individual from CCC One who 8 created the Valuation Report or whether the information contained within it was accurate. He did not even know when the Valuation Report or Turo Claim Tool Kit were created. Exhibit A, p. 133, line 25 – p. 134, line 6. “[T]he fact that a document is incorporated into a business's records does not automatically bring the document within the business records exception to the hearsay rule.” See Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So.3d 432, 442 (Fla. 4th DCA 2015) (hereafter referred to as “Pin-Pon”). The facts surrounding the improper admission of a cost estimate created by a third party in Pin-Pon are analogous to the case sub judice. Pin-Pon sought to admit Exhibit 98 through the testimony of the architect. The architect testified that in the normal course of business, he gives his report to a contractor or a cost consultant to obtain pricing for a project. He explained that the numbers he obtains from a contractor or cost consultant are reliable and that he depends upon them in the normal course of business. He further testified that Pin-Pon's representative obtained the cost estimates from the contractor for the items in the code upgrade letter, as is normally done in the course of his business. He stated that he maintained a copy of this report in his records, it was part of his business practice "to maintain reports like this one" in his records, and that the numbers obtained were reliable within the industry. He admitted that all the documents in Exhibit 98, with the exception of one, were created by individuals outside his firm. See Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So. 3d 432, 440 (Fla. 4th DCA 2015). “"To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity." Id at 441 (quoting Brooks v. State, 918 So.2d 181, 193 (Fla. 2005), receded from on other grounds by State v. Sturdivant, 94 So.3d 434 (Fla. 2012)). The author of the report was not an employee of Turo. Exhibit A, p. 139, lines 1 – 4. He was an employee of CCC 9 One. Mr. Armstrong testified that he did not know the name of the individual who prepared the Valuation Report. He incorrectly assumed that the author of the Valuation Report was an employee of Sedgwick. Q: Do you know if that individual at Sedgwick has enough knowledge to create such a report? A: We would – we trust Sedgwick to provide us with someone who was able to do that. Q: Would you have to defer to Sedgwick on that then? A: Yes. Q: So, you would not know if the person created this report had enough knowledge, skill, expertise, and training to prepare this report? A: I don’t know Exhibit A, p. 137, line 25 – p. 138, line 15. Mr. Armstrong’s testimony failed to satisfy the second requirement of the business records exception that the author of the Valuation Report had any knowledge of the information contained within it. Just as in Pin-Pon, this failure is fatal to Plaintiff’s efforts to qualify the Valuation Report as a business record of Turo. Here, Pin-Pon failed to show that all the records in Exhibit 98 were made by or from information transmitted by a person with knowledge. The architect could not testify as to when 25 of the 26 documents were made. And he had no information as to whether the person who made the documents had knowledge or received information from a person with knowledge. While it was not necessary for Pin-Pon to call the person who actually prepared the business records, we find that Pin-Pon did not establish that the architect was either in charge of the activity constituting the usual business practice or was well enough acquainted with the activity to give the testimony. Although the documents in Exhibit 98 might have qualified as the general contractor's business records, the mere fact that these documents were incorporated into the architect's file did not bring those documents within the business records exception. In short, Pin-Pon failed to lay the necessary foundation for the admission of Exhibit 98 as a business record. Pin-Pon at 442. 10 Mr. Armstrong did not know when the Valuation Report was created. He did not know the identity of the author. He did not know whether the author of the Valuation Report worked for Sedgwick or CCCOne. He did not know whether the author of the valuation report had knowledge or received information from a person with knowledge. Mr. Armstrong was neither in charge of the creation of the Valuation Report or well enough acquainted with it to give the testimony. Just because the Valuation Report was part of Turo’s file does not mean it qualifies as Turo’s business record. Plaintiff failed to lay the necessary foundation for the admission of the Valuation Report as a business record and it should be stricken, along with any testimony based upon the information contained within it. III. It was not the regular practice of Turo to make records such as the Valuation Report. As a written estimate, the Valuation Report may qualify as a business record but, in order for it to qualify as a business record of Turo, the production of the Valuation Report must be a regularly conducted business activity of Turo. Turo is a car sharing platform whereon a person creates a listing for a vehicle he or she would like to share in return for financial compensation. Exhibit A. p. 131, lines 20 – 25. Turo is not in the business of preparing estimates or determining ACV. In fact, Turo outsources these types of activities to Sedgwick, who is a contractor that provides damage appraisals. Id at p. 137, lines 5 – 20. It was Sedgwick that provided information to CCC One. Id at p. 138, lines 16 – 20. It was CCC One that created this document, not Turo. Mr. Armstrong was unsure where Turo received the record from stating: “I believe we received it from CCC-1.” Id at p. 138. Because Turo is not in the business of creating these types of reports, the Valuation Report does not become a “business record” of Turo 11 simply because it is in its file. IV. The determination of Actual Cash Value requires expert testimony. The Third District Court of Appeals has held that “actual cash value” is synonymous with market value or fair market value. We find that the controlling language is not ambiguous. The expression "actual cash value" is an often-used appraisal term, generally synonymous with "market value" or "fair market value." See American Reliance Ins. Co. v. Perez, 689 So.2d 290, 291 (Fla. 3d DCA 1997). This follows the Florida Supreme Court definition of ACV. In Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 428 (Fla. 2013), the Florida Supreme Court stated, “actual cash value is generally defined as ‘fair market value’ or ‘[r]eplacement cost minus normal depreciation,’ where depreciation is defined as a ‘decline in an asset's value because of use, wear, obsolescence, or age.’" At issue at trial in this case4 was the ACV of an exotic sports car the value of which is outside the knowledge of a common person. “Where fair market value is at issue, expert testimony is necessary to prove the value thereof.” See Port Lago Club, Inc. v. Warren, 476 So.2d 1330, 1334); see also McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA)(“No witness testifying to value stated that he was familiar with the condition of the equipment in question, nor was any hypothetical question propounded so that a qualified person could testify to the market value of these machines.”). The Valuation Report represents an opinion as to the ACV of the 2012 Ferrari, it is not a fact. Mr. Armstrong was not disclosed nor was he qualified as an expert witness. 4 Based upon the Court’s pre-trial ruling as to Plaintiff’s burden of proof. 12 The Florida Rules of Evidence permit a layperson to provide opinion testimony under certain circumstances. If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when: (1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and (2) The opinions and inferences do not require a special knowledge, skill, experience, or training. Fla. Stat. §90.701 (2023) There can be no dispute that the Valuation Report and the opinions contained therein require special knowledge, skill, experience or training. If it did not, then there would be no reason for Turo to hire Sedgwick; or, for Sedgwick, a global claims administrator to hire CCC One. This need for special knowledge, skill, experience, or training triggers the requirements of Florida Statute §90.702, which governs the testimony of expert witnesses: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. Plaintiff cannot circumvent the rules of evidence by introducing the Valuation Report and the opinions contained therein as a “business record.” Without first demonstrating the declarant was qualified to provide opinion testimony, the ACV stated in the Valuation 13 Report represents improper opinion testimony and should be stricken. Conclusion Without the Valuation Report or the testimony related to it, Plaintiff failed to establish the ACV of the 2012 Ferrari and failed to meet its burden at trial. Defendant moved for a directed verdict based on the Plaintiff’s failure to establish entitlement to any damages and the ACV of the 2012 Ferrari. The proper remedy in this situation is for the Court to set aside the verdict. "A party's failure to prove a required element of a cause of action . . . ordinarily does not allow the party a new trial . . . on remand in order to remedy the shortcoming and try again." See Levy v. Ben-Shmuel, 255 So. 3d 493, 497 (Fla. 3d DCA 2018). For the reasons set forth more fully above, Defendants Motion for Judgment Notwithstanding the Verdict should be granted and verdict entered in favor of Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via E-Service to Carlos Santisteban Jr., Esq.; (eservice@csjrlaw.com and carlos@csjrlaw.com) on September 12, 2023. Attorneys for Defendant McFarlane Law 210 N. University Drive, 6th Floor Coral Springs, Florida 33071 (954) 340-0005 Broward (954) 340-0055 Facsimile PLEADING SERVICE E-MAIL ADDRESS pleadingservice@mcfarlanedolanlaw.com By: /s/ William J. McFarlane, III William J. McFarlane, III, Esquire Florida Bar No.: 768601 Jason Scarberry, Esquire Florida Bar No: 693375 14 Exhibit A Page 1 1 IN THE CIRCUIT COURT 2 OF THE ELEVENTH JUDICIAL CIRCUIT 3 IN AND FOR MIAMI-DADE COUNTY, FLORIDA 4 CIRCUIT CIVIL DIVISION 5 ________________________________ 6 MAGIC CITY AUTO GROUP, LLC 7 A/A/O AMATO GOCSMAN 8 ALBERT ALDO ALEXANDER, 9 Plaintiff, 10 v. Case No. 2022-003240-CA-01 11 DIRECT GENERAL INSURANCE COMPANY, 12 Defendant. 13 ________________________________ 14 TRIAL 15 16 DATE: Monday, August 28, 2022 17 TIME: 9:00 a.m. - 3:00 p.m. 18 BEFORE: Honorable William Thomas 19 LOCATION: Dade County Courthouse 20 73 West Flagler Street 21 Room 635 22 Miami, Florida 33130 23 REPORTED BY Nate Toro, Notary Public 24 JOB NO.: 6081476 25 Veritext Legal Solutions 800-726-7007 305-376-8800 Page 2 1 APPEARANCES 2 3 ON BEHALF OF THE PLAINTIFFS: 4 Carlos Santisteban, Esquire 5 Carlos Santisteban, Jr. PA 6 6080 Bird Road 7 Suite 9 8 Miami, Florida 33155 9 carlos@csjrlaw.com 10 11 12 ON BEHALF OF THE DEFENDANTS: 13 Jason Scarberry, Esquire 14 Joseph Clancy, Esquire 15 Mcfarlane Dolan & Prince 16 210 North University Drive 17 6th Floor 18 Coral Springs, Florida 33071 19 jscarberry@mcfarlanedolanlaw.com 20 jclancy@mcfarlanedolanlaw.com 21 22 ALSO PRESENT: Natalia Zarina, Alex Gonzalez, 23 Myra Montero 24 25 Veritext Legal Solutions 800-726-7007 305-376-8800 Page 3 1 P R O C E E D I N G 2 Thereupon, the following proceedings were had: 3 THE COURT: Announce for the record 4 please, Plaintiff? 5 MR. SANTISTEBAN: Carlos Santisteban and 6 Douglas Eaton for the Plaintiff Magic City Auto 7 Group. I'm going to be assisted by Alex 8 Gonzalez from our law firm. 9 THE COURT: Defense? 10 MR. SCARBERRY: Good morning, Your Honor. 11 Jason Scarberry and Joseph Clancy here from 12 McFarlane Dolan & Prince on behalf of the 13 Defendant, Direct General, our corporate 14 representative Mr. Larry Montero. 15 THE COURT: Okay. What do I tell the 16 jurors this case is about, sir? 17 MR. SANTISTEBAN: The case is about a -- 18 we were here -- we were before Your Honor, 19 about a week ago, we were talking about Turo, 20 what appeared to be a car sharing app. I don't 21 know if Your Honor recalls, so -- 22 MR. SCARBERRY: Airbnb of -- 23 MR. SANTISTEBAN: The Airbnb of cars, 24 yeah. My client's a car rental company. It 25 rented a Ferrari through the Turo app to Veritext Legal Solutions 800-726-7007 305-376-8800 Page 4 1 Defendant's insured. While the Defendant's 2 insured was operating a Ferrari, Ferrari gets 3 into an accident. Magic City, the Plaintiff 4 takes an assignment of benefit. A claim is 5 opened for collision -- 6 THE COURT: I apologize. I'm sorry; I'm 7 sorry. Your client is who? 8 MR. SANTISTEBAN: My client's a car rental 9 company. 10 THE COURT: Turo? 11 MR. SANTISTEBAN: My client is Turo. But 12 for the Plaintiff in this case is Magic City 13 Auto Group, who is a car rental company. Magic 14 City Auto Group has a Ferrari in its fleet that 15 was rented through the Turo app. 16 THE COURT: Okay, okay. 17 MR. SANTISTEBAN: The Defendant's insured 18 rented the Ferrari through the Turo app gets 19 into an accident. Magic City opens up a claim 20 for collision benefits with Direct General. 21 That claim is denied. Magic City takes an 22 assignment of benefits from the insured. Files 23 this instant case seeking collision coverage 24 benefits for the damages caused to the Ferrari. 25 THE COURT: All right. Magic City opens Veritext Legal Solutions 800-726-7007 305-376-8800 Page 5 1 up a claim with Direct, and I'm assuming Direct 2 is their insurance carrier? 3 MR. SANTISTEBAN: Direct is the renter, 4 our renter's insurance carrier. 5 THE COURT: Okay. Your renter's insurance 6 carrier. Direct denies the claim. 7 MR. SANTISTEBAN: Correct. 8 THE COURT: When Direct denies the claim 9 -- okay. Your client takes an assignment of 10 benefits. 11 MR. SANTISTEBAN: Correct. 12 THE COURT: Okay. And what do you do once 13 you get the assignment of -- you filed this 14 case? 15 MR. SANTISTEBAN: Yes, sir. 16 THE COURT: Okay. And what are you -- so 17 you're alleging that -- 18 MR. SANTISTEBAN: It's a breach of 19 contract. 20 THE COURT: Okay. But is Direct the -- 21 you represent Direct? 22 MR. SCARBERRY: Yes, sir. 23 THE COURT: Oh, okay, okay. So you're 24 filing a breach of contract against Direct for 25 denying the claim? Veritext Legal Solutions 800-726-7007 305-376-8800 Page 6 1 MR. SANTISTEBAN: Correct. 2 MR. SCARBERRY: First party property, Your 3 Honor based on -- 4 MR. SANTISTEBAN: One of those interesting 5 cases. 6 MR. SCARBERRY: Yeah. Sorry about that. 7 MR. SANTISTEBAN: Judge Rebull grants 8 summary judgment for the Plaintiff. And finds 9 that the policy affords coverage. 10 THE COURT: So what are we trying? 11 MR. SANTISTEBAN: There may be a sticking 12 point. I'll let the Defense speak to that. 13 From the Plaintiff's perspective, we're trying 14 a damages case. How much is -- what is the 15 value of the Ferrari at the time of the loss. 16 MR. SCARBERRY: And we have a different 17 view of the case, Your Honor. 18 THE COURT: Okay. Why don't you give me 19 your view. 20 MR. SCARBERRY: Yes, sir. As I mentioned, 21 just to re-capsulate it, it's a first party 22 property case based upon damage to a vehicle, 23 right. Plaintiff has an assignment of 24 benefits; there's an assignee. That's the 25 general gist of it. There were competing Veritext Legal Solutions 800-726-7007 305-376-8800 Page 7 1 motions for summary judgment. And Judge, we 2 argued that -- 3 THE COURT: By the way, I'm taking notes. 4 I'm not like -- I'm listening to you, but I'm 5 taking notes. 6 MR. SCARBERRY: Yes, no problem. Judge 7 Rebull, found that a phrase in the exclusion 8 was ambiguous and interpreted it narrowly, 9 finding that that exclusion does not exclude 10 coverage under the policy. 11 THE COURT: So Judge Rebull found that 12 whatever exclusion you said prevents any 13 coverage under the policy, does not apply to 14 the facts of this case? 15 MR. SCARBERRY: That's correct, sir. 16 THE COURT: Okay, go ahead. Yes. 17 MR. SCARBERRY: He found that it was 18 ambiguous. It's not like, you know, competing 19 interpretations you find in favor of coverage, 20 not in favor of not having coverage, 21 essentially. We did file the motion for 22 reconsideration with Your Honor regarding that 23 issue. It involves some new case law, which 24 has not been ruled upon yet. Our position is 25 that this is a breach of contract action, and Veritext Legal Solutions 800-726-7007 305-376-8800 Page 8 1 the Plaintiff pled it as a breach of contract 2 action. So the Plaintiff needs to establish 3 the elements of a breach of contract. That 4 would mean that there was a policy in effect, 5 that there was a material breach of that 6 policy, and that the Plaintiff suffered damages 7 related to that material breach. That is our 8 position. 9 THE COURT: Okay. How does the summary 10 judgment, assuming that your motion for 11 reconsideration is denied -- 12 MR. SCARBERRY: Yes, sir. 13 THE COURT: -- how does the summary 14 judgment by Judge Rebull impact what you say 15 they have to prove? Step outside please -- 16 potential juror. 17 MR. SCARBERRY: If they were to establish 18 that they filed a valid claim, that claim was 19 improperly denied, that would be a material 20 breach of policy. I mean, everyone can agree 21 upon that. If a claim is submitted and it's 22 improperly denied, it can be a material breach 23 of the policy. 24 THE COURT: But I guess what I'm asking is 25 that they seem to be of the opinion that all we Veritext Legal Solutions 800-726-7007 305-376-8800 Page 9 1 have to try are the issue of damages because of 2 what Judge Rebull did in the summary judgment 3 ruling. 4 MR. SCARBERRY: Correct. 5 THE COURT: You say no. Even if Judge 6 Rebull's ruling is correct, do they still have 7 to prove something as to liability? 8 MR. SCARBERRY: Right. Well -- 9 THE COURT: I say liability, I should say 10 as to the -- as to whether or not there was a 11 breach. 12 MR. SCARBERRY: Yes, sir. It's partially 13 our position and we argued the motion in limine 14 two weeks ago regarding evidence of the claim 15 submitted by Magic City. You had a long day, 16 Your Honor. We were called at like almost 3:00 17 P.M. And I think you said you'd been on since 18 8:30, so I don't, I don't begrudge you for not 19 remembering specifically. We filed a motion in 20 limine to keep out Magic City's -- the facts 21 regarding Magic City's claim in this matter, 22 because we didn't think it was a valid claim 23 and it's not relevant to them as an assignee. 24 The Judge denied our motion. So they are 25 permitted to present evidence and testimony Veritext Legal Solutions 800-726-7007 305-376-8800 Page 10 1 regarding the claim submitted by Magic City. 2 And the claim denied to Magic City, okay. It's 3 our position that that does not constitute a 4 breach of contract. 5 THE COURT: So what did Judge Rebull say 6 when he granted the summary judgment? 7 MR. SCARBERRY: He said that the, that the 8 phrase any person in the exclusion was limited 9 to just the insured. And because of that, that 10 the exclusion did not apply. So the policy 11 would provide coverage for the Ferrari being 12 operated by the insured as a non-owner. 13 THE COURT: So then if he found that the 14 policy would provide coverage, assuming that 15 that ruling remains, they don't have to 16 establish that the policy provides coverage, 17 right. But I guess your argument it is, is 18 that even if the policy provides coverage, they 19 still have to show that they submitted a claim 20 to the insurance company, and that the 21 insurance company denied the claim? 22 MR. SCARBERRY: Right. And another, 23 another twist on this is that Magic City was 24 not the owner of the vehicle. The owner was 25 another individual. So does Magic City even Veritext Legal Solutions 800-726-7007 305-376-8800 Page 11 1 have a claim in this matter? 2 THE COURT: Well, I don't know why it 3 matters if they have the assignment of 4 benefits. 5 MR. SCARBERRY: Well they have an 6 assignment of benefits from our insured. 7 MR. SANTISTEBAN: And the owner of the 8 vehicle. 9 MR. SCARBERRY: But our insured didn't own 10 the vehicle either. So who has the claim in 11 this case? And it's their burden to establish. 12 THE COURT: Okay. So my question to you 13 is -- and really I just want to know to see 14 what I could tell the jurors. But my question 15 to you is, assuming that Judge Rebull's order 16 remains, Counsel is saying -- even though he 17 takes exception to Judge Rebull's finding, 18 counsel says you still have to establish that 19 you submitted a valid claim to the insurance 20 company and the insurance company denied the 21 claim. It's not just about damages. 22 MR. SANTISTEBAN: Understood. And Mr. 23 Eaton argued that motion in limine, so I'm 24 going to allow him to take the lead on this. 25 MR. EATON: So those facts are undisputed, Veritext Legal Solutions 800-726-7007 305-376-8800 Page 12 1 Your Honor. 2 THE COURT: Say what? 3 MR. EATON: They're undisputed. So we 4 move for summary judgment on the breach of 5 contract. Judge Rebull granted the motion, but 6 he said, I'm finding coverage. So it's -- if 7 you look at the order -- it's not entirely here 8 -- we think it should be granted on its 9 entirety, because there's no dispute that a 10 claim was submitted and it was denied. And the 11 reason it was denied was because they said the 12 raised this exclusion. Judge has ruled that 13 that exclusion did not apply. 14 THE COURT: Do you have a denial letter? 15 MR. EATON: Yes. 16 MR. SANTISTEBAN: Yes. 17 THE COURT: And does it -- well so, okay. 18 So there really is no dispute that assuming 19 that there is a denial letter, they say they 20 have a denial letter. They say they submitted 21 a claim to you and that you reviewed the claim 22 and, for whatever the reasons you made the 23 decision that there was no coverage. So you 24 denied the claim. They're saying that's not in 25 dispute, that that happened. And so -- and Veritext Legal Solutions 800-726-7007 305-376-8800 Page 13 1 Judge Rebull found that there was coverage. 2 You denied coverage. Judge Rebull found as a 3 matter of law, there was coverage. So the only 4 issue that remains is damages. 5 MR. SCARBERRY: I mean, I respectfully 6 disagree. Your Honor. There is a case right, 7 it was the Joe Cool case that I recited in my 8 motion in limine, and the denial of the motion 9 in limine, only allows them to present the 10 evidence. It doesn't rule on the legal, on the 11 legal standard that's within Joe Cool. And in 12 the Joe Cool case, an individual filed the 13 claim that was not adjusted by the insurance 14 company, and they were basically was denied by 15 inaction on the insurance company's part. 16 After they did not -- after this inaction 17 becomes a denial, constructive denial, they get 18 an assignment of benefits and filed a lawsuit 19 without ever providing the assignment of 20 benefits to the insurance company. 21 THE COURT: Well, that's different. I 22 think that's a different. Meaning that if your 23 argument is, that okay a claim was submitted to 24 us. We reviewed the claim and we denied the 25 claim. The Court is instructing you, ladies Veritext Legal Solutions 800-726-7007 305-376-8800 Page 14 1 and gentlemen of the jury, that as a matter of 2 law, there is coverage under this policy for 3 this vehicle. However, the defense's position 4 is, is that once you received the assignment of 5 benefits, you have some obligation to do 6 something. And I don't know why they would 7 have an obligation to do anything because I 8 mean, assignment of benefits, they take nothing 9 more than what the true party in interest would 10 have, assuming that it is the true party in 11 interest that gave them the assignment. And so 12 I'm not sure what they would be required to 13 tell you. 14 MR. SCARBERRY: Well, they're only -- 15 they're not here as Magic City.