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Filing # 57161063 E-Filed 06/01/2017 11:02:04 AM
IN THE CIRCUIT COURT OF THE 11™
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE, FLORIDA
GRANADA INSURANCE COMPANY,
Plaintiff,
CASE NO.: 2017-008215-CA-01
vs.
LUCIAMY CORP., d/b/a SAMY BEAUTY
LOUNGE, a Florida corporation; and CARLOS
VALIENTE, individually,
Defendants. /
PLAINTIFF'S MOTION TO SEVER
Plaintiff, Granada Insurance Company ("GIC"), pursuant to Rule 1.270 of the Florida
Rules of Civil Procedure, requests this Court to sever Defendant, Carlos Valiente's Cross-Claim
against Luciamy Corp., d/b/a Samy Beauty Lounge, on the basis that Valiente's Cross-Claim is
prohibited Florida's Non-Joinder statute, Fla. Stat. § 627.4136(1). The grounds for this motion
are
BACKGROUND
1 On February 16, 2017 Valiente, filed a claim with GIC seeking coverage for the
injuries Valeinete allegedly sustained while a customer at Samy Beauty on May 20, 2015.
2 On April 05, 2017, GIC filed an action for declaratory relief against Carlos
Valinte's ("Valiente") and Luciamy Corp., d/b/a Samy Beauty Lounge ("Samy Beauty") seeking
a declaration of whether it has a duty to defend or indemnify Samy Beauty for the underlying
claim filed by Valiente.
3 On April 27, 2017, Valiente filed his Answer to GIC's Complaint for Declaratory
Relief and Mandatory Cross-Claim against Samy Beauty (the "Cross-Claim").
15378031v1 0996535Case No. 2017-008215-CA-01
4 The Cross-Claim asserts a single count of negligence against Samy Beauty based
on the incident that occurred May 05, 2017.
5 Valiente's Cross-Claim should be severed from GIC's coverage action pursuant to
Florida's Non-joinder statute, Fla. Stat. 627.4136(1).
MEMORANDUM OF LAW
A. Valiente's Cross-Claim Violates Florida's Non-Joinder Statute
Pursuant to Rule 1.270(b) of the Florida Rules of Civil Procedure, a court has the
discretion to order separate trials or sever a claim. Specifically, Rule 1.270 states the following
The court in furtherance of convenience or to avoid prejudice may order a
separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of
any separate issue or of any number of claims, cross-claims, counterclaims, third-
party claims, or issues
Fla. R. Civ. P. 1.270(b) (emphasis added); See also, Tindall y. Travelers Indemnity Co., 613 So.
2d 1369, 1370 (Fla. 2d DCA 1993) (recognizing that a trial court can sever an action in the event
an insurer is prejudiced). In the present matter, GIC seeks to avoid prejudice by the severance of
the separate and unrelated liability claim brought by Valiente against the Samy Beauty from the
claims related to coverage under the GIC Policy. To permit the GIC's insurance coverage
dispute with the Valiente and Samy Beauty to be tried in the same action as Valiente's tort claims
against the Samy Beauty would prejudice GIC and its insured.
Florida public-policy against presenting insurance coverage issues to the same jury as the
underlying negligence claims is set forth in Florida’s Non-Joinder Statute, § 627.4136(1), Fla.
Stat. "The legislative intent behind the statute is to ensure that the availability of insurance has
no influence on the jury's determination of the insured's liability and damages." Gen. Star
Indem. Co. v. Boran Craig Barber Engel Const., 895 So. 2d 1136, 1137-38 (Fla. 2d DCA 2005),
The public-policy consideration is to ensure that jurors do not consider the existence of insurance
15378031v1 0996535Case No. 2017-008215-CA-01
coverage as a factor in determining an insured's liability to an injured party. In addition,
coverage is determined as a matter of law and is totally "separate and distinct" from tort claims
of negligence, such as the claim brought against Samy Beauty by Valiente. /d.
In addition, Florida courts regularly sever coverage actions under similar circumstances.
See, e.g., Merchants and Businessmen's Mut. Ins. Co. v. Bennis, 636 So. 2d 593 (Fla. 4th DCA
1994) (determining that trying coverage issues together with underlying tort claims defeats
purpose and policy of Non-Joinder Statute to prevent insurance from bearing on jury’s
determination of liability and damages); State Farm Fire and Cas. Co. v. Nail, 516 So. 2d 1022
(Fla. 5th DCA 1987) (holding that consolidation of negligence action against insured with
insurer's declaratory judgment action violated Non-Joinder Statute); Starr Indem. & Liab. Co. v.
Morris, 155 So. 3d 429 (Fla. 3rd DCA 2015) (reversing the trail court's order and stating that the
coverage action and liability action were "essentially unrelated and constitute separate and apart
legal actions."); and Florida Farm Bureau General Ins. Co. v. Copertino, 693 So. 2d 642 (Fla.
4th DCA 1997) (finding the legislative intent underlying Fla. Stat. §627.4136 is that insurance
should have no bearing on juror determination of the issues of liability and damages).
In State Farm Fire and Casualty Co. v. Nail, 516 So. 2d 1022 (Fla. Sth DCA 1987), the
Court considered circumstances similar to the instant case. In Nail, the plaintiffs sought to
consolidate their case with a State Farm declaratory action. 516 S$.2d at 1022. State Farm filed
its declaratory action against Nail "seeking a determination of its rights and obligations under
Nail's homeowner's policy..." /d. The plaintiffs then moved to consolidate their negligence
action with the separate declaratory action. /d. The trial court consolidated the two cases "for
purposes of discovery and trial." /d. 1023. The Fifth District Court of Appeals accepted
certiorari and quashed the trial court's order of consolidation. /d. The appellate court reasoned
15378031v1 0996535Case No. 2017-008215-CA-01
that the non-joinder policy of Section 627.7262 (the precursor to 627.4136) expressed the public
policy that the jury should have no knowledge of insurance coverage because of an insurance
company being named directly as a party to the lawsuit. /d. at 1022. The District Court of
Appeals stated as follows:
In the instant case, the Respondents are attempting to avoid the application of the
non joinder statute by their motion for consolidation, and, by allowing them to do
so, the trial judge has departed from the clear legislative mandate that insurers
shall not be parties to negligence actions, nor shall the injured be entitled to
discovery against the insurer, until such time as the injured person has obtained a
judgment against the insured.
Id. at 1023
Similarly, in this matter, the Valiente, in filing its Cross-Claim, has improperly injected
the tort dispute against Samy Beauty into the coverage action against him. To allow the
coverage action to go forward in the same action as the tort action is flatly contrary to Florida’s
Non-Joinder Statute and constitutes reversible error since it would "result in irreparable harm ...
throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal."
Boran, 895 So. 2d at 1138-39, see also Geico General Ins. Co. v. Lepine, 173 So. 3d 1142, 1145
(Fla. 2d DCA 2015) ("To allow [defendant] to join [insurer] now, before a jury verdict against or
settlement with [defendant], invites the very situation that the nonjoinder statute seeks to avoid
the jury's knowledge that insurance proceeds are available could taint the jury's verdict.").
B. The Insurance Coverage Claims Against Defendants Are Not Inextricably
Interwoven With the Tort Claims Against Samy Beauty
GIC acknowledges the well-settled rule that "Florida courts have found it improper to
sever claims when the facts underlying the claims of the respective parties are inextricably
interwoven." Solari v. Zublin Chile Ingenieria Y Construcciones, 987 So. 2d 161 (Fla. 3rd DCA
2008). Here, there is no over-riding concern that the issues between the GIC's coverage action
15378031v1 0996535Case No. 2017-008215-CA-01
and the Valiente's tort claim are inextricably interwoven. Under Bennis, supra, there is no
reason that these two issues should be tried together:
Although the trial court has discretion with regard to severance under rule 1.
270(b). Florida Rules of Civil Procedure, we find here that the trial court departed
from the essential requirements of law in denying severance in this case because
the declaratory relief actions address coverage claims. On the other hand, these
claims, one a tort action against the insured, and the other an insurance
policy coverage action, are essentially unrelated and constitute separate and
distinct legal actions. There is no reason for them to be tried together.
Trying the coverage issues with the liability and damages claims defeats the
purpose and policy of the non-joinder statute. As a result of the denial of
severance, the plaintiff will benefit from the inclusion of the insurance issues
thereby evading the clear language and intent of the non-joinder statute. The
tuling is as much a departure from the essential requirements of law as was
consolidation of the liability and coverage actions in Nail. As in Nail, irreparable
harm is evidenced by the insurer having to provide a defense where there is no
legal obligation to do so.
We grant the petition for writ of certiorari, quash the order under review, and
remand with instructions to sever the actions
Id. at 595 (emphasis added).
As previously stated, GIC's coverage claim against Valiente and Samy Beauty is based
upon the contract of insurance between Samy Beauty and GIC. Conversely, the cross claim by
Valiente against the Samy Beauty, is based on alleged negligent conduct of Samy Beauty
Keeping GIC's coverage claims against Valiente and Samy Beauty in the same action as the
liability claims brought against Samy Beauty would serve no purpose based on the proper legal
standard for determining coverage under Florida law. In addition, it would prejudice both GIC
and its insured with regard to the jury's learning of the existence of potential insurance coverage
for the claims at issue, and would obligate the parties to incur unnecessary expenses by attending
dozens of hearings and depositions unrelated to their respective issues. Thus, the liability claims
brought against Samy Beauty should be severed from the coverage claims against the defendants
and assigned a new case number.
15378031v1 0996535Case No. 2017-008215-CA-01
Wherefore, Granada Insurance Company respectfully requests that this Court sever for
discovery and trial the Cross Claim brought against Samy Beauty from the coverage action.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that on June 1, 2017, a true and correct copy of the foregoing was
filed and served through the Florida Courts E-Filing Portal to all counsel of record as well as
via U.S. Mail return receipt requested to the registered agent of Luciamy Corp., d/b/a Samy
Beauty, 8250 S.W. 40 Street, Miami, FL 33155.
Respectfully submitted,
HINSHAW & CULBERTSON, LLP
/s/ Daniel Hentschel
Ronald L. Kammer
Florida Bar Number 360589
Daniel Hentschel
Florida Bar Number 123564
2525 Ponce de Leon Blvd
Fourth Floor
Coral Gables, Florida
Telephone: 305-358-7747
Facsimile: 305-577-1063
Counsel for Granada Insurance Company
15378031v1 0996535
Preview
Filing # 57161063 E-Filed 06/01/2017 11:02:04 AM IN THE CIRCUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE, FLORIDA GRANADA INSURANCE COMPANY, Plaintiff, CASE NO.: 2017-008215-CA-01 vs. LUCIAMY CORP., d/b/a SAMY BEAUTY LOUNGE, a Florida corporation; and CARLOS VALIENTE, individually, Defendants. / PLAINTIFF'S MOTION TO SEVER Plaintiff, Granada Insurance Company ("GIC"), pursuant to Rule 1.270 of the Florida Rules of Civil Procedure, requests this Court to sever Defendant, Carlos Valiente's Cross-Claim against Luciamy Corp., d/b/a Samy Beauty Lounge, on the basis that Valiente's Cross-Claim is prohibited Florida's Non-Joinder statute, Fla. Stat. § 627.4136(1). The grounds for this motion are BACKGROUND 1 On February 16, 2017 Valiente, filed a claim with GIC seeking coverage for the injuries Valeinete allegedly sustained while a customer at Samy Beauty on May 20, 2015. 2 On April 05, 2017, GIC filed an action for declaratory relief against Carlos Valinte's ("Valiente") and Luciamy Corp., d/b/a Samy Beauty Lounge ("Samy Beauty") seeking a declaration of whether it has a duty to defend or indemnify Samy Beauty for the underlying claim filed by Valiente. 3 On April 27, 2017, Valiente filed his Answer to GIC's Complaint for Declaratory Relief and Mandatory Cross-Claim against Samy Beauty (the "Cross-Claim"). 15378031v1 0996535Case No. 2017-008215-CA-01 4 The Cross-Claim asserts a single count of negligence against Samy Beauty based on the incident that occurred May 05, 2017. 5 Valiente's Cross-Claim should be severed from GIC's coverage action pursuant to Florida's Non-joinder statute, Fla. Stat. 627.4136(1). MEMORANDUM OF LAW A. Valiente's Cross-Claim Violates Florida's Non-Joinder Statute Pursuant to Rule 1.270(b) of the Florida Rules of Civil Procedure, a court has the discretion to order separate trials or sever a claim. Specifically, Rule 1.270 states the following The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third- party claims, or issues Fla. R. Civ. P. 1.270(b) (emphasis added); See also, Tindall y. Travelers Indemnity Co., 613 So. 2d 1369, 1370 (Fla. 2d DCA 1993) (recognizing that a trial court can sever an action in the event an insurer is prejudiced). In the present matter, GIC seeks to avoid prejudice by the severance of the separate and unrelated liability claim brought by Valiente against the Samy Beauty from the claims related to coverage under the GIC Policy. To permit the GIC's insurance coverage dispute with the Valiente and Samy Beauty to be tried in the same action as Valiente's tort claims against the Samy Beauty would prejudice GIC and its insured. Florida public-policy against presenting insurance coverage issues to the same jury as the underlying negligence claims is set forth in Florida’s Non-Joinder Statute, § 627.4136(1), Fla. Stat. "The legislative intent behind the statute is to ensure that the availability of insurance has no influence on the jury's determination of the insured's liability and damages." Gen. Star Indem. Co. v. Boran Craig Barber Engel Const., 895 So. 2d 1136, 1137-38 (Fla. 2d DCA 2005), The public-policy consideration is to ensure that jurors do not consider the existence of insurance 15378031v1 0996535Case No. 2017-008215-CA-01 coverage as a factor in determining an insured's liability to an injured party. In addition, coverage is determined as a matter of law and is totally "separate and distinct" from tort claims of negligence, such as the claim brought against Samy Beauty by Valiente. /d. In addition, Florida courts regularly sever coverage actions under similar circumstances. See, e.g., Merchants and Businessmen's Mut. Ins. Co. v. Bennis, 636 So. 2d 593 (Fla. 4th DCA 1994) (determining that trying coverage issues together with underlying tort claims defeats purpose and policy of Non-Joinder Statute to prevent insurance from bearing on jury’s determination of liability and damages); State Farm Fire and Cas. Co. v. Nail, 516 So. 2d 1022 (Fla. 5th DCA 1987) (holding that consolidation of negligence action against insured with insurer's declaratory judgment action violated Non-Joinder Statute); Starr Indem. & Liab. Co. v. Morris, 155 So. 3d 429 (Fla. 3rd DCA 2015) (reversing the trail court's order and stating that the coverage action and liability action were "essentially unrelated and constitute separate and apart legal actions."); and Florida Farm Bureau General Ins. Co. v. Copertino, 693 So. 2d 642 (Fla. 4th DCA 1997) (finding the legislative intent underlying Fla. Stat. §627.4136 is that insurance should have no bearing on juror determination of the issues of liability and damages). In State Farm Fire and Casualty Co. v. Nail, 516 So. 2d 1022 (Fla. Sth DCA 1987), the Court considered circumstances similar to the instant case. In Nail, the plaintiffs sought to consolidate their case with a State Farm declaratory action. 516 S$.2d at 1022. State Farm filed its declaratory action against Nail "seeking a determination of its rights and obligations under Nail's homeowner's policy..." /d. The plaintiffs then moved to consolidate their negligence action with the separate declaratory action. /d. The trial court consolidated the two cases "for purposes of discovery and trial." /d. 1023. The Fifth District Court of Appeals accepted certiorari and quashed the trial court's order of consolidation. /d. The appellate court reasoned 15378031v1 0996535Case No. 2017-008215-CA-01 that the non-joinder policy of Section 627.7262 (the precursor to 627.4136) expressed the public policy that the jury should have no knowledge of insurance coverage because of an insurance company being named directly as a party to the lawsuit. /d. at 1022. The District Court of Appeals stated as follows: In the instant case, the Respondents are attempting to avoid the application of the non joinder statute by their motion for consolidation, and, by allowing them to do so, the trial judge has departed from the clear legislative mandate that insurers shall not be parties to negligence actions, nor shall the injured be entitled to discovery against the insurer, until such time as the injured person has obtained a judgment against the insured. Id. at 1023 Similarly, in this matter, the Valiente, in filing its Cross-Claim, has improperly injected the tort dispute against Samy Beauty into the coverage action against him. To allow the coverage action to go forward in the same action as the tort action is flatly contrary to Florida’s Non-Joinder Statute and constitutes reversible error since it would "result in irreparable harm ... throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal." Boran, 895 So. 2d at 1138-39, see also Geico General Ins. Co. v. Lepine, 173 So. 3d 1142, 1145 (Fla. 2d DCA 2015) ("To allow [defendant] to join [insurer] now, before a jury verdict against or settlement with [defendant], invites the very situation that the nonjoinder statute seeks to avoid the jury's knowledge that insurance proceeds are available could taint the jury's verdict."). B. The Insurance Coverage Claims Against Defendants Are Not Inextricably Interwoven With the Tort Claims Against Samy Beauty GIC acknowledges the well-settled rule that "Florida courts have found it improper to sever claims when the facts underlying the claims of the respective parties are inextricably interwoven." Solari v. Zublin Chile Ingenieria Y Construcciones, 987 So. 2d 161 (Fla. 3rd DCA 2008). Here, there is no over-riding concern that the issues between the GIC's coverage action 15378031v1 0996535Case No. 2017-008215-CA-01 and the Valiente's tort claim are inextricably interwoven. Under Bennis, supra, there is no reason that these two issues should be tried together: Although the trial court has discretion with regard to severance under rule 1. 270(b). Florida Rules of Civil Procedure, we find here that the trial court departed from the essential requirements of law in denying severance in this case because the declaratory relief actions address coverage claims. On the other hand, these claims, one a tort action against the insured, and the other an insurance policy coverage action, are essentially unrelated and constitute separate and distinct legal actions. There is no reason for them to be tried together. Trying the coverage issues with the liability and damages claims defeats the purpose and policy of the non-joinder statute. As a result of the denial of severance, the plaintiff will benefit from the inclusion of the insurance issues thereby evading the clear language and intent of the non-joinder statute. The tuling is as much a departure from the essential requirements of law as was consolidation of the liability and coverage actions in Nail. As in Nail, irreparable harm is evidenced by the insurer having to provide a defense where there is no legal obligation to do so. We grant the petition for writ of certiorari, quash the order under review, and remand with instructions to sever the actions Id. at 595 (emphasis added). As previously stated, GIC's coverage claim against Valiente and Samy Beauty is based upon the contract of insurance between Samy Beauty and GIC. Conversely, the cross claim by Valiente against the Samy Beauty, is based on alleged negligent conduct of Samy Beauty Keeping GIC's coverage claims against Valiente and Samy Beauty in the same action as the liability claims brought against Samy Beauty would serve no purpose based on the proper legal standard for determining coverage under Florida law. In addition, it would prejudice both GIC and its insured with regard to the jury's learning of the existence of potential insurance coverage for the claims at issue, and would obligate the parties to incur unnecessary expenses by attending dozens of hearings and depositions unrelated to their respective issues. Thus, the liability claims brought against Samy Beauty should be severed from the coverage claims against the defendants and assigned a new case number. 15378031v1 0996535Case No. 2017-008215-CA-01 Wherefore, Granada Insurance Company respectfully requests that this Court sever for discovery and trial the Cross Claim brought against Samy Beauty from the coverage action. CERTIFICATE OF SERVICE THEREBY CERTIFY that on June 1, 2017, a true and correct copy of the foregoing was filed and served through the Florida Courts E-Filing Portal to all counsel of record as well as via U.S. Mail return receipt requested to the registered agent of Luciamy Corp., d/b/a Samy Beauty, 8250 S.W. 40 Street, Miami, FL 33155. Respectfully submitted, HINSHAW & CULBERTSON, LLP /s/ Daniel Hentschel Ronald L. Kammer Florida Bar Number 360589 Daniel Hentschel Florida Bar Number 123564 2525 Ponce de Leon Blvd Fourth Floor Coral Gables, Florida Telephone: 305-358-7747 Facsimile: 305-577-1063 Counsel for Granada Insurance Company 15378031v1 0996535