United States District Court, M.D. Florida, Orlando Division
MT. HAWLEY INSURANCE COMPANY, Plaintiff,
TACTIC SECURITY ENFORCEMENT, INC., CARLOS RODRIGUEZ and SUSAN BIANCO, Defendants.
G. BYRON UNITED STATE DISTRICT JUDGE
cause comes before the Court without oral argument on the
1. Defendant Tactic Security Enforcement, Inc.'s Motion
for Judgment as a Matter of Law and Alternatively for a New
Trial (Doc. 178), filed May 25, 2018;
2. Plaintiff Mt. Hawley Insurance Company's Response in
Opposition to Defendant's Motion for Judgment as a Matter
of Law and Alternatively for a New Trial (Doc. 186), filed
June 15, 2018;
3. Defendant Tactic's Motion to Alter or Amend Judgment
and/or Motion for Relief from Judgment (Doc. 177), filed May
25, 2018; and
4. Plaintiff Mt. Hawley's Response Memorandum in
Opposition to Defendant's Motion to Alter or Amend (Doc.
187), filed June 15, 2018.
briefing complete, the matter is ripe. Upon consideration,
the renewed motion for judgment as a matter of law is due to
be denied, and the motion to amend judgment is due to be
suit centers on a disputed Commercial General Liability
Policy (the “Policy”) issued by
Plaintiff Mt. Hawley Insurance Company (“Mt.
Hawley”) to Defendant Tactic Security
Enforcement, Inc. (“Tactic”) for
the period of May 15, 2015, through May 15, 2016. (Doc.
54-4). The Policy provided coverage to Tactic for
“bodily injury” and “property damage,
” but excluded coverage for “‘bodily
injury,' ‘property damage[, ]' or
‘personal and advertising injury' arising out of .
. . [a]ny and all operations involving bars, taverns,
lounges, gentlemen's clubs[, ] and nightclubs”
“Exclusion”). (Id. at
pp. 5, 30).
the pendency of this suit, Mt. Hawley was defending Tactic in
two state court suits-brought by Carlos Rodrigues and David
Torres, Jr.'s estate, respectively- under a reservation
of rights. (Docs. 54-1, 54-2). The suits arise from shooting
incidents that took place at Que Rico Casa Del Mofongo
(“Que Rico”), an establishment
where Tactic was providing security services at the time of
each incident. (Docs. 54-1, 54-2).
Hawley brought suit seeking a declaratory judgment that the
Policy barred insurance coverage for the claims asserted in
the state court actions by virtue of the Exclusion. (Doc.
54). Mt. Hawley alleged that the claims in the state court
actions seek recovery for bodily injury “arising out of
. . . operations involving bars, taverns, lounges, . . . and
nightclubs, ” triggering the Exclusion. (Id.
trial, the jury returned a verdict finding that at the time
of both incidents, Que Rico-where Tactic was providing
security services-was operating as a bar, tavern, lounge,
gentlemen's club, or nightclub, triggering the Exclusion.
Tactic now renews its motion for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b), and
alternatively moves for a new trial. (Doc. 178). Tactic also
moves to amend the judgment entered in favor of Mt. Hawley
following the trial. (Doc. 177).
STANDARD OF REVIEW
Motion for Judgment as a Matter of Law and for New
the return of a jury verdict, Federal Rule of Civil Procedure
50(b) allows any party to renew a motion for judgment as a
matter of law previously made at trial under Rule 50(a).
Judgment as a matter of law should only be granted if no
objectively reasonable jury, based on the evidence and
inferences adduced at trial and through the exercise of
impartial judgment, could reach the verdict reached.
Brown v. Ala. Dep't of Transp., 597 F.3d 1160,
1173 (11th Cir. 2010); Combs v. Plantation Patterns,
106 F.3d 1519, 1526 (11th Cir. 1997). Stated differently, the
party moving for judgment as a matter of law must show that
the trial evidence “is so overwhelmingly [in its favor]
that a reasonable jury could not arrive at a contrary
verdict.” Middlebrooks v. Hillcrest Foods,
Inc., 256 F.3d 1241, 1246 (11th Cir. 2001). However,
where there is substantial evidenc e in the trial record that
would allow reasonable minds to reach different conclusions,
judgment as a matter of law is inappropriate. Mee Indus.
v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010).
considering a motion for judgment as a matter of law, the
district court must review the record and draw all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Brown, 597 F.3d at 1173.
Importantly, the district court must not make credibility
determinations or weigh evidence, as these are quintessential
functions reserved for the jury. Id.
district court may grant a new trial for a variety of
reasons, including when the verdict is against the great
weight of the evidence, the damages awarded by the jury are
excessive, the court erred in admitting or excluding evidence
or instructing the jury on the law, or other circumstances
resulted in a patently unfair trial. Fed.R.Civ.P. 59;
Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251 (1940). Whatever its reason, “a district court may,
in its discretion, grant a new trial ‘if in [the
court's] opinion, the verdict is against the clear weight
of the evidence . . . or will result in a miscarriage of
justice, even though there may be substantial
evidence'” which would preclude the entry of
judgment as a matter of law. McGinnis v. Am. Home Mortg.
Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016)
(quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554,
1556 (11th Cir. 1984)). Unlike a motion for judgment as a
matter of law made pursuant to Rule 50, the court “is
free to weigh the evidence” in assessing whether to
grant a new trial under Rule 59. Id. (quoting
Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1060
(11th Cir. 1982)).
Motion for Judgment as a Matter of Law
renewed motion for judgment as a matter of law advances three
arguments. First, Tactic asserts that its operations involved
a parking lot, not a bar, tavern, lounge, gentlemen's
club, or nightclub. (Doc. 178, p. 10). Second, Tactic
contends that the Exclusion was ambiguous because it did not
define bar, tavern, lounge, or nightclub, and after
construing the Exclusion in Tactic's favor as required by
Florida law, the evidence only permits a finding that
Tactic's operations did not involve a bar, tavern,
lounge, or nightclub. (Id. at pp. 10-14). Third,
Tactic argues that the evidence produced at trial “was
plainly insufficient . . . for the jury to have concluded
that on November 8, 2015, Que Rico was a ‘bar, tavern,
lounge, nightclub, or gentlemen's club.'”
(Id. at pp. 14-16).