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Zurich American Insurance Co. v. European Tile & Floors, Inc.

United States District Court, M.D. Florida, Tampa Division

June 6, 2017

ZURICH AMERICAN INSURANCE COMPANY, as successor by merger to MARYLAND CASUALTY COMPANY, Plaintiff,
v.
EUROPEAN TILE AND FLOORS, INC., and ROBERT A. DALZELL, INC., Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

         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. 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.

         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-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).

         “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. 07-80172-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.

         The 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 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 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 in 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 ...

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