Colony Insurance Company v. Suncoast Medical Clinic, LLC et al

Filing 165

ORDER denying 161 Defendant, Landmark American Insurance Company's Renewed Motion for Judgment as a Matter of Law, Motion for New Trial. Signed by Judge Virginia M. Hernandez Covington on 2/15/2012. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
COLLEEN A. ZIOLKOWSKI, as
Personal Representative of the
Estate of CHARLES J. ZIOLKOWSKI,
Deceased, as Assignee of
SUNCOAST MEDICAL CLINIC, LLC,
Plaintiff,
v.

Case No.

8:09-cv-776-T-33TGW

LANDMARK AMERICAN INSURANCE
COMPANY,
Defendant.
_________________________________/
ORDER
This cause comes before the Court pursuant to Defendant,
Landmark American Insurance Company’s Renewed Motion for
Judgment as a Matter of Law, Motion for New Trial (Doc. #
161),

filed

on

October

11,

2011.

Plaintiff

Colleen

A.

Ziolkowski filed a response in opposition to the Motion on
October 25, 2011. (Doc. # 173). For the reasons that follow,
the Court denies the Motion.
I.

Background
Landmark insured Suncoast Medical Clinic, LLC under

Claims-Made Policy # LHM712725 for the period of March 1,
2007, through March 1, 2008 (the “2007-2008 Policy”) and
Claims-Made Policy # LHM716793 for the period of March 1,

2008, through March 1, 2009 (the “2008-2009 Policy”). On June
8, 2007, Ziolkowski served a Notice of Intent to Initiate
Litigation (NOI) to Suncoast and two of its physicians. The
NOI included allegations for, among other things, “[f]ailure
to have in place sufficient policies and procedures, staff,
and assistive technology to ensure that diagnostic tests and
communication between physicians and other medical personnel
was performed.” (Doc. # 40 Exh. 2).
Suncoast argued that it presumed the NOI represented a
claim for vicarious liability against the clinic for the
actions of the physicians--a claim that would not be covered
by the Landmark policy. Suncoast asserted that it did not
learn of a potential direct claim until a pre-suit mediation
held on May 23, 2008, or that a claim of direct liability
existed until October 2008. As a result, Suncoast did not
inform Landmark of Ziolkowski’s claim until October 2008.
Landmark asserted that there was no coverage under the
2008-2009 Policy because Ziolkowski first asserted her claim
against

Suncoast

prior

to

the

2008-2009

Policy

period.

Landmark further argued that even if Ziolkowski’s claim were
covered by the 2008-2009 Policy it was expressly excluded
because Suncoast knew of the potential claim prior to the
Policy’s effective date.
2

The case proceeded to trial on September 6, 2011. After
one day of testimony regarding Suncoast’s claims-handling
procedures, the case went to the jury. The jury found that a
claim was first made against Suncoast after March 1, 2008, and
that Suncoast reported the claim to Landmark no later than
April 1, 2009. The jury further found that Suncoast did not
know of an alleged act, error, omission or circumstance likely
to give rise to a claim against it prior to March 1, 2008. The
Court entered judgment in favor of Ziolkowski, Suncoast’s
assignee, on September 12, 2011. (Doc. # 152).
At trial, Landmark renewed its summary judgment motion as
an oral motion for directed verdict. (Doc. # 154). The Court
reserved ruling on the Motion at trial, then denied the Motion
on September 16, 2011. (Doc. # 155).
II.

Legal Standard
Federal Rule of Civil Procedure 50(a) permits the court

to grant judgment as a matter of law against a party “[i]f a
party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on
that issue.” Fed. R. Civ. P. 50(a). Rule 50(b) allows a party
to renew a motion for judgment as a matter of law after trial,
if filed no later than 28 days after entry of judgment. Fed.
3

R. Civ. P. 50(b). The movant may include with the Rule 50(b)
motion “an alternative or joint request for a new trial under
Rule 59.” Id.
Courts should grant judgment as a matter of law only “if
the evidence is so overwhelmingly in favor of the moving party
that

a

reasonable

jury

could

not

arrive

at

a

contrary

verdict.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d
1241, 1246 (11th Cir. 2001). Stated another way, “a court
should render judgment as a matter of law when there is no
legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.” Cleveland v. Home Shopping
Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004). Further,
in conducting a Rule 50 analysis, the court must refrain from
invading

the

province

of

the

jury:

“Credibility

determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.” Id. at 1193 (internal quotations and
citations omitted).
Federal Rule of Civil Procedure 59 governs motions for a
new trial and generally provides that a new trial may be
granted “on all or some of the issues--and to any party-. . .

after a jury trial, for any reason for which a new

trial has heretofore been granted in an action at law in
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federal court.” Fed. R. Civ. P. 59. The Supreme Court has
noted that a party may seek a new trial on grounds that “the
verdict is against the weight of the evidence, that damages
are excessive, or that, for other reasons, the trial was not
fair to the party moving; and may raise questions of law
arising out of alleged substantial errors in admission or
rejection of evidence or instructions to the jury.” Montgomery
Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).
III. Analysis
A.

Motion for Judgment as a Matter of Law

Landmark argues that it is entitled to judgment as a
matter of law because “Suncoast received notice of the claim
asserted against it but failed to report the claim during the
applicable Policy Period. Therefore the claim was not covered
under the insuring agreement.” (Doc. #

161 at 5). Therefore,

Landmark argues, Ziolkowski did not meet her initial burden to
show that coverage existed under the 2008-2009 Policy. (Id. at
8). Landmark asserts that “[n]one of the evidence at trial
supports a contrary finding.” (Id.).
This argument is based upon the same grounds asserted in
Landmark’s Motion for Summary Judgment (Doc. # 110), which
this Court denied on July 1, 2011 (Doc. # 115), and Landmark’s
Motion for Directed Verdict, which this Court denied on
5

September

16,

2011

(Doc.

#

155).

Landmark’s

argument

presupposes that the NOI represented a “claim” as defined by
the policy. However, the jury found that a claim was first
made against Suncoast after March 1, 2008, and there is
sufficient evidentiary basis for the jury’s verdict. The Court
therefore denies the Renewed Motion for Judgment as a Matter
of Law.
B.

Motion for New Trial

Landmark

moves

for

a

new

trial

arguments made by Plaintiff’s counsel.1
Specifically,

Landmark

asserts

that

because

of

certain

(Doc. # 161 at 9).
Plaintiff’s

counsel

“repeatedly advised the jury that it was their job to consider
whether the insured--Suncoast--‘reasonably’ believed the claim
was a claim.” (Id.

at 10). Landmark asserts that these

statements may have led the jury to believe that the issue
being tried was “not whether the claim was reported, but,
according

to

Plaintiff,

whether

the

insured

reasonably

believed there was a claim.” (Id. at 11). Landmark argues that

1

Landmark states in its Motion that counsel “is not yet
in possession of the transcripts of the trial (DE #149) but
once same are transcribed and received, may seek leave to
supplement this Motion for New Trial with any additional
grounds that appear in the transcript.” (Doc. # 161 at 11).
Landmark did not order transcripts, however. The Court
presumes, at this date, that Landmark does not seek to
supplement the Motion.
6

the jury was not instructed on this issue, nor were they to
consider it on the verdict form. (Id. at 10).
Ziolkowski argues that Plaintiff’s counsel made arguments
consistent with the parties’ stipulations as to the triable
issues.2 (Doc. # 164 at 2). Ziolkowski further asserts that
Landmark’s counsel failed to timely object to any arguments
made by Plaintiff’s counsel. (Id. at 5).
“Counsel must timely object to any issues that arise at
trial “to provide the court an opportunity to take corrective
action.” S.E.C. v. Diversified Corporate Consulting Grp., 378
F.3d 1219, 1226 (11th Cir. 2004). “The Court may not grant a
new trial based on alleged errors committed during trial when
the moving party failed to make timely objections to those
errors during trial.” Richardson v. Bombardier, Inc., No.
8:08-cv-544-T-31MSS, 2005 WL 3087864, at * 7 (M.D. Fla. Nov.
16, 2005). The Court agrees that Landmark’s counsel failed to
timely object to any statements made by Plaintiff’s counsel;
therefore, Landmark waived its right to raise that issue.

2

The parties stipulated that the issues of fact to be
litigated included “[w]hether the NOI reasonably constituted
a direct negligence claim against Suncoast” and “[w]hether
Suncoast had knowledge of Ziolkowski’s potential direct
negligence claim against it when Ziolkowski served the NOI in
2007.” (Doc. # 124 at 8).
7

“While

a

new

trial

may

be

granted

if

there

was

substantial error . . . the Court may not grant a new trial
unless it is convinced that the jury has reached a seriously
erroneous result.” Id. This Court is not convinced of any
serious error in this case. On the contrary, the Court finds
that the jury’s verdict is supported by the weight of the
evidence. The Court therefore denies the Motion for New Trial.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant, Landmark American Insurance Company’s Renewed
Motion for Judgment as a Matter of Law, Motion for New Trial
(Doc. # 161) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 15th
day of February 2012.

Copies: All counsel of record

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