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.
ARNOLD SANS ONE United States Magistrate Judge
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).
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.
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
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.
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
Zurich's Motion in Limine
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).
Telephone Call to Zurich
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 date ...