Marquez v. National Fire & Marine Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22791-BLOOM/Louis

VILMA MARQUEZ,

Plaintiff,

v.

NATIONAL FIRE AND MARINE

INSURANCE COMPANY,

Defendant.

______________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon Defendant National Fire & Marine Insurance

Company’s (“Defendant”) Omnibus Post-Trial Motions on Liability and Damages, ECF No. [152]

(“Omnibus Post Trial Motion”). Plaintiff filed a Response, ECF No. [170] (“Response”), to which

Defendant filed a Reply, ECF No. [173] (“Reply”). The Motions were referred to United States

Magistrate Judge Lauren F. Louis for a Report and Recommendation, ECF No. [155]. On August

8, 2022, Magistrate Judge Louis issued a Report and Recommendations, ECF No. [179] (“R&R”),

recommending that Defendant’s Omnibus Post-Trial Motion be denied. See id. at 11. The R&R

advised the parties that objections to the R&R must be filed within fourteen (14) days of the R&R.

Id. Defendant thereafter timely filed Objections to the Magistrate Judge’s R&R, ECF No. [180]

(“Objections”), and Plaintiff timely filed a Response in Opposition to the Objections. ECF No.

[183] (“Response to Objections”).

The Court has conducted a de novo review of the R&R, the Objections, and the record in

this case in accordance with 28 U.S.C. § 636(b)(1)(C). See Williams v. McNeil, 557 F.3d 1287,

1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)). For the reasons set forth below, the Court

overrules Defendant’s Objections and adopts the R&R.

I. BACKGROUND

Plaintiff Vilma Marquez brought a claim for insurance benefits owed pursuant to her

homeowner’s insurance policy (“Policy”). ECF No. [1-1] at 3-8, 131-136. Defendant issued the

Policy to Plaintiff and her husband for their property located in Miami, Florida (“Property”). See

ECF No. [133-1]. During the Policy period, the Property sustained a covered loss. See ECF No.

[1-1] at 3-8, 131-136. Plaintiff thereafter filed suit, alleging that Defendant breached the Policy by

failing or refusing to properly adjust and pay her claim. ECF No. [1-1] at 3-8; 131-136. Defendant

asserted that Plaintiff was not entitled to recover under the Policy for a number of reasons,

including that Plaintiff had not made any repairs to the Property and therefore did not incur the

costs she sought to recover, as required by the Policy language. See id. at 151-156.

During the course of the proceedings, Plaintiff retained a cause, origin, and damage expert,

Alfredo Brizuela (“Brizuela”), who determined that the damage to Plaintiff’s Property resulted

from strong wind forces, a full roof replacement was necessary, and the cost to replace was

$136,484.46. ECF No. [133-9]. Defendant moved to strike certain testimony of Brizuela, ECF No.

[29] (“Motion to Strike”), arguing that Brizuela’s testimony did not meet the Daubert criteria. See

id; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). Defendant argued

that because Brizuela relied primarily on a CoreLogic report, which he himself did not create and

could not explain the methodology behind, his testimony should be stricken. ECF No. [29] at 7-8.

Defendant also moved for summary judgment raising, among other arguments, a deficiency in

Plaintiff’s damages claim which relied on Brizuela’s estimate for the cost to repair Plaintiff’s

Property. ECF No. [32] at 9. Defendant argued that since Brizuela’s estimate contained the cost to

fully replace Plaintiff’s roof, and not an actual cash value estimate, it was not appropriate as

Plaintiff was not entitled to any replacement cost since the repairs to the Property had not been

performed. Id.

The Court denied Defendant’s Motion to Strike, ECF No. [57], and thereafter denied in

part Defendant’s Motion for Summary Judgment, ECF No. [71]. In the Order on Summary

Judgment, the Court agreed with Defendant that Plaintiff was unable to seek replacement costs as

no repairs were performed. Hoewever, under Florida law, the replacement cost was still relevant

to the jury’s ultimate determination on damages, as the actual cash value is derived from the full

replacement cost. Id. at 13. Because Brizuela’s estimate supported Plaintiff’s theory that the actual

cash value of the loss exceeded what Defendant paid, that portion of the Defendant’s Motion was

denied. Id. at 14.

The case proceeded to trial and the jury returned a verdict in favor of the Plaintiff for

$136,484.46. ECF No. [135]. The Court thereupon entered a Final Judgment in favor of Plaintiff.

ECF No. [137]. Defendant filed its Omnibus Post Trial Motion, in which Defendant renewed its

Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b) and moved to alter or

amend the judgment or for a new trial pursuant to Fed. R. Civ. P. 59(a). ECF No. [152]. As stated,

the Court referred Defendant’s Omnibus Post Trial Motion to Magistrate Judge Louis for a R&R.

ECF No. [155].

On August 8, 2022, Magistrate Judge Louis issued her R&R in which she recommended

that Defendant’s Omnibus Post Trial Motion be denied. ECF No. [179]. Defendant filed its

Objections to the R&R, in which it asserts that the R&R “relie[d] on incorrect statements of the

record evidence” and “impermissibly defer[ed] to the jury’s verdict” which rested on “a specific

expert opinion derived from a methodology that has not been established as reliable” and where

the jury failed to heed the Court’s instructions on damages. ECF No. [180]. Plaintiff responds that

Defendant simply re-raises in its Objections the same arguments that have already been rejected

by this Court and Magistrate Judge Louis in the R&R. ECF No. [183].

II. LEGAL STANDARD

a. Objections to Magistrate Judge’s R&R

“In order to challenge the findings and recommendations of the magistrate judge, a party

must file written objections which shall specifically identify the portions of the proposed findings

and recommendation to which objection is made and the specific basis for objection.” Macort v.

Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822

(11th Cir. 1989)) (alterations omitted). The objections must also present “supporting legal

authority.” S.D. Fla. L. Mag. J.R. 4(b). The portions of the report and recommendation to which

an objection is made are reviewed de novo only if those objections “pinpoint the specific findings

that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see

also Fed. R. Civ. P. 72(b)(3). If a party fails to object to any portion of the magistrate judge’s

report, those portions are reviewed for clear error. Macort, 208 F. App’x at 784 (quoting Johnson

v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)); see also Liberty Am. Ins. Grp., Inc. v.

WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001). “It is improper for

an objecting party to ... submit [ ] papers to a district court which are nothing more than a rehashing

of the same arguments and positions taken in the original papers submitted to the Magistrate Judge.

Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to an

R & R.” Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug.

21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380,

382 (W.D.N.Y. 1992)). A district court may accept, reject, or modify a magistrate judge’s report

and recommendation. 28 U.S.C. § 636(b)(1).

b. Judgment as a Matter of Law

“[A] court should render judgment as a matter of law when there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue. . . . We review all of the

evidence in the record and draw all reasonable inferences in favor of the nonmoving party.”

Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (citations omitted). “[I]f there is substantial

conflict in the evidence, such that reasonable and fair-minded persons in the exercise of impartial

judgment might reach different conclusions, the motion must be denied.” Id. at 1311 (citing

Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006)). Simply put, “judgment as a matter

of law is appropriate only if the facts and inferences point so overwhelmingly in favor of one party

that reasonable people could not arrive at a contrary verdict.” Brown v. Alabama Dep’t of Transp.,

597 F.3d 1160, 1173 (11th Cir. 2010) (citation and internal quotation marks omitted).

c. New Jury Trial

Among other relief, a court may grant a new jury trial under Rule 59 “for any reason for

which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P.

59(a). For instance, a party may assert that “the verdict is against the weight of the evidence, that

the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.”

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). Thus, a motion for new trial should

be granted “when 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 prevent the

direction of a verdict.” Brown v. Sheriff of Orange Cnty., Fla., 604 F. App'x 915 (11th Cir. 2015)

(per curiam) (quoting Lipphardt, 267 F.3d at 1186); see Tucker v. Hous. Auth. of Birmingham

Dist., 229 F. App'x 820, 826 (11th Cir. 2007) (“[N]ew trials should not be granted on evidentiary

grounds unless, at a minimum, the verdict is against the great – not merely the greater – weight of

the evidence.”); Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1320 n.3 (11th Cir. 1999)

(holding that, because a “less stringent standard applies to a motion for a new trial than to a motion

for a judgment as a matter of law,” the failure to meet the Rule 59 standard is fatal to the Rule

50(b) standard) (citation omitted).

d. Alter or Amend Judgment

A motion to alter or amend a judgment under Rule 59 must be filed no later than 28 days

after the entry of judgment. Fed. R. Civ. P. 59(e). However, the United States Supreme Court and

the Court of Appeals for the Eleventh Circuit have made it clear that Rule 59(e) “may not be used

to relitigate old matters, or to raise arguments or present evidence that could have been raised prior

to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008); see also

Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713, 746 (11th Cir. 2014); In re

Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (recognizing that Rule 59(e) motions may only be

granted based on “newly-discovered evidence or manifest errors of law or fact.”); Arthur v. King,

500 F.3d 1335, 1343 (11th Cir. 2007) (“A Rule 59(e) motion cannot be used to relitigate old

matters, raise argument or present evidence that could have been raised prior to the entry of

judgment.”). “A motion for relief under Rule 59(e) is a matter committed to the discretion of the

district court.” Bland v. Alabama, No. 2:15-CV-0029-MHH-JEO, 2016 WL 10930989, at *1 (N.D.

Ala. Oct. 6, 2016) (citing Stansell, 771 F.3d at 746).

III. ANALYSIS

Defendant raises two objections to the R&R: (1) The R&R rests on the wrongful

assumption that Plaintiff’s expert, Brizuela, relied on multiple sources to reach his opinion as to

causation; and (2) the R&R impermissibly deferred to the jury’s verdict where the jury undeniably

awarded the replacement cost of a new roof in violation of the Court’s instructions that damages

could be awarded only for actual damages. The Court addresses each of Defendant’s objections.

a. Expert Testimony

Defendant first argues that the R&R impermissibly assumed that Brizuela relied on sources

other than the CoreLogic report in reaching his opinions. ECF No. [180] at 1-2. Defendant asserts

that none of the other evidence contemplated by Brizuela could have allowed him to arrive at his

key conclusion, that wind speeds were 62 miles per hour at Plaintiff’s Property on May 6, 2019.

Id. at 3. Defendant further asserts that it was prejudiced by Brizuela’s impermissibly admitted

expert testimony. Id. Plaintiff responds that the R&R already considered this argument;

Defendant’s original Omnibus Post Trial Motion raised the argument about Brizuela’s testimony

that is simply rehashed in Defendant’s Objections. ECF No. [183] at 2 n. 1, 5. Plaintiff further

contends that the R&R correctly determined that Brizuela’s expert testimony did not warrant a

directed verdict or new trial, as his methodology was reliable and the CoreLogic report was only

one of multiple sources Brizuela used to draw his conclusions. ECF No. [183] at 8. The Court

agrees with Plaintiff and adopts the findings in the R&R.

Defendant’s first objection to the R&R puts forth the same argument Defendant asserted

in its Motion to Strike as well as in its Omnibus Post Trial Motion. See ECF No. [29]; ECF No.

[152]; ECF No. [180]. In each filings Defendant argued that Brizuela relied on the CoreLogic

report which he did not generate and cannot explain the methodology behind. Since that was the

only evidence to support his opinion that wind speeds were high enough on May 6, 2019 to cause

the reported damage to Plaintiff’s Property, Brizuela’s opinion is not reliable. See id.

The R&R considered and fairly addressed Defendant’s argument that Brizuela’s testimony

was unreliable as it lacked a scientifically reliable methodology for establishing wind speeds. See

ECF No. [179] at 3-5, 7, 10. The R&R specifically found that Brizuela’s opinion was “informed

not only by CoreLogic data but additionally considered sources such as thermal, historical, and

aerial photographs of the damage including images captured by drones; a physical inspection of

the roof to determine the extent of damage to the roof membrane, and information from the

National Weather Service.” Id. at 4-5. The R&R also highlighted that Brizuela testified that

CoreLogic is accepted in the forensic engineering industry and scientific community, that he

employed engineering and construction principles, his in-depth knowledge of construction

materials and damages along with his over forty years of experience to generate his opinions. Id.

at 5. The R&R specifically found that “Brizuela also stated that his opinion would have been the

same regardless of the CoreLogic report.” Id. Judge Louis found that upon a thorough review of

the evidence presented at trial and drawing all reasonable inferences in favor of Plaintiff, as the

non-moving party, there is no legally sufficient evidentiary basis to grant Defendant’s Motion for

Judgment as a Matter of Law. Id. at 5. Furthermore, Judge Louis concluded that the jury’s verdict

was not against the clear or great weight of the evidence and recommended that Defendant’s

Motion for a New Trial be denied. Id. at 10-11.

The Court points out that Defendant’s objection is improper, as it simply rehashes an

argument included in its original briefing. Nevertheless, the Court has conducted a review of the

record, transcripts, and all exhibits admitted at trial. Contrary to Defendant’s assertion that

Brizuela’s testimony was premised entirely on a CoreLogic report, Brizuela testified both at the

July 7, 2021 hearing and at trial that his conclusions were premised on multiple sources. See ECF

No. [59] at 3-15; ECF No. [164] at 6-17, 145-165. At trial, Brizuela testified that he relied on the

CoreLogic report and National Oceanic and Atmospheric Administration data collected at the

Kendall-Tamiami Executive Airport and Miami International Airport to calculate the relevant

wind forces. ECF No. [164] at 11-12, 146. Brizuela explained that it is industry custom for

engineers to rely on those data sources. Id. In addition, Brizuela photographed Plaintiff’s Property

using a thermal camera, photographed it again with a drone, and conducted two physical

inspections. ECF No. [163] at 207; ECF No. [164] at 13, 18. On cross-examination, Defendant

questioned Brizuela at length on his lack of knowledge about the proprietary method used to

generate the CoreLogic report in the presence of the jury. ECF No. [164] at 158-162. In closing

argument at trial, Defendant further reiterated that Brizuela relied on the CoreLogic report without

having created it himself or knowledge of the methodology used to create it. ECF No. [166] at

129. At trial, the jury also heard from defense expert Lee Bascome who presented an opinion

contrary to that offered by Brizuela. See ECF No. [165] at 242-260.

The Court has considered the evidence presented and finds that the verdict was well

supported. Even considering the competing theories presented by Plaintiff and Defendant, where

there is a substantial conflict in the evidence such that fair-minded persons might reach different

conclusions, judgment as a matter of law is not appropriate. Gowski v. Peake, 682 F.3d 1310. The

verdict is similarly not contrary to the clear or great weight of the evidence. See Hewitt v. B.F.

Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984). The Court therefore adopts the finding of the

R&R and overrules the objection.

b. Deference to the Jury Verdict

Defendant’s second objection is that the R&R impermissibly deferred to the jury’s verdict

where the jury undeniably awarded the replacement cost of a new roof in violation of the Court’s

instructions that damages only could be awarded for direct physical damage to the roof. ECF No.

[180] at 4. Plaintiff responds that the jury heard testimony regarding the extensive damage to the

roof and other areas of the home and estimates from multiple experts on the replacement cost of

the roof, giving the jury a reasonable basis for its verdict. ECF No. [183] at 11-12.

The R&R found that the jury had the right to weigh the testimony of Brizuela, Defendant’s

expert, other testimony, and the entire record evidence in their determination of the actual cash

value of the physical direct damage to Plaintiff’s Property; and the verdict reflects the jury’s factual

findings with respect to damages. ECF No. [179] at 8. Accordingly, the R&R recommends the

verdict and final judgment stand. Id. at 9.

As set forth in its Omnibus Post Trial Motion, Defendant relies on Alphamed Pharm. v.

Arriva Pharm., 432 F. Supp. 2d 1319, 1358 (S.D. Fla. 2006) to support its contention that the R&R

afforded undue deference to the jury verdict. ECF No. [180] at 5-6. There, the Court found that

the Plaintiff failed to “prove the fact of damage—i.e., that it would have earned a profit (of any

amount) but for [the defendant’s] conduct” and therefore “there [wa]s no reasonable basis for the

jury's compensatory damage award in th[at] matter.” Alphamed Pharm. at 1352.

Upon review, the authority Defendant cites is inapposite and does not instruct that the R&R

applied the incorrect standard of deference to the jury’s award. In Alphamed Pharm., the Court

articulated that while the Court affords deference to a jury’s findings, a jury verdict is not entitled

to rely on unreasonable inferences. Id. at 1333. This is consistent with the standard articulated in

the R&R. See ECF No. [179] at 5-6. The jury is, of course, the traditional finder of the facts, and

its verdict must stand unless [the losing party] can show that there is no substantial evidence to

support it, considering the evidence in the light most favorable to [the prevailing party], and

clothing it with all reasonable inferences to be deduced therefrom.” Liberty Mut. Ins. Co. v.

Falgoust, 386 F. 2d 248, 253 (5th Cir. 1967). “It is not the function of the [district] court, however,

to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion

opposite from the one reached by the jury, where there is a reasonable basis in the record for the

jury’s verdict.” Id.

At trial, Defendant objected to the admission of Brizuela’s estimate of the cost to repair the

damage to Plaintiff’s property on hearsay grounds and argued that the lack of depreciation

calculations in Brizuela’s estimate did not provide the actual cash value of the damage and

therefore was unduly prejudicial. ECF No. [164] at 57-63. That objection was overruled. Id. The

jury was presented with multiple sources of testimony on damages including Plaintiff, Plaintiff’s

expert Brizuela, and Defendant’s own experts detailing the actual damage to Plaintiff’s roof and

the interior of Plaintiff’s home. See ECF No. [163]; ECF No. [164]; ECF No. [165]. Moreover, the

jury was also presented with pictorial evidence of that damage. See ECF No. [163]; ECF No. [133].

In light of the evidence presented, there was a reasonable basis for this jury’s compensatory

damage award.

Furthermore, the Court properly instructed the jury to limit the recoverable damages to the

actual cash value of those items that suffered direct and physical damage, not the replacement cost

value. ECF No. [166] at 95-96; 158-159.1 The Court presumes the jury followed its instructions.

See Parker v. Randolph, 442 U.S. 62, 73 (1979) (“A crucial assumption underlying that system [of

trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not

so, it would be pointless for a trial court to instruct a jury.”); id. at 75 n.7 (“The ‘rule’—indeed,

the premise upon which the system of jury trials functions under the American judicial system—

1 The relevant portion of the trial transcript reads: “The parties agree that the appropriate measure of damages in this

matter is actual cash value. To calculate the amount of actual cash value, you must determine the amount of the

replacement cost value. Replacement cost value is the replacement cost of the part of the building damaged with

material of like kind and quality and for like use. Then, you must determine the appropriate amount of recoverable

depreciation that applies to the replacement cost value. Your calculation for actual cash value is the difference

between those two figures.” ECF No. [166] at 95-96.

Case No. 20-cv-22791-BLOOM/Louis

is that juries can be trusted to follow the trial court's instructions.”). The record clearly

demonstrates that the jurors understood they were to award the actual cash value rather than the

replacement cost. Tellingly, during the jury deliberations, the jurors submitted a note asking

“Tb]ased on the estimates provided two years ago, are we able to consider inflationary percentage

increases due current costs, actual costs?” ECF No. [166] at 173. While Defendant disagrees with

the inferences drawn by the jury, it was not unreasonable for the jury to draw its inferences, or to

award plaintiff $136,484.46, in damages. The Defendant’s objection is therefore overruled.

IV. CONCLUSION

Upon a comprehensive de novo review, the Court finds Magistrate Judge Louis’ R&R to

be well reasoned and correct on all matters.

Accordingly, it is ORDERED and ADJUDGED as follows:

1. The R&R, ECF No. [179], is ADOPTED.

2. Defendant’s Objections, ECF No. [180], ace OVERRULED.

3. Defendant’s Omnibus Post Trial Motion, ECF No. [152], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on October 11, 2022

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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