Zurich American Insurance Company v. European Tile and Floors, Inc. et al

Filing 77

ORDER: Defendant Robert A. Dalzell, Inc.'s Motion in Limine to Bar Evidence of a Requirement of Written, as Opposed to Oral, Notice of Claim (Doc. # 71 ) is DENIED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/6/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ZURICH AMERICAN INSURANCE COMPANY,
as successor by merger to MARYLAND
CASUALTY COMPANY,
Plaintiff,
v.

Case No. 8:16-cv-729-T-33AAS

EUROPEAN TILE AND FLOORS, INC.,
and ROBERT A. DALZELL, INC.,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Robert A. Dalzell, Inc.’s Motion in Limine to Bar Evidence of
a Requirement of Written, as Opposed to Oral, Notice of Claim
(Doc. # 71), which was filed on May 15, 2017.
Zurich

American

Insurance

Company

filed

a

Plaintiff

Response

Opposition to the Motion on May 30, 2017. (Doc. # 73).

in
The

Court denies the Motion as discussed below.
I.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout the
trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06-md-1769Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989, at *1

(M.D. Fla. Feb. 4, 2009). “The real purpose of a motion in
limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably effect the fairness of the trial.

A

court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.”
Id. (internal quotation omitted).
“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing
Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07-80172CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial
of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion means
the court cannot determine whether the evidence in question
should be excluded outside the trial context.” Id. “The court
will entertain objections on individual proffers as they arise
at trial, even though the proffer falls within the scope of a
denied motion in limine.”

Id.

The district court has broad discretion to determine the
2

admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003)(“Inherent in this standard is the firm
recognition that there are difficult evidentiary rulings that
turn on matters uniquely within the purview of the district
court, which has first-hand access to documentary evidence and
is

physically

proximate

to

testifying

witnesses

and

the

jury.”).
II.

Analysis
A.

Background

This is an insurance coverage dispute with a unique cast
of characters. The case involves three separate lawsuits. In
the first lawsuit, Robert A. Dalzell, Inc. sued European (a
tile

company)

and

Ellis

(owner

of

European)

based

on

European’s sending unsolicited faxes in violation of the
Telephone Consumer Protection Act.

The first lawsuit ended

with the entry of a $2.1 million dollar judgment in favor of
Dalzell and against European.

However, at the time of the

entry of judgment, European was out of business and Ellis was
bankrupt. The second lawsuit came about when Dalzell realized
that European was insured by Zurich and that the relevant
3

insurance policy potentially covered advertising injuries.
Specifically, Robert A. Dalzell, Inc. filed a lawsuit against
Zurich in an Illinois state court to collect on the $2.1
million dollar judgment.

Thereafter, Zurich initiated the

present, third lawsuit in this Court against European and
Dalzell seeking a declaration that no coverage exists and a
finding that it is not required to pay any monies.
B.

Dalzell’s Motion in Limine

Zurich’s relevant insurance policy contains the following
requirements,

including

that

all

claims

be

submitted

writing:
2.

Duties In The Event Of Occurrence, Offense,
Claim Or Suit

b.

If a claim is made or “suit” is brought
against any insured, you must:
(1) Immediately record the specifics of the
claim or “suit” and the date received;
and
(2) Notify us as soon as practicable.

You must see to it that we receive written notice
of the claim or “suit” as soon as practicable.
c.

You and any other involved insured must:
(1) Immediately send us copies of any
demands, notices, summonses or legal
papers received in connection with the
claim or “suit”;
(2) Authorize us to obtain records and other
information;
(3) Cooperate with us in the investigation,
settlement or defense of the claim or
“suit”; and
4

in

(4)

d.

Assist us, upon our request, in the
enforcement of any right against any
person or organization which may be
liable to the insured because of injury
or damage to which this insurance may
also apply.

No insured will, except at their own cost,
voluntarily make a payment, assume any
obligation, or incur any expense, other than
for first aid, without our prior consent.

(Doc. # 36 at ¶ 33)(emphasis added).
Neither Ellis nor European provided Zurich with written
notice when Dalzell filed the TCPA lawsuit.

On this basis,

Zurich theorizes that it should not be required to provide any
coverage with respect to payment of the multimillion dollar
judgment.

However, it is Dalzell’s theory of the case that

Ellis immediately called Zurich when he received Dalzell’s
complaint, but that a Zurich employee told him that TCPA
lawsuits are excluded, essentially denying coverage on the
spot.
Zurich filed a Motion for Summary Judgment based on
failure to provide proper notice of the claim, but the Court
denied the Motion due to the presentation of a genuine issue
of material fact. (Doc. ## 57, 76).

The Court explained:

Summary judgment is not appropriate on the issue
Zurich isolates in the Motion for Summary Judgment
because there is a genuine dispute of material fact
regarding when -- if ever -- European provided
notice of the Dalzell suit to Zurich. Dalzell’s
5

position is that Ellis provided oral notice to
Zurich of the Dalzell suit upon being served with
the complaint and without any delay whatsoever.
Zurich takes the opposite position -- claiming that
European never provided it with notice of the suit,
and that Zurich did not receive notice of the
lawsuit until years after service of the Complaint
and only after entry of the multimillion dollar
judgment against its insured. According to Zurich,
it was Dalzell, not Ellis or European, that
notified Zurich of the underlying TCPA case and, at
that point, it was too late to defend. The Court
is not in a position to make the necessary
credibility determination.
(Doc. # 76 at 15-16).
At this juncture, Dalzell seeks an Order in limine
barring Zurich from presenting any evidence to the jury
regarding the requirement in its insurance policy of written
notice.

The Court denies the Motion.

Dalzell cites to cases

which hold that “one can waive the written notice requirement
when the carrier had actual notice of the claim.” (Doc. # 71
at 2)(quoting Gay v. Association Cas. Ins. Co., 103 So. 3d
1028, 1031 (Fla. 5th DCA 2012)). However, the mere existence
of

this

legal

principal

does

not

provide

a

basis

for

precluding Zurich from presenting its theory of the case to
the jury.

Notably, Dalzell has argued that “any evidence of

a written notice requirement would only serve to confuse,

6

inflame, and prejudice the jury.” (Doc. # 71 at 3).1
the

plain

terms

of

the

policy

inflammatory, nor prejudicial.

are

neither

However,

confusing,

Zurich should be afforded the

opportunity to admit evidence of the governing insurance
policy to the jury, as this is an insurance coverage dispute.
If Dalzell seeks relief based on the theory that Zurich waived
a

policy

provision,

demonstrate waiver.

Dalzell

will

have

the

burden

to

The Motion in Limine is denied.

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Robert A. Dalzell, Inc.’s Motion in Limine to
Bar Evidence of a Requirement of Written, as Opposed to Oral,
Notice of Claim (Doc. # 71) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 6th
day of June, 2017.

1

Dalzell does not reference any Rule of Evidence or case
law in support of this contention.
7