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

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

August 18, 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

          AMANDA ARNOLD SANS ONE United States Magistrate Judge

         This matter comes before the Court on Plaintiff Zurich American Insurance Company's Motion in Limine (Doc. 72), and Defendant Robert A. Dalzell, Inc.'s response in opposition thereto (Doc. 75).

         I. BACKGROUND

         This action is an insurance coverage dispute involving three separate lawsuits. In the first lawsuit, Robert A. Dalzell, Inc. (“Dalzell”) sued European Tile and Floors, Inc. (“European”) and Mark Ellis, the owner of European, based on allegations that European was sending unsolicited faxes in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). This first lawsuit (“TCPA Lawsuit”) ended with the entry of an over two million dollar judgment in favor of Dalzell and against European and Ellis. However, at the time of the entry of judgment, European was out of business and Ellis had received a bankruptcy discharge.

         The second lawsuit was initiated after Dalzell learned that European was insured by Zurich American Insurance Company (“Zurich”) and that the insurance policy potentially covered TCPA claims. Dalzell filed the second lawsuit against Zurich in an Illinois state court in an effort to collect on the TCPA Lawsuit judgment. Thereafter, Zurich initiated this third lawsuit in this Court against European and Dalzell. In each of the four counts alleged against Dalzell, Zurich seeks a declaration that no coverage exists and a finding that it is not required to pay under the policy.

         On May 15, 2017, Zurich filed the instant motion seeking to exclude three categories of evidence and testimony from trial. (Doc. 72). On May 30, 2017, Dalzell filed a response in opposition to Zurich's Motion. (Doc. 75). Accordingly, this matter is ripe for review.[1]

         II. ANALYSIS

         A. 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 Prod. Liab. Litig., No. 6:06-md-1769-ORL-22DAB, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009). 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.”).

         B. Zurich's Motion in Limine

         Zurich seeks an Order to exclude three categories of evidence. Specifically, Zurich seeks to exclude: (1) “[a]ny and all testimony or evidence of a purported telephone call by Mark Ellis of European Tile and Floors, Inc. [] to an unknown telephone number, on an unknown date, to an unknown ‘Zurich customer service representative' in which Ellis allegedly provided ‘oral notice' of the underlying ‘fax blasting' or Telephone Consumer Protection Act [] lawsuit [] and in which Zurich allegedly denied coverage[;]” (2) “[a]ny and all testimony, including by an expert witness, or evidence that Zurich was not prejudiced by European's untimely written notice of the Underlying TCPA Lawsuit[;]” and (3) “[a]ny and all evidence or witnesses not previously produced or disclosed.” (Doc. 72).

         1.Ellis's Telephone Call to Zurich

         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 date ...


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