WEBVTT 3 00:00:00.000 --> 00:00:00.433 >> RECOVER CONSEQUENTIAL 4 00:00:00.599 --> 00:00:04.970 DAMAGES, THAT IS DAMAGES ABOVE 5 00:00:05.137 --> 00:00:09.108 WHAT THE POLICY PROVIDES IN A 6 00:00:09.275 --> 00:00:09.708 BREACH OF CONTRACT ACTION 7 00:00:09.875 --> 00:00:10.376 WITHOUT HAVING TO FILE A BAD 8 00:00:10.543 --> 00:00:11.710 FAITH CASE. 9 00:00:11.878 --> 00:00:17.384 WE SUBMIT THE ANSWER TO THAT 10 00:00:17.551 --> 00:00:17.983 QUESTION HAS TO BE KNOWN. 11 00:00:18.150 --> 00:00:18.652 I THINK THE COURT CAN ANALYZE 12 00:00:18.818 --> 00:00:19.351 THIS FROM TWO DIFFERENT LINES OF 13 00:00:19.518 --> 00:00:21.153 CASES THAT WILL GET YOU TO THE 14 00:00:21.320 --> 00:00:22.555 STARTING POINT. 15 00:00:22.721 --> 00:00:27.193 THE FIRST LINE IS THE DAY 16 00:00:27.359 --> 00:00:33.033 ASSOCIATES, WE ARE TOLD 17 00:00:33.199 --> 00:00:36.635 INTERPRETING THAT INSURANCE 18 00:00:36.802 --> 00:00:39.405 POLICY, WITH REASONABLE 19 00:00:39.572 --> 00:00:48.280 EXPECTATIONS, AND DO NOT REQUIRE 20 00:00:48.447 --> 00:00:56.356 EVIDENCE TO RESOLVE AMBIGUITIES, 21 00:00:56.522 --> 00:00:56.957 THE INSURANCE CONTRACT IS 22 00:00:57.123 --> 00:00:57.656 UNAMBIGUOUS THAN OTHER CONTRACTS 23 00:00:57.823 --> 00:00:58.257 YOU READ ACCORDING TO THE 24 00:00:58.424 --> 00:01:02.728 EXPRESS CHOICE. 25 00:01:02.896 --> 00:01:03.429 IF IT IS AMBIGUOUS WE DON'T LOOK 26 00:01:03.596 --> 00:01:04.263 AT THAT EVIDENCE, WE INTERPRET 27 00:01:04.430 --> 00:01:12.539 IT IN THE MOST FAVORABLE. 28 00:01:12.706 --> 00:01:13.138 SO ASSOCIATES ANSWER THE 29 00:01:13.305 --> 00:01:13.839 QUESTION OF HOW DO YOU INTERPRET 30 00:01:14.006 --> 00:01:17.543 AMBIGUITIES IN A INSURANCE 31 00:01:17.710 --> 00:01:23.382 POLICY ACCORDING TO TERMS 32 00:01:23.549 --> 00:01:24.049 INTERPRETING IN FAVOR OF THE 33 00:01:24.216 --> 00:01:27.153 INSURED. 34 00:01:27.320 --> 00:01:27.853 REASONABLE EXPECTATIONS DOESN'T 35 00:01:28.021 --> 00:01:28.888 APPLY. 36 00:01:29.054 --> 00:01:30.957 A DOCTRINE THE DISTRICT COURT 37 00:01:31.123 --> 00:01:34.226 IMPOSED WHICH MANNER HOUSE 38 00:01:34.393 --> 00:01:38.697 WISHES THIS COURT TO ADOPT IS 39 00:01:38.864 --> 00:01:43.168 EXTRACONTRACTUAL CONSEQUENTIAL 40 00:01:43.335 --> 00:01:52.278 DAMAGES ARE PERMISSIBLE IF THEY 41 00:01:52.445 --> 00:01:52.978 ARE WITHIN THE CONTEMPLATION OF 42 00:01:53.146 --> 00:01:53.679 THE PARTIES AT THE TIME OF THE 43 00:01:53.846 --> 00:01:54.013 CONTRACT. 44 00:01:54.179 --> 00:01:54.581 THERE IS NO DIFFERENCE 45 00:01:54.748 --> 00:01:55.147 PRACTICALLY, LEGALLY OR 46 00:01:55.314 --> 00:01:56.582 LOGICALLY BETWEEN BEING IN 47 00:01:56.749 --> 00:01:57.284 CONTEMPLATION OF THE PARTIES AND 48 00:01:57.450 --> 00:01:59.685 WITH THE PARTY'S REASONABLE 49 00:01:59.852 --> 00:02:01.754 EXPECTATIONS WERE. 50 00:02:01.921 --> 00:02:04.156 YOU HAVE TO LOOK AT PAROLE 51 00:02:04.323 --> 00:02:08.795 EVIDENCE EITHER WAY SO UNDER 52 00:02:08.961 --> 00:02:09.461 ASSOCIATES LINES OF CASES YOU 53 00:02:09.629 --> 00:02:12.932 CAN'T GET THERE, YOU CAN'T 54 00:02:13.098 --> 00:02:13.567 CONSIDER WITH THE PARTY IS 55 00:02:13.733 --> 00:02:16.201 CONTEMPLATING, THEREFORE EXTRA 56 00:02:16.368 --> 00:02:21.173 CONTRACTUAL DAMAGES ARE 57 00:02:21.341 --> 00:02:21.574 IMPERMISSIBLE. 58 00:02:21.740 --> 00:02:23.610 THE COURT CAN ALSO COME AT IT 59 00:02:23.776 --> 00:02:28.581 FROM ANOTHER MINE OF CASES WHICH 60 00:02:28.747 --> 00:02:31.517 THE ENTERPRISE CASES ALSO FROM 61 00:02:31.685 --> 00:02:35.822 THE FLORIDA SUPREME COURT, IN 62 00:02:35.988 --> 00:02:41.760 2006, TALENT WAS IN 2000 AND IN 63 00:02:41.927 --> 00:02:44.163 THOSE CASES THE COURT DECIDED OR 64 00:02:44.331 --> 00:02:48.134 THE COURT NOTED UNDER COMMON LAW 65 00:02:48.300 --> 00:02:52.271 THE ONLY DAMAGES AVAILABLE FOR 66 00:02:52.439 --> 00:02:52.939 BREACH OF CONTRACT WHERE THE 67 00:02:53.105 --> 00:02:55.709 DAMAGES STATED IN THE POLICY 68 00:02:55.875 --> 00:03:01.213 ITSELF. 69 00:03:01.381 --> 00:03:01.881 THEY SAID THE ONLY COMMON-LAW 70 00:03:02.048 --> 00:03:07.052 ACTION AVAILABLE WAS BREACH OF 71 00:03:07.220 --> 00:03:07.687 CONTRACT ACTION AGAINST THE 72 00:03:07.853 --> 00:03:08.355 INSURER IN WHICH DAMAGES WERE 73 00:03:08.521 --> 00:03:10.323 LIMITED TO THOSE CONTEMPLATED BY 74 00:03:10.490 --> 00:03:12.025 THE PARTIES IN THE INSURANCE 75 00:03:12.192 --> 00:03:19.966 POLICY, PAGE 455-56. 76 00:03:20.132 --> 00:03:20.600 >> CAN YOU DISTINGUISH THE 77 00:03:20.766 --> 00:03:25.305 DAMAGES CONTEMPLATED BY PARTIES 78 00:03:25.472 --> 00:03:25.972 IN THIS CASE FROM THE DAMAGES 79 00:03:26.139 --> 00:03:30.110 CONTEMPLATED BY THE PARTIES IN 80 00:03:30.276 --> 00:03:30.776 THE LIFE INVESTORS INSURANCE 81 00:03:30.944 --> 00:03:32.679 COMPANY VERSUS JOHNSON CASE, OR 82 00:03:32.846 --> 00:03:36.316 OTHER CASES WHERE THE INSURANCE 83 00:03:36.483 --> 00:03:37.684 INTENDED POLICY TO ENSURE THAT 84 00:03:37.850 --> 00:03:44.490 PAYMENTS CONTINUE IS PROTECTED 85 00:03:44.658 --> 00:03:47.259 AGAINST. 86 00:03:47.427 --> 00:03:51.197 HOW IS THIS CASE DIFFERENT? 87 00:03:51.364 --> 00:03:53.432 >> WHEN YOU TALK ABOUT THE OTHER 88 00:03:53.600 --> 00:03:55.335 CASES THERE ARE NO OTHER FLORIDA 89 00:03:55.502 --> 00:03:59.639 CASES OTHER THAN LIFE INVESTOR 90 00:03:59.805 --> 00:04:00.340 VERSUS JOHNSON, THE FIRST PARTY 91 00:04:00.507 --> 00:04:03.242 CONTEXT YOU CAN HAVE 92 00:04:03.410 --> 00:04:05.644 CONSEQUENTIAL DAMAGES. 93 00:04:05.812 --> 00:04:08.247 THAT IS A 1982 CASE THAT WAS 94 00:04:08.415 --> 00:04:10.817 DECIDED NOT UNDER THE 95 00:04:10.984 --> 00:04:17.023 CONTEMPORARY SCHEME OF 624 AND 96 00:04:17.189 --> 00:04:17.590 155, THAT CASE DID NOT 97 00:04:17.757 --> 00:04:19.425 DISTINGUISH BETWEEN INSURANCE 98 00:04:19.591 --> 00:04:24.230 CONTRACTS AND OTHER CONTRACTS 99 00:04:24.396 --> 00:04:29.401 AND THIS COURT HAS NOTED IN 100 00:04:29.569 --> 00:04:38.677 OTHER CASES THE DIFFERENCE THAT 101 00:04:38.845 --> 00:04:39.379 I AM THINKING ABOUT, HAS NOTED 102 00:04:39.545 --> 00:04:40.346 THE DISTINCTION COMMON-LAW HAS 103 00:04:40.513 --> 00:04:44.484 MADE BETWEEN INTERPRETING 104 00:04:44.651 --> 00:04:45.151 INSURANCE POLICIES AND OTHER 105 00:04:45.317 --> 00:04:49.122 POLICIES. 106 00:04:49.288 --> 00:04:49.823 THERE ARE A LOT OF DIFFERENCES 107 00:04:49.989 --> 00:04:51.357 IN INSURANCE POLICIES AND THAT 108 00:04:51.524 --> 00:04:56.162 IS WHY THIS COURT SAID BECAUSE 109 00:04:56.329 --> 00:04:56.795 OF THE UNIQUE INSTITUTIONAL 110 00:04:56.963 --> 00:05:01.668 NATURE OF INSURANCE POLICIES WE 111 00:05:01.835 --> 00:05:02.367 HAVE INTERPRETED THOSE POLICIES 112 00:05:02.535 --> 00:05:04.603 DIFFERENTLY AND SOME OF THE 113 00:05:04.771 --> 00:05:09.776 DIFFERENCES, WHAT I JUST SAID, 114 00:05:09.942 --> 00:05:10.442 YOU DON'T INTERPRET INSURANCE 115 00:05:10.610 --> 00:05:17.317 POLICIES, IF THERE IS ANY 116 00:05:17.484 --> 00:05:18.016 AMBIGUITY THE INSURANCE COMPANY 117 00:05:18.184 --> 00:05:18.718 LOSES, THAT'S DIFFERENT FROM THE 118 00:05:18.884 --> 00:05:19.586 RUN-OF-THE-MILL CONTRACT AND 119 00:05:19.752 --> 00:05:21.821 THEY CAN HAVE A PREVAILING 120 00:05:21.987 --> 00:05:25.925 ATTORNEY FEE IN THIS CONTRACT OR 121 00:05:26.091 --> 00:05:26.526 THE INSURED FROM GETTING 122 00:05:26.692 --> 00:05:29.728 ATTORNEYS FEES, THE STATUTE FROM 123 00:05:29.896 --> 00:05:35.033 428, WHICH CITIZENS WERE SUBJECT 124 00:05:35.201 --> 00:05:35.735 TO PROVIDES ATTORNEYS FEES TO A 125 00:05:35.901 --> 00:05:37.804 PREVAILING BREACH OF CONTRACT 126 00:05:37.971 --> 00:05:42.742 ACTION BUT NOT TO A PREVAILING 127 00:05:42.908 --> 00:05:43.343 IN SURE, THAT IS ANOTHER 128 00:05:43.509 --> 00:05:47.379 DISTINCTION. 129 00:05:47.547 --> 00:05:47.947 THE COURT MADE ANOTHER 130 00:05:48.114 --> 00:05:48.548 DISTINCTION, THERE IS NO 131 00:05:48.715 --> 00:05:57.189 COMMON-LAW IN INSURANCE CONTRACT 132 00:05:57.357 --> 00:05:57.891 BECAUSE WE HAVE STATUTE 624-155 133 00:05:58.057 --> 00:05:58.591 AND COMMON-LAW THERE WAS NO BAD 134 00:05:58.757 --> 00:06:02.162 FAITH ACTION IN FIRST PARTY 135 00:06:02.328 --> 00:06:12.672 CONTEXT. 136 00:06:12.838 --> 00:06:13.338 THE INSURANCE CONTRACTS WERE 137 00:06:13.506 --> 00:06:14.040 HIGHLY REGULATED AND HAVE TO BE 138 00:06:14.206 --> 00:06:14.706 APPROVED, CHANGES HAVE TO BE 139 00:06:14.874 --> 00:06:15.375 APPROVED BY THE DEPARTMENT OF 140 00:06:15.542 --> 00:06:17.310 INSURANCE REGULATION. 141 00:06:17.477 --> 00:06:17.977 INVESTORS DISTINGUISH NONE OF 142 00:06:18.144 --> 00:06:18.343 THESE CASES. 143 00:06:18.511 --> 00:06:21.114 IT WAS DECIDED UNDER A PRIOR 144 00:06:21.281 --> 00:06:21.747 SCHEME EVEN THOUGH WAS WHAT 145 00:06:21.915 --> 00:06:27.821 1982, IT WAS ENACTED, MOVING 146 00:06:27.987 --> 00:06:33.826 WITH THE STATUTE, THE CONTRACT, 147 00:06:33.992 --> 00:06:36.763 NO FLORIDA COURT SINCE LIFE 148 00:06:36.930 --> 00:06:39.331 INVESTORS HAS FOLLOWED THAT 149 00:06:39.499 --> 00:06:40.800 CASE. 150 00:06:40.966 --> 00:06:47.706 THAT CASE IS AN OUTLIER AND THE 151 00:06:47.874 --> 00:06:48.341 REASON IT DOESN'T MATTER IS 152 00:06:48.507 --> 00:06:48.942 BECAUSE OF THE BAD FAITH 153 00:06:49.108 --> 00:06:52.846 STATUTE. 154 00:06:53.012 --> 00:06:53.513 ANY CASE EXCEPT FREE CITIZENS 155 00:06:53.680 --> 00:06:58.550 CASE WHICH IS WHY WE ARE HERE, 156 00:06:58.718 --> 00:06:59.252 CAN FILE BAD FAITH ACTION, GET 157 00:06:59.418 --> 00:07:03.857 ATTORNEYS FEES, MORE DAMAGES 158 00:07:04.023 --> 00:07:04.557 THAN BREACH OF CONTRACT ACTION 159 00:07:04.723 --> 00:07:09.562 AND CONSEQUENTIAL DAMAGES AND 160 00:07:09.728 --> 00:07:10.263 EVEN GET PUNITIVE DAMAGES UNDER 161 00:07:10.430 --> 00:07:10.930 CERTAIN CIRCUMSTANCES IF YOU 162 00:07:11.097 --> 00:07:11.598 LOOK AT SUBSECTION 5, THOSE 163 00:07:11.764 --> 00:07:15.067 CIRCUMSTANCES HAVE TO BE MET, 164 00:07:15.235 --> 00:07:15.768 THAT IS POSSIBLE TO GET PUNITIVE 165 00:07:15.935 --> 00:07:18.671 DAMAGES UNDER THE BAD FAITH 166 00:07:18.837 --> 00:07:19.873 STATUTE. 167 00:07:20.038 --> 00:07:22.442 THAT IS WHY NO CASE THAT 168 00:07:22.609 --> 00:07:25.010 FOLLOWED JOHNSON IN THE YEARS 169 00:07:25.177 --> 00:07:29.315 SINCE IT WAS DECIDED -- TO YOU 170 00:07:29.481 --> 00:07:29.782 HAVE A QUESTION? 171 00:07:29.948 --> 00:07:30.483 >> DID YOU HAVE ANYTHING ELSE TO 172 00:07:30.649 --> 00:07:34.153 SAY IN RESPONSE? 173 00:07:34.320 --> 00:07:36.389 >> NOW EXCEPT IN SOME CASES 174 00:07:36.556 --> 00:07:40.960 FOLLOWED IT. 175 00:07:41.126 --> 00:07:41.527 ALL THOSE CASES CAN BE 176 00:07:41.693 --> 00:07:43.196 DISTINGUISHED, THE ELEVENTH 177 00:07:43.363 --> 00:07:49.568 CIRCUIT CASE, LOOK AT NOTE 12, 178 00:07:49.735 --> 00:07:52.672 THEY DIDN'T DECIDE THE CASE ON 179 00:07:52.839 --> 00:07:53.206 CONSEQUENTIAL DAMAGES. 180 00:07:53.373 --> 00:07:55.774 THEY SAID BECAUSE WE DECIDED 181 00:07:55.942 --> 00:07:59.544 THIS WE NEED NOT DETERMINE 182 00:07:59.711 --> 00:08:00.212 WHETHER CONSEQUENTIAL DAMAGES 183 00:08:00.379 --> 00:08:02.481 ARE AVAILABLE WITH BREACH OF 184 00:08:02.649 --> 00:08:06.418 CONTRACT ACTION. 185 00:08:06.586 --> 00:08:07.120 THE OTHER CASES, WE'VE DONE THAT 186 00:08:07.287 --> 00:08:11.924 IN OUR BRIEF. 187 00:08:12.091 --> 00:08:12.591 >> WHICH OF THE TWO PASTY YOU 188 00:08:12.759 --> 00:08:14.693 OUTLINE, WHICH WOULD BE NARROW 189 00:08:14.860 --> 00:08:17.096 WHERE IN THE SENSE OF HAVING FEW 190 00:08:17.263 --> 00:08:25.705 WERE BROAD FOR CONSEQUENCES? 191 00:08:25.871 --> 00:08:26.371 >> I DON'T THINK ANY OF THEM 192 00:08:26.538 --> 00:08:27.039 WOULD HAVE BROAD CONSEQUENCES 193 00:08:27.206 --> 00:08:27.706 BECAUSE YOU'RE KEEPING THE 194 00:08:27.874 --> 00:08:28.073 STATUS QUO. 195 00:08:28.240 --> 00:08:31.376 THERE'S NOTHING IN THOSE CASES, 196 00:08:31.543 --> 00:08:35.682 FOR EXAMPLE WHEN DANNY - YOU 197 00:08:35.847 --> 00:08:39.284 DON'T HAVE A DOCTRINE OF 198 00:08:39.451 --> 00:08:42.322 REASONABLE EXPECTATIONS AND THAT 199 00:08:42.488 --> 00:08:48.860 HAS BEEN THE LAW SINCE 1998. 200 00:08:49.028 --> 00:08:52.798 TO EQUATE CONSEQUENTIAL DAMAGES 201 00:08:52.966 --> 00:08:53.499 THEY CONTEMPLATED AT THE TIME OF 202 00:08:53.666 --> 00:08:55.400 THE CONTRACT WITH REASONABLE 203 00:08:55.567 --> 00:09:00.206 EXPECTATIONS - 204 00:09:00.373 --> 00:09:03.643 >> IN THAT CASE, OBVIOUSLY THE 205 00:09:03.810 --> 00:09:08.648 CASE HAS THAT LINE IN THEIR BUT 206 00:09:08.815 --> 00:09:09.282 IT DOES SEEM LIKE THERE WAS 207 00:09:09.448 --> 00:09:12.085 ANALYSIS OR THOUGHT THAT WENT 208 00:09:12.250 --> 00:09:12.384 INTO IT. 209 00:09:12.552 --> 00:09:14.320 THAT ONE LINE IN THE MIDDLE OF 210 00:09:14.486 --> 00:09:17.757 THE PARAGRAPH, IT IS ENOUGH, THE 211 00:09:17.923 --> 00:09:25.831 FIFTH DCA, THOSE WERE GOOD 212 00:09:25.999 --> 00:09:26.532 JUDGES THAT THE CONCEPT IF IT IS 213 00:09:26.698 --> 00:09:27.200 THAT BASIC, IT EITHER LOOTED 214 00:09:27.366 --> 00:09:27.500 THEM. 215 00:09:27.667 --> 00:09:28.433 I AM CURIOUS DO YOU VIEW THE TWO 216 00:09:28.600 --> 00:09:32.205 PATHS, WHAT WOULD BE THE 217 00:09:32.371 --> 00:09:34.807 ARGUMENT FOR CHOOSING ONE PATH 218 00:09:34.974 --> 00:09:37.543 OR ANOTHER? 219 00:09:37.710 --> 00:09:38.211 >> THEY ARE BOTH BASED ON TWO 220 00:09:38.378 --> 00:09:41.614 CASES FROM THIS COURT, EQUALLY 221 00:09:41.781 --> 00:09:42.248 BASED ON PRECEDENT FOR THIS 222 00:09:42.414 --> 00:09:45.051 COURT THAT WAS ESTABLISHED NOT 223 00:09:45.217 --> 00:09:45.751 JUST ONE CASE OR MORE THAN ONE 224 00:09:45.918 --> 00:09:50.389 CASE, JUST AS LEGITIMATE, NOT 225 00:09:50.556 --> 00:09:53.125 GOING TO PRESENT ANY 226 00:09:53.292 --> 00:09:55.360 CONSEQUENCES IN OTHER CASES AND 227 00:09:55.528 --> 00:09:57.596 THAT IS THE ONE THAT SAYS IN THE 228 00:09:57.764 --> 00:10:02.067 CONTEXT OF AN INSURANCE POLICY 229 00:10:02.235 --> 00:10:02.769 THE DAMAGES PROVIDED FOR IN THE 230 00:10:02.935 --> 00:10:03.469 INSURANCE POLICY UNDER 231 00:10:03.635 --> 00:10:08.274 COMMON-LAW. 232 00:10:08.441 --> 00:10:08.975 YOU GET EXTRACONTRACTUAL AND NOT 233 00:10:09.142 --> 00:10:12.412 CONSEQUENTIAL DAMAGES SO THAT 234 00:10:12.577 --> 00:10:13.012 LINE OF CASES IS JUST AS 235 00:10:13.178 --> 00:10:13.379 LEGITIMATE. 236 00:10:13.546 --> 00:10:14.647 LET ME MAKE ONE THING CLEAR. 237 00:10:14.813 --> 00:10:18.250 I DON'T THINK ANYTHING YOU DO 238 00:10:18.418 --> 00:10:22.388 TODAY WILL HAVE A HUGE EFFECT 239 00:10:22.555 --> 00:10:28.394 BECAUSE THIS HAS NOT BEEN AN 240 00:10:28.561 --> 00:10:29.062 ISSUE FOR THE LAST 38 YEARS. 241 00:10:29.228 --> 00:10:30.996 JOHNSON HAS NOT BEEN FOLLOWING 242 00:10:31.163 --> 00:10:31.596 THE FLORIDA COURT AND THE 243 00:10:31.764 --> 00:10:35.967 REASON, THEY HAVE THE BAD FAITH 244 00:10:36.134 --> 00:10:36.536 ACTION TO RECOVER THEIR 245 00:10:36.701 --> 00:10:43.643 CONSEQUENT OF DAMAGES. 246 00:10:43.810 --> 00:10:44.277 WE DON'T DISPUTE THE FACT, 247 00:10:44.443 --> 00:10:44.876 NOBODY HAS, CONSEQUENTIAL 248 00:10:45.043 --> 00:10:45.577 DAMAGES ARE AVAILABLE UNDER THE 249 00:10:45.745 --> 00:10:46.044 BAD FAITH ACTION. 250 00:10:46.211 --> 00:10:47.080 EVEN MORE OR AVAILABLE, PUNITIVE 251 00:10:47.245 --> 00:10:47.647 DAMAGES UNDER CERTAIN 252 00:10:47.813 --> 00:10:50.182 CIRCUMSTANCES AND THAT IS WHY NO 253 00:10:50.349 --> 00:10:55.354 ONE SHARES ABOUT CONSEQUENTIAL 254 00:10:55.520 --> 00:10:56.022 DAMAGES, THEY JUST FILE A BAD 255 00:10:56.188 --> 00:10:57.757 FAITH LAWSUIT. 256 00:10:57.923 --> 00:10:58.423 THE REASON IT IS IMPORTANT IN 257 00:10:58.591 --> 00:11:02.562 THIS CASE IS YOU CAN'T SUE 258 00:11:02.728 --> 00:11:03.162 CITIZENS FOR BAD FAITH. 259 00:11:03.329 --> 00:11:05.831 THIS IS THE ONLY WAY TO GET 260 00:11:05.998 --> 00:11:09.101 CONSEQUENTIAL DAMAGES, BY MAKING 261 00:11:09.268 --> 00:11:09.701 IT PART OF THE BREACH OF 262 00:11:09.869 --> 00:11:13.406 CONTRACT. 263 00:11:13.572 --> 00:11:14.106 THIS DETERMINATION IF YOU RULE 264 00:11:14.273 --> 00:11:14.706 IN OUR FAVOR PRACTICALLY 265 00:11:14.874 --> 00:11:15.307 SPEAKING WILL ONLY AFFECT 266 00:11:15.475 --> 00:11:19.611 CITIZENS, IF YOU WILL AGAINST US 267 00:11:19.778 --> 00:11:20.278 IT WILL AFFECT CITIZENS IN A 268 00:11:20.446 --> 00:11:22.014 MAJOR WAY BECAUSE ESSENTIALLY 269 00:11:22.181 --> 00:11:24.250 YOU WILL BE GIVING -- GIVEN 270 00:11:24.417 --> 00:11:26.985 INSURED A BACKDOOR MECHANISM TO 271 00:11:27.153 --> 00:11:33.893 OBTAIN BAD FAITH DAMAGES. 272 00:11:34.060 --> 00:11:38.865 IT IS EVEN WORSE, UNDER THE BAD 273 00:11:39.031 --> 00:11:43.336 FAITH LAW AS YOU FILE 274 00:11:43.503 --> 00:11:44.003 THIRD-PARTY BAD FAITH ACTION 275 00:11:44.169 --> 00:11:45.937 UNDER COMMON-LAW, DISMISSES 276 00:11:46.105 --> 00:11:51.777 THOSE, AND BREACH OF CONTRACT 277 00:11:51.943 --> 00:11:57.115 ACTION WHEN YOU ARE AVAILABLE 278 00:11:57.283 --> 00:11:57.750 YOU ARE ENTITLED TO CERTAIN 279 00:11:57.917 --> 00:12:01.419 DISCOVERY BY BAD FAITH ACTION 280 00:12:01.586 --> 00:12:02.120 YOU ARE NOT ENTITLED TO BREACH 281 00:12:02.288 --> 00:12:10.529 OF CONTRACT ACTION OR THE CLAIM 282 00:12:10.696 --> 00:12:10.796 FILE. 283 00:12:10.962 --> 00:12:11.464 THE CLAIM ADJUSTER DURING THE 284 00:12:11.630 --> 00:12:20.005 CLAIMS PROCESS. 285 00:12:20.173 --> 00:12:20.639 THOSE DAMAGES IN BREACH OF 286 00:12:20.806 --> 00:12:22.575 CONTRACT ACTION. 287 00:12:22.741 --> 00:12:25.845 AND SO RULING IN OUR FAVOR IS 288 00:12:26.012 --> 00:12:29.981 NOT GOING TO DO MUCH TO 289 00:12:30.149 --> 00:12:30.582 INSURANCE LAW IN FLORIDA. 290 00:12:30.750 --> 00:12:33.052 ONLY AGAINST US, DEVASTATING 291 00:12:33.219 --> 00:12:36.355 CONSEQUENCES ON CITIZENS WHICH 292 00:12:36.522 --> 00:12:37.056 IS DESIGNED TO BE THE INSURER OF 293 00:12:37.222 --> 00:12:40.592 LAST RESORT AND THE ONLY COMPANY 294 00:12:40.759 --> 00:12:44.529 THAT IS REQUIRED TO TRY TO 295 00:12:44.697 --> 00:12:48.668 PROVIDE AFFORDABLE INSURANCE TO 296 00:12:48.834 --> 00:12:56.241 PROPERTY OWNERS IN FLORIDA. 297 00:12:56.408 --> 00:12:56.875 ANY OTHER QUESTIONS I WILL 298 00:12:57.043 --> 00:12:57.576 RESERVE THE REST OF MY TIME FOR 299 00:12:57.743 --> 00:12:57.909 REBUTTAL. 300 00:12:58.076 --> 00:13:03.448 WE ASK ABOUT THE CERTIFIED 301 00:13:03.615 --> 00:13:15.827 QUESTION. 302 00:13:15.995 --> 00:13:19.298 >> YOU MAY PROCEED. 303 00:13:19.465 --> 00:13:24.803 >> ON BEHALF OF MANOR HOUSE. 304 00:13:24.971 --> 00:13:25.504 WE ARE ASKING THE COURT ANSWER 305 00:13:25.671 --> 00:13:27.873 THE CERTIFIED QUESTION, THE 306 00:13:28.039 --> 00:13:29.442 CONSEQUENTIAL DAMAGES ARE 307 00:13:29.609 --> 00:13:32.010 APPROPRIATE, FOR FIRST PARTY 308 00:13:32.177 --> 00:13:36.481 BREACH OF CONTRACT CASE. 309 00:13:36.649 --> 00:13:40.219 PRIOR TO THE ENACTMENT OF 624 310 00:13:40.385 --> 00:13:42.455 ONE 55 CONSEQUENTIAL DAMAGES 311 00:13:42.621 --> 00:13:43.154 WERE A REMEDY UNDER THE JOHNSON 312 00:13:43.322 --> 00:13:47.793 CASE IN A FIRST PARTY BREACH 313 00:13:47.960 --> 00:13:48.060 CASE. 314 00:13:48.226 --> 00:13:52.597 WHERE I DISAGREE IS SUBSEQUENT 315 00:13:52.764 --> 00:13:57.235 FOLLOWING THAT LINE OF 316 00:13:57.403 --> 00:13:57.870 REASONING, WE SEE THAT WITH 317 00:13:58.037 --> 00:13:59.138 TRAVELERS VERSUS WELLS WERE THE 318 00:13:59.305 --> 00:14:02.741 COURT RELIED ON TV ADS VERSUS 319 00:14:02.908 --> 00:14:05.845 THE ELEVENTH CIRCUIT WHICH WITH 320 00:14:06.012 --> 00:14:10.483 THE OPINION CITED WITH APPROVAL 321 00:14:10.649 --> 00:14:14.287 JOHNSON VERSUS LIFE INVESTORS, 322 00:14:14.452 --> 00:14:16.855 FEDERAL COURTS IN FLORIDA WHICH 323 00:14:17.023 --> 00:14:19.792 ARE NOT BINDING FOR WHAT THEY 324 00:14:19.959 --> 00:14:24.263 ARE PERSUASIVE HAVE A PROBLEM 325 00:14:24.430 --> 00:14:30.269 WITH THE LINE OF REASONING TO 326 00:14:30.436 --> 00:14:30.936 RECOGNIZE THAT AS A BASELINE 327 00:14:31.103 --> 00:14:32.337 POOL, THIS REMEDY IS AVAILABLE 328 00:14:32.504 --> 00:14:37.842 IN A FIRST PARTY BREACH CASE, AN 329 00:14:38.009 --> 00:14:42.414 INSURANCE POLICY, A CONTRACT. 330 00:14:42.581 --> 00:14:47.753 CONTRACT LAW GOVERNS RIGHTS AND 331 00:14:47.919 --> 00:14:48.387 OBLIGATIONS TO THAT POLICY. 332 00:14:48.553 --> 00:14:49.488 CONTRACT LAW PROVIDES 333 00:14:49.654 --> 00:14:51.190 CONSEQUENTIAL DAMAGES AS 334 00:14:51.356 --> 00:14:54.293 AVAILABLE REMEDY IN THE EVENT OF 335 00:14:54.460 --> 00:14:55.995 A BREACH OF CONTRACT. 336 00:14:56.162 --> 00:15:03.402 WE LEARNED OUR FIRST LAW AND 337 00:15:03.568 --> 00:15:04.103 THAT IS WHAT THE LIFE INVESTORS 338 00:15:04.269 --> 00:15:04.803 VERSUS JOHNSON CASE DREW ON WHEN 339 00:15:04.970 --> 00:15:09.442 IT HELD AS THE BASELINE OR THE 340 00:15:09.608 --> 00:15:09.875 BASELINE REMEDY. 341 00:15:10.042 --> 00:15:18.551 THE ENACTMENT OF 624 ONE 55 DOES 342 00:15:18.717 --> 00:15:19.150 NOT MATERIALLY CHANGE THE 343 00:15:19.317 --> 00:15:19.784 AVAILABILITY OF THAT REMEDY. 344 00:15:19.951 --> 00:15:23.022 EVEN MY OPPONENT NOTED JOHNSON 345 00:15:23.188 --> 00:15:28.193 CASE WAS DECIDED PRIOR TO THE 346 00:15:28.360 --> 00:15:28.860 STATUTE'S ENACTMENT WHICH WAS 347 00:15:29.028 --> 00:15:31.297 IMPORTANT BECAUSE SUBSECTION 8 348 00:15:31.464 --> 00:15:33.164 OF 624155 IN NON-AMBIGUOUS 349 00:15:33.331 --> 00:15:39.705 TERMS, NOTHING WILL PREEMPT 350 00:15:39.871 --> 00:15:42.741 COMMON-LAW REMEDY THAT EXISTS 351 00:15:42.908 --> 00:15:47.380 AND WE CAN SEE AS MY OPPONENT 352 00:15:47.546 --> 00:15:47.980 CAN SEE, RECOGNIZE THAT 353 00:15:48.146 --> 00:15:48.614 CONSEQUENTIAL DAMAGE WAS A 354 00:15:48.780 --> 00:15:52.884 COMMON-LAW REMEDY, BREACH OF 355 00:15:53.051 --> 00:15:53.586 INSURANCE CONTRACT FILE TO THE 356 00:15:53.752 --> 00:15:54.286 STATUTE ENACTMENT AND THAT IS 357 00:15:54.452 --> 00:15:54.953 SOMETHING THIS COURT HAS ALSO 358 00:15:55.121 --> 00:15:59.091 RECOGNIZED IN TIMELINE VERSUS 359 00:15:59.258 --> 00:16:02.694 BURGER, THE COURT STATED PRIOR 360 00:16:02.862 --> 00:16:06.999 TO THE ENACTMENT OF SECTION 361 00:16:07.165 --> 00:16:07.633 624155, BREACH OF CONTRACT 362 00:16:07.799 --> 00:16:11.303 DAMAGES WERE AVAILABLE. 363 00:16:11.470 --> 00:16:18.510 MY OPPONENT WANTS TO RELY ON 364 00:16:18.676 --> 00:16:19.211 REASONABLE EXPECTATION DOCTRINE 365 00:16:19.377 --> 00:16:27.118 LINE OF CASES TO SAY THAT'S WHAT 366 00:16:27.286 --> 00:16:27.819 WE ARE TRYING TO DO, TO RECTIFY 367 00:16:27.987 --> 00:16:28.421 AND WORK ON REASONABLE 368 00:16:28.586 --> 00:16:29.121 EXPECTATIONS OF THE PARTIES BUT 369 00:16:29.288 --> 00:16:29.788 THE REASONABLE EXPECTATION IS 370 00:16:29.954 --> 00:16:39.832 NOT A DAMAGES DOCTRINE LIKE IT 371 00:16:39.999 --> 00:16:40.499 WASN'T PART OF THIS COURT'S TRUE 372 00:16:40.665 --> 00:16:46.838 HOLDING WHICH WAS DISCUSSING THE 373 00:16:47.006 --> 00:16:47.539 IMPLIED COVENANT OF GOOD FAITH 374 00:16:47.705 --> 00:16:48.240 AND FAIR DEALING EXISTS IN THIS 375 00:16:48.406 --> 00:16:51.676 POLICY AND IT IS INDEPENDENT OF 376 00:16:51.844 --> 00:16:53.913 THE IMPLIED COVENANT OF GOOD 377 00:16:54.078 --> 00:16:57.516 FAITH AND FAIR DEALING WHICH 378 00:16:57.682 --> 00:16:58.217 MEANS REGARDLESS OF WHETHER THAT 379 00:16:58.384 --> 00:17:01.820 IMPLIED COVENANT EXISTS IS 380 00:17:01.987 --> 00:17:02.520 ENTITLED TO HAVE CONSEQUENTIAL 381 00:17:02.688 --> 00:17:05.790 DAMAGES AS A REMEDY OF BREACH OF 382 00:17:05.958 --> 00:17:12.298 CONTRACT CASE. 383 00:17:12.464 --> 00:17:12.964 AND REASONABLE EXPECTATION 384 00:17:13.132 --> 00:17:20.573 DOCTRINE, WE ARE NOT TALKING 385 00:17:20.739 --> 00:17:22.807 ABOUT ANY SORT OF THING LIKE 386 00:17:22.974 --> 00:17:24.509 THAT HERE. 387 00:17:24.676 --> 00:17:26.778 MY OPPONENT TALKS ABOUT IF THIS 388 00:17:26.945 --> 00:17:30.883 COURT RULES IN MY CLIENT'S 389 00:17:31.049 --> 00:17:37.789 FAVOR, TO GET INTO THE CLAIM 390 00:17:37.957 --> 00:17:40.793 MATERIALS AND BREACH OF CONTRACT 391 00:17:40.960 --> 00:17:41.493 CASE AND THIS IS NOT GOING TO BE 392 00:17:41.660 --> 00:17:48.567 THE CASE, SOMETHING FOR MY 393 00:17:48.733 --> 00:17:49.268 CLIENTS TO SATISFY AND RECOVER 394 00:17:49.434 --> 00:17:50.769 CONSEQUENTIAL DAMAGES, FOCUSED 395 00:17:50.935 --> 00:17:54.073 ON A SET MOMENT IN TIME, WHEN 396 00:17:54.240 --> 00:18:00.246 THE POLICIES ISSUED. 397 00:18:00.412 --> 00:18:00.945 IT IS SUBSEQUENT TO THE ISSUANCE 398 00:18:01.113 --> 00:18:04.216 OF THAT POLICY IS IRRELEVANT. 399 00:18:04.383 --> 00:18:09.888 THE HANDLING OF ANY SORT OF 400 00:18:10.055 --> 00:18:10.455 CLAIM IS IRRELEVANT TO 401 00:18:10.623 --> 00:18:10.990 DETERMINING WHAT WAS 402 00:18:11.155 --> 00:18:11.624 CONTEMPLATED WILL, WHEN THE 403 00:18:11.789 --> 00:18:13.826 POLICY WAS ISSUED. 404 00:18:13.992 --> 00:18:17.630 AT THE BOTTOM THE WAY CITIZENS 405 00:18:17.796 --> 00:18:18.297 AND ANY INSURANCE COMPANY GET 406 00:18:18.463 --> 00:18:19.163 AROUND THIS EXPOSURE IS TO DO 407 00:18:19.330 --> 00:18:24.336 WITH THE REST OF THE WORLD DOES, 408 00:18:24.502 --> 00:18:27.605 CITIZENS HAS IN ITS POLICY, THE 409 00:18:27.772 --> 00:18:30.709 POLICY EXCLUDES CITIZENS FROM 410 00:18:30.875 --> 00:18:34.145 HAVING TO PAY MORE CONSEQUENTIAL 411 00:18:34.313 --> 00:18:36.382 DAMAGES AND CITIZENS DESPITE 412 00:18:36.548 --> 00:18:39.317 HAVING THAT POLICY LANGUAGE 413 00:18:39.484 --> 00:18:40.952 AVAILABLE TO IT PROMPTED NOT TO 414 00:18:41.120 --> 00:18:43.355 USE IT IN THE PROPERTY COVERAGE 415 00:18:43.521 --> 00:18:49.060 FORM DESPITE KNOWING THE CASES 416 00:18:49.228 --> 00:18:49.761 LIKE JOHNSON, TRAVELERS VERSUS 417 00:18:49.929 --> 00:18:50.596 WELLS AND ALL THE OTHER CASES 418 00:18:50.762 --> 00:18:55.934 THAT RECOGNIZE THE DAMAGE IS AN 419 00:18:56.101 --> 00:18:56.602 AVAILABLE REMEDY AND USING IT 420 00:18:56.769 --> 00:18:58.336 WHICH IS PROOF THAT CITIZENS WAS 421 00:18:58.503 --> 00:19:00.739 WILLING TO ACCEPT EXPOSURE OF 422 00:19:00.905 --> 00:19:03.308 CONSEQUENTIAL DAMAGES IF 423 00:19:03.474 --> 00:19:08.314 BREACHED. 424 00:19:08.480 --> 00:19:12.451 >> WITH YOU FURTHER EXPLAIN FOR 425 00:19:12.617 --> 00:19:15.887 US WHY THIS CLAIM, THE CLAIM YOU 426 00:19:16.055 --> 00:19:18.790 ARE MAKING IS NOT ESSENTIALLY A 427 00:19:18.958 --> 00:19:19.258 BAD FAITH CALL? 428 00:19:19.424 --> 00:19:20.858 >> IT IS NOT -- 429 00:19:21.026 --> 00:19:28.099 >> I UNDERSTAND THAT IS YOUR 430 00:19:28.267 --> 00:19:28.800 POSITION BUT WHEN I LOOK AT IT 431 00:19:28.968 --> 00:19:29.500 AND COMPARE THE ALLEGATIONS YOU 432 00:19:29.668 --> 00:19:30.201 ARE MAKING WITH THE ALLEGATIONS 433 00:19:30.368 --> 00:19:34.807 THAT ARE MADE, IT LOOKS LIKE ONE 434 00:19:34.973 --> 00:19:35.074 TO ME. 435 00:19:35.240 --> 00:19:35.740 HELP ME UNDERSTAND WHY IT IS 436 00:19:35.907 --> 00:19:36.508 NOT. 437 00:19:36.674 --> 00:19:45.250 >> STARTING POINT FOR THAT 438 00:19:45.416 --> 00:19:45.951 ANSWER BEGINS WITH THE COURT'S 439 00:19:46.117 --> 00:19:46.652 DECISION IN BLANCHARD WHERE THE 440 00:19:46.818 --> 00:19:47.318 COURT SAYS BAD FAITH CLAIM IS 441 00:19:47.486 --> 00:19:48.019 GROUNDED ON THE DUTY TO ACT IN 442 00:19:48.186 --> 00:19:49.355 GOOD FAITH WHICH WE KNOW IS 443 00:19:49.520 --> 00:19:50.055 UNDER 64 ONE 55 WERE BREACH OF 444 00:19:50.221 --> 00:19:53.659 CONTRACT CLAIM IS PREDICATED ON 445 00:19:53.826 --> 00:19:54.359 FAILURE TO PERFORM A CONTRACTUAL 446 00:19:54.526 --> 00:19:54.727 OBLIGATION. 447 00:19:54.893 --> 00:19:58.663 HERE WE HAVE IN COUNT ONE THREE 448 00:19:58.830 --> 00:19:59.365 EXPRESS PROVISIONS OF THE POLICY 449 00:19:59.530 --> 00:20:02.968 THAT CITIZENS FAILED TO PERFORM. 450 00:20:03.134 --> 00:20:03.635 FIRST THE POLICY REQUIRES THE 451 00:20:03.801 --> 00:20:05.537 PARTIES GO TO APPRAISAL IN THE 452 00:20:05.703 --> 00:20:11.210 AMOUNT DISPUTED. 453 00:20:11.376 --> 00:20:11.809 IT IS NOT PERMISSIVE BUT 454 00:20:11.977 --> 00:20:12.144 MANDATORY. 455 00:20:12.310 --> 00:20:12.745 THOSE CITIZENS HAS TO GO. 456 00:20:12.911 --> 00:20:13.979 SECOND, CITIZENS HAS TO PAY THE 457 00:20:14.145 --> 00:20:20.486 APPRAISAL AWARD WITHIN 30 DAYS. 458 00:20:20.653 --> 00:20:21.185 THAT IS JUST A BRIEF, YOU PAY IN 459 00:20:21.353 --> 00:20:24.789 THE TIME FRAME IT OBLIGATED TO 460 00:20:24.957 --> 00:20:25.289 DO SO OR IT DIDN'T. 461 00:20:25.457 --> 00:20:26.858 THIRD, CITIZENS FAILED TO PAY 462 00:20:27.026 --> 00:20:29.961 THE UNDISPUTED SUMS OWED WITHIN 463 00:20:30.128 --> 00:20:30.261 20 DAYS. 464 00:20:30.429 --> 00:20:34.599 THE LATTER TWO CONTRACT 465 00:20:34.767 --> 00:20:37.201 ALLEGATIONS ARE PREDICATED ON 466 00:20:37.368 --> 00:20:37.903 THE LOST DIVISION WHICH REQUIRE 467 00:20:38.069 --> 00:20:41.073 PAYMENT AND ACTIVE PERFORMANCE 468 00:20:41.240 --> 00:20:48.646 WITHIN SPECIFIED TIME FRAME. 469 00:20:48.814 --> 00:20:49.347 THEY FAILED TO PERFORM WHICH IS 470 00:20:49.515 --> 00:20:50.048 THE CONTRACTUAL OBLIGATIONS THAT 471 00:20:50.214 --> 00:20:51.916 ARE INDEPENDENT FROM THE DUTY TO 472 00:20:52.084 --> 00:20:58.123 ACT IN GOOD FAITH UNDER 621155 473 00:20:58.289 --> 00:20:59.657 WHICH PLACES US IN THE BREACH OF 474 00:20:59.825 --> 00:21:05.163 CONTRACT CONTEXT AND FURTHERMORE 475 00:21:05.329 --> 00:21:05.830 EVEN CITIZENS TOLD THE TRIAL 476 00:21:05.998 --> 00:21:08.967 COURT, AFTER THE SUMMARY 477 00:21:09.134 --> 00:21:11.370 JUDGMENT HEARING COUNT ONE WAS A 478 00:21:11.537 --> 00:21:12.837 BREACH OF CONTRACT CASE AND THAT 479 00:21:13.005 --> 00:21:15.039 AND THAT IS A DIRECT QUOTE FROM 480 00:21:15.207 --> 00:21:19.243 RECORD 4807, LINES 18-20, A PURE 481 00:21:19.411 --> 00:21:21.046 BREACH OF CONTRACT CASE. 482 00:21:21.212 --> 00:21:23.749 WE HAD A SEPARATE COUNT FOR THE 483 00:21:23.915 --> 00:21:25.851 IMPLIED COVENANT OF GOOD FAITH 484 00:21:26.018 --> 00:21:27.152 AND FAIR DEALING WHICH WE 485 00:21:27.318 --> 00:21:32.857 RECOGNIZED AFTER IT WAS NO 486 00:21:33.025 --> 00:21:34.859 LONGER VIABLE, SO WE'RE NOT 487 00:21:35.027 --> 00:21:35.861 PURSUING THAT NUMB. 488 00:21:36.028 --> 00:21:38.363 BUT WE STILL HAVE THE COUNT ONE 489 00:21:38.529 --> 00:21:41.066 BREACH OF CONTRACT THAT WE HAVE 490 00:21:41.232 --> 00:21:42.968 PREDICATED ON THESE PROVISIONS. 491 00:21:43.134 --> 00:21:44.769 NOW, I KNOW THAT CITIZENS WANTS 492 00:21:44.936 --> 00:21:47.271 TO FOCUS ON THE WHERE FOR CLAUSE 493 00:21:47.439 --> 00:21:52.376 AND PREDICATED ON THE FAILURE TO 494 00:21:52.544 --> 00:21:53.878 TIMELY PAY. 495 00:21:54.046 --> 00:21:56.582 AND, JUSTICE CANADY, TO YOUR 496 00:21:56.749 --> 00:21:57.883 QUESTION THE REASON WHY THAT 497 00:21:58.049 --> 00:21:59.284 ALLEGATION FAILURE TO TIMELY PAY 498 00:21:59.451 --> 00:22:02.421 IS NOT A BAD FAITH ALLEGATION IN 499 00:22:02.587 --> 00:22:04.021 THIS CASE IS BECAUSE WE HAVE THE 500 00:22:04.189 --> 00:22:05.624 LOSS SETTLEMENT PROVISIONS OF 501 00:22:05.790 --> 00:22:08.326 THIS POLICY THAT MANDATE AN 502 00:22:08.493 --> 00:22:10.528 EXPRESS TIME FRAME WITHIN WHICH 503 00:22:10.695 --> 00:22:12.131 CITIZENS IS TO PERFORM. 504 00:22:12.297 --> 00:22:14.232 SO WE'RE NOT CONCERNED ABOUT 505 00:22:14.399 --> 00:22:16.335 LIKE WE WOULD BE IN A BAD FAITH 506 00:22:16.501 --> 00:22:18.237 CASE WHETHER CITIZENS BREACHED 507 00:22:18.403 --> 00:22:20.338 IN AN UGLY MANNER OR A NEGLIGENT 508 00:22:20.506 --> 00:22:24.242 MANNER, WHETHER IT WAS WILLFUL 509 00:22:24.409 --> 00:22:25.644 ENOUGH PERFORMING OR NOT 510 00:22:25.810 --> 00:22:28.046 PERFORMING IN SOME MALICIOUS 511 00:22:28.212 --> 00:22:30.149 MANNER. 512 00:22:30.315 --> 00:22:32.550 MOTIVE IS IRRELEVANT HERE. 513 00:22:32.718 --> 00:22:34.051 A BREACH IS JUST A BREACH. 514 00:22:34.219 --> 00:22:36.154 AND THAT'S ALL WE'RE GOING TO BE 515 00:22:36.320 --> 00:22:37.155 PROVING TO THE JURY. 516 00:22:37.322 --> 00:22:38.557 IT'S GOING TO BE THREE SIMPLE 517 00:22:38.723 --> 00:22:40.259 QUESTIONS; DID CITIZENS BREACH 518 00:22:40.424 --> 00:22:42.161 THE POLICY BY FAILING TO GO TO 519 00:22:42.326 --> 00:22:44.061 APPRAISAL, DID CITIZENS BREACH 520 00:22:44.229 --> 00:22:47.665 THE POLICY BY NOT PAYING A 521 00:22:47.833 --> 00:22:50.969 APPRAISAL AWARD IN 30 DAYS, DID 522 00:22:51.135 --> 00:22:53.672 CITIZENS NOT PAY THE UNDISPUTED 523 00:22:53.838 --> 00:22:56.074 SUMS IT OWED WITHIN 20 DAYS. 524 00:22:56.240 --> 00:22:58.876 THOSE ARE THE CONTRACTUAL 525 00:22:59.044 --> 00:23:00.479 OBLIGATIONS THAT CITIZENS 526 00:23:00.645 --> 00:23:02.114 OBLIGATED ITSELF TO PERFORM. 527 00:23:02.280 --> 00:23:04.316 AND IF CITIZENS WANTS A BETTER 528 00:23:04.482 --> 00:23:06.718 RULE OF DAMAGES THAN THE REST OF 529 00:23:06.884 --> 00:23:08.220 THE CONTRACTING WORLD THEN-- 530 00:23:08.386 --> 00:23:10.422 WHEN IT BREACHES A POLICY, IT 531 00:23:10.588 --> 00:23:12.924 SHOULD DO SO THROUGH ITS 532 00:23:13.091 --> 00:23:13.224 CONTRACT. 533 00:23:13.392 --> 00:23:16.528 BUT AS WESTERN WORLD SAID, 534 00:23:16.694 --> 00:23:18.931 ABSENT AN EXPRESS SORT OF 535 00:23:19.096 --> 00:23:19.932 PROVISION IN THE POLICY THAT 536 00:23:20.097 --> 00:23:21.032 LIMITS THE DAMAGES AVAILABLE IN 537 00:23:21.200 --> 00:23:25.737 THE EVENT OF A BREACH, THE 538 00:23:25.903 --> 00:23:27.338 ADHESIVE NATURE OF THE INSURANCE 539 00:23:27.506 --> 00:23:29.441 POLICY PRECLUDES US FROM GETTING 540 00:23:29.607 --> 00:23:31.043 INTO DOING THAT AND ENGAGING IN 541 00:23:31.210 --> 00:23:33.545 THE SORT OF POST-LOSS REWRITING 542 00:23:33.711 --> 00:23:34.846 OF THE POLICY THAT CITIZENS 543 00:23:35.012 --> 00:23:36.248 WANTS TO DO HERE. 544 00:23:36.414 --> 00:23:38.951 BECAUSE THE PLAIN LANGUAGE OF 545 00:23:39.116 --> 00:23:42.153 THIS POLICY UNDISPUTEDLY DOES 546 00:23:42.320 --> 00:23:43.755 NOT LIMIT ANY DAMAGES THAT 547 00:23:43.922 --> 00:23:45.356 CITIZENS HAS TO PAY IF IT 548 00:23:45.524 --> 00:23:47.358 BREACHES THIS POLICY. 549 00:23:47.526 --> 00:23:48.759 WHICH THEN, TO GO BACK TO 550 00:23:48.926 --> 00:23:51.063 CITIZENS' ARGUMENT ABOUT HOW, 551 00:23:51.230 --> 00:23:52.865 YOU KNOW, WE NEED TO LOOK AT THE 552 00:23:53.030 --> 00:23:54.066 PLAIN LANGUAGE OF THE POLICY IN 553 00:23:54.232 --> 00:23:56.067 ITS EXPRESS TERMS, THE EXPRESS 554 00:23:56.234 --> 00:23:57.970 TERMS DON'T LIMIT WHAT CITIZENS 555 00:23:58.135 --> 00:23:59.371 PAYS IF IT BREACHES. 556 00:23:59.538 --> 00:24:01.205 WHICH, AGAIN, I THINK THE 557 00:24:01.373 --> 00:24:03.709 COURT'S DECISION IN THOMAS V. 558 00:24:03.875 --> 00:24:05.109 WESTERN WORLD IS IMPORTANT ON 559 00:24:05.277 --> 00:24:06.211 THAT BECAUSE REALLY WHAT 560 00:24:06.377 --> 00:24:08.012 CITIZENS IS ASKING THIS COURT TO 561 00:24:08.180 --> 00:24:10.015 DO IS TO CREATE A SPECIAL RULE 562 00:24:10.182 --> 00:24:11.415 OF DAMAGES FOR INSURANCE 563 00:24:11.583 --> 00:24:13.218 COMPANIES THAT ARE DIFFERENT 564 00:24:13.384 --> 00:24:14.819 THAN THE REST OF THE CONTRACTING 565 00:24:14.987 --> 00:24:18.222 WORLD. 566 00:24:18.390 --> 00:24:19.625 JUSTICE LAWSON, I THINK YOU'RE 567 00:24:19.790 --> 00:24:20.525 ON MUTE. 568 00:24:20.692 --> 00:24:21.826 >> THANK YOU FOR RECOGNIZING 569 00:24:21.993 --> 00:24:24.630 THAT. 570 00:24:24.796 --> 00:24:26.230 AM I CORRECT THAT THE DAMAGES 571 00:24:26.397 --> 00:24:28.032 THAT YOU WOULD BE SEEKING UNDER 572 00:24:28.200 --> 00:24:30.335 YOUR BREACH OF CONTRACT THEORY 573 00:24:30.501 --> 00:24:34.640 ARE DIFFERENT FROM THE PAYOUT 574 00:24:34.806 --> 00:24:36.540 THAT YOU WOULD BE ENTITLED TO IN 575 00:24:36.708 --> 00:24:41.445 THE POLICY INCLUDED LOST RENTS? 576 00:24:41.613 --> 00:24:42.847 IN OTHER WORDS, THEY'RE BOTH 577 00:24:43.015 --> 00:24:45.851 LOST RENTS, SO IT'S EASY TO GET 578 00:24:46.018 --> 00:24:46.751 CONFUSED. 579 00:24:46.919 --> 00:24:48.353 BUT YOUR CLIENT WOULD BE 580 00:24:48.519 --> 00:24:50.555 ENTITLED FOR LOST RENTS FROM THE 581 00:24:50.721 --> 00:24:52.657 DATE OF LOSS, THE DATE THAT THE 582 00:24:52.824 --> 00:24:55.359 BUILDING WAS UNINHABITABLE. 583 00:24:55.527 --> 00:24:55.961 >> CORRECT. 584 00:24:56.127 --> 00:24:58.262 WE DON'T HAVE THAT IN THIS CASE. 585 00:24:58.430 --> 00:25:00.065 LIKE I TOLD THE FIFTH 586 00:25:00.231 --> 00:25:00.365 DISTRICT-- 587 00:25:00.531 --> 00:25:01.599 >> THEY WOULD BE RUN FROM THE 588 00:25:01.767 --> 00:25:04.403 DATE OF, WELL, BASED ON THE DATE 589 00:25:04.568 --> 00:25:05.304 OF BREACH. 590 00:25:05.470 --> 00:25:07.105 BUT ASSUMING-- SO YOU BREACHED 591 00:25:07.271 --> 00:25:08.006 HERE. 592 00:25:08.173 --> 00:25:10.008 IF YOU HAD NOT BREACHED, WE 593 00:25:10.174 --> 00:25:11.009 WOULD HAVE BEEN ABLE TO HAVE 594 00:25:11.175 --> 00:25:12.711 PEOPLE INTO THESE APARTMENTS A 595 00:25:12.877 --> 00:25:14.712 YEAR LATER, AND SO WHAT WE'RE 596 00:25:14.880 --> 00:25:16.914 ASKING FOR IS THE LOST RENTS 597 00:25:17.082 --> 00:25:18.216 FROM THAT TIME PERIOD WHEN WE 598 00:25:18.383 --> 00:25:20.719 COULD HAVE HAD THEM IN AND WHEN 599 00:25:20.885 --> 00:25:23.020 WE ACTUALLY GOT FOLKS IN RATHER 600 00:25:23.188 --> 00:25:24.623 THAN WHAT YOU WOULD HAVE GOTTEN 601 00:25:24.789 --> 00:25:26.325 UNDER THE POLICY WHICH IS THE 602 00:25:26.490 --> 00:25:28.326 ENTIRE PERIOD OF LOST RENTS, IS 603 00:25:28.492 --> 00:25:28.926 THAT CORRECT? 604 00:25:29.094 --> 00:25:31.329 >> 100%, JUSTICE LAWSON. 605 00:25:31.496 --> 00:25:32.631 THAT IS ABSOLUTELY CORRECT. 606 00:25:32.798 --> 00:25:35.433 AND TO FURTHER YOUR QUESTION, WE 607 00:25:35.599 --> 00:25:38.036 HAVE ALREADY PROVIDED A CUTOFF 608 00:25:38.202 --> 00:25:40.137 DATE FOR THE LOST RENT DAMAGE 609 00:25:40.305 --> 00:25:42.140 WHICH IS IN 2010, AND THAT WAS 610 00:25:42.307 --> 00:25:45.043 FLUSHED OUT IN DISCOVERY AT THE 611 00:25:45.210 --> 00:25:46.243 TRIAL COURT LEVEL. 612 00:25:46.411 --> 00:25:48.145 BUT YOUR HONOR HIT THIS RIGHT ON 613 00:25:48.313 --> 00:25:52.150 THE HEAD WITH YOUR QUESTION. 614 00:25:52.317 --> 00:25:53.551 WE'RE NOT TRYING TO SAY THIS IS 615 00:25:53.719 --> 00:25:54.653 SOMETHING THAT IS COVERED 616 00:25:54.819 --> 00:25:56.054 BECAUSE OF HURRICANE FRANCIS. 617 00:25:56.221 --> 00:25:57.556 WE'RE SAYING THIS IS SOMETHING 618 00:25:57.722 --> 00:25:59.057 THAT CITIZENS HAS TO PAY BECAUSE 619 00:25:59.223 --> 00:25:59.857 IT BREACHED. 620 00:26:00.025 --> 00:26:01.293 AND THE STARTING POINT FOR THAT 621 00:26:01.460 --> 00:26:03.194 IS THE DATE OF THE BREACH. 622 00:26:03.362 --> 00:26:04.895 NOW, THE JURY'S GOING TO HAVE TO 623 00:26:05.063 --> 00:26:05.998 DETERMINE WHAT THAT IS IN THIS 624 00:26:06.163 --> 00:26:09.300 CASE BECAUSE WE HAVE MULTIPLE 625 00:26:09.468 --> 00:26:10.001 BREACHES. 626 00:26:10.168 --> 00:26:11.903 BUT THAT'S SOMETHING THAT JURIES 627 00:26:12.069 --> 00:26:13.805 DO IN BREACH OF CONTRACT CASES 628 00:26:13.971 --> 00:26:18.509 IN THE STATE OF FLORIDA ON A 629 00:26:18.676 --> 00:26:19.810 REGULAR BASIS, AND THERE'S GOING 630 00:26:19.978 --> 00:26:22.513 TO BE NO HARM OR DIFFICULTY 631 00:26:22.681 --> 00:26:23.914 DOING THAT IN THIS CONTEXT. 632 00:26:24.082 --> 00:26:25.317 AND SO BECAUSE OF THAT, YOU 633 00:26:25.483 --> 00:26:26.918 KNOW, THE ONLY OTHER THING I 634 00:26:27.085 --> 00:26:28.920 WOULD NOTE IS WHEN I'M TALKING 635 00:26:29.086 --> 00:26:31.623 ABOUT HOW CITIZENS COULD HAVE 636 00:26:31.789 --> 00:26:33.224 CONTRACTED AROUND THIS DAMAGE, I 637 00:26:33.392 --> 00:26:36.928 WANT TO MAKE MYSELF CLEAR. 638 00:26:37.095 --> 00:26:38.930 WE HAVE CASES LIKE JOHNSON, 639 00:26:39.096 --> 00:26:41.932 TRAVELERS V. WELLS, MARTIN V. 640 00:26:42.099 --> 00:26:44.336 MONARCH, TDS. 641 00:26:44.502 --> 00:26:45.836 ALL THOSE CASES PREDATED THE 642 00:26:46.003 --> 00:26:47.638 TIME WHEN CITIZENS ISSUED THIS 643 00:26:47.806 --> 00:26:49.240 POLICY TO MY CLIENT. 644 00:26:49.407 --> 00:26:52.644 SO IT KNEW THIS WAS AN EXPOSURE 645 00:26:52.810 --> 00:26:54.145 OUT THERE FOR IT IN THE EVENT 646 00:26:54.311 --> 00:26:54.945 THAT IT BREACHED. 647 00:26:55.113 --> 00:26:56.448 AND YET IT STILL MADE THE 648 00:26:56.615 --> 00:26:58.349 DECISION NOT TO INCLUDE LANGUAGE 649 00:26:58.517 --> 00:27:01.185 THAT OTHER FLORIDA COURTS HAVE 650 00:27:01.353 --> 00:27:02.686 HELD WAS BROAD ENOUGH TO 651 00:27:02.854 --> 00:27:05.390 PRECLUDE A CARRIER FROM HAVING 652 00:27:05.557 --> 00:27:10.996 TO PAY CONSEQUENTIAL DAMAGES 653 00:27:11.163 --> 00:27:12.697 WHICH IS WHAT THE LANDMARK CASE 654 00:27:12.864 --> 00:27:13.097 HELD. 655 00:27:13.265 --> 00:27:14.900 THERE WAS A CONSEQUENTIAL 656 00:27:15.067 --> 00:27:17.402 LOSS EXCLUSION THAT STATED OR 657 00:27:17.568 --> 00:27:19.403 THE COURT INTERPRETED WAS BROAD 658 00:27:19.570 --> 00:27:21.006 ENOUGH TO PRECLUDE A CARRIER 659 00:27:21.173 --> 00:27:22.907 FROM HAVING TO PAY N THAT CASE, 660 00:27:23.075 --> 00:27:24.910 LOST RENT. 661 00:27:25.076 --> 00:27:26.111 SO THERE IS MORE THAN ENOUGH 662 00:27:26.278 --> 00:27:27.412 LANGUAGE IN THE MARKETPLACE FOR 663 00:27:27.578 --> 00:27:29.413 CITIZENS TO HAVE UTILIZED AND, 664 00:27:29.580 --> 00:27:31.916 IN FACT, IT DID UTILIZE IN A 665 00:27:32.084 --> 00:27:33.317 DIFFERENT POLICY FORM AT THE 666 00:27:33.484 --> 00:27:36.020 TIME IT ISSUED THIS POLICY TO MY 667 00:27:36.188 --> 00:27:38.222 CLIENT, AND YET IT CHOSE NOT TO 668 00:27:38.390 --> 00:27:38.923 DO SO. 669 00:27:39.091 --> 00:27:41.326 WHICH, AGAIN, WE SUBMIT IS PROOF 670 00:27:41.492 --> 00:27:43.028 THAT CITIZENS WAS WILLING TO 671 00:27:43.194 --> 00:27:44.328 ACCEPT THIS EXPOSURE. 672 00:27:44.496 --> 00:27:46.131 THE ONLY SECOND LINE OF CASES MY 673 00:27:46.298 --> 00:27:47.731 OPPONENT TALKED ABOUT WAS 674 00:27:47.899 --> 00:27:48.633 McCOLA. 675 00:27:48.799 --> 00:27:52.436 AND HE NOTED ON PAGE 455 HOW 676 00:27:52.604 --> 00:27:55.140 THIS COURT SAID WE'RE TALKING 677 00:27:55.307 --> 00:27:56.842 ABOUT DAMAGES CONTEMPLATED IN 678 00:27:57.008 --> 00:27:58.143 THE POLICY. 679 00:27:58.309 --> 00:27:59.743 WHAT'S INTERESTING ABOUT THAT IS 680 00:27:59.911 --> 00:28:03.181 THAT THAT PART OF McCOLA CITES 681 00:28:03.347 --> 00:28:06.785 1281 OF PALETTE WHERE THE COURT 682 00:28:06.951 --> 00:28:08.286 SAYS WE'RE TALKING ABOUT DAMAGES 683 00:28:08.452 --> 00:28:09.887 CONTEMPLATED BY THE PARTIES TO 684 00:28:10.055 --> 00:28:10.387 THE POLICY. 685 00:28:10.555 --> 00:28:11.990 AND THAT'S REALLY THE IMPORTANT 686 00:28:12.156 --> 00:28:13.991 PHRASE HERE BECAUSE THAT PHRASE 687 00:28:14.159 --> 00:28:17.596 MIRRORS THE FLORIDA STANDARD 688 00:28:17.761 --> 00:28:18.296 JURY INSTRUCTION ON 689 00:28:18.462 --> 00:28:21.298 CONSEQUENTIAL DAMAGES IN A 690 00:28:21.466 --> 00:28:22.500 BREACH OF CONTRACT CASE. 691 00:28:22.666 --> 00:28:23.602 AND IT'S THAT JURY INSTRUCTION 692 00:28:23.768 --> 00:28:27.204 THAT THIS COURT HAS APPROVED. 693 00:28:27.372 --> 00:28:32.911 SO PALETTE OR McCOLA, NEITHER 694 00:28:33.077 --> 00:28:35.012 ONE PRECLUDE THE RECOVERY OF 695 00:28:35.180 --> 00:28:36.515 THIS DAMAGE BECAUSE THOSE 696 00:28:36.681 --> 00:28:37.315 DECISIONS WERE TALKING ABOUT 697 00:28:37.481 --> 00:28:39.518 WHAT REMEDIES ARE INTERPRETING 698 00:28:39.683 --> 00:28:42.721 621455 WHICH IS NOT WHAT WE'RE 699 00:28:42.887 --> 00:28:44.722 TALKING ABOUT IN THIS CASE. 700 00:28:44.890 --> 00:28:48.026 AND IF WE WERE TO READ McCOLA 701 00:28:48.192 --> 00:28:50.428 AND PALETTE IN THE MANNER IN 702 00:28:50.595 --> 00:28:52.530 WHICH MY OPPONENT IS ASKING THIS 703 00:28:52.697 --> 00:28:54.332 COURT TO DO, THEN WE WOULD 704 00:28:54.499 --> 00:28:56.134 ESSENTIALLY BE READING OUT OF 705 00:28:56.300 --> 00:28:59.837 SECTION 624155, SUBSECTION 8 706 00:29:00.005 --> 00:29:01.573 WHICH, AS I'VE ALREADY NOTED TO 707 00:29:01.740 --> 00:29:02.874 THE COURT, HAS SAID WE'RE NOT 708 00:29:03.040 --> 00:29:07.179 GOING TO PREEMPT ANY COMMON LAW 709 00:29:07.345 --> 00:29:09.280 REMEDY, AND IT WOULD BE RECEDING 710 00:29:09.447 --> 00:29:10.682 FROM THIS COURT'S PRIOR 711 00:29:10.848 --> 00:29:12.683 DECISIONS IN, FOR EXAMPLE, TIME 712 00:29:12.851 --> 00:29:14.885 V. BERGER WHERE THIS COURT HAS 713 00:29:15.053 --> 00:29:16.288 RECOGNIZED THAT PRIOR TO THIS 714 00:29:16.453 --> 00:29:20.692 ENACTMENT OF 621455 BREACH OF 715 00:29:20.858 --> 00:29:21.992 CONTRACT DAMAGES WERE ALREADY 716 00:29:22.160 --> 00:29:22.394 AVAILABLE. 717 00:29:22.560 --> 00:29:24.296 SO WITH THAT THEN, THE ONLY 718 00:29:24.461 --> 00:29:25.797 OTHER POINT I WANT TO MAKE TO 719 00:29:25.963 --> 00:29:27.699 THE COURT IS THESE DAMAGES, 720 00:29:27.865 --> 00:29:30.902 THESE CONSEQUENTIAL DAMAGES ARE 721 00:29:31.068 --> 00:29:36.607 NOT SOME SORT OF DISGUISED BAD 722 00:29:36.775 --> 00:29:38.609 FAITH DAMAGE. 723 00:29:38.777 --> 00:29:41.913 LIKE THE COURT IN BERGER SAID, 724 00:29:42.079 --> 00:29:45.217 624155 PROVIDES MORE DAMAGES 725 00:29:45.383 --> 00:29:47.519 THAN WERE ALREADY AVAILABLE TO 726 00:29:47.685 --> 00:29:49.019 POLICYHOLDERS IN A BREACH OF 727 00:29:49.186 --> 00:29:49.921 CONTRACT CASE. 728 00:29:50.087 --> 00:29:51.623 AND MY OPPONENT GAVE, I THINK, 729 00:29:51.789 --> 00:29:53.024 THE BEST EXAMPLE THAT I COULD 730 00:29:53.191 --> 00:29:54.726 GIVE THIS COURT, PUNITIVE 731 00:29:54.893 --> 00:29:55.125 DAMAGES. 732 00:29:55.293 --> 00:29:56.827 WE KNOW THAT BREACH OF CONTRACT 733 00:29:56.995 --> 00:29:59.530 DOES NOT ALLOW ANY NONBREACH OF 734 00:29:59.698 --> 00:30:01.532 PARTY, POLICYHOLDER OR 735 00:30:01.700 --> 00:30:04.134 OTHERWISE, TO RECOVER PUNITIVE 736 00:30:04.301 --> 00:30:04.836 DAMAGES. 737 00:30:05.002 --> 00:30:07.439 AND YET THAT IS AN AVAILABLE 738 00:30:07.605 --> 00:30:09.641 REMEDY UNDER THE BAD FAITH 739 00:30:09.807 --> 00:30:10.141 STATUTE-- 740 00:30:10.307 --> 00:30:12.243 >> COUNSEL, I'M SORRY TO 741 00:30:12.410 --> 00:30:12.743 INTERRUPT YOU. 742 00:30:12.911 --> 00:30:14.546 DO YOU AGREE WITH THE COUNSEL ON 743 00:30:14.712 --> 00:30:15.947 THE OTHER SIDE THAT THE 744 00:30:16.114 --> 00:30:17.348 PRACTICAL CONSEQUENCES OF THIS 745 00:30:17.515 --> 00:30:20.251 CASE, REGARDLESS OF HOW WE RULE, 746 00:30:20.418 --> 00:30:21.353 WOULD BE LIMITED JUST TO THE 747 00:30:21.519 --> 00:30:25.056 CITIZENS CONTEXT? 748 00:30:25.222 --> 00:30:29.560 >> BY AND LARGE, PROBABLY SO. 749 00:30:29.728 --> 00:30:31.462 HOWEVER, I AM AWARE OF SOME 750 00:30:31.630 --> 00:30:32.963 CASES-- AND WE'VE ACTUALLY 751 00:30:33.131 --> 00:30:34.566 CITED THEM IN OUR BRIEFS-- 752 00:30:34.732 --> 00:30:37.269 WHERE I THINK AS LATE AS 2018 753 00:30:37.434 --> 00:30:38.670 THERE ARE POLICYHOLDERS OUT 754 00:30:38.836 --> 00:30:40.672 THERE THAT ARE SEEKING 755 00:30:40.838 --> 00:30:42.874 CONSEQUENTIAL DAMAGES FROM 756 00:30:43.040 --> 00:30:47.077 NON-CITIZEN-INSURED POLICIES AND 757 00:30:47.245 --> 00:30:50.281 A FIRST PARTY BREACH OF 758 00:30:50.448 --> 00:30:51.182 INSURANCE CONTRACT CAUSE. 759 00:30:51.348 --> 00:30:52.683 SO IT IS NOT SOMETHING THAT IS 760 00:30:52.851 --> 00:30:54.786 SOLELY LIMITED TO CITIZENS. 761 00:30:54.952 --> 00:30:55.787 THIS IS A REMEDY THAT 762 00:30:55.953 --> 00:30:59.089 POLICYHOLDERS ARE SEEKING FROM 763 00:30:59.257 --> 00:31:00.692 PRIVATE INSURANCE COMPANIES 764 00:31:00.858 --> 00:31:03.728 INDEPENDENT OF 624155 AND ARE 765 00:31:03.894 --> 00:31:07.031 DOING SO IN A FIRST PARTY BREACH 766 00:31:07.198 --> 00:31:07.332 CASE. 767 00:31:07.499 --> 00:31:10.835 AND I THINK THE MARA COURT 768 00:31:11.001 --> 00:31:11.935 DECISION IS ALSO IMPORTANT 769 00:31:12.103 --> 00:31:14.939 BECAUSE IT IS DECIDED AFTER 770 00:31:15.105 --> 00:31:19.344 SHALFONTE WHICH IS FURTHER PROOF 771 00:31:19.510 --> 00:31:21.346 THAT THIS COURT'S DECISION DID 772 00:31:21.512 --> 00:31:22.947 NOT AFFECT OR IMPACT THE 773 00:31:23.114 --> 00:31:24.048 AVAILABILITY OF THIS 774 00:31:24.214 --> 00:31:29.054 CONSEQUENTIAL DAMAGE REMEDY IN A 775 00:31:29.220 --> 00:31:31.155 FIRST PARTY BREACH CASE. 776 00:31:31.323 --> 00:31:32.856 NOW, IN THE BRIEFING CITIZENS 777 00:31:33.024 --> 00:31:35.460 WANTS TO DISTINGUISH CASES LIKE 778 00:31:35.626 --> 00:31:41.165 MARA, TRIDENT HOSPITALITY OR 779 00:31:41.333 --> 00:31:48.173 MONARCH ON THE BASIS THAT IT WAS 780 00:31:48.339 --> 00:31:49.574 A MOTION TO DISMISS. 781 00:31:49.740 --> 00:31:50.974 AND I SUBMIT THAT IS ONE WITHOUT 782 00:31:51.142 --> 00:31:52.777 A DIFFERENCE BECAUSE OF THE FACT 783 00:31:52.943 --> 00:31:54.778 THAT IF THIS REMEDY, AS MY 784 00:31:54.945 --> 00:31:56.980 OPPONENT ARGUES, WAS AS A 785 00:31:57.147 --> 00:31:58.482 BASELINE RULE NOT AVAILABLE, 786 00:31:58.650 --> 00:32:01.720 THEN THE COURT WOULD OBSTRUCT 787 00:32:01.885 --> 00:32:04.422 THOSE DAMAGES BECAUSE THERE 788 00:32:04.588 --> 00:32:05.824 WOULD NOT BE A CAUSE OF ACTION 789 00:32:05.990 --> 00:32:06.524 FOR THEM. 790 00:32:06.691 --> 00:32:07.525 BUT THE COURT DID IT. 791 00:32:07.692 --> 00:32:10.528 AND THE REASON IS, IS BECAUSE AS 792 00:32:10.694 --> 00:32:12.029 WE'VE STATED, THIS IS A 793 00:32:12.197 --> 00:32:13.932 CONTRACT. 794 00:32:14.098 --> 00:32:15.933 CONSEQUENTIAL DAMAGES ARE A 795 00:32:16.101 --> 00:32:17.836 CONTRACT REMEDY. 796 00:32:18.001 --> 00:32:19.037 IT'S BEEN RECOGNIZED IN FLORIDA 797 00:32:19.203 --> 00:32:21.940 FOR AT LEAST 38 YEARS IN THE 798 00:32:22.106 --> 00:32:23.641 INSURANCE CONTEXT WHICH IS WHY 799 00:32:23.807 --> 00:32:24.942 WE'RE ASKING THIS COURT TO 800 00:32:25.109 --> 00:32:26.344 ANSWER THE CERTIFIED QUESTION IN 801 00:32:26.510 --> 00:32:28.046 THE AFFIRMATIVE, AFFIRM THE 802 00:32:28.212 --> 00:32:29.447 FIFTH DISTRICT AND HOLD THAT 803 00:32:29.614 --> 00:32:31.950 CONSEQUENTIAL DAMAGES ARE A 804 00:32:32.116 --> 00:32:34.451 REMEDY TO FIRST PARTY BREACH 805 00:32:34.618 --> 00:32:34.952 CASES. 806 00:32:35.120 --> 00:32:35.220 THANK YOU. 807 00:32:35.386 --> 00:32:41.459 >> THANK YOU. 808 00:32:41.625 --> 00:32:42.861 >> FIRST, LET ME RESPOND TO SOME 809 00:32:43.027 --> 00:32:44.162 OF THOSE ARGUMENTS. 810 00:32:44.328 --> 00:32:47.966 AS TO THE PALETTE CASE, WHICH 811 00:32:48.133 --> 00:32:50.567 COUNSEL ALLUDED TO AND SAID ALL 812 00:32:50.734 --> 00:32:52.569 IT TALKS ABOUT IS THAT THEY'RE 813 00:32:52.736 --> 00:32:53.971 ALLOWED TO COVER DAMAGES 814 00:32:54.138 --> 00:32:56.674 CONTEMPLATED BY THE PARTY TO THE 815 00:32:56.841 --> 00:32:59.778 POLICY, THAT'S A QUOTE FROM ONE 816 00:32:59.944 --> 00:33:00.944 SECTION OF THE CASE. 817 00:33:01.111 --> 00:33:03.314 BUT THE CASE ALSO SAYS, AND I'M 818 00:33:03.480 --> 00:33:05.716 GOING TO QUOTE, IN THE CONTEXT 819 00:33:05.883 --> 00:33:07.819 OF A FIRST PARTY INSURANCE CLAIM 820 00:33:07.986 --> 00:33:10.821 THE CONTRACTUAL AMOUNT DUE TO 821 00:33:10.988 --> 00:33:13.024 THE INSURED IS THE AMOUNT OWED 822 00:33:13.191 --> 00:33:15.125 PURSUANT TO THE EXPRESS TERMS 823 00:33:15.292 --> 00:33:17.428 AND CONDITIONS OF THE POLICY 824 00:33:17.595 --> 00:33:19.129 AFTER ALL OF THE CONDITIONS 825 00:33:19.296 --> 00:33:21.232 PRECEDENT OF THE INSURANCE 826 00:33:21.399 --> 00:33:23.334 POLICY IN RESPECT TO PAYMENT ARE 827 00:33:23.500 --> 00:33:24.736 FULFILLED. 828 00:33:24.903 --> 00:33:27.037 SO THAT CASE FROM 2000 IS 829 00:33:27.205 --> 00:33:28.640 CRYSTAL CLEAR. 830 00:33:28.807 --> 00:33:30.442 THOSE ARE THE DAMAGES YOU GET AT 831 00:33:30.607 --> 00:33:33.845 COMMON LAW FOR BREACHES OF AN 832 00:33:34.011 --> 00:33:34.645 INSURANCE POLICY. 833 00:33:34.812 --> 00:33:36.848 SO THEIR CLAIM THAT, YOU KNOW, 834 00:33:37.015 --> 00:33:40.852 WE DON'T ADDRESS 624155, PAREN 835 00:33:41.019 --> 00:33:42.953 8, WHICH SAYS NOTHING IN THIS 836 00:33:43.120 --> 00:33:46.156 STATUTE PRECLUDES A COMMON LAW 837 00:33:46.323 --> 00:33:47.959 CAUSE OF ACTION, THAT JUST BEGS 838 00:33:48.125 --> 00:33:49.160 THE QUESTION WHETHER THERE IS A 839 00:33:49.326 --> 00:33:50.861 COMMON LAW CLAUSE OF ACTION. 840 00:33:51.029 --> 00:33:53.263 SO SUBSECTION 8 IS NEITHER HERE 841 00:33:53.430 --> 00:33:55.667 NOR THERE, JUST OFFERS NO 842 00:33:55.834 --> 00:33:57.267 OPINION IN THAT REGARD. 843 00:33:57.435 --> 00:34:00.471 THEY CITE TRAVELERS V. WELLS. 844 00:34:00.638 --> 00:34:02.707 THAT WAS A BREACH OF CONTRACT TO 845 00:34:02.874 --> 00:34:07.212 PROCURE AN ISSUE, A WORKER'S 846 00:34:07.377 --> 00:34:08.111 COMPENSATION POLICY. 847 00:34:08.278 --> 00:34:14.117 AND BECAUSE THE INSURANCE 848 00:34:14.284 --> 00:34:15.919 COMPANY REFUSED TO ISSUE THE 849 00:34:16.086 --> 00:34:17.521 POLICY, THEY HAD TO GO OUT OF 850 00:34:17.688 --> 00:34:18.822 BUSINESS BECAUSE THEY HAD NO 851 00:34:18.989 --> 00:34:20.824 WORKER'S COMP INSURANCE, AND 852 00:34:20.991 --> 00:34:23.227 THEY SUED ON THAT BASIS. 853 00:34:23.393 --> 00:34:26.530 THEY CITE TIME INSURANCE V. 854 00:34:26.697 --> 00:34:26.930 BERGER. 855 00:34:27.097 --> 00:34:28.832 THAT WAS A BAD FAITH CASE UNDER 856 00:34:29.000 --> 00:34:33.036 SECTION 624155 WHICH HELD WHAT 857 00:34:33.203 --> 00:34:35.038 DAMAGES ARE AVAILABLE IN THOSE 858 00:34:35.205 --> 00:34:37.942 KINDS OF ACTIONS. 859 00:34:38.108 --> 00:34:42.045 HE ARGUES THAT IN DENNY AND 860 00:34:42.212 --> 00:34:46.650 SHALFONTE THEIR STATEMENTS WERE 861 00:34:46.817 --> 00:34:48.051 NOT PART OF THE HOLDING? 862 00:34:48.218 --> 00:34:49.753 WELL, IN DENNY IT WAS AN 863 00:34:49.920 --> 00:34:52.356 INTEGRAL PART OF THE HOLDING AS 864 00:34:52.523 --> 00:34:55.959 HOW TO INTERPRET AN AMBIGUOUS 865 00:34:56.126 --> 00:34:56.660 POLICY DECISION. 866 00:34:56.827 --> 00:34:58.362 THE COURT SAID YOU DON'T GO ON 867 00:34:58.529 --> 00:34:59.663 THE SIDE OF THE POLICY, YOU 868 00:34:59.830 --> 00:35:00.664 DON'T LOOK AT THE REASONABLE 869 00:35:00.831 --> 00:35:01.198 EXPECTATIONS. 870 00:35:01.365 --> 00:35:02.599 YOU STICK TO THE LANGUAGE OF THE 871 00:35:02.766 --> 00:35:03.700 INSURANCE POLICY, AND IF THERE'S 872 00:35:03.867 --> 00:35:06.003 AN AMBIGUITY, YOU INTERPRET IT 873 00:35:06.169 --> 00:35:08.605 IN FAVOR OF THE INSURED. 874 00:35:08.772 --> 00:35:10.107 COUNSEL ARGUED ABOUT HOW IT'S 875 00:35:10.274 --> 00:35:12.009 NOT GOING TO AFFECT DISCOVERY IN 876 00:35:12.175 --> 00:35:12.709 A CASE. 877 00:35:12.876 --> 00:35:15.012 WELL, LET ME EXPLAIN WHAT 878 00:35:15.178 --> 00:35:18.415 HAPPENED TO YOU AFTER-- 879 00:35:18.582 --> 00:35:21.518 HAPPENED TO US AFTER WE PAID THE 880 00:35:21.685 --> 00:35:24.221 APPRAISAL AWARD WHICH WE PAID IN 881 00:35:24.388 --> 00:35:26.924 JANUARY OF 2010, 36 DAYS AFTER 882 00:35:27.090 --> 00:35:28.525 THE APPRAISAL AWARD. 883 00:35:28.692 --> 00:35:30.627 SIX MONTHS LATER THEY FILED A 884 00:35:30.794 --> 00:35:32.829 SECOND AMENDMENT COMPLAINT WHERE 885 00:35:32.996 --> 00:35:34.531 THEY ASSERTED ALL OF THE 886 00:35:34.698 --> 00:35:36.033 ALLEGATIONS WE'RE ARGUING ABOUT 887 00:35:36.199 --> 00:35:36.633 NOW. 888 00:35:36.800 --> 00:35:38.135 THAT WAS NOT FILED UNTIL AFTER 889 00:35:38.302 --> 00:35:41.638 WE PAID APPRAISAL AWARD. 890 00:35:41.805 --> 00:35:42.839 AND THEN FOR THE NEXT SEVEN 891 00:35:43.006 --> 00:35:44.442 YEARS THERE WAS LITIGATION ON 892 00:35:44.608 --> 00:35:48.545 THAT AMENDED COMPLAINT. 893 00:35:48.712 --> 00:35:49.546 AND PART OF THAT LITIGATION, IF 894 00:35:49.713 --> 00:35:51.248 WE LOOK AT THE DOCKET SHEET AND 895 00:35:51.415 --> 00:35:52.750 THE RECORD, IS MOTIONS FOR 896 00:35:52.916 --> 00:35:54.251 PROTECTIVE ORDER BECAUSE THEY 897 00:35:54.418 --> 00:35:56.553 ARE SEEKING TO DISCOVER FROM US 898 00:35:56.721 --> 00:36:00.357 WORK PRODUCT INFORMATION AND 899 00:36:00.524 --> 00:36:01.491 ATTORNEY/CLIENT PRIVILEGE 900 00:36:01.658 --> 00:36:01.892 INFORMATION. 901 00:36:02.059 --> 00:36:03.293 WE SAID THAT IS NOT AVAILABLE TO 902 00:36:03.460 --> 00:36:04.596 THEM NO MATTER THE ALLEGATIONS 903 00:36:04.761 --> 00:36:06.997 THAT THEY ARE MAKING. 904 00:36:07.164 --> 00:36:08.899 AND THE COURT GRANTED TO THOSE 905 00:36:09.067 --> 00:36:12.202 MOTIONS FOR PROTECTIVE ORDER. 906 00:36:12.369 --> 00:36:13.804 MY OPPONENT TALKS ABOUT 907 00:36:13.971 --> 00:36:16.807 CONSEQUENTIAL LOSS AND HOW WE 908 00:36:16.974 --> 00:36:18.809 EXCLUDED CONSEQUENTIAL LOSSES IN 909 00:36:18.976 --> 00:36:20.811 OTHER PARTS OF THE POLICY. 910 00:36:20.978 --> 00:36:22.813 THEY'RE CONFUSING CONSEQUENTIAL 911 00:36:22.980 --> 00:36:25.215 LOSS, THE TERM CONSEQUENTIAL 912 00:36:25.382 --> 00:36:27.918 LOSS FROM THE PERIL WITH 913 00:36:28.085 --> 00:36:29.519 CONSEQUENTIAL DAMAGES FROM THE 914 00:36:29.686 --> 00:36:31.321 INSURER'S CONDUCT. 915 00:36:31.488 --> 00:36:33.523 THOSE ARE TWO DIFFERENT THINGS. 916 00:36:33.690 --> 00:36:35.726 CONSEQUENTIAL LOSS IS DAMAGE 917 00:36:35.892 --> 00:36:38.328 OCCURRING LET'S SAY FROM A 918 00:36:38.495 --> 00:36:39.730 HURRICANE BUT INDIRECTLY FROM 919 00:36:39.896 --> 00:36:40.631 THE HURRICANE. 920 00:36:40.797 --> 00:36:41.932 IN OTHER WORDS, THE HURRICANE 921 00:36:42.099 --> 00:36:43.033 PRODUCES SOME DAMAGE, THAT 922 00:36:43.200 --> 00:36:46.737 PRODUCES OTHER INDIRECT DAMAGES. 923 00:36:46.903 --> 00:36:51.041 INSURERS CAN EXCLUDE THOSE 924 00:36:51.208 --> 00:36:52.442 CONSEQUENTIAL LOSSES. 925 00:36:52.609 --> 00:36:54.144 IT'S NOT ABOUT CONSEQUENTIAL 926 00:36:54.311 --> 00:36:55.245 DAMAGES AS A RESULT OF AN 927 00:36:55.412 --> 00:36:57.447 INSURED'S CONDUCT. 928 00:36:57.614 --> 00:36:58.849 IN FACT, AN INSURER WOULDN'T BE 929 00:36:59.016 --> 00:37:00.150 ABLE TO DO THAT BECAUSE THEY 930 00:37:00.317 --> 00:37:01.785 WOULD BE EXCLUDING THEMSELF OUT 931 00:37:01.952 --> 00:37:05.489 OF 624155 WHICH DOES ALLOW 932 00:37:05.656 --> 00:37:06.089 DAMAGES. 933 00:37:06.256 --> 00:37:07.591 SO THAT COMPARISON DOES NOT 934 00:37:07.758 --> 00:37:10.293 APPLY. 935 00:37:10.460 --> 00:37:13.196 THEY TALKED ABOUT THE COMPLAINT 936 00:37:13.363 --> 00:37:14.998 ALLEGING THAT WE FAILED TO MEET 937 00:37:15.165 --> 00:37:17.000 THE LOST PAYMENT PROVISIONS. 938 00:37:17.167 --> 00:37:18.902 WELL, IF YOU READ THE COMPLAINT, 939 00:37:19.069 --> 00:37:23.006 THERE'S NOTHING IN THE COMPLAINT 940 00:37:23.173 --> 00:37:26.910 THAT TALKS ABOUT NEW SPECIFIC 941 00:37:27.077 --> 00:37:28.111 LOST PAYMENT PROVISION. 942 00:37:28.278 --> 00:37:31.214 IN A BREACH OF CONTRACT, THEY 943 00:37:31.381 --> 00:37:33.317 ASSERT BREACHES OF THE POLICY IN 944 00:37:33.483 --> 00:37:34.418 GENERAL TERMS. 945 00:37:34.584 --> 00:37:37.521 PARAGRAPH 56 THEY CLAIM BREACH 946 00:37:37.688 --> 00:37:39.222 OF CONTRACT. 947 00:37:39.389 --> 00:37:40.824 CITIZENS HAS FAILED TO FAIRLY, 948 00:37:40.991 --> 00:37:43.326 HONESTLY AND PROPERLY ADJUST THE 949 00:37:43.493 --> 00:37:46.630 LOSS THAT IS ASSURED, THEREBY 950 00:37:46.797 --> 00:37:47.831 BREACHING THE POLICY. 951 00:37:47.998 --> 00:37:49.633 PARAGRAPH 63 AND THE SECOND 952 00:37:49.800 --> 00:37:52.035 CITIZEN, CITIZENS' FAILURE TO 953 00:37:52.202 --> 00:37:54.137 PROCEED VOLUNTARILY TO PROCESS 954 00:37:54.304 --> 00:37:56.840 OF APPRAISAL CONSTITUTE A 955 00:37:57.007 --> 00:37:59.142 WRONGFUL DENIAL OF ABUSE CLAIM. 956 00:37:59.309 --> 00:38:00.911 NO LOSS PAYMENT PROVISION. 957 00:38:01.078 --> 00:38:02.779 CITIZENS-- AND THEN 64, 958 00:38:02.946 --> 00:38:04.681 CITIZENS' FAILURE TO TIMELY AND 959 00:38:04.848 --> 00:38:05.782 APPROPRIATELY PAY THE AMOUNT OF 960 00:38:05.949 --> 00:38:08.185 THE APPRAISAL AWARD CONSTITUTED 961 00:38:08.351 --> 00:38:11.288 A WRONGFUL DENIAL OF THE CLAIM. 962 00:38:11.455 --> 00:38:13.590 AND THEN 68C THEY SAY AS THE 963 00:38:13.757 --> 00:38:16.293 DIRECT AND FORESEEABLE RESULT TO 964 00:38:16.460 --> 00:38:18.596 THE PLAINTIFF'S PROPERTY, THEY 965 00:38:18.762 --> 00:38:21.098 WILL-- PLAINTIFF HAS SUFFERED 966 00:38:21.264 --> 00:38:22.599 AND WILL CONTINUE TO SUFFER 967 00:38:22.766 --> 00:38:24.801 CONSEQUENTIAL DAMAGES DUE TO THE 968 00:38:24.968 --> 00:38:27.104 DEFENDANT'S DELAY AND FAILURE TO 969 00:38:27.270 --> 00:38:28.305 PAY THIS CLAIM. 970 00:38:28.472 --> 00:38:30.707 THAT'S EXACTLY WHAT A CLAIM 971 00:38:30.875 --> 00:38:35.112 UNDER 6241551B1 ALLEGES, WHICH 972 00:38:35.278 --> 00:38:38.215 IS THE FAILURE TO SETTLE. 973 00:38:38.381 --> 00:38:40.016 AND THAT'S THE MOST COMMONLY 974 00:38:40.183 --> 00:38:42.018 USED PROVISION, FAILURE TO 975 00:38:42.185 --> 00:38:43.620 SETTLE UNDER CIRCUMSTANCES WHERE 976 00:38:43.787 --> 00:38:44.921 THEY COULD AND SHOULD HAVE DONE 977 00:38:45.088 --> 00:38:46.022 SO. 978 00:38:46.189 --> 00:38:48.024 SO THEY DON'T ALLEGE ANY 979 00:38:48.192 --> 00:38:50.026 PARTICULAR POLICY PROVISION. 980 00:38:50.193 --> 00:38:51.628 BUT IF YOU LOOK AT PARAGRAPH-- 981 00:38:51.795 --> 00:38:54.731 I MEAN, PAGE 45 OF OUR APPENDIX 982 00:38:54.898 --> 00:38:56.433 WHICH IS THE POLICY, THAT WILL 983 00:38:56.600 --> 00:38:59.136 GIVE YOU THE LOSS PAYMENT 984 00:38:59.302 --> 00:38:59.836 PROVISION. 985 00:39:00.003 --> 00:39:01.071 AND WE'RE NOT OBLIGATED TO PAY 986 00:39:01.238 --> 00:39:02.773 ON ANY CLAIM UNTIL THERE'S AN 987 00:39:02.939 --> 00:39:04.074 AGREEMENT ON THE AMOUNT OF LOSS, 988 00:39:04.241 --> 00:39:05.876 NUMBER ONE, OR 30 DAYS A AFTER 989 00:39:06.042 --> 00:39:07.477 AN APPRAISAL AWARD. 990 00:39:07.644 --> 00:39:10.180 AND IT'S UNDISPUTED IN THIS CASE 991 00:39:10.347 --> 00:39:12.883 THAT WE PAY 36 DAYS AFTER THE 992 00:39:13.049 --> 00:39:14.985 APPRAISAL AWARD. 993 00:39:15.152 --> 00:39:19.990 SO, ARGUABLY, SIX DAYS LATE. 994 00:39:20.157 --> 00:39:21.391 AND WE PAID MORE THAN THEY WERE 995 00:39:21.558 --> 00:39:22.192 ENTITLED TO. 996 00:39:22.359 --> 00:39:24.394 THERE'S NO CLAIM THAT IT WAS 997 00:39:24.561 --> 00:39:25.295 INADEQUATE. 998 00:39:25.462 --> 00:39:28.298 SO FOR THOSE REASONS, WE ASK YOU 999 00:39:28.465 --> 00:39:30.400 TO QUASH THE DECISION OF THE DCA 1000 00:39:30.567 --> 00:39:31.601 AND ANSWER THE CERTIFIED 1001 00:39:31.768 --> 00:39:32.502 QUESTION IN THE NEGATIVE. 1002 00:39:32.669 --> 00:39:34.404 THANK YOU. 1003 00:39:34.571 --> 00:39:37.407 >> WE THANK YOU BOTH FOR YOUR 1004 00:39:37.574 --> 00:39:39.609 ARGUMENTS TODAY. 1005 00:39:39.776 --> 00:39:42.813 THE COURT WILL NOW STAND IN 1006 00:39:42.979 --> 00:39:44.815 RECESS FOR ABOUT TEN MINUTES 1007 00:39:44.981 --> 00:40:44.975 BEFORE WE TAKE UP OUR NEXT CASE.