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Filing # 127916490 E-Filed 06/02/2021 09:29:04 AM
IN THE CIRCUIT COURT OF THE
14™ JUDICIAL CIRCUIT IN AND
FOR BAY COUNTY, FLORIDA
CASE NO.: 19004412CA
JAMIE AND JENNIFER CARR,
Plaintiffs,
V.
GULFSTREAM PROPERTY & CASUALTY
INSURANCE COMPANY
Defendant.
|
DEFENDANT’S MOTION IN LIMINE TO PRECLUDE EVIDENCE AND ARGUMENT
REGARDING BAD FAITH CLAIMS HANDLING AND POLICY INTERPRETATION
Defendant, GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY
(“GULFSTREAM”), by and through its undersigned counsel, moves this Court for an
Order precluding evidence and testimony related to claims handling and bad faith, and as
grounds in support thereof states as follows:
1. This lawsuit arises from a property insurance claim made by Plaintiff with a
date of loss of September 10, 2018. GULFSTREAM paid Plaintiffs a total of $82,00.47.
2. Plaintiffs subsequently sued GULFSTREAM for breach of contract.
3. In a first-party breach of contract action, evidence pertaining to any issues
should be excluded as irrelevant other than whether GULFSTREAM breached the
insurance policy by failing to pay Plaintiff sufficient money for covered property damage
and whether GULFSTREAM proved any of its affirmative defenses. Royal Bahamian
Ass'n, Inc. v. QBE Ins. Corp., 745 F. Supp. 2d 1380, 1381-83 (S.D. Fla. 2010). In Royal
Bahamian Ass’n, a Southern District court granted the insurers Motion in Limine to
exclude evidence and testimony related to claims handling and bad faith. /d. The court
reasoned that the “evidence of an insurance company’s claims handling procedures is
irrelevant to the determination of coverage and damages.” /d. at 1381. This Court should
reach the same conclusion and find that the information is irrelevant to resolving that
actual dispute at trial.
4. How GULFSTREAM handled the claim and reached its claim determination
is wholly irrelevant to determining whether GULFSTREAM breached the insurance Policy.
5. Moreover, the law precludes a party from bringing a bad faith cause of
action against an insurer until the underlying coverage dispute is resolved. Existence of
the breach of contract count in the operative Complaint demonstrates that the contract
dispute is not resolved. See Government Employees Ins. Co. v. Rodriguez, 960 So.2d
794, 795-796 (Fla. 3d DCA 2007). See also Vest v. Travelers Ins. Co., 753 So. 2d 1270
(Fla. 2000) (A claim for bad faith is premature where there has not yet been a
determination of coverage); Maryland Cas. Co. v. Alicia Diagnostic, Inc., 961 So. 2d 1091,
1092 (Fla. 5th DCA 2007) (“[A]n insurer would be prejudiced by having to litigate either a
bad-faith claim or an unfair settlement practices claim in tandem with a coverage claim,
because the evidence used to prove either bad faith or unfair settlement practices could
jaundice the jury's view on the coverage issue’).
6. References to claims handling, proper adjustment, and “good faith” or “bad
faith” are irrelevant and prejudicial and should therefore be inadmissible. Indeed, even
the issue of whether a cause of action for breach of the “implied covenant of good faith
and fair dealing” exists has been put to rest by the Florida Supreme Court, when itheld
that breach of implied warranty of good faith and fair dealing is not a separate cause of
action, but simply a statutory bad-faith claim under section 624.155, Florida Statutes. See
QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass’n., Inc., 94 So. 3d 541 (Fla.
2012). Such testimony is irrelevant, and would unnecessarily extend the length of trial.
See Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000); Blanchard v. State
Farm Mutual Ins. Co., 575 So. 2d 1289 (Fla. 1991); Lexington Ins. Co. v. Royal Ins. Co.,
886 F. Supp. 837 (N.D. Fla. 1995).
T. Additionally, the introduction of such evidence, even if it had some
relevance (which GULFSTREAM does not concede), would serve only to inflame and
confuse the jury and unfairly prejudice GULFSTREAM at trial. The mere mention of claims
handling and alleged “bad faith” conduct or damages may bea sufficient basis to order a
new trial. See Westfield Mutual Automobile Insurance Company v. Oteiza, 595 So. 2d
1094 (Fla. 3d DCA 1992). See also Noel Shows, Inc. v. United State, 721 F.2d 327, 329
(11th Cir. 1983); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989).
8. In addition, testimony and evidence regarding policy interpretation should
also be excluded from trial. Allstate Ins. Co. v. Swain, 921 So. 2d 717, 719 (Fla. 3d DCA
2006) (holding, “The construction of an insurance policy is a question of law to be
determined by the court.”). The Third District Court of Appeal in Swain also acknowledged
that documents and information related to the insurer’s interpretation of the insurance
policy were “completely unnecessary to the determination of the coverage issue....” /d.
This Court is bound to follow Swain, and should exclude all testimony and evidence from
trial regarding interpretation of the insurance policy.
9. Accordingly, GULFSTREAM requests that this Court enter an Order
precluding any reference to claims handling, bad faith, and policy interpretation.
WHEREFORE, GULFSTREAM seeks an Order precluding any reference, by way
of evidence, documents, interrogatory answers, testimony, questions, argument,
comment or inference, to purported bad faith by GULFSTREAM, and for such other and
further relief as this Court deems just and proper.
BUTLER WEIHMULLER KATZ CRAIG LLP
Sd Cee
KATHY J. MAUS, ESQ.
Florida Bar No.: 0896330
kmaus@butler.legal
JULIUS F. PARKER, III,ESQ.
Florida Bar No.: 0160857
jparker@butler.legal
Secondary: apinnock@butler.legal
Mail Center: 400 N. Ashley Drive, Suite 2300
Tampa, Florida 33602
Telephone: (850) 894-4111
Facsimile: (850) 894-4999
Attorneys for Defendant
CERTIFICATE OF SERVICE
| certify that a copy hereof has been furnished to:
Scott M. Rosso, Esq.
David R. Shaheen, Esq.
GED Lawyers, LLP
7171 North Federal Highway
Boca Raton, FL 33487
pdlittaw@gedlawyers.com
Secondary: bgoetsch@gedlawyers.com
Attorneys For: Plaintiffs
by e-Portal on June 2, 2021.
/
a,
JULIUS F. PARKER, Ill,ESQ.
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Filing # 127916490 E-Filed 06/02/2021 09:29:04 AM IN THE CIRCUIT COURT OF THE 14™ JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004412CA JAMIE AND JENNIFER CARR, Plaintiffs, V. GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY Defendant. | DEFENDANT’S MOTION IN LIMINE TO PRECLUDE EVIDENCE AND ARGUMENT REGARDING BAD FAITH CLAIMS HANDLING AND POLICY INTERPRETATION Defendant, GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY (“GULFSTREAM”), by and through its undersigned counsel, moves this Court for an Order precluding evidence and testimony related to claims handling and bad faith, and as grounds in support thereof states as follows: 1. This lawsuit arises from a property insurance claim made by Plaintiff with a date of loss of September 10, 2018. GULFSTREAM paid Plaintiffs a total of $82,00.47. 2. Plaintiffs subsequently sued GULFSTREAM for breach of contract. 3. In a first-party breach of contract action, evidence pertaining to any issues should be excluded as irrelevant other than whether GULFSTREAM breached the insurance policy by failing to pay Plaintiff sufficient money for covered property damage and whether GULFSTREAM proved any of its affirmative defenses. Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., 745 F. Supp. 2d 1380, 1381-83 (S.D. Fla. 2010). In Royal Bahamian Ass’n, a Southern District court granted the insurers Motion in Limine to exclude evidence and testimony related to claims handling and bad faith. /d. The court reasoned that the “evidence of an insurance company’s claims handling procedures is irrelevant to the determination of coverage and damages.” /d. at 1381. This Court should reach the same conclusion and find that the information is irrelevant to resolving that actual dispute at trial. 4. How GULFSTREAM handled the claim and reached its claim determination is wholly irrelevant to determining whether GULFSTREAM breached the insurance Policy. 5. Moreover, the law precludes a party from bringing a bad faith cause of action against an insurer until the underlying coverage dispute is resolved. Existence of the breach of contract count in the operative Complaint demonstrates that the contract dispute is not resolved. See Government Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 795-796 (Fla. 3d DCA 2007). See also Vest v. Travelers Ins. Co., 753 So. 2d 1270 (Fla. 2000) (A claim for bad faith is premature where there has not yet been a determination of coverage); Maryland Cas. Co. v. Alicia Diagnostic, Inc., 961 So. 2d 1091, 1092 (Fla. 5th DCA 2007) (“[A]n insurer would be prejudiced by having to litigate either a bad-faith claim or an unfair settlement practices claim in tandem with a coverage claim, because the evidence used to prove either bad faith or unfair settlement practices could jaundice the jury's view on the coverage issue’). 6. References to claims handling, proper adjustment, and “good faith” or “bad faith” are irrelevant and prejudicial and should therefore be inadmissible. Indeed, even the issue of whether a cause of action for breach of the “implied covenant of good faith and fair dealing” exists has been put to rest by the Florida Supreme Court, when itheld that breach of implied warranty of good faith and fair dealing is not a separate cause of action, but simply a statutory bad-faith claim under section 624.155, Florida Statutes. See QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass’n., Inc., 94 So. 3d 541 (Fla. 2012). Such testimony is irrelevant, and would unnecessarily extend the length of trial. See Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000); Blanchard v. State Farm Mutual Ins. Co., 575 So. 2d 1289 (Fla. 1991); Lexington Ins. Co. v. Royal Ins. Co., 886 F. Supp. 837 (N.D. Fla. 1995). T. Additionally, the introduction of such evidence, even if it had some relevance (which GULFSTREAM does not concede), would serve only to inflame and confuse the jury and unfairly prejudice GULFSTREAM at trial. The mere mention of claims handling and alleged “bad faith” conduct or damages may bea sufficient basis to order a new trial. See Westfield Mutual Automobile Insurance Company v. Oteiza, 595 So. 2d 1094 (Fla. 3d DCA 1992). See also Noel Shows, Inc. v. United State, 721 F.2d 327, 329 (11th Cir. 1983); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989). 8. In addition, testimony and evidence regarding policy interpretation should also be excluded from trial. Allstate Ins. Co. v. Swain, 921 So. 2d 717, 719 (Fla. 3d DCA 2006) (holding, “The construction of an insurance policy is a question of law to be determined by the court.”). The Third District Court of Appeal in Swain also acknowledged that documents and information related to the insurer’s interpretation of the insurance policy were “completely unnecessary to the determination of the coverage issue....” /d. This Court is bound to follow Swain, and should exclude all testimony and evidence from trial regarding interpretation of the insurance policy. 9. Accordingly, GULFSTREAM requests that this Court enter an Order precluding any reference to claims handling, bad faith, and policy interpretation. WHEREFORE, GULFSTREAM seeks an Order precluding any reference, by way of evidence, documents, interrogatory answers, testimony, questions, argument, comment or inference, to purported bad faith by GULFSTREAM, and for such other and further relief as this Court deems just and proper. BUTLER WEIHMULLER KATZ CRAIG LLP Sd Cee KATHY J. MAUS, ESQ. Florida Bar No.: 0896330 kmaus@butler.legal JULIUS F. PARKER, III,ESQ. Florida Bar No.: 0160857 jparker@butler.legal Secondary: apinnock@butler.legal Mail Center: 400 N. Ashley Drive, Suite 2300 Tampa, Florida 33602 Telephone: (850) 894-4111 Facsimile: (850) 894-4999 Attorneys for Defendant CERTIFICATE OF SERVICE | certify that a copy hereof has been furnished to: Scott M. Rosso, Esq. David R. Shaheen, Esq. GED Lawyers, LLP 7171 North Federal Highway Boca Raton, FL 33487 pdlittaw@gedlawyers.com Secondary: bgoetsch@gedlawyers.com Attorneys For: Plaintiffs by e-Portal on June 2, 2021. / a, JULIUS F. PARKER, Ill,ESQ.