Legal Document: MAGIC CITY AUTO GROUP LLC VS DIRECT GENERAL INSURANCE COMPANY

On February 18, 2022 a Response to Motion - Due Date: Complete Date: was filed involving a dispute between Magic City Auto Group Llc, and Direct General Insurance Company, for Contract & Indebtedness in the District Court of Miami-Dade County.

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Filing # 182672674 E-Filed 09/27/2023 09:03:13 AM

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 RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION
FOR ENTRY OF FINAL JUDGMENT

Defendant, DIRECT GENERAL INSURANCE COMPANY, files this its Response in

Opposition to Plaintiff’s Motion for Entry of Final Judgment, and would state as follows:

1. The Court conducted the trial in this matter on August 28, 2023. At the

conclusion of the trial, the jury determined the actual cash value of the 2012 Ferrari to be

$150,469.30 in damages.

2. Prior to trial, on May 26, 2023, the Court entered its Order Granting Plaintiff’s

Motion for Summary Judgment and Denying Defendant’s Cross-Motion for Summary

Judgment.

3. On July 19, 2023, Direct General Insurance Company filed its Motion for

Reconsideration of Order on Motion for Summary Judgment presenting new argument and

case law. The Court has yet to rule on that Motion for Reconsideration.

4. During the trial, there were several key issues that the Court made rulings,

including Plaintiff’s burden of proof at trial, admission of inadmissible hearsay documents and

testimony, and the admission of inadmissible opinion testimony.

1
5. At trial, the Court made the following statement:

THE COURT: I think I’m doing the right thing. But if I’m wrong, I need you to
help me see that I’m wrong. And I promise you, I will reverse what I’ve done.
But it can’t just be you arguing to me. You’ve got to give something that helps
me get me where you need me to be. And I have no issue whatsoever in
altering, and if I have to grant a directed verdict or grant a new trial, whatever
it happens to be, I will do it.

Trial Transcript, p. 247, line 21 – p. 248, line 5.

6. On September 12, 2023, pursuant to Rule 1.480, DIRECT GENERAL

INSURANCE COMPANY filed its Motion for Judgment Notwithstanding the Verdict and

Motion for New Trial presenting the Court with case law in support of the arguments made at

trial.

7. At trial, the Court also stated that it would consider Defendant’s Motion for

Reconsideration, as well. The Motion for Reconsideration was previously set before the

Court; however, the Court did not hear the Motion at that time.

8. Florida Rule of Appellate Procedure 9.020 reads in pertinent part:

(h) Rendition of an Order. An order is rendered when a signed,
written order is filed with the clerk of the lower tribunal.

(1) Motions Tolling Rendition. The following motions, if authorized
and timely filed, toll rendition unless another applicable rule of
procedure specifically provides to the contrary:

(A) motion for new trial; remittitur, or additur;

…

(E) motion for judgment in accordance with prior motion for
directed verdict;

Fla. R .App. P. 9.020 (2023).

9. Currently, the Defendant has three (3) motions pending before the Court: (1)

Motion for Reconsideration; (2) Motion for Judgment Notwithstanding the Verdict; and (3)

Motion for New Trial.

2
10. Based upon the pending motions before the Court, the entry of final judgment

is premature, and Plaintiff’s Motion should be denied.

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) and Douglas F. Eaton, Esq. (deaton@eatonwolk.com and
cgarcia@eatonwolk.com) on September 27, 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

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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

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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

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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

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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

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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?

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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

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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

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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

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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

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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

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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,

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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

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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

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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. They're here
16 as you mentioned, with the same rights or
17 obligations as what they're assignor has,
18 right.
19 THE COURT: Right. And I think you can
20 argue that. I think if what you want to argue
21 is -- because it sounds like what you're saying
22 is, is that one of your affirmative defenses is
23 --
24 MR. EATON: No.
25 THE COURT: No?

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1 MR. EATON: No. They have not pled that,
2 Your Honor. That's, that's the whole problem.
3 He's arguing things that he hasn't pled. We
4 gave you the letter here. The letter says the
5 only basis for denial has nothing to do with
6 assignment; it has nothing to do with standing
7 and who you are, or anything. All it says is
8 this exclusion bars coverage. Judge Rebull
9 says it does not. That's it. This is a damage
10 case.
11 MR. SCARBERRY: I would, I would disagree
12 once again, Your Honor. Okay. What matters is
13 what there a material breach. Now, if my
14 client, for instance, if my client cites to an
15 exclusion in that denial letter, then that
16 exclusion does not apply. However, another
17 exclusion of the policy applies. Was there
18 really a material breach of the policy? I
19 would argue no, because the denial was proper,
20 just the basis cited in the letter was not
21 proper.
22 THE COURT: But the question is, is that
23 did you, did you state that or did you say
24 something like -- sometimes when you deny the
25 claims, not you, but when insurance companies

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1 deny the claim, they say we reserve all other
2 -- to enforce all other rights and obligations
3 pursuant to the policy. So, for example, if
4 they don't comply with post loss obligations,
5 if they don't provide a, you know, like
6 statement under oath, or if it's wear and tear
7 and, you know, later they say, okay, we go to
8 litigation, we may have these other defenses.
9 We don't waive any of our defenses. And then
10 did you assert any of this -- because they say
11 you didn't -- in an affirmative defense in your
12 answer?
13 MR. EATON: To answer your first question,
14 Your Honor, is no. They said nothing else
15 other than the exclusion. And that's the
16 letter that (unintelligible) gave to you.
17 THE COURT: Which I don't have my glasses
18 with me, so I can't see.
19 MR. EATON: It says that coverage does not
20 transfer the rented vehicle if it's operating
21 for the following reasons.
22 THE COURT: I need my glasses, I'm sorry,
23 Andrew.
24 MR. EATON: That's paragraph one.
25 Respectfully denies collision coverage arising

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1 out of this matter for the following reasons.
2 List the exclusion that Judge Rebull said did
3 not apply. Then at the end where you would
4 normally see the, you know, we reserve all our
5 rights language, there's nothing there on that.
6 THE COURT: Can I ask -- okay. Let me go
7 back to the Defense please. In terms of the
8 question that I asked, did you assert any of
9 this that we're arguing now as an affirmative
10 defense in this matter? And if so, tell me
11 where you asserted it at.
12 MR. SCARBERRY: Yes, Your Honor, if I may
13 approach?
14 THE COURT: No. Just read it please. I
15 don't have glasses, so I can't see it anyway.
16 MR. SCARBERRY: Paragraph 21 of -- and I
17 would also mention, Your Honor, we did file a
18 motion for relief to amend affirmative defenses
19 to conform with the evidence. It is currently
20 scheduled for hearing in two days. But
21 paragraph 21, no payment owed. Plaintiff seeks
22 payment for property damage to a non-owned for
23 which Plaintiff as assignee of the name
24 insured, has no right to recover. Plaintiff
25 has no legal right of recovery against

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1 Defendant for the alleged damage to the
2 non-owned auto as the right to recovery belongs
3 to the owner of the Ferrari --
4 MR. SANTISTEBAN: That's what he's saying
5 now.
6 MR. SCARBERRY: But I've also - so -- but
7 my thing is -- mine is not -- it's not an
8 affirmative defense. It's a burden of proof
9 issue here, Your Honor. The burden is on them
10 to establish the elements of a breach of
11 contract action. If Mr. Santisteban would've
12 followed a DEC action just seeking the
13 establishment of coverage in this matter, then
14 this matter would be resolved already.
15 However, that's not what he did. He chose to
16 file a breach of contract action, and he's
17 still required to prove those elements.
18 THE COURT: Okay. Okay, so the elements
19 is, is that there was a contract between the
20 Plaintiff and the Defendant. And I'm saying
21 that that has been established only because of
22 the assignment of benefits. Okay. Two, that
23 there was a breach of that contract. They
24 filed a claim. You denied the claim. That's a
25 -- and the Judge found that as a matter of law,

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1 that there was coverage under the policy for
2 the claim that was filed. Three, damages as
3 the -- as to the -- and if you want to use the
4 word material breach, we can add the word
5 material breach. And then damages that flowed
6 from the breach. And the -- I guess I should
7 say, and the Plaintiff did all or substantially
8 all of the things that the contract required
9 them to do so that, you know, because I think
10 you got to require -- that's also an element of
11 the, of the offense.
12 MR. SCARBERRY: I think your second point
13 jumps to something, which is the fact that the
14 Plaintiff in this case never submitted a claim.
15 THE COURT: But sir, and maybe it's me and
16 I apologize because sometimes it's, you know,
17 Judges can be thick. Isn't that the whole
18 purpose of getting an assignment of benefits?
19 Meaning that I get an assignment of benefits
20 and I stand in the shoes of the person who did
21 submit the claim?
22 MR. SCARBERRY: Yes, sir, that I agree
23 with you, and you're following here, right.
24 The assignment -- so Magic City submits the
25 claim directly to Direct General. The insured

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1 never submit the claim, okay. Magic City
2 submits a claim, Direct General sends the
3 denial letter. As you will see, the denial
4 letter is --
5 MR. EATON: No, the other one. The first
6 one.
7 MR. SCARBERRY: The denial letter is
8 addressed to Magic City. The insured never
9 received the denial letter. Only Magic City
10 did. Then after that, about three weeks after
11 that, then Magic -- so Magic City did not have
12 an assignment when it filed a claim. Three
13 weeks after this denial to Magic City, then
14 they get an assignment from the insured. Now
15 they stand in the insured shoes, and that's how
16 they're here before the Court today.
17 THE COURT: But my question though, and
18 help me understand this.
19 MR. SCARBERRY: Yes, sir.
20 THE COURT: There is -- there's an
21 accident, okay. Two car, car A and car B. Car
22 A files -- both have insurance, but for
23 whatever reason car A is responsible for the
24 accident. Okay. Car B files a claim, okay,
25 against the insurance of the person responsible

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1 for the accident.
2 MR. SCARBERRY: Yes, sir.
3 THE COURT: The insurance company gets the
4 claim and says, well, yes, this was our
5 insured, but no, there is no coverage because
6 there's an exclusion that applies. Good luck.
7 The person who filed the claim with you then
8 assigns that claim to a third party. The third
9 party then files a lawsuit saying that your
10 insured damaged my vehicle and they had
11 insurance through your policy, I mean your
12 company, and this is a covered loss, pay me.
13 And the lawsuit ensues. You come into court
14 and you say, I have no obligation to adjust a
15 claim because my insured never filed it. But
16 your insured by law is required to have
17 insurance. So if your insurance hits my car, I
18 shouldn't be -- whether or not I'm covered is
19 not dependent upon whether or not your insured
20 decided they wanted to go ahead and file a
21 claim to tell you that they just hit my car. I
22 should be able to file a claim even though I
23 have no insurance with you. And so your
24 argument, I think is, well, my insured never
25 filed a claim and I've never denied the claim

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1 from my insured. And my point is, why does
2 that even matter.
3 MR. SCARBERRY: In your scenario, when
4 they assign that claim, they wouldn't sue the
5 insurance company. They would sue our insured
6 for being liable for the accident. The
7 insurance company would provide a defense but
8 that would be a third party claim and not a
9 first party claim.
10 THE COURT: But aren't we still having the
11 same conversation, though? The same
12 conversation is, all right -- and by the way,
13 we all know that suing the person in name only,
14 at the end of the day, the whole purpose is not
15 to have the party who hit you, pay you.
16 They're going after the insurer. And but what
17 you all do -- when I say you all I mean the way
18 you try these cases -- it's always in the name
19 of the person who had the insurance as compared
20 to the insurance company. But the person who
21 is always sitting at the table is the insurance
22 company. So I'm just trying to understand --
23 MR. SCARBERRY: Attorney's fees, Your
24 Honor.
25 THE COURT: Is that what it is?

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1 MR. SCARBERRY: That's the difference.
2 THE COURT: Okay.
3 MR. SCARBERRY: So, I mean, I still think
4 -- I think the only question of fact for the
5 jury to determine whether they sub -- whether
6 like I mentioned. They're not here as
7 themselves. They're here as an assignee. And
8 if they want to argue to the jury -- I have
9 motions and you denied the motion in limine.
10 But the case law says that the assignment after
11 you file the claim is not good enough. The
12 directed verdict was given in that case, you
13 know.
14 THE COURT: Okay.
15 MR. SCARBERRY: I mean --
16 THE COURT: Here's what I think. And
17 subject to change I guess if for some reason
18 even though I don't know how factually it
19 would. I think I tell the jurors the
20 following. There was an accident involving a
21 vehicle and the vehicle was -- you have to
22 correct me by the way if I'm saying something
23 that's not accurate -- it was an accident that
24 involved -- this is the first party property
25 insurance case, first thing I'm going to tell

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1 them. Okay. And it's about damage that was
2 done to a vehicle. Okay. And that's not in
3 dispute, I don't think. Okay. And the
4 Plaintiff is, received an assignment, okay, of
5 benefits meaning they stand in the shoes of the
6 party who do not own the vehicle, but the party
7 who rented the vehicle to --
8 MR. SANTISTEBAN: The party who rented the
9 vehicle.
10 THE COURT: Yeah. The party who rented
11 the vehicle.
12 MR. SANTISTEBAN: That's right.
13 THE COURT: The insurance company who is
14 the Defendant in this case, denied the claim,
15 but the Court found that there was coverage
16 under the policy. The issue you have to decide
17 is what the amount of damages to the --
18 MR. SANTISTEBAN: Ferrari.
19 THE COURT: -- to the vehicle.
20 MR. SANTISTEBAN: Yeah. And I want to put
21 a real fine point on that. Just so we're all
22 clear, because Mr. Scarberry is correct. I
23 mean, this is -- we're here because of fees,
24 right. I took Defendant's --
25 THE COURT: We're here because of what?

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1 MR. SANTISTEBAN: Fees. The whole -- all
2 this noise, like Your Honor likes to say in
3 calendar call, noise is because of fees.
4 There's no doubt that there's coverage. I took
5 the Defendant's corporate representative
6 deposition in July, and I showed her the
7 valuation for the car that was prepared when
8 the loss occurred, $150,000.00. I put it in
9 front of her and I said what evidence does
10 Direct General have to contradict this value?
11 None, I don't know. Do you have your own
12 value? No. Do you dispute this value? I
13 don't know. Have you done a valuation? No. I
14 think it's a directed verdict at that point,
15 but I mean, I can't forecast these issues.
16 THE COURT: But it may be, maybe they're
17 persisting because it's legal issues. They
18 believe that --
19 MR. SANTISTEBAN: I agree.
20 THE COURT: -- for example, they say that
21 the Court was incorrect in granting the summary
22 judgment.
23 MR. SANTISTEBAN: I agree it's legal.
24 That's why I'm saying I'm not sure what a
25 jury's going to do.

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1 MR. EATON: But the Court resolved, I
2 guess to his point, if the Court resolves all
3 these issues, then maybe there is no jury
4 trial.
5 MR. SANTISTEBAN: There's nothing to try.
6 What is there to try? They're not disputing
7 the value of the car.
8 THE COURT: Yeah, but they're preserving
9 -- I don't know. You ask them. That's a
10 conversation you can have with them. I'm here
11 for a jury trial. And all I initially wanted
12 to do that was to find out factually, what did
13 I tell the jury that the case is about?
14 MR. SANTISTEBAN: And I know we're getting
15 way off -- There's already coverage. Judge
16 Rebull's already decided that. Your Honor
17 denied their motion in limine with this theory
18 that there's multiple claims. Magic City's
19 claim. That's denied. So like Your Honor just
20 said, what do I tell the jury? There was a
21 policy, there was damage to a car. The only
22 thing you're here to do is to decide coverage.
23 If that is the Court's ruling today --
24 MR. EATON: No. Decide the amount.
25 MR. SANTISTEBAN: I'm sorry, to decide the

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1 amount of damages to the Ferrari. If that is
2 the Court's legal ruling, I think the Defense
3 needs to think about what we're here to try
4 because there's no --
5 THE COURT: But that's not -- that, okay.
6 MR. SANTISTEBAN: I understand.
7 THE COURT: There's a reason why
8 (unintelligible) counsel is there. I don't
9 tell them what to stipulate to, what to do. I
10 try the case.
11 MR. SANTISTEBAN: I understand.
12 THE COURT: At the end of the day, if
13 there is no evidence, you move for a directed
14 verdict, then so be it. I don't know, because
15 I don't know what you all did or didn't do,
16 except for what you all tell me, because
17 unfortunately, I haven't presided over this
18 case that long and I don't know a lot about the
19 case.
20 MR. SCARBERRY: And, Your Honor, I would
21 point out one thing with the last statement you
22 made of your summary, okay. I think they need
23 to establish that the insured -- our i

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Document Filed Date

September 27, 2023

Case Filing Date

February 18, 2022

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