Hiscox Dedicated Corporate Member, Ltd. v. Matrix Group Limited, Inc. et al

Filing 417

ORDER: Plaintiff's Motion for Remittitur of Damages 397 is GRANTED. Plaintiff's Motion for Judgment as a Matter of Law 394 is DENIED. Defendants' Motion for Entry of Judgment on Jury Verdict 416 is GRANTED. The Clerk is directed to enter judgment in Defendants' favor and, thereafter, to close this case. Signed by Judge Virginia M. Hernandez Covington on 1/12/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HISCOX DEDICATED CORPORATE
MEMBER, LTD.,
Plaintiff,
v.

Case No.

8:09-cv-2465-T-33AEP

MATRIX GROUP LIMITED, INC. and
LOUIS ORLOFF,
Defendants.
______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff’s
Motion for Remittitur of Damages (Doc. # 397), which was filed
on

October

20,

2011.

Defendants

filed

a

Response

in

Opposition to the Remittitur Motion (Doc. # 407) on November
4, 2011, and Plaintiff filed a Reply Memorandum (Doc. # 414)
on November 21, 2011.

Also before the Court is Plaintiff’s

Motion for Judgment as a Matter of Law (Doc. # 394), which was
filed on October 20, 2011.

Defendants filed a Response in

Opposition to the Motion for Judgment as a Matter of Law (Doc.
# 408) November 4, 2011.

In addition, on January 9, 2012,

Defendants filed a Motion for Entry of Judgment on Jury
Verdict (Doc. # 416).
For the reasons that follow, the Court grants Plaintiff’s
Motion for Remittitur, denies Plaintiff’s Motion for Judgment
as a Matter of Law, and grants Defendants’ Motion for Entry of

Judgment on Jury Verdict.
I.

Motion for Remittitur
On October 13, 2011, following an eleven-day trial, the

jury reached a verdict in favor of Defendants.

Specifically,

the jury determined that the July 5, 2009, fire at the Matrix
building was not intentionally set, that Defendants did not
commit fraud and did not intentionally misrepresent or conceal
material facts, and that the Matrix building’s burglar alarm
was not suspended or impaired. (Doc. # 389). The jury awarded
Defendants the following damages:
a.

Damages to the Building: $702,600.00

b.

Damages to the Inventory and Contents: $1,400,000.00

c.

Damages due to Business Interruption: $600,000.00

d.

Other Damages under the Policy: $12,500.00

Total Damages: $2,715,100.00
(Doc. # 389).
Plaintiff requests an order reducing the jury’s verdict
by

$447,330.51,

the

amount

Plaintiff

previously

paid

to

Superior Bank in satisfaction of the mortgage on the Matrix
property.

Plaintiff contends that remittitur is warranted to

prevent a double recovery.

Defendants, on the other hand,

oppose

Plaintiff

did

set-off

against

remittitur

affirmative

because

defense

of

2

not

assert

the

Defendants’

counterclaims and because Plaintiff did not introduce evidence
at trial regarding the amount Plaintiff paid to Superior Bank.
Thus, Defendants argue, “there is no legal or evidentiary
basis for the remittitur.” (Doc. # 407 at 3).1

The Court

rejects Defendants’ arguments.
The Eleventh Circuit has instructed that “[a]s a general
rule, ‘a remittitur order reducing a jury’s award to the outer
limit of the proof is the appropriate remedy where the jury’s
damage award exceeds the amount established by the evidence.’”
Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266
(11th Cir. 2008)(citing Goldstein v. Manhattan Indus., Inc.,
758 F.2d 1435, 1448 (11th Cir. 1985)).
Here, remittitur is mandated.

This Court previously

determined in a Order granting partial summary judgment in
favor

of

Plaintiff

that

Plaintiff

paid

the

Defendants’

mortgagee, Superior Bank, a net amount of $447,330.51. (Doc.
# 221 at 1). In the absence of a remittitur order, Defendants
would enjoy a substantial windfall and would be “in an even
better position than their insurance contract allowed.

1

That

In addition to challenging the propriety of remittitur,
Defendants challenge the remittitur amount, should the Court
grant remittitur. Defendants tend to argue that $447,330.51
is not the correct figure. However, despite being given an
opportunity to do so, Defendants have not supplied the Court
with an alternative remittitur figure.
3

is, they would receive $447,330.51 more than they would have
if Hiscox had accepted coverage and paid the claim before suit
was filed.” (Doc. # 414 at 1). As this Court set out in its
jury instructions, Defendants are entitled to recover only
those damages for breach of contact “that will put them in the
same position they would have been in if Plaintiff had
performed its duties under the Policy.” (Doc. # 410 at 16).
Indeed, under Florida law, a party cannot receive more in
damages in a breach of contract action than he bargained for
under the contract. See Feldkamp v. Long Bay Partners, LLC,
773 F. Supp. 2d 1273, 1285 (M.D. Fla. 2011)(citing Lindon v.
Dalton Hotel Corp., 49 So. 3d 299, 305 (Fla. 5th DCA 2010)).
This Court grants the Motion for Remittitur and reduces
that portion of the jury’s verdict in which the jury awarded
$702,600.00 for “Damages to the Building” by $447,330.51.
Accordingly, the jury’s award for “Damages to the Building” is
reduced to $255,269.49, and the total award in this case is
reduced from $2,715,100.00, to $2,267,769.49. Such remittitur
is consistent with Eleventh Circuit law as well as Florida law
and is necessary to due justice in this case.
II.

Motion for Judgment as a Matter of Law Under Rule 50(a)
Plaintiff orally moved for judgment as a matter of law

pursuant to Rule 50(a), Fed. R. Civ. P., at the close of the
4

evidence on October 11, 2011. (Doc. # 382).

On October 20,

2011, Plaintiff filed a written memorandum in support of its
Motion for Judgment as a Matter of Law, to which Defendants
have responded.
Rule 50(a)(1) of the Federal Rules of Civil Procedure
permits the court to grant judgment as a matter of law against
a party with respect to an issue when 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).
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

verdict.”

jury

could

not

arrive

at

a

contrary

Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d

1246 (11th Cir. 2001).

Stated another way, “[u]nder Rule 50,

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, this Court must
refrain from invading the province of the jury: “Credibility
determinations, the weighing of the evidence, and the drawing
5

of legitimate inferences from the facts are jury functions,
not those of a judge.” Id.

at 1193 (internal citations

omitted). The Cleveland court also explained, “[a]lthough the
court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is
not required to believe.” Id.

“[T]he court should give

credence to the evidence favoring the nonmovants as well as
that

evidence

supporting

the

moving

party

that

is

uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 151 (2000).
The Eleventh Circuit imposes an even higher barrier
against granting motions for judgment as a matter of law
where, as in this case, the movant has the burden of proof.
The Eleventh Circuit has held that granting judgment as a
matter of law in favor of a party bearing the burden of proof
on an issue is an “extreme step.”

United States Equal

Employment Opportunity Commission v. Massey, Yardley Chrystler
Plymouth, Inc., 117 F.3d 1244, 1250 (11th Cir. 1997).

There,

the court explained that judgment as a matter of law in favor
of a movant with the burden of proof on an issue should be
entered “only when the evidence favoring the claimant is so
one sided as to be of overwhelming effect.” Id.
6

A.

Incendiary Fire

Plaintiff asserts that it is entitled to judgment as a
matter of law that the fire that damaged the Matrix building
was intentionally set.

The Court has evaluated the evidence

on file, including the trial transcripts, and declines to take
the extreme step of granting judgment as a matter of law for
Plaintiff on this issue–an issue upon which Plaintiff bore the
burden of proof at trial.
Contrary to Plaintiff’s arguments, Defendants introduced
substantial evidence demonstrating that the fire was not
intentionally set.

For instance, Defendants’ expert Tom

Minnich, a private fire investigator for Kufta Associates in
York, Pennsylvania, testified that his investigation uncovered
no evidence of arson. (Doc. # 370 at 7, 51-52).

Mr. Minnich

has

Id.

investigated

“several

thousand”

fires.

at

11.

According to Mr. Minnich, there were no accelerants or devices
used to start the fire. Id. at 52. Furthermore, there were no
signs

of

forced

entry,

the

alarm

system

had

not

been

circumvented, and there was no movement seen by any of the
cameras at the Matrix building showing anyone within the
building at the time of the fire. Id.

In sum, Mr. Minnich

“just didn’t see any evidence at all that there was a human
involvement in this particular incident.” Id. at 53. In light
7

of this testimony, a reasonable juror could find that the fire
was not incendiary in nature.
In addition, Defendants entered into evidence video
surveillance of the building and the ADT Event History Log.
(Doc.

#

408-9,

408-11).

Consistent

with

Mr.

Minnich’s

testimony, that evidence tended to show that no individuals
were present in or near the building at the time of the fire
and that there was no entry or exit from the Matrix building
prior

to

the

Defendants,

first

“[a]

indication

juror

could

of

smoke.

reasonably

As
infer

argued
from

by

that

evidence that no one entered the building and, therefore, that
no human could have set this fire.” (Doc. # 408 at 5).
Defendants also introduced evidence that Louis Orloff was
at home during the time of the fire. (Doc. # 408-6 at 26).

As

argued by Defendants, since Plaintiff repeatedly argued that
“Mr. Orloff was the only human being in the world that could
have started this fire” a reasonable jury could conclude that
“since Mr. Orloff was the only person the world that could
have started this fire, and since Mr. Orloff was at home at
the time the fire began, the fire could not possibly have been
incendiary in nature.” (Doc. # 408 at 7).2

2

Mr. Orloff’s testimony that he did not set the fire
and, at the time of the fire, was at his home with his wife
8

Plaintiff

has

not

demonstrated

that

an

absence

of

sufficient evidentiary basis for a reasonable jury to find for
Defendants on the issue of whether the fire was intentionally
set.

Accordingly, the Court declines to grant judgment as a

matter of law on this issue.
B.

Burglar Alarm Suspension

Plaintiff argues that it is entitled to judgment as a
matter of law because the evidence shows that the burglar
alarm was suspended at the time of the fire.
expert,

Jeffrey

Zwirn,

testified

that

the

Plaintiff’s
alarm

at

the

property was functional at the time of the fire and that the
only way for an intentional fire to have been set without the
alarm sounding would have been if the alarm was suspended.
(Doc. # 359 at 207-211).

This testimony does not mandate a

finding that the alarm was suspended or otherwise tampered
with. As argued by Defendants, “[s]ince there was no evidence
that anyone entered the building at the pertinent times, a
jury could reasonably conclude that no one suspended the
system.” (Doc. # 408 at 10).

Gina and engaging in internet activity is supported by Gina
Orloff’s testimony (Doc. # 408-7 at 189) as well as
Defendants’ trial exhibits documenting Mr. Orloff’s computer
usage, credit card records, gate records, and phone records.
Def. Trial Exs. ## 244, 246-247, 249-253, 255E, 257, 259, 262,
424A.
9

Mr. Zwirn testified that if the fire was intentionally
set, then the security system had to have been suspended.
Here, the jury did not find that the fire was intentionally
set.

Therefore, the jury was free to disregard Mr. Zwirn’s

testimony regarding the alarm system being suspended in the
case of an intentionally set fire.
Furthermore,

Defendants’

expert,

Bruce

Koenig,

an

individual with a Master’s degree in forensic science from
George Washington University, testified that the system was
not suspended, and the ADT Events History Log did not show a
disruption of the alarm system. (Doc. # 343 at 118, 161-162).
The jury was permitted to credit this testimony, and the Court
finds that Defendants offered substantial evidence that the
alarm system at the building was not suspended.

Accordingly,

the Court denies Plaintiff’s Motion for Judgment as a Matter
of Law on this issue.
C.

Concealment, Fraud and Material Misrepresentation

Plaintiff moves for judgment as a matter of law based on
Defendants’

alleged

concealment,

fraud,

and

material

misrepresentation during the investigation of the insurance
claim in question. Plaintiff does not meet its burden on this
allegation within the context of a Rule 50(a) motion, in which
the Court may not weigh the parties’ evidence, may not engage
10

in credibility determinations, and must disregard all evidence
favorable to Plaintiff that the jury is not required to
believe.

Mr. Orloff’s testimony that he did not, “during the

interviews

that

the

insurance

company

conducted,”

ever

“intentionally misrepresent anything to the insurance company”
when viewed under the prism of a Rule 50(a) motion, defeats
Plaintiff’s motion as to this issue.

(Doc. # 408-8 at 11).

Without remarking on each alternative theory advanced by
Plaintiff in this case, the Court determines that Defendants
offered substantial and significant evidence in the form of
testimony and exhibits demonstrating that no intentional,
material misrepresentations were made.

The jury found that

Defendants did not commit fraud with respect to the Policy or
intentionally

misrepresent

or

conceal

material

facts

or

circumstances on the claim form or during the inquiry made by
the Plaintiff after the fire loss occurred. (Doc. # 389 at 2).
This finding was supported by the evidence adduced at trial.
Accordingly, the Court denies the Motion for Judgment as a
Matter of Law on the issue of fraud, concealment, and material
misrepresentation.
D.

Business Interruption Claim

The jury awarded Defendants $600,000.00 in damages due to
business interruption. (Doc. # 389 at 3).
11

Plaintiff asserts

that Defendants “failed to provide sufficient evidence that
would allow a jury to enter a verdict in any amount on that
issue.” (Doc. # 394 at 9).

The Court disagrees.

Mr. Orloff

testified that Matrix sustained over $1 million in business
interruption damages and that the policy limits for business
interruption damages was $600,000.00.

(Doc. # 408-6 at 28).

Mr. Orloff, the president of Matrix, was competent to testify
as to such matters, see Gregg v. U.S. Indus., Inc., 887 F.2d
1462, 1469 (11th Cir. 1989), and Plaintiff’s counsel chose not
to cross examine Mr. Orloff as to how he reached this amount.
It appears that the jury credited Mr. Orloff’s testimony, and
the Court finds nothing improper about the jury’s findings on
this issue.

Thus, the Court determines that the jury’s

verdict was supported by substantial evidence.
III. Motion for Entry of Judgment
The Court, having addressed the Motion for Remittitur and
the Motion for Judgment as a Matter of Law, determines that it
is appropriate to grant Defendants’ Motion for Entry of
Judgment on Jury Verdict (Doc. # 416) and directs the Clerk to
enter judgement consistent with this opinion.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Plaintiff’s Motion for Remittitur of Damages (Doc. # 397)
12

is GRANTED.
(2) Plaintiff’s Motion for Judgment as a Matter of Law (Doc.
# 394) is DENIED.
(3) Defendants’ Motion for Entry of Judgment on Jury Verdict
(Doc. # 416) is GRANTED.
(4) The Clerk is directed to enter judgment in Defendants’
favor and, thereafter, to close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 12th
day of January, 2012.

Copies: All Counsel of Record

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