Doherty v. Allianz Life Insurance Company of North America

Filing 80

ORDER denying plaintiff's 61 Motion in Limine. See Order for details. Signed by Judge John E. Steele on 10/17/2019. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIAN
E
DOHERTY,
as
Guardian
of
Frances
R.
Gorman and Executor of the
Estate of Patrick J. Gorman,
Plaintiff,
v.

Case No:

2:18-cv-377-FtM-29NPM

ALLIANZ
LIFE
INSURANCE
COMPANY OF NORTH AMERICA, a
foreign
corporation
authorized to do business in
the State of Florida,
Defendant.
ORDER
This matter comes before the Court on plaintiff’s Motion in
Limine (Doc. #61) filed on August 30, 2019.
Response (Doc. #74) on September 16, 2019.

Defendant filed a
For the reasons set

forth below, the motion is denied.
Plaintiff seeks to exclude defendant from asserting a claim
for contribution against plaintiff’s breach of fiduciary duty
claim.
that

Plaintiff reasons that Florida law explicitly provides

claims

for

contribution

are

unavailable

in

“breaches of trust or of other fiduciary obligations.”

actions

for

(Doc. #61,

p. 7.)
Defendant replies that it does not seek to assert a claim for
contribution, which is an independent cause of action under Florida

law1, but rather seeks to present evidence of its comparative fault
affirmative

defenses.

Defendant

concedes

that

Florida

law

precludes fault apportionment for intentional torts; however,
defendant asserts that “a breach of fiduciary duty is not always
intentional.”2

(Doc. #74, p. 9.)

Thus, defendant contends, it

should not be precluded from presenting such evidence because
Florida law provides for the apportionment of damages in negligence
actions as set forth in Fla. Stat. § 768.81(3).3
Defendant

asserts

that

although

whether

fault

can

be

apportioned in a claim for a negligent breach of fiduciary duty is
“an issue of first impression in Florida,” it should be permitted
to present such evidence because its alleged tortious conduct is
based on negligent – not intentional – conduct.

(Doc. #74, p. 9.)

Defendant contends that such evidence is “highly relevant to the
issues in this case” and defendant should therefore be entitled to

1

See Horowitz v. Laske, 855 So. 2d 169, 174 (Fla. 5th DCA

2003).
“A claim for breach of fiduciary duty may arise out of
either negligent or intentional conduct. When the conduct
underlying the breach is intentional, the breach is intentional;
when the conduct underlying the breach is negligent, the breach is
negligent.” Palafrugell Holdings, Inc. v. Cassel, 825 So. 2d 937,
939 n.1 (Fla. 3d DCA 2001)(citations omitted).
2

Section 768.81(1)(c) defines a “‘negligence action’” as a
“civil action for damages based upon a theory of negligence, strict
liability, products liability, professional malpractice whether
couched in terms of contract or tort, or breach of warranty and
like theories. The substance of an action, not conclusory terms
used by a party, determines whether an action is a negligence
action.”
3

- 2 -

have a jury “decide what percentage, if any, of the alleged loss
it should have to bear” as to the breach of fiduciary duty claim.
(Id. p. 10.)
Plaintiff also seeks to preclude defendant from asserting a
claim

for

contribution

negligent acts.

for

any

subsequent

intentional

and

Plaintiff contends that defendant “has no right

to contribution regarding the intentional torts committed by any
third parties” because Florida law does not “permit allocation of
fault between both negligent and intentional tortfeasors.”
#61, p. 7.)

(Doc.

Plaintiff further argues that defendant “has no right

to contribution for the subsequent acts of Regions Bank, or others,
as no other party can be negligent for the wrongful surrender of
the annuities” because “[a]ny negligence on the part of Regions
Bank in the subsequent transfer of the improperly surrendered
annuities is a separate and distinct injury.”

(Id. p. 9.)

In response, defendant argues it does not intend to assert a
claim for contribution for the intentional torts or negligent acts
committed by third parties, but instead intends to argue at trial
that defendant was not the proximate cause of the Gormans’ alleged
loss because of such third-party actions.

Defendant contends that

such argument has “nothing to do with comparative fault” and thus
asserts it would be “unfair in the extreme to prevent [defendant]
from arguing that [the Gormans’] alleged losses were the result of

- 3 -

the criminal conduct of Barbara Gorman and Caroline Silha, or of
the negligence of Regions Bank . . . .”

(Doc. #74, pp. 5-6.)

The Court agrees with defendant that it may present the
foregoing

evidence

comparative fault.

at

trial

as

to

proximate

causation

and

Thus, given that defendant does not assert or

plan to assert a claim for contribution, plaintiff’s motion is
denied.
Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion in Limine (Doc. #61) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
October, 2019.

Copies:
Counsel of Record

- 4 -

17th

day of