The Davis Group, Inc. v. Ace Electric, Inc., et al
Filing
91
ORDER denying 72 Motion for summary judgment; denying 73 Motion for summary judgment; denying 74 Motion for Partial Summary Judgment. Signed by Magistrate Judge Thomas B. Smith on 6/26/2015. (SMW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
THE DAVIS GROUP, INC.,
Plaintiff,
v.
Case No: 6:14-cv-251-Orl-TBS
ACE ELECTRIC, INC. and THE
HARTFORD CASUALTY INSURANCE
COMPANY,
Defendants.
ORDER
This matter comes before the Court on three motions for summary judgment filed
by Plaintiff/Counter-Defendant The Davis Group, Inc. (“TDG”) and Counter-Defendant
Westfield Insurance Company (Docs. 72–74). The motions are due to be DENIED.
Background1
This case arises from a construction project on which TDG was the prime
contractor and Ace Electric, Inc. (“Ace”) was an electrical subcontractor. TDG entered
into a contract with the United States Army Corps of Engineers (the “Corps”) to build a
new Radar Approach Control at Seymour Johnson Air Force Base in Goldsboro, North
Carolina. In late December 2011, TDG and Ace executed a subcontract (“Subcontract”)
under which Ace would perform electrical work in exchange for an initial subcontract price
of $1,131,314.13 (Doc. 1-2). The Subcontract includes a choice of law clause stating
that it “shall be governed by the laws of the State of Florida” and a forum selection clause
The facts in the following recitation are drawn from the parties’ submissions (see Docs. 65–69, 72–
74, 81–84, 87–89) and are either uncontroverted or, where controverted, are taken in the light most favorable
to Ace, the non-moving party. See Battle v. Board of Regents, 468 F.3d 755, 759 (11th Cir. 2006).
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specifying “Orange County, Florida” as the venue for any litigation “arising out of or
connected with this Subcontract.” (Subcontract ¶ 17(m)).
The Subcontract set a deadline of November 21, 2012 for Ace to perform its work
on the Project. Should Ace encounter delays not of its own making, the Subcontract
provided that the time for completion would be extended for a period of time equivalent to
the delays. However, this extension would “become operative” only if Ace presented “a
notice of claim therefore ... in writing to [TDG] within seventy-two (72) hours of the first
occurrence of the delay” and TDG approved the extension in writing. Under the terms of
the original Subcontract, such extension would “satisf[y] any and all other claims [Ace]
may have against [TDG] on account of such delay.” (Subcontract ¶ 10(c)). Two months
after the Subcontract was signed the parties executed an amendment (Doc. 1-2 at 14),
which added the following language to paragraph 10(a) of the Subcontract:
Should Subcontractor, without fault or neglect on its own part,
be delayed in the commencement, prosecution or completion
of the Work by the fault or neglect of the Contractor or other
subcontractors, Subcontractor shall be afforded, as possible
remedies for the delay, a reasonable extension of time and/or
additional compensation or damages regardless of whether
the Contractor receives the same from the Owner or others on
the Subcontractor’s behalf.
If on the other hand, Ace was responsible for a delay in completion of the work,
then it agreed to “reimburse [TDG] for the entire cost and expense suffered or incurred as
a result of” the delay, including any liquidated or other damages the Corps might assess
against TDG for delays to the Project as a whole. If “such damages are caused by [Ace]
and another person or entity,” TDG may “reasonably apportion such damages between
the parties, and any such apportionment shall be final and binding upon [Ace].”
(Subcontract ¶ 10(b)).
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Paragraph 12 of the Subcontract addressed resolution of any disputes that might
arise between TDG and Ace relating to the work. Subparagraph (a) requires Ace to
“give all notices and present to [TDG] all claims, disputes and other controversies in the
same manner as provided in the Contract Documents for like claims of [TDG] upon [the
Corps], and within such time as will enable [TDG] to present such matters to [the Corps]
for recognition and payment, but no later than 14 days from the first occurrence giving
rise to the claim.” Subparagraph (a) further provides that TDG “will not be liable to [Ace]
on account of any such matter not timely or properly presented, unless and until it is
allowed by [the Corps].”
At TDG’s direction, Ace mobilized to the Project site on February 6, 2012.
However, the site was not ready for Ace to begin work, and would not be ready for some
three months. Even after Ace began underground electrical work in May, the delays and
interruptions continued. On September 5, Ace sent TDG a letter expressing its concerns
about the lack of progress on the project and TDG’s failure to provide Ace with projectrelated information in a timely fashion. Ace requested a meeting between its president
and TDG’s president to “discuss these issues in more detail.” (Doc. 84-22). TDG
responded by providing updated project drawings and a current project schedule, which
reflected an extended completion date of March 4, 2013 (Doc. 84-7 at 15). The Corps,
however, had only approved an extension to February 17, 2013 (Doc. 72-1, ¶ 22).
On September 25, 2012, Ace contacted TDG by telephone, requesting extended
overhead and general conditions in connection with the delays; TDG’s president refused
on the ground that the delay was not caused by the Corps (Doc. 84-24). TDG’s
president also advised Ace’s North Carolina Division Manager that if Ace had any
“pressing issues in the future,” he “shouldn’t hesitate to pick up the phone and give him
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[Mr. Davis] a call.” (Id.). On October 12, Ace sent TDG a letter claiming extended
general conditions and overhead in connection with delays in building an on-site parking
lot (Doc. 84-25). TDG once again refused, claiming that Ace agreed in a March 28, 2012
email2 not to seek costs in connection with modifications to the parking lot schedule
(Doc. 84-91).
Over the next several months, the project continued to suffer delays, which Ace
periodically expressed concern about in emails and other communications with TDG. By
the extended February 17, 2013 deadline, the project was still far from completion, and
the Corps notified TDG that it would assess liquidated damages against TDG for untimely
completion under the terms of the prime contract. On April 30, TDG notified several of
its subcontractors that it would exercise its right under their subcontracts to apportion
liquidated damages amongst them (Doc. 84-31). On May 7, Ace, now speaking through
counsel, replied that it would not pay any liquidated damages and that it would continue
to press its own claims against TDG for damages it sustained as a result of the delays
(Doc. 84-32). In late September or early October 2013, Ace completed its work on the
project. Around this time, Ace’s lawyer sent TDG a letter reiterating Ace’s intention to
pursue its claims and estimating its damages at $185,802.50 (Doc. 84-37).
The project was not substantially completed until November 7, 2013, 262 days
after the deadline. Pursuant to the terms of the prime contract, the Corps assessed 262
days of liquidated damages at $697.78 per day against TDG. TDG then “worked with a
scheduling consultant to determine what tasks were the most critical on a month-bymonth basis from January to August 2013.” (Doc. 72-1 ¶ 24). It determined that “Ace’s
According to Ace’s expert, Paul Britton, this email is not in Ace’s Project Record (Doc. 84-7 at 16),
and the Court has been unable to locate it in the parties’ submissions.
2
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work was on the critical construction path for the months of April, May, June and July
2013,” and apportioned 82 days of liquidated damages to Ace (Id. ¶¶ 25, 31). It also
claimed 82 days of field overhead against Ace at the rate of $634.66 per day (Id. ¶ 31).
TDG demanded payment from Ace but payment was not forthcoming. Instead, on
February 11, 2014, Ace sued TDG and Westfield Insurance Company (“Westfield”)—a
surety on a payment bond TDG provided to Ace pursuant to the Miller Act—in the United
States District Court for the Eastern District of North Carolina, asserting claims under the
Miller Act (against Westfield), the Subcontract (against TDG), the North Carolina Prompt
Pay Act (against both), and quantum meruit (against TDG) (E.D.N.C., Case No. 5:14-cv88-FL, Doc. 1). Two days later, TDG sued Ace in this Court for breach of the
Subcontract (Doc. 1). Ace answered and asserted as counterclaims the breach of
contract, quantum meruit, and state statutory claims it had raised in the North Carolina
action (Doc. 9). In April, the parties agreed to pursue all of their respective claims in this
Court. In accordance with this agreement, Ace voluntarily dismissed the North Carolina
action (Doc. 21), and filed an amended counterclaim against TDG for breach of contract
and a claim against TDG and Westfield under the Miller Act (Doc. 23). In its
counterclaim, Ace alleged that “[a]ll conditions precedent to the bringing of this action
have been satisfied, waived, or excused.” (Doc. 23 ¶ 19). TDG and Westfield pled in
response to this allegation, “Without knowledge, therefore denied.” (Doc. 32, ¶ 19;
Doc. 33, ¶ 19). On May 14, TDG filed an amended complaint, which asserted an
additional claim against Hartford Casualty Insurance Company under a performance
bond Hartford issued as surety for Ace (Doc. 29).
After the close of discovery, TDG filed three motions for summary judgment
against Ace. The first seeks summary judgment on TDG’s own breach of contract claim
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(Doc. 72). The second seeks summary judgment on Ace’s counterclaim on the ground
that Ace failed to provide timely and proper notice of the claim as required by the
subcontract (Doc. 73). The third seeks an order of partial summary judgment declaring
that Ace is not entitled to recover home office overhead damages, should it prevail on its
counterclaim (Doc. 74).3 Westfield has joined in the second and third motions. Ace has
filed responses to each motion and submitted evidence supporting those responses
(Doc. 81–84). TDG and Westfield have filed replies (Docs. 87–89), and the motions are
now ripe for adjudication.
Legal Standard
A party is entitled to summary judgment if it can show that there is no genuine
issue as to any material fact and that it is entitled to judgment as a matter of law. FED. R.
CIV. P. 56. An issue of fact is “genuine” if the evidence is such that a reasonable jury
could find the fact in favor of the nonmoving party and “material” if the fact “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Avenue CLO Fund, Ltd. V. Bank of America, N.A., 723 F.3d 1287,
1294 (11th Cir. 2013).
On a motion for summary judgment, the court must view the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in that party’s
favor. Avenue CLO Fund, 723 F.3d at 1294 (citing Blackston v. Shook & Fletcher
Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)). But, the Court need not draw
inferences based solely on speculation and conjecture. Id. And, the Court “must avoid
weighing conflicting evidence or making credibility determinations,” Stewart v. Booker T.
Hartford also filed a motion for summary judgment against Ace (Doc. 71), which the Court denied
by Order dated June 16, 2015 (Doc. 90).
3
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Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000), as it is the province of the jury and
not the judge to assess the probative value of the evidence. Kennett-Murray Corp. v.
Bone, 622 F.3d 887, 893 (5th Cir. 1980).
The party moving for summary judgment bears the burden of showing that no
genuine issue of material fact exists. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986);
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Watson v. Adecco
Employment Servs., Inc., 252 F.Supp.2d 1347, 1351-52 (M.D.Fla. 2003). The movant
may meet this burden in one of two ways: either by directly negating an essential element
of the nonmovant’s claim, or by showing that there is insufficient evidence in the materials
on file for the nonmovant to establish its burden of proof at trial. Clark, 929 F.2d at 608.
When the moving party demonstrates an absence of evidence on a dispositive issue for
which the nonmoving party bears the burden of proof at trial, the nonmoving party must
then “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers
to interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Celotex Corp., 477 U.S. at 324-35 (internal quotations and
citations omitted); Clark, 929 F.2d at 608. In determining whether a fact is genuinely
disputed, the Court may consider evidence not cited by the parties, but it is not required to
do so. FED. R. CIV. P. 56(c)(3). If a party fails to support an assertion of fact or fails to
address another party’s assertion of fact, the court may “(1) give an opportunity to
properly support or address the fact; (2) consider the fact undisputed for purposes of the
motion; (3) grant summary judgment if ... the movant is entitled to it; or (4) issue any other
appropriate order.” FED. R. CIV. P. 56(e).
Discussion
A. TDG’s Breach of Contract Claim
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TDG seeks summary judgment on its breach of contract claim, arguing that it had
the right to apportion liquidated damages amongst its subcontractors under the terms of
the Subcontract and that its apportionment was reasonable under the circumstances
(Doc. 72). Ace argues (1) that it may not be assessed liquidated damages because it did
not cause any delays, (2) TDG’s apportionment of damages was not reasonable, and (3)
TDG failed to account for the unpaid subcontract balance due to Ace (Doc. 81).
The parties agree that paragraph 10(b) of the Subcontract governs the
apportionment of liquidated damages (Doc. 72 at 2; Doc. 81 at 3). Paragraph 10(b)
provides in relevant part:
[Ace] shall reimburse [TDG] for the entire cost and expense
suffered or incurred as a result of any and all liquidated or
actual delay damages assessed by Owner against [TDG], all
actual costs, expenses and damages suffered or incurred by
[TDG]..., all damages suffered or incurred by any other
contractor or subcontractor on the Project for which [TDG]
may be liable, together with any and all other liability, claims,
losses, penalties, costs, expenses, damages and causes of
action suffered or incurred by [TDG], including [TDG]’s
attorneys’ fees, resulting in any manner whatsoever, directly
or indirectly, from ... delays, disruptions and interferences
caused by [Ace].... In the event any such damages are
caused by [Ace] and another person or entity, [TDG] shall
have the right to reasonably apportion such damages between
the parties, and such apportionment shall be final and binding
upon [Ace].
Under the plain language of this provision, TDG is entitled to apportion damages
between Ace and other persons or entities only if “such damages are caused” at least in
part by Ace. Paragraph 10(b) gives TDG discretion in apportioning damages between
responsible parties and makes TDG’s apportionment “final and binding” on Ace, but it
does not expressly give TDG the discretion to determine whether Ace “caused” a
particular “delay[], disruption[] [or] interference[].” Moreover, TDG makes no argument
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that the provision granting it discretion to apportion damages amongst at-fault parties
confers by implication discretion to determine who is at fault.
The summary judgment record, viewed in the light most favorable to Ace, reveals a
genuine dispute over whether Ace caused any delays. In particular, Ace’s expert
witness, Paul Britton, stated at his deposition, in an affidavit, and in his expert report that
Ace was not the cause of any delays in completing the Project (Doc. 66 at 67:1–5, 98:21–
25; Doc. 84-6 ¶¶ 4, 7; Doc. 84-7 at 13, 30). Accordingly, TDG’s motion for summary
judgment on its breach of contract claim is DENIED.
B. Ace’s counterclaim: Lack of Notice
TDG asks the Court to grant summary judgment on Ace’s counterclaims because
Ace failed to provide timely and proper notice as required by the Subcontract. Ace
raises several arguments in response, including that the Subcontract does not require
notice for the type of claims it asserts, that it provided any notice that might have been
required, that the notice requirement is a promise rather than a condition, and that TDG
either waived the notice requirement or is estopped from asserting lack of notice.
Ace also argues, albeit in a footnote, that TDG has “failed to properly plead its
defense based on the notice provision,” because it has failed to allege lack of notice with
particularity. Here, Ace points to Rule 9(c) of the Federal Rules of Civil Procedure, which
provides: “In pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed. But when denying that a
condition precedent has occurred or been performed, a party must do so with
particularity.” In its counterclaim, Ace alleged that “[a]ll conditions precedent to the
bringing of this action have been satisfied, waived, or excused.” (Doc. 23 ¶ 19). In their
respective answers TDG and Westfield said, “Without knowledge, therefore denied.”
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(Doc. 32, ¶ 19; Doc. 33, ¶ 19). And, TDG and Westfield failed to allege lack of notice or
failure of a condition precedent in their affirmative defenses (Doc. 32 at 4–6; Doc. 33 at 4–
6).4
In Jackson v. Seaboard Coast Line R.R., 678 F.2d 992 (11th Cir. 1982), the
Eleventh Circuit explained that Rule 9(c) requires a party who “disagrees with a general
averment [in a complaint] that conditions precedent have been met” to “raise the issue
with a specific and particular denial. If the party does not deny the satisfaction of the
conditions precedent specifically and with particularity, however, the allegations are
assumed admitted and cannot later be attacked.” Id. at 1009. Under Jackson, this case
is straightforward: Ace pled satisfaction or waiver of conditions precedent in its
counterclaim; TDG and Westfield failed to specifically raise failure of condition precedent
in their answers; therefore, they have “admitted” Ace’s allegations and “cannot [now]
attack[]” them.
However, a later Eleventh Circuit case, Associated Mechanical Contractors, Inc. v.
Martin K. Eby Construction Co., 271 F.3d 1309 (11th Cir. 2001), complicates the picture.
At issue in that case was the defendant’s failure to pay retainage to the plaintiff under a
contract between the parties. Id. at 1317. The defendant argued at the summary
judgment stage that it did not owe prejudgment interest on any retainage award since the
contract provided that the retainage “shall be paid to the [plaintiff] Subcontractor after ...
(5) all disputes, claims, liens, causes of action and/or lawsuits which are related in any
way to this Subcontract or Subcontractor’s performance of the Work are resolved.” Id.
4
The Court assumes without deciding that the provision in question requires notice as a condition
precedent to recovery. If it does not, and provision of notice is merely a promise, Ace’s failure to provide
notice would not shield TDG from damages but merely provide TDG a claim for any damages it might have
suffered due to untimely notice.
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The plaintiff argued that the defendant waived this defense by failing to plead it with
particularity. Id. The Eleventh Circuit affirmed the district court’s denial of prejudgment
interest to the plaintiff, explaining:
The specific denial of performance of conditions precedent
may be raised by motion as well as by answer. EEOC v.
Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981) (per
curiam); 2 James Wm. Moore, Moore's Federal Practice
§ 9.04[3] (3d ed.2001). There can be no doubt that Eby
articulated the failure to satisfy section 14(5) in its fourth
summary judgment motion and memorandum in support. Eby
did not waive its rights under section 14(5).
Id. If the Court applies Associated Mechanical Contractors, it will reach the opposite
result and find that TDG and Westfield may raise the failure of a condition precedent in
their summary judgment motion.
If Jackson and Associated Mechanical Contractors conflict, the Court must follow
Jackson, because it is the earlier decision. See Walker v. Mortham, 158 F.3d 1177,
1188–89 (11th Cir. 1998). Before finding that two published Eleventh Circuit decisions
conflict, the Court must first attempt “to distill from [these two] decisions a basis of
reconciliation and to apply that reconciled rule.” United States v. Hogan, 986 F.2d 1364,
1369 (11th Cir. 1993). Considering the facts, procedural history, and outcome of each
case alone, Jackson and Associated Mechanical Contractors are reconcilable. In
Associated Mechanical Contractors, failure of a condition precedent was raised at the
summary judgment stage, while in Jackson, the defendant waited until after trial.
Compare Associated Mechanical Contractors, 271 F.3d at 1317, with Jackson, 678 F.3d
at 1009.
However, the law of the circuit is more than just the results in published appellate
decisions. It also includes the reasoning necessary to reach those decisions. “[T]he
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holding of a case..., as the Supreme Court observed, compris[es] ... both the result of the
case and ‘those portions of the opinion necessary to that result....’” United States v.
Kaley, 579 F.3d 1246, 1253 n. 10 (11th Cir. 2009) (quoting Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 66–67 (1996)). The reasoning of Jackson is simply irreconcilable
with Associated Mechanical Contractors. Jackson says general denials of conditions
precedent are admissions and “cannot later be attacked.” 678 F.2d at 1009.
Admissions in a pleading are binding on a party, unless the admission is withdrawn
or the pleading amended. Sinclair Refining Co. v. Tompkins, 117 F.2d 596, 598 (5th Cir.
1941) (citing Pullman Co. v. Bullard, 44 F.2d 347, 348 (5th Cir. 1930)); see also Best
Canvas Products & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir.
1983) (“[T]he general rule [is] that a party is bound by the admissions in his pleadings.”).
Yet, in Associated Mechanical Contractors, the Eleventh Circuit affirmed summary
judgment for the defendant, despite a general denial (which under Jackson amounts to an
admission) of conditions precedent that, it appears, was never amended or withdrawn.
Because the reasoning of Jackson cannot be reconciled with Associated Mechanical
Contractors, under the prior panel precedent rule, Jackson is the law of the Eleventh
Circuit on this point and controls the case.5
Under Jackson, TDG and Westfield’s general denials of conditions precedent
operate as admissions. TDG and Westfield’s answers do not otherwise raise the issue
of notice—for example, in an affirmative defense—such that their technical noncompliance
with Rule 9(c) might be excused. See, e.g., Myers v. Central Florida Investments, Inc.,
5
In EEOC v. Service Temps, Inc., 679 F.3d 323, 332–33 & nn. 19, 22 (5th Cir. 2012), the Fifth
Circuit characterized Jackson’s rule as “contrary” to Associated Mechanical Contractors. While not
relevant to this Court’s effort to ascertain the law of the Eleventh Circuit, Judge Higginbotham’s opinion in
Service Temps also explains why Jackson likely represents the better interpretation of Rule 9(c). Id. at
331–33.
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592 F.3d 1201, 1224–25 (11th Cir. 2010) (answer that generally denied conditions
precedent, but raised failure to exhaust administrative remedies and untimeliness as
affirmative defenses, was sufficient to “discharge defendants’ duty under Rule 9(c),”
because it gave plaintiff “ample notice that defendants believed that she had failed to file
a timely complaint with the EEOC”). TDG and Westfield have not asked to withdraw
these admissions or amend their answers to deny with particularity that Ace provided
“timely and proper” notice. Because TDG and Westfield have admitted that all
conditions precedent have been satisfied, waived, or excused, their summary judgment
motion arguing to the contrary must be DENIED.
C. Ace’s Counterclaim: Home Office Overhead
In its third summary judgment motion, TDG asks for entry of partial summary
judgment that it is not liable to Ace for home office overhead damages. Damages based
on home office overhead costs sustained during delays in the project represent roughly
one-third of Ace’s $304,234 total alleged damages (Doc. 74 at 2). TDG argues that Ace
is unable to establish the elements of a claim for home office overhead set out in Appeal
of Eichleay, ASBCA No. 5183, 60-2 B.C.A. ¶ 2688 (ASBCA 1960).
Whether Ace is entitled to home office overhead damages, or any other particular
kind of damages, is a question that may not need to be resolved. If the Court finds after
a bench trial that the delays were entirely Ace’s fault, or that for some other reason Ace
may not recover, then it will not need to address what kinds of damage Ace may recover.
This is not to say that TDG’s motion is improper. Rule 56 allows a party to seek
summary judgment on “part of [a] claim or defense,” and “part” can include a particular
element of damages. But, nothing requires a court to decide a non-case-dispositive
issue raised in a summary judgment motion if a trial may ultimately moot the issue. So,
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courts in this district have denied as premature motions requesting summary judgment on
particular elements of damages. See Romero v. Harmony Retirement Living, Inc.,
No. 6:12-cv-838-Orl-22KRS, 2013 WL 5230662, at *7 (M.D. Fla. Sept. 15, 2014) (citing
Turner v. Aldo U.S., Inc., No. 8:08-cv-1062-T-30MAP, 2009 WL 2489267, at *4 (M.D. Fla.
Aug. 10, 2009)).
The benefits of resolving Ace’s hypothetical entitlement to home office overhead
damages prior to a trial are not worth the cost in judicial resources. The Court doubts
that leaving the issue open for trial will significantly lengthen the time necessary to try the
case.
And the parties have not suggested that resolving the issue will significantly
advance settlement negotiations. Accordingly, TDG’s motion for partial summary
judgment on home office overhead damages is DENIED.
Conclusion
For the reasons given above, TDG’s and Westfield’s motions for summary
judgment (Docs. 72, 73, 74) are DENIED.
DONE and ORDERED in Orlando, Florida on June 26, 2015.
Copies furnished to Counsel of Record
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