Opinion
Case No. 1:18-cv-23585-UU
2019-10-22
Jose RODRIGUEZ, et al., Plaintiffs, v. GEOVERA SPECIALTY INSURANCE COMPANY, Defendant.
Lazaro Vazquez, Law Office of Lazaro Vazquez, P.A., Anthony Accetta, Law Offices of Anthony Accetta, PA, Eduardo Gomez, Eduardo Gomez, P.A., Coral Gables, FL, for Plaintiff Jose Rodriguez Law Office of Lazaro Vazquez, P.A. 145 Almeria Ave. Coral Gables, FL 33134 305-456-1784. Lazaro Vazquez, Anthony Accetta, Law Office of Lazaro Vazquez, P.A., Coral Gables, FL, for Plaintiff Marcee K. Rodriguez. Daniel Martin McNalis, Groelle & Salmon, West Palm Beach, FL, for Defendant.
Lazaro Vazquez, Law Office of Lazaro Vazquez, P.A., Anthony Accetta, Law Offices of Anthony Accetta, PA, Eduardo Gomez, Eduardo Gomez, P.A., Coral Gables, FL, for Plaintiff Jose Rodriguez Law Office of Lazaro Vazquez, P.A. 145 Almeria Ave. Coral Gables, FL 33134 305-456-1784.
Lazaro Vazquez, Anthony Accetta, Law Office of Lazaro Vazquez, P.A., Coral Gables, FL, for Plaintiff Marcee K. Rodriguez.
Daniel Martin McNalis, Groelle & Salmon, West Palm Beach, FL, for Defendant.
ORDER ON PLAINTIFFS' MOTION IN LIMINE
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon the Motion in Limine filed by Plaintiffs Jose Rodriguez and Marcee K. Rodriguez ("Plaintiffs"), D.E. 49 (the "Motion"). The Court has reviewed the Motion and the pertinent portions of the record and is otherwise fully advised of the premises.
I. FACTUAL BACKGROUND
This case is about Defendant GeoVera Specialty Insurance Company's ("GeoVera") alleged failure to fully pay Plaintiffs under their homeowners insurance policy (the "Policy") for a covered loss that occurred on December 19, 2015 (the "2015 Loss"). See generally D.E. 9; see also D.E. 63 at 3 ¶ 5(B). The Policy was voidable under a "Concealment or Fraud" provision, which reads in pertinent part:
The entire policy will be voidable if, regardless of whether related to a loss, any ‘insured’, their agent, or their broker:
1. Intentionally conceals or misrepresents any material fact or circumstance;
2. Engages in fraudulent conduct; or
3. Makes false statements;
relating to the insurance provided under any part of this policy.
D.E. 34-1 at 48.
Following the 2015 Loss, Plaintiffs also allegedly suffered a loss to the Property on or about September 10, 2017, due to Hurricane Irma (the "2017 Loss"). See D.E. 34-1 at 2 ¶ 5. The 2017 Loss is the subject of a separate lawsuit pending before U.S. District Judge Federico A. Moreno. See Rodriguez v. GeoVera Specialty Ins. Co. , No. 1:19-cv-21173-FAM (S.D. Fla.) [hereinafter the "Moreno Case"]. Importantly, however, GeoVera received two letters of representation from Plaintiffs' counsel after the date of the 2017 Loss.
Plaintiffs' position in the Moreno Case is that GeoVera's failure to fully pay for the damages from the 2015 Loss resulted in Plaintiffs being unable to make necessary repairs, and as a result, when Hurricane Irma hit, those damages got worse and led to the 2017 Loss. See generally D.E. 48 at 2 n.1; Moreno Case, D.E. 32. Plaintiff claims the damages "cannot now be distinguished between the two losses" and should be paid in accordance with Sebo v. American Home Assurance Company , 208 So. 3d 694 (Fla. 2016). Id. The Court finds that it need not reach this issue in resolving the instant Motion and accordingly declines to do so.
A. The Sworn Proofs of Loss and Estimates
On or about November 21, 2017, GeoVera received from Plaintiffs' counsel a letter of representation in connection with the 2015 Claim. D.E. 34-1 at 2 ¶ 7 & Ex. 2. The letter enclosed (1) a sworn proof of loss for the 2015 Claim for $78,845.72, dated October 10, 2017; (2) an estimate for the 2015 Claim totaling $78,845.72 (the "2015 Loss Estimate"); and (3) numerous undated photographs of the claimed damages to the roof areas above the garage and front bedroom and interior damages to the garage and front bedroom. D.E. 34-1 at 2 ¶ 7 & Ex. 2.
On or about November 6, 2018, GeoVera received from Plaintiffs' counsel a letter of representation in connection with the 2017 Claim. The letter enclosed (1) a sworn proof of loss for the 2017 Claim for $129,484.49, dated October 30, 2018; and (2) an estimate for the 2017 Claim totaling $129,484.49 (the "2017 Loss Estimate"). D.E. 34-1 at 2–3 ¶ 8 & Ex. 3.
The 2015 Loss Estimate and the 2017 Loss Estimate contain several similar line items, including:
Main Level
• Compare 2015 Loss Estimate: "Dumpster load – per independent dumpster company" totaling $550.00 (D.E. 34-1 at 63) with 2017 Loss Estimate: "Dumpster load – Approx. 20 yards, 4 tons of debris" totaling $635.00 (D.E. 34-1 at 115)
• Compare 2015 Loss Estimate: "R & R Drip edge" totaling $753.20 (D.E. 34-1 at 63) with 2017 Loss Estimate: "R & R Drip edge" totaling $686.28 (D.E. 34-1 at 115)
• Compare 2015 Loss Estimate: "Remove Tile roofing – Clay – ‘S’ or flat tile" totaling $26,914.94 (D.E. 34-1 at 63) with 2017 Loss Estimate: "Tile roofing – Comm – Glzd – (Barrel or ‘S’) – w/out felt" totaling $48,299.43 (D.E. 34-1 at 115).
Bedroom
• Compare 2015 Loss Estimate: "R & R 5/8" drywall – hung, taped, ready for texture" totaling $1,132.01 (D.E. 34-1 at 63) with 2017 Loss Estimate: "R & R 5/8" drywall – hung, taped, ready for texture" totaling $1,289.56 (D.E. 34-1 at 117)
• Compare 2015 Loss Estimate: "R & R Engineered wood flooring" totaling $1,674.35 (D.E. 34-1 at 64) with 2017 Loss Estimate: "R & R Engineered wood flooring" totaling $1,649.82 (D.E. 34-1 at 118).
B. Testimony Concerning the Two Alleged Losses
Plaintiffs Jose Rodriguez and Marcee K. Rodriguez were deposed about the above-referenced line item similarities.
With respect to the main level dumpster load line item, Mrs. Rodriguez testified that she did not know why the same type of thing was on both estimates, as it was never explained to her. D.E. 34-2 at 39:12–40:8. Mr. Rodriguez claimed that, despite the similarities in the line items, he believed (but did not know) that the estimates reflected different needs. See D.E. 34-3 at 36:12–38:17. He testified:
Q Okay. So those both say dumpster load, approximately yards.
A Okay.
Q All right. And any reason why you would need dumpster load twice if --
[A] Well ‘cause this was done 2015, and this is Irma so it was two different. I'm not here to get paid twice. So I don't know if this is -- I'm not here to get paid twice, so obviously you know, so like I said this is estimate. This is from one incident. This is from another one. So I don't know.
Q We're trying to find out which is which, and why --
A Well, this is for 2015, and this is for Irma.
Q All right. Well they're both very similar items.
A Okay.
Id. at 37:22–38:17 (attorney objection omitted).
Likewise, Mrs. Rodriguez did not know why the "drip edge" line item was on both estimates; she knew only that the adjuster explained that "if certain things get paid on one claim, they will not get paid on another. In other words, it won't be paid twice." D.E. 34-2 at 40:9–24.
As to the tile roofing, Mr. Rodriguez also believed the two estimates reflected different damages, testifying:
Q First one says you got number six, tile roofing.
A Okay.
Q And number eight on the 2017 one is also for tile roofing. So --
A Two different damages, I guess. That's what he -- what he wrote.
Q So does the roof -- so you're saying the roof needed to be replaced from the 2015 rainstorm, but --
A Yeah, that's what he has.
Q And then for Hurricane Irma it also needs to be replaced again.
A That's what he has. [...] Two different.
D.E. 34-3 at 38:18–39:8 (attorney objection omitted). And Mrs. Rodriguez testified that Mr. Aucar did not advise why the tile roofing item was on both claims, "except that he did say if it got paid on one claim, it wouldn't be paid on another." D.E. 34-2 at 41:5–22.
With respect to the drywall in her son's bedroom, Mrs. Rodriguez did not know whether the damages were the same from the 2015 Loss or were newly caused by Hurricane Irma; she deferred to her husband. D.E. 34-2 at 41:23–43:16. Likewise, as to the wood flooring, she did not know why this line item appeared twice, offering: "Maybe, like you said, they weren't fixed previously so he just added them to the new estimate. I'm not sure." D.E. 34-2 at 43:17–44:12. Mrs. Rodriguez did testify that no repairs were done to the either the floor or the walls in her son's room, as she was told not to touch anything in case the room needed to be re-inspected. D.E. 34-2 at 44:14–24. Mrs. Rodriguez also testified that she did not believe any additional rooms, apart from those damaged in the 2015 Loss, were damaged by Hurricane Irma. D.E. 34-2 at 60:14–61:8.
Finally, Mr. Rodriguez generally deferred to Mr. Aucar, the adjuster who drafted both Loss Estimates underlying the sworn proofs of losses:
Q So if I went through every single one that overlapped --
A Okay.
Q Are you going to say that's because it's new damage, or you thin [sic ],
that there is any overlap between the two?
[A] Again, you have to ask him, and I'm not here to get paid twice, so if it overlaps, absolutely I don't want to get paid for the other one. I would -- I would give you guys the credit. Well the insurance.
D.E. 34-3 at 44:2–13 (attorney objection omitted).
II. PROCEDURAL HISTORY
In their operative Complaint, Plaintiffs bring a single breach of contract claim for GeoVera's alleged failure to fully pay for the 2015 Loss, which they contend is a covered loss. See D.E. 9. On October 12, 2018, GeoVera filed its answer to the Complaint, along with eight affirmative defenses. D.E. 12. GeoVera's first affirmative defense reads, in its entirety:
As for its First Affirmative Defense, GeoVera asserts that the claim is subject to any and all policy terms, conditions, exclusions, and/or other limitations regarding coverage for the claimed loss. Plaintiffs' action is a claim for Breach of Contract, as such Policy No. GH50053835 effective from August 22, 2015 through August 22, 2016 controls the rights and obligations of the parties, the applicable deductibles and the amount and limits of available insurance coverage, and any indemnity obligation of GeoVera, if any.
Id. at 6. Plaintiffs moved to strike this defense as too vague to give notice of the specific facts or insurance policy provisions upon which GeoVera would rely. D.E. 13 at ¶¶ 4, 12–15. The Court denied the motion to strike, concluding that "at the pleading stage, [GeoVera] need not set out every single provision that it contends does not provide coverage for Plaintiff's loss." D.E. 18 at 7 (citing Fed. R. Civ. P. 8(b)(1)(A) ).
On August 2, 2019, GeoVera filed an unopposed motion to amend its affirmative defenses to add a ninth affirmative defense. D.E. 31. The proposed defense would read as follows:
As and for its Ninth Affirmative Defense, GeoVera asserts that Plaintiffs' fraud and misrepresentation relieves GeoVera of any further indemnity obligations to Plaintiffs under the insurance policy:
I. Concealment Or Fraud
The entire policy will be voidable if, regardless of whether related to a loss, any "insured", their agent, Or their broker:
1. Conceals or misrepresents any material fact or circumstance;
2. Engages in fraudulent conduct; Or
3. Makes false statements; relating to this insurance.
We consider all information provided, or that should have been provided, and all questions asked on the on-line application for this policy to be material.
There is no coverage under the policy. Plaintiffs have concealed or misrepresented material facts or circumstances; engaged in fraudulent conduct; and/or made false statements related to this insurance. More specifically, on or about September 21, 2017, Plaintiffs and or their representative reported this hurricane Irma loss (DOL 9/9/17) to which GeoVera assigned claim number HL17504437. In accordance with the terms of the policy, GeoVera requested Plaintiff to provide a Sworn Proof of Loss. On or about October 30, 2018, GeoVera received Plaintiffs' Sworn Proof of Loss dated October 30, 2018 in the amount of $129,484.49. Apparently, the Sworn Proof of Loss was based on an estimate prepared by public adjuster
Jorge Aucar of Star Public Adjusters, Inc.
In this case, on or about January 15, 2016, Plaintiffs and/or their representative reported a loss (DOL 12/19/15) to the insured property to which GeoVera assigned claim number HL15010774. In accordance with the terms of the policy, GeoVera requested Plaintiffs to provide a Sworn Proof of Loss. On or about November 21, 2017, GeoVera received Plaintiffs' Sworn Proof of Loss dated October 10, 2017 in the amount of $78,845.72. Apparently, the Sworn Proof of Loss was based on an estimate prepared by public adjuster Jorge Aucar of Star Public Adjusters, Inc.
Upon review of the two (2) Sworn Proofs of Loss and two (2) estimates prepared by Star Public Adjusters, Inc., Plaintiffs are claiming substantially the same damages for both losses. In other words, Plaintiffs alleged losses are duplicative and overlapping but Plaintiffs have commenced this litigation, as well as another lawsuit related to claim number HL17504437 seeking recovery of the same losses in both cases.
D.E. 31; D.E. 31-1 at 11.
On August 5, 2019, the Court denied leave to amend to add this affirmative defense pursuant to Federal Rule of Civil Procedure 16(b)(4). D.E. 32. Specifically, the Court's Scheduling Order for Pretrial Conference and Trial (the "Scheduling Order"), D.E. 19, set a deadline to amend pleadings of April 19, 2019, and a discovery cut-off of August 9, 2019. GeoVera alleged that it learned of the facts underlying the proposed ninth affirmative defenses at Plaintiffs' depositions on May 30, 2019, D.E. 31 ¶¶ 5–8; the Court held that GeoVera failed to act diligently to promptly seek leave to amend the affirmative defenses. D.E. 32 at 2. The Court noted that GeoVera "provides no reason why it waited over two months—and, importantly, until a week before the August 9th discovery cutoff—to assert these claims. As such, the Court will not grant [GeoVera] leave to amend its Affirmative Defenses."
Plaintiffs' deposition transcripts reflect that Plaintiffs were deposed on April 30, 2019—not May 30th. See D.E. 34-2 at 1; D.E. 34-3 at 1. This only bolsters the Court's conclusion that GeoVera failed to act diligently in seeking leave to amend its affirmative defenses.
In the instant Motion, Plaintiffs seek to preclude GeoVera, its counsel, and any witnesses from making "any mention, reference or comment at trial that the Plaintiffs (both or individually) engaged in any fraud or concealment or misrepresentation or fraudulent conduct or made any false statements relating to the insurance policy or claims process." Mot. at 1. Plaintiffs also seek to preclude GeoVera from "making any reference to any other unpled defense during the Jury Trial in this cause" but do not suggest what other unpled defense GeoVera might raise. The Motion is ripe for disposition.
III. LEGAL STANDARD
"A motion in limine is traditionally disfavored because questions of admissibility should be dealt with at trial. The purpose of a motion in limine is to give the judge notice of a party's desire to prevent the introduction of damaging evidence that may impact the fairness of a trial." Biscayne Cove Condo. Ass'n Inc. v. QBE Ins. Corp. , No. 10-23728-CIV, 2013 WL 2646828, at *3 (S.D. Fla. June 12, 2013) (italics added) (internal citations omitted). "In order to exclude evidence in limine it must be inadmissible on all potential grounds." Id. (italics added). "The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground." United States v. Gonzalez , 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010).
IV. GEOVERA WILL BE PERMITTED TO PRESENT EVIDENCE OF FRAUD OR CONCEALMENT AT TRIAL
Plaintiffs contend that GeoVera waived the right to present a fraud or concealment defense by failing to specifically plead such defense in its affirmative defenses. The Court did, in fact, deny GeoVera leave to amend its affirmative defenses to plead the specific fraud or concealment provision, because the motion for leave to amend was untimely. Though GeoVera argues that the defense is adequately encompassed within its first affirmative defense, which summarily "asserts that the claim is subject to any and all policy terms, conditions, exclusions, and/or other limitations regarding coverage for the claimed loss," the Court disagrees. True, the Court found this defense to be adequately pled under Rule 8's pleading standard. See D.E. 18 at 7. But the Court was not asked to decide whether the first affirmative defense satisfied Rule 9(b)'s requirement that fraud claims must be pled "with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). Courts considering contractual fraud/misrepresentation claims analyze such claims under the more stringent requirements of Rule 9(b). See, e.g. , Landmark Am. Ins. Co. v. Hacienda Village Homeowners Ass'n, Inc. , No. 2:07-cv-480-FtM-DNF, 2008 WL 11335064, at *2 (M.D. Fla. July 14, 2008) ; Nova Hills Villas Condo. Ass'n, Inc. v. Aspen Specialty Ins. Co. , No. 07-60939-CIV, 2008 WL 179878, at *5 (S.D. Fla. Jan. 21, 2008). The first affirmative defense fails to meet this pleading standard—it does not plead any of the specifics required by Rule 9.
"When the defendant has waived his affirmative defense by failing to allege it in his answer,... he cannot revive the defense in a memorandum in support of a motion for summary judgment." Funding Sys. Leasing Corp. v. Pugh , 530 F.2d 91, 96 (5th Cir. 1976). The Court therefore holds that GeoVera waived its fraud or concealment affirmative defense for purposes of bringing a pre-trial summary judgment motion.
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit prior to October 1, 1981. Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981).
The result is different for trial, though. The Eleventh Circuit has a "longstanding practice of permitting unpled affirmative defenses to be raised at trial so long as the plaintiff had prior notice of the defendant's intent to raise them." Lawton-Davis v. State Farm Mut. Auto. Ins. Co. , No. 6:14-cv-1157-Orl-37GJK, 2015 WL 12839263, at *1 (M.D. Fla. Aug. 19, 2015) ; see also Hassan v. United States Postal Serv. , 842 F.2d 260, 262–64 (11th Cir. 1988) (affirming trial court's consideration of collateral source evidence at trial even though defendant did not raise collateral source payments as an affirmative defense, because the issue had been fully developed through discovery, giving plaintiff notice of defendant's intent to raise the issue at trial). The record evidence clearly establishes that Plaintiffs had notice of GeoVera's intent to challenge the overlapping Loss Estimates. Plaintiffs were questioned about the overlaps in their depositions. And Plaintiffs' counsel had the opportunity to question GeoVera's corporate representative about the alleged fraud and misrepresentation, as that defense was fairly presented in the Moreno Case. See D.E. 40-1 at 89:4–93:24; D.E. 41-1 at 12–13. Accordingly, GeoVera will be permitted to present the "Concealment or Fraud" provision defense at trial.
V. GEOVERA'S CLAIMS OF FRAUD OR MISREPRESENTATION ARE NOT FRIVOLOUS
Plaintiffs argue that, even if it were procedurally permissible for GeoVera to argue its fraud or misrepresentation defense at trial, "any allegations of fraud or misrepresentation are unsupported and frivolous." The Court disagrees, despite the fact that Plaintiffs' current position is that they are owed only $5,077.73 for interior damage incurred as a result of the 2015 occurrence. See D.E. 48 at 2, 7 ¶ 12, 14. A fact finder could reasonably reject Plaintiffs' self-serving testimony that they never intended to be paid twice and, instead, could reasonably conclude that Plaintiffs willfully intended to claim that the same damages were caused by both the 2015 Loss and the 2017 Loss. Indeed, when Plaintiffs' signed the Sworn Proofs of Losses, they swore under penalty of perjury that (1) the December 19, 2015 loss caused $78,845.72 in damage, and (2) the September 10, 2017 loss caused $129,484.49. D.E. 34-1 at 60, 113. The similarities in the 2015 and 2017 Claim Estimates could be construed, as GeoVera urges, as Plaintiffs' representations "that the duplicative and overlapping damages were caused by both storms, not one or the other, and not by two concurrent events." D.E. 57 at 7.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiffs' Motion in Limine , D.E. 49, is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of October, 2019.