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Berkower v. USAA Casualty Insurance Co.

United States District Court, S.D. Florida

April 4, 2017

DAVID LOUIS BERKOWER and SZNOL BERKOWER, Plaintiffs,
v.
USAA CASUALTY INSURANCE COMPANY, Defendant.

2"> OMNIBUS ORDER DENYING SUMMARY JUDGMENT MOTIONS

          JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.

         Ranting against “the rules” is a view sometimes urged by poets, public speakers, entertainers and political protestors. Sometimes, criticism of the rules morphs into a view that urges violation of the rules. To provide but one example, the hard rock/heavy metal rock group “Kiss” musically proclaimed that “rules are made to be broken” in its “It's My Life” song.[1');">1');">1');">1" name="FN1');">1');">1');">1" id= "FN1');">1');">1');">1">1');">1');">1');">1]

         So the “break-the-rules” philosophy might be perfectly appropriate for a T-shirt slogan or for rock ‘n' roll lyrics, but it is almost always an ill-advised strategy when opposing a summary judgment motion filed in federal court. Unfortunately, Plaintiffs David Louis Berkower and Sznol Berkower (“Plaintiffs”) significantly violated the applicable procedural rules when opposing the summary judgment motion filed by Defendant USAA Casualty Insurance Company (“Defendant”).

         Moreover, the fundamental violation occurred even after Plaintiffs were provided with additional time in which to file their opposition response. As outlined below, the Court could grant summary judgment in Defendant's favor on a default basis given Plaintiffs' failure to comply with the clear-cut, unequivocal rules for summary judgment motions.

         However, the Undersigned has chosen to follow the often-quoted remarks of former professional baseball player Vernon Louis “Lefty” Gomez, sometimes known as “Goofy Gomez.” As a left-handed pitcher who played for both the New York Yankees and the Washington Senators from 1');">1');">1');">1930 to 1');">1');">1');">1943, Gomez often remarked, “I'd rather be lucky than good.”

         In the instant case, Plaintiffs are lucky that the Undersigned has adopted a flexible view and spent considerable time reviewing Plaintiffs' statement of undisputed facts in connection with their own summary judgment motion when evaluating Defendant's summary judgment motion, which Plaintiffs did not adequately respond to because they failed to follow the rules. However, for reasons explained in more detail below, Plaintiffs' counsel is required to personally pay $1');">1');">1');">1, 750 to Defendant for the unnecessary attorney's fees Defendant incurred in connection with Plaintiffs' violation of the applicable rules.

         I. Background

         Plaintiffs filed a summary judgment motion and a statement of undisputed facts. [ECF Nos. 1');">1');">1');">11');">1');">1');">11');">1');">1');">1');">1');">1');">1');">11');">1');">1');">11');">1');">1');">1');">1');">1');">1');">11');">1');">1');">11');">1');">1');">1');">1');">1');">1');">11');">1');">1');">11');">1');">1');">1; 1');">1');">1');">11');">1');">1');">12]. Defendant filed opposition responses to the summary judgment motion and the statement of undisputed facts. [ECF Nos. 1');">1');">1');">139; 1');">1');">1');">140]. Plaintiffs then filed a reply. [ECF No. 1');">1');">1');">145].

         Defendant also (and first) filed its summary judgment motion and a statement of undisputed facts. [ECF Nos. 1');">1');">1');">109; 1');">1');">1');">11');">1');">1');">10]. Plaintiffs filed an opposition response, but failed to initially respond to Defendant's statement of undisputed facts. [ECF No. 1');">1');">1');">141');">1');">1');">1]. Defendant filed a reply. [ECF No. 1');">1');">1');">144]. Plaintiffs subsequently filed a motion for leave to file its response to Defendant's statement of undisputed facts and attached its proposed response. [ECF Nos. 1');">1');">1');">166; 1');">1');">1');">166-1');">1');">1');">1]. The Undersigned granted the request, designated the proposed response to Defendant's undisputed facts as the actual response [ECF No. 1');">1');">1');">166-1');">1');">1');">1], and permitted Defendant to file an amended reply. [ECF No. 1');">1');">1');">177]. Defendant filed its amended reply. [ECF No. 1');">1');">1');">181');">1');">1');">1].

         United States District Judge Joan A. Lenard referred all pretrial matters to the Undersigned [ECF No. 21');">1');">1');">1], with the consent of both parties [ECF No. 20]. For the reasons discussed below, the Undersigned denies Plaintiffs' summary judgment motions and denies Defendant's summary judgment motion.

         II. Plaintiffs' Procedural Defect

         Plaintiffs failed to submit a response to Defendant's statement of undisputed facts submitted in conjunction with Defendant's summary judgment motion. Plaintiffs then filed a motion seeking leave to submit a response to Defendant's statement of undisputed facts -- months after Defendant had submitted its statement of undisputed facts. [ECF No. 1');">1');">1');">166]. Nonetheless, the Undersigned granted (over Defendant's objection) Plaintiffs leave to submit the untimely response and designated the proposed response attached to the motion for leave as the response to Defendant's statement of undisputed facts. [ECF No. 1');">1');">1');">177].

         But Plaintiffs' response to Defendant's statement of undisputed facts is inadequate because Plaintiffs challenged Defendant's alleged undisputed facts by merely indicating that the specific numbered fact at issue was “disputed.” [ECF Nos. 1');">1');">1');">166-1');">1');">1');">1]. They did not, as required, refer to the actual record evidence which purportedly supports their claim that the undisputed facts asserted by Defendant are in fact actually disputed.

         Additionally, Plaintiffs' statement of undisputed facts filed with their own summary judgment motion is similarly inadequate because they did not always support each statement with specific references to evidence. [ECF No. 1');">1');">1');">11');">1');">1');">12]. As Defendant points out in its response to Plaintiffs' statement of undisputed facts, allegedly undisputed facts #22 and #24 do not include citations to record evidence. [ECF No. 1');">1');">1');">140]. Moreover, Defendant also contends that Plaintiffs incorrectly cited to record evidence which does not in fact support the assertions.

         Under Local Rule 56.1');">1');">1');">1, the Undersigned has authority to deem as admitted all the facts submitted by Defendant in support of its arguments. As the plain language of Local Rule 56.1');">1');">1');">1 states, “(a): A motion for summary judgment and the opposition thereto shall be accompanied by a statement of material facts as to which it is contended . . . there does exist a genuine issue to be tried[.]“ S.D. Fla. L.R. 56.1');">1');">1');">1(a) (emphasis supplied). The local rule requires that such statement “(1');">1');">1');">1) Not exceed ten (1');">1');">1');">10) pages in length; (2) Be supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court; and (3) Consist of separately numbered paragraphs.“ Id. (emphasis supplied).

         Failure of a respondent to file a statement of disputed facts, in the format as required above, causes “[a]ll material facts set forth in the movant's statement” to be “deemed admitted unless controverted by the opposing party's statement[.]” S.D. Fla. L.R. 56.1');">1');">1');">1(b) (emphasis added).

         Plaintiffs' response to Defendant's statement of undisputed facts merely listed the paragraphs they dispute. [ECF No. 1');">1');">1');">166-2]. Plaintiffs did not explain why -- and they surely did not include specific references to record evidence (such as deposition testimony or interrogatory answers).

         The lack of compliance is so clear-cut that the Court undoubtedly has the discretion to deem Defendant's facts admitted and then enter summary judgment in Defendant's favor, as Plaintiffs' defective response essentially leaves the Court with “the functional analog of an unopposed motion for summary judgment.” Lugo v. Carnival Corp., 1');">1');">1');">154 F.Supp.3d 1');">1');">1');">1341');">1');">1');">1');">1');">1');">1');">154 F.Supp.3d 1');">1');">1');">1341');">1');">1');">1, 1');">1');">1');">1343 (S.D. Fla. 201');">1');">1');">15) (admitting facts from defendant's undisputed material facts statement after reviewing the record based on plaintiff's violation of Local Rule 56.1');">1');">1');">1); Regions Bank v. 62' Ocean Sport Fish, No. 1');">1');">1');">13- 20966-CIV, 201');">1');">1');">14 WL 4055707, at *2 (S.D. Fla. Aug. 1');">1');">1');">14, 201');">1');">1');">14) (admitting undisputed facts in plaintiff's statement supported by the record based on defendants' violation of Local Rule 56.1');">1');">1');">1).[2" name="FN2" id= "FN2">2]

         When a party properly complies with Local Rule 56.1');">1');">1');">1, it is relatively easy for a court to determine whether there is a genuine disputed issue of fact. Basically, all a court needs to do is to look at the opposing statement of material facts on a paragraph- by-paragraph basis, see whether any paragraphs are designated as disputed and then make note of the evidentiary reasons for the dispute. When a party does not comply with the Local Rule by referencing record evidence, however, then it is exceedingly difficult for a court to discern if there is an actual factual dispute concerning a specific paragraph. A court needs to review the entire opposing memorandum and exhibits to determine whether there is a sound factual basis for determining that a point deemed factually undisputed by the movant is actually disputed. A barebones, conclusory statement that an undisputed fact is “disputed” does not make it so, which is why the local rules requires evidentiary record citations.[3]

         Reviewing the record without the benefit of the required record references can be an arduous process, and, in any event, generates unnecessary work for the Court and its staff.

         However, in recognition that the opposition response and Plaintiffs' own summary judgment motion (with its accompanying statement of undisputed facts) contain evidence which can be viewed as rebutting Defendant's material facts statement, this Court will take a more-conservative approach and will consider Plaintiffs' rebutting (albeit procedurally improper) evidence.

         Before proceeding to that analysis, however, the Undersigned wants to also highlight that in addition to creating more work for the Court, Plaintiffs' procedural defects also created more work for Defendant. Defendant had to take the time and energy to highlight and challenge Plaintiffs' deficiencies in the statement of undisputed facts and Plaintiffs' tardy response to Defendant's statement of undisputed facts.

         Plaintiffs' rule violation and procedural failings have caused Defendant to unnecessarily incur additional attorney's fees and costs, and their procedural irregularities have also caused the Court to undergo significant additional work (to comb through the record to determine which assertions are indeed actually disputed). Although the Undersigned is not imposing an attorney's fees award against Plaintiffs or their counsel for unduly burdening the Court, I can enter a fees award for unduly burdening Defendant. Therefore, the Undersigned enters a fees award against Plaintiffs' counsel in the amount of $1');">1');">1');">1, 750.

         The award is being entered against only counsel, and not his clients. Plaintiffs' counsel shall not directly or indirectly pass on this fees award as a costs item or reimbursement entry to the clients. Plaintiffs' counsel shall, by April 1');">1');">1');">11');">1');">1');">1, 201');">1');">1');">17, pay the fees award to Defendant. Also, Plaintiffs' counsel shall, within two days of making the payment, submit to the Undersigned's e-file inbox (goodman@flsd.uscourts.gov) -- but not on CM/ECF -- an affidavit or declaration confirming that he in fact made the payment.[4]

         III. Factual and Procedural History

         Plaintiffs filed this action against their homeowners' insurance carrier, Defendant, in connection with alleged damage to their home. [ECF Nos. 1');">1');">1');">1-1');">1');">1');">1; 1');">1');">1');">17]. Plaintiffs' Amended Complaint has one cause of action for breach of contract remaining because the parties agreed to abate one count and the Court dismissed the other two counts. [ECF Nos. 1');">1');">1');">17; 99].

         Defendant issued a homeowner's insurance policy to Plaintiffs for their residence. [ECF Nos. 1');">1');">1');">17; 1');">1');">1');">11');">1');">1');">12; 1');">1');">1');">140]. Plaintiffs previously sustained a loss at their same property for which Defendant tendered payments for the repairs. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1].

         More recently, Plaintiffs, through Stellar Public Adjusting Services (“Stellar”), reported to Defendant that a below-slab leak had occurred at Plaintiffs' property, causing water damage. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">11');">1');">1');">10-2]. Plaintiffs filed a claim with Defendant to report that a loss occurred. [ECF Nos. 1');">1');">1');">11');">1');">1');">12; 1');">1');">1');">11');">1');">1');">12-2; 1');">1');">1');">140].

         Mrs. Berkower testified that, on the day of the loss, one of her children flushed the master bathroom toilet and water actively overflowed from the toilet for several minutes. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1]. She testified that water simultaneously backed up from the master bathroom tub, shower, and sink. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1].

         After receiving notice of Plaintiffs' claim, Defendant sent Norman Vespi, an independent adjuster from David Morse & Associates Insurance Adjusters and Investigators, to Plaintiffs' property. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">11');">1');">1');">12; 1');">1');">1');">140; 1');">1');">1');">166-1');">1');">1');">1]. Mr. Vespi inspected the property in the presence of Rami Boaziz from Stellar. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166- 1');">1');">1');">1]. At the time of Mr. Vespi's inspection, Mr. Boaziz and Mr. Vespi observed what was believed to be discoloration of the travertine (which, at the time, Mr. Vespi thought was “marble”) flooring in the master bathroom toilet room. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1].

         The parties agree that Mr. Vespi is not a licensed plumber, engineer, general contractor or other licensed professional, nor is he otherwise qualified to inspect sanitary drain lines or any other part of a plumbing system or to render opinions as to causation. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">11');">1');">1');">10-8; 1');">1');">1');">166-1');">1');">1');">1]. The parties also agree that, based on the information available to Mr. Vespi at that time, Mr. Vespi reported to Defendant that the loss was caused by a broken drain line underneath the concrete slab which caused the master bathroom toilet to back up and that “water damage” to the master bathroom door frame and discoloration of the travertine tile was observed. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">11');">1');">1');">10-8; 1');">1');">1');">166-1');">1');">1');">1].

         Defendant does not dispute that Mr. Vespi prepared an estimate of the cost to repair the damages to the property in the net amount of $1');">1');">1');">103, 1');">1');">1');">179.64. [ECF Nos. 1');">1');">1');">11');">1');">1');">10-2; 1');">1');">1');">140]. Plaintiffs, however, additionally assert that Mr. Vespi concluded that the loss was covered under the subject policy. [ECF No. 1');">1');">1');">11');">1');">1');">12].

         All 4 One Plumbing, Inc. prepared a report after visiting Plaintiffs' property. [ECF Nos. 1');">1');">1');">11');">1');">1');">12; 1');">1');">1');">140]. All 4 One Plumbing, Inc.'s report made no mention of a “break” in the master bathroom drain line. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1]. Rather, All 4 One's report noted that a video camera inspection of the master bathroom drain line revealed a “sag” in the line. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">166-1');">1');">1');">1].

         Defendant alleges that, after reviewing Mr. Vespi's report and photographs, it did not agree that the claimed damages were water damages caused from a toilet overflowing and did not agree that there were in fact any damages. [ECF Nos. 1');">1');">1');">11');">1');">1');">10; 1');">1');">1');">11');">1');">1');">10- 2]. Because of this, Defendant determined that it needed to ...


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