United States District Court, M.D. Florida, Tampa Division
ZURICH AMERICAN INSURANCE COMPANY, as successor by merger to MARYLAND CASUALTY COMPANY, Plaintiff,
EUROPEAN TILE AND FLOORS, INC., and ROBERT A. DALZELL, INC., Defendants.
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE
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. Plaintiff
Zurich American Insurance Company filed a Response in
Opposition to the Motion on May 30, 2017. (Doc. # 73). The
Court denies the Motion as discussed below.
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-1769-Orl-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).
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. 07-80172-CIV, 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.
district court has broad discretion to determine the
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
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
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.
Dalzell's Motion in Limine
relevant insurance policy contains the following
requirements, including that all claims be submitted in
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 ...