# Marquez v. National Fire & Marine Insurance Company

> District Court, S.D. Florida · October 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10121124

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121124

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121124. Public record. Not legal advice.