CMR Construction & Roofing, LLC a/a/o Lawrence Farrington v. ASI Preferred Insurance Corporation

Filing 86

ORDER denying 52 Motion to Strike ; granting in part and denying in part as moot 53 Motion in Limine; granting in part and denying in part 78 Motion in Limine. See ORDER for details. Signed by Judge John E. Steele on 3/31/2021. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CMR CONSTRUCTION & ROOFING,
LLC
A/A/O
LAWRENCE
FARRINGTON,
Plaintiff,
v.

Case No:

ASI
PREFERRED
CORPORATION,

2:19-cv-442-FtM-29MRM

INSURANCE

Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Strike

Plaintiff’s

Damages

Expert

Ryan

Peak

and

Incorporated

Memorandum of Law (Doc. #52) filed on September 4, 2020. Plaintiff
filed an Opposition (Doc. #57) on September 18, 2020.

Also before

the Court are defendant’s Motion in Limine (Doc. #53) filed on
September 4, 2020, to which plaintiff filed an Opposition (Doc.
#58) on September 18, 2020, and defendant’s Second Motions [sic]
in Limine (Doc. #78) filed on December 3, 2020, to which plaintiff
failed to respond.

For the reasons set forth below, the motion to

strike is denied, and the motions in limine are granted in part
and denied in part. 1

Plaintiff requests a hearing on two of the motions. (Doc.
#57, p. 5; Doc. #58, p. 3.)
The Court finds oral argument
1

I.
Plaintiff CMR Construction & Roofing, LLC (plaintiff or CMR),
as assignee of non-party Lawrence Farrington (Farrington or the
insured), has filed a breach of contract claim against defendant
ASI Preferred Insurance Corporation (defendant or ASI) regarding
Farrington’s home insurance policy and damage allegedly caused by
Hurricane Irma.

(Doc. #3.)

Defendant has now filed a motion to

strike plaintiff’s proposed damages expert (Doc. #52), and motions
to exclude various topics from being discussed at trial (Doc. #53;
Doc. #78.)

The Court will begin by addressing the motions in

limine.
A. Motions in Limine
A motion in limine is a “motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered.”
38, 40 n.2 (1984).

Luce v. United States, 469 U.S.

These motions “are generally disfavored.”

Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.
2017).

“Evidence is excluded upon a motion in limine only if the

evidence is clearly inadmissible for any purpose.”
citation

omitted).

Additionally,

as

the

Id. (marks and

Supreme

Court

has

cautioned:

unnecessary to decide the
request will be denied.

motions

2

and

therefore

plaintiff’s

The ruling is subject to change when the case
unfolds, particularly if the actual testimony
differs from what was contained in the
defendant’s proffer. Indeed even if nothing
unexpected happens at trial, the district
judge is free, in the exercise of sound
judicial discretion, to alter a previous in
limine ruling.
Luce, 469 U.S. at 41–42.

A denial of a motion in limine is not a

ruling which affirmatively admits any particular evidence.
while

a

subject

matter

is

not

excluded,

the

Court

Thus,

makes

no

determination of the admissibility of any anticipated specific
testimony from the witness.
Defendant requests the Court to prohibit plaintiff from (1)
asserting claims for replacement-cost value (RCV) damages, (2)
asserting claims for “matching” damages, (3) asserting claims for
ordinance or law damages, (4) mentioning the TAS 106 testing
guidelines, (5) referencing claims handling or bad faith, and (6)
referencing the replacement of any neighboring roofs.
p. 1; Doc.#78, pp. 3-5.)

(Doc. #53,

As to the first three requests, the Court

previously ruled on these issues when it granted in part and denied
in part defendant’s motion for summary judgment.

(Doc. #83.)

Specifically, the Court found plaintiff was precluded under the
policy from seeking RCV and matching damages, but may have a claim
for ordinance or law damages depending on whether a jury finds

3

such damages have been “incurred.” 2

(Id. pp. 16-24.)

Accordingly,

the Court will focus its analysis on the other three requests.
1. TAS Testing Guidelines
At

a

deposition,

plaintiff’s

engineering

expert,

Derek

Cronin, testified about lifted roof tiles at Farrington’s home
after the hurricane.

During the testimony, Cronin was asked how

he ruled out other potential causes of lift, and Cronin responded
as follows:
Basically, the way we looked at it was the order of
magnitude: How many of these tiles lifted, to what
percentage they’re lifted, et cetera, we felt that this
is not what you would normally see in a roof. It also
compared to work we do on new construction, we use the
TAS 106 lift test to determine, you know, the rigidity
of roofs and, you know, how does a typical roof work as
far as lift is concerned. So we compare a lot of it to
new construction as far as how would a roof feel.
(Doc. #47-1, p. 60.)

The following exchange then occurred between

Cronin and defendant’s counsel:
COUNSEL: So that TAS 106 test, that’s for new roofs,
correct?
CRONIN: Yes.
COUNSEL: And so that wouldn’t really be a fair comparison
to a roof that’s now 17 years old, correct?

To the extent defendant seeks to exclude portions of
plaintiff’s repair estimate because it includes RCV, matching, and
ordinance or law damages (Doc. #53, pp. 5-9), the Court will deny
the request without prejudice. The estimate was created prior to
the Court’s summary judgment ruling addressing these issues. If
plaintiff seeks to introduce evidence relating to one of these
topics at trial, defendant may re-raise its objection.
2

4

CRONIN: It’s not that it’s a fair analysis, but it gives
us data as far as how a newer roof would perform to roof
tests. So although we’re not doing the TAS 106 as a lift
test on the roof, because we do the TAS 106 as a lift
test on new roofs, that data we get for the rigidity and
resistance of new roofs compared to these older roofs is
partly how we can help formulate how a roof should feel,
how a roof should actually function when you’re out
there.
COUNSEL: So this would – this particular roof would fall
under the category of an older roof, correct?
CRONIN: Correct. This is an older roof. The TAS 106 would
not necessarily be an appropriate test for this roof,
but because we’ve done so many of those tests on newer
roofs and other roofs and even the TAS 106 test we’ve
done on past projects for Hurricane Irma claims, that’s
part of how we came about our means and methods for
understanding what the resistance of a roof assembly
should have.
(Id. pp. 60-61.)
In addition to the above testimony, defendant has offered its
expert’s report on the damages, which includes the following
information:
The [Cronin Engineering] report details the results of
their tile uplift testing. The protocol used for the
tile testing, although not identified in the report, was
equivalent to the protocol for TAS 106, which is part of
the Florida Building Code. This test was developed to be
used in Broward and Dade Counties only (High Velocity
Hurricane Zones) as a product quality control test prior
to final roof inspection for testing tile fastening at
the time of installation as part of the permitting
process. The test was not designed to be performed on
roofs that have been in service for 21 years, as these
had. The test was never intended to be used as part of
a post-storm related damage assessment of the roof.
(Doc. #53-1, p. 13.)

5

In

its

motion,

defendant

argues

that

plaintiff’s

expert

should be precluded from referencing the TAS 106 test because it
is irrelevant.

(Doc. #53, p. 9.)

Plaintiff does not specifically

address this argument, but rather states generally that the TAS
106 evidence cannot be excluded because it relates “to issues of
law that have not yet been determined by this Court.”
p. 2.)

(Doc. #58,

The Court will grant defendant’s motion on this issue, at

least as a preliminary matter.
Rule 703 of the Federal Rules of Evidence “allows an expert
to base his opinion on facts or data that would otherwise be
inadmissible . . . if other ‘experts in the particular field would
reasonably rely on those kinds of facts or data in forming an
opinion.’”

Broussard v. Maples, 535 F. App’x 825, 828 (11th Cir.

2013) (quoting Fed. R. Evid. 703).

Furthermore, “[u]nless the

court orders otherwise, an expert may state an opinion—and give
the reasons for it—without first testifying to the underlying facts
or data.”

Fed. R. Evid. 705.

However, “the expert may be required

to disclose those facts or data on cross-examination.”

Id.

Here, defendant does not seek to preclude the expert from
offering an opinion on the roof damage because it is based in part
on the TAS 106 test, but rather seeks to prevent the expert from
referencing the test during his testimony.

Because it appears

undisputed the TAS 106 test applies to new construction, and
apparently only in Broward and Dade Counties, the test would seem

6

to have no relevance to the condition of Farrington’s decades-old
roof located in Lee County.

Accordingly, the Court will grant

defendant’s motion to the extent it seeks to prevent the expert
from referencing the TAS 106 test during his testimony on direct
examination.
2. Claims Handling or Bad Faith
In its Second Motions [sic] in Limine, defendant seeks to
preclude plaintiff from introducing any testimony and/or evidence
regarding “ASI’s claims handling, accusations of bad faith and/or
common claims handling standards.”

(Doc. #78, p. 1.)

Defendant

argues such testimony or evidence would be irrelevant and highly
prejudicial.

(Id. p. 3.)

As plaintiff has failed to respond to

this motion, the Court will construe the requested relief as
unopposed.

See Rule 3.01(c), Local Rules of the United States

District Court for the Middle District of Florida (noting that if
a party fails to timely respond to a motion, “the motion is subject
to treatment as unopposed”). 3

It is unclear if plaintiff simply did not respond to the
motion or if it does not oppose the requested relief.
In the
motion’s Certificate of Conference, defendant’s counsel states
that “she conferred with Plaintiff counsel regarding the relief
sought in this motion and that Plaintiff counsel objected/did not
object to the relief sought herein.”
(Doc. #78, p. 5.)
Regardless, the motion will be considered as unopposed pursuant to
the Court’s Local Rules.
3

7

Having reviewed the matter, the Court will grant the request
in part.

The Court agrees that evidence relating to defendant’s

claims handling procedures in general is irrelevant in this breach
of contract action.
2020

WL

2736646,

“[e]vidence

of

See Palmetto 241 LLC v. Scottsdale Ins. Co.,
*6

(S.D.

Fla.

Defendant’s

May

claims

26,

2020)

handling

(noting

that

practices

and

procedures in other claims” “is not relevant to this matter”);
Lumpuy v. Scottsdale Ins. Co., 2013 WL 1775048, *3 (M.D. Fla. Apr.
25, 2013) (“[E]vidence relating to Defendant’s general claims
handling practices and procedures is not relevant to this breach
of contract action.”); Kennedy v. Provident Life & Acc. Ins. Co.,
2009 WL 3048683, *2 (S.D. Fla. Sept. 18, 2009) (recognizing that
under

Florida

insurer’s

law,

claims

“documents

handling

or

and
general

testimony
business

regarding

the

practices

are

irrelevant to the issue of whether the insured is entitled to the
coverage claimed”).

Accordingly, such evidence is inadmissible.

However, evidence relating to defendant’s handling of the
claim in this case is relevant, as may be whether defendant acted
in good or bad faith.

See SFR Servs., LLC v. Lexington Ins. Co.,

2021 WL 322367, *2-3 (M.D. Fla. Feb. 1, 2021) (denying motion to
preclude evidence or arguments “that allege, infer, and/or implies
that [insurer] has handled the Insured’s claims in bad faith”
because “[w]hile there can be no bad faith claim asserted, evidence
from which bad faith could be inferred can also support the breach

8

of contract claim”); Centre Hill Courts Codon. Ass’n, Inc. v.
Rockhill Ins. Co., 2020 WL 496065, *2 (S.D. Fla. Jan. 30, 2020)
(“Defendant seeks to exclude evidence that Defendant acted in good
faith

or

bad

faith

until

this

coverage

action

is

resolved.

However, as Plaintiff righty notes, the parties’ post-loss actions
are directly relevant to establishing the breach of insurance
contract

claims

at

issue

in

this

case.

Moreover,

Defendant

provides no explanation for why such evidence should be ‘highly
prejudicial’ here.

Thus, Defendant has failed to establish that

the evidence of whether Defendant acted in good or bad faith is
clearly inadmissible for any purpose.”).
Accordingly, the Court will grant the motion as it pertains
to defendant’s claims handling in general, but deny it without
prejudice as to defendant’s claims handling and bad faith in this
case.
3. Neighboring Roof Replacements
The Second Motions [sic] in Limine also seeks to prevent
plaintiff from introducing any testimony and/or evidence “of work
being performed on any other roof” or defendant’s “payments for
other roofs.”

(Doc. #78, p. 4.)

The Court will grant the request,

but without prejudice to plaintiff demonstrating relevance at
trial.

See Palmetto, 2020 WL 2736646, *6 (“Defendant requests the

Court preclude Plaintiffs from introducing testimony and evidence
regarding

conditions

of

properties

9

other

than

the

subject

property. . . . Upon review, the Court agrees that evidence of
conditions of other properties is not relevant in this action.
The conditions of other properties would not make it more or less
likely that Defendant breached its contract based upon facts and
conditions unique to Plaintiff’s property and the terms of the
policy.”).
B. Motion to Strike
Finally,

defendant

expert, Ryan Peak.

seeks

to

(Doc. #52.)

strike

plaintiff’s

damages

Peak has worked for plaintiff

“somewhere between 12 and 14 years” in a variety of positions,
including as a salesman and a general manager.
13, 14.)

Peak was the person who met with Farrington and prepared

the estimate to replace his roof.
91-95.)

(Doc. #49-1, pp.

(Id. pp. 15-16; Doc. #49-2, pp.

Defendant seeks to strike Peak as an expert witness

because (1) he is not qualified to testify on acceptable methods
of repairs, and (2) his financial interest in the outcome of the
trial prevents him from serving as an expert. 4

(Doc. #52, pp. 4-

6.) Having reviewed the arguments and Peak’s deposition testimony,
defendant’s motion will be denied.

Defendant also seeks to strike any testimony from Peak
regarding matching costs.
(Doc. #52, p. 7.)
This issue was
rendered moot by the Court’s ruling on defendant’s summary judgment
motion.
4

10

Under Federal Rule of Civil Procedure 702, a witness may be
qualified as an expert “by knowledge, skill, experience, training,
or education.”
to

testify

Defendant first argues that Peak is not qualified

about

the

need

for

a

full

roof

replacement,

the

application of Florida’s building code, or the feasibility of a
repair rather than a replacement because “Peak’s experience and
knowledge focuses on roofing sales,” and he “does not actually
perform the repairs.”

(Id. p. 5.)

Peak’s testimony, however,

does not support defendant’s argument:
COUNSEL: Okay. And so while working for CMR have you
ever actually participated in replacing the roof?
Meaning, got up on the roof and done the repair yourself?
PEAK: Yes, ma’am.
COUNSEL: Okay. Have you done that in Florida?
PEAK: I didn’t install the whole roof but, yes, I’ve got
up there and done some, yes, ma’am.
COUNSEL: Right. Okay. That’s what I mean, just
participated in the process. And about how in [sic] roofs
would you say you’ve participated in repairing or
replacing while working for CMR only? And you can give
me a guesstimate.
PEAK: $30 to $50 million dollars worth give or take.
(Doc. #49-1, pp. 14-15.)

Thus, while Peak currently works as a

sales manager (Doc. #49-1, p. 14), he does have roofing-repair
experience.

See Furmanite Am., Inc. v. T.D. Williamson, Inc., 506

F. Supp. 2d 1126, 1129 (M.D. Fla. 2007) (“An expert is not
necessarily unqualified simply because her experience does not

11

precisely match the matter at hand.”).

Having reviewed Peak’s

testimony regarding his roofing experience and knowledge, the
Court finds he is qualified to testify regarding the alleged
damages in this case.

See Deputy v. Hartford Ins. Co. of the

Midwest, 2020 WL 5807997, *3 (M.D. Fla. June 1, 2020) (“This
inquiry [into whether a witness is qualified to testify as an
expert] is not stringent, and so long as the expert is minimally
qualified, objections to the level of the expert’s expertise [go]
to

credibility

and

weight,

not

admissibility.”

(citation

omitted)).
Defendant next argues that Peak cannot serve as an expert
because he has a financial interest in the outcome of the trial.
(Doc. #52, pp. 5-6.)

During his deposition, Peak testified that

he and defendant split the profits from a roofing repair equally.
(Doc. #49-1, pp. 16-17.)

Defendant argues that because Peak’s

compensation is contingent on the outcome of the case, he cannot
serve as an expert witness.

(Doc. #52, p. 6); see also Crowe v.

Bolduc, 334 F.3d 124, 132 (1st Cir. 2003) (“The majority rule in
this country is that an expert witness may not collect compensation
which by agreement was contingent on the outcome of a controversy.
That rule was adopted precisely to avoid even potential bias.”).
Defendant’s argument is misplaced.

Peak is an employee of

defendant and his compensation relates solely to the profits made
from

the

repair

of

Farrington’s

12

roof.

This

would

be

true

regardless of the outcome of this case, and therefore it cannot be
said that Peak’s compensation is contingent.

To the extent Peak

and defendant’s financial agreement is relevant, such an issue
would go to the credibility of Peak’s testimony rather than its
admissibility.

See Adams v. Lab. Corp. of Am., 760 F.3d 1322,

1332 (11th Cir. 2014) (“Bias in an expert witness’s testimony is
usually a credibility issue for the jury.”).
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Strike Plaintiff’s Damages Expert
Ryan Peak and Incorporated Memorandum of Law (Doc. #52) is
DENIED.
2. Defendant’s Motion in Limine (Doc. #53) is GRANTED in part
and DENIED in part as moot.
extent

it

seeks

to

The motion is granted to the

preclude

plaintiff’s

expert

from

referencing the TAS 106 test during direct examination.
The motion is denied as moot to the extent it seeks to
preclude plaintiff from asserting claims for replacementcost value, matching, and ordinance or law damages.
3. Defendant’s Second Motions [sic] in Limine (Doc. #78) is
GRANTED in part and DENIED in part.

The motion is granted

to the extent it seeks to preclude the introduction of
evidence

of

defendant’s

general

claims

handling

procedures, and payments for claimed damage or repairs to

13

other properties within the insured’s neighborhood.
motion

is

denied

to

the

extent

it

seeks

to

The

preclude

evidence of claims handling in this case or evidence from
which bad faith could be inferred.
4. Plaintiff’s request for a hearing on the motions is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2021.

Copies:
Parties of record

14

31st

day of