ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the following:
This action involves a dispute over the interpretation of representations made by
Defendants via e-mail in November 2009 regarding the availability of Defense Base Act ("
Plaintiffs—American K-9 Detection Services, Inc. and American K-9 Services, LLC (collectively, "
Carla Bermudez-Rivera ("
In October 2009, ACE American Insurance Company ("
In November of 2009, Ms. Bermudez told Ms. Payne that AMK9 needed to procure insurance for its Canadian Contract. (Doc. 67-2, ¶ 7; see also Doc. 80-17, pp. 2-3.) AMK9 represents that Ms. Payne incorrectly advised Ms. Bermudez that DBA insurance was not available for projects that were not funded by the United States Government ("
According to Defendants: (1) Ms. Payne informed Ms. Bermudez that she would need a copy the Canadian Contract determine the availability of DBA coverage (Doc. 79-1, ¶ 14); and (2) AMK9's interpretation of the Representations fail to account for the distinction between program and non-program DBA coverage (see id. ¶¶ 3-4, 6-7, 13).
In light of the Representations, Ms. Payne advised Ms. Bermudez that AMK9's only coverage option for the Canadian Contract was a personal accident policy from Lloyd's of London ("
In May and August of 2010, three of AMK9's dog handlers were injured in Afghanistan while performing work under the Canadian Contract ("
AMK9 advanced costs "to assure that all appropriate care was given to [Mr. Williamson, Mr. Logie, and Mr. Cicero] while the insurance process was administered," including costs for the payment of Mr. Cicero's salary, which AMK9 was contractually obligated to pay. (Doc. 67-2, ¶¶ 16-18, 22.) AMK9 represents that it used the PA Policy to pay for the initial medical care and treatment of Mr. Cicero. (Id. ¶ 20.) Finally, on October 10, 2011, AMK9 paid Mr. Cicero a lump sum of $300,000 in temporary disability benefits under the PA Policy. (Id. ¶ 22.) In light of Ms. Bermudez's testimony that the PA Policy only paid for fifty percent of an employee's net salary, beginning after a thirty-day waiting period, Defendants dispute that AMK9 was reimbursed for its advancement of Mr. Cicero's salary under the PA Policy. (Doc. 75, pp. 8-9; Doc. 176-14, p. 176; see also Doc. 76-12, p. 4.)
AMK9 subcontracted some of its work under the Canadian Contract to RONCO Consulting Corporation ("
According to the U.S. Department of Labor ("
Pursuant to its statutory obligations, on August 25, 2010, AMK9 engaged attorney Keith Flicker ("
Dissatisfied with the handling of its requests for DBA insurance on the Canadian Contract, AMK9 initiated this action in state court on October 27, 2014. (Doc. 1, ¶ 1.) Defendants later removed the action to this Court on the basis of diversity jurisdiction. (Doc. 1.) In its Second Amended Complaint ("
The parties have now filed cross-motions for summary judgment (Docs. 55, 67), and Defendant has filed a Daubert
In its gatekeeping role, a district court is tasked to ensure that juries only hear "expert" opinions that satisfy the following requirements:
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562-63 (11th Cir. 1998); see also Cooper v. Marten Transp., Ltd., 539 F. App'x 963, 965-67 (11th Cir. 2013). Importantly, the Court must eschew credibility determinations and any assessment of the merits of an expert witness's opinion—which are matters exclusively reserved to juries— and must instead narrowly focus on whether the proponent of the expert witness has established the Qualification, Reliability, and Helpfulness Requirements. See Daubert, 509 U.S. at 594-95; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 155 (2000).
To determine whether the Qualification Requirement is met, "courts generally look to evidence of the witness's education and experience and" determine whether such qualifications and expertise sufficiently "fit" with "the subject matter of the witness's proposed testimony." In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F.Supp.2d 1348, 1367 (M.D. Ga. 2010) (citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)).
A determination on the Reliability Requirement requires consideration of a plethora of factors, which vary depending on the opinions and testimony at issue, including the following well-known Daubert factors:
Daubert, 509 U.S. 579; United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). The factors pertinent to an analysis of the Reliability Requirement—including the Daubert factors—"are only illustrative and may not all apply in every case." United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005). The district court must identify the pertinent factors, and the court is accorded "wide latitude in deciding how to determine reliability." Id.
Finally, the Helpfulness Requirement turns on
See Fed. R. Evid. 702, Advisory Committee Notes (citation omitted).
The burden of establishing admissibility is borne by the party offering the expert opinion—the proponent. See Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); see also Frazier, 387 F.3d at 1260. The proponent does not have to prove that the opinion is scientifically correct, just that it is reliable and helpful. See Lord v. Fairway Elec. Corp., 223 F.Supp.2d 1270, 1279 (M.D. Fla. 2002) (citing Fed. R. Evid. 702, Advisory Committee Notes). If the proponent does so, then the court should open the gate by permitting the proponent to elicit testimony from the expert witness concerning his or her reliable opinions and by allowing the jury to fulfill its role of determining the weight to accord such testimony. Indeed, the Court's limited gatekeeping role "is not intended to supplant" presentation of contrary evidence to the jury or the practice of cross-examination in a courtroom. See United States v. Ala. Power Co., 730 F.3d 1278, 1282-85 (11th Cir. 2013). Accordingly, once the proponent satisfies the minimum threshold for admissibility, the parties' remaining reliability and relevance disputes must be decided by the jury—preferably based on the litigants': (1) presentation of contrary evidence, such as testimony from the litigant's own expert witness providing both contrary opinions and criticism of—among other things—the opposing expert's qualifications and the inaccuracy or unreliability of his or her opinions; and (2) use of cross-examination and appropriate legal argument. See id.; see also Costa v. Wyeth, Inc., No. 8:04-cv-2599-T-27MAP, 2012 WL 1069189, at *2 (M.D. Fla. Mar. 29, 2012).
As set forth in his expert report ("
Defendants first contend that Mr. Hager does not meet the Qualification Requirement under Daubert because: (1) he has never been a broker or an agent; (2) he has not consulted with any reasonably prudent broker or agent concerning any issues in the case; and (3) he has been disqualified by a number of federal judges ("
As an initial matter, the Court finds that many of the Disqualification Rulings cited by Defendants are factually distinct from the instant action. First, in Nova Casualty Co. v. Waserstein, Mr. Hager's testimony was excluded on the ground that the policy he sought to interpret was not ambiguous; thus, expert opinion testimony was unnecessary. No. 04-207550-CIV, 2005 WL 5955694, at *1, *2 (S.D. Fla. Sept. 7, 2005). Indeed, the Nova court explicitly stated that "the issue [was] not whether Mr. Hager [was] qualified or whether his methodology [was] reliable." Id. at *2. Rather, because the policy was unambiguous, the Nova court found that his testimony would not be helpful to the trier of fact. See id.
Also distinguishable are the courts' rulings in Sadel v. Berkshire Life Insurance Company of America, No. 09-612, 2011 WL 292239 (E.D. Pa. Jan. 31, 2011), aff'd, 473 F. App'x 152 (3d Cir. 2012) and Old Line Life Insurance Company v. Brooks, No. 3:05-cv-722, 2007 WL 892448 (S.D. Miss. Mar. 21, 2007). Mr. Hager's qualifications were also not at issue in Sadel or Brooks. Rather, the Sadel court excluded Mr. Hager's testimony because the facts in the record did not support his opinion. See 2011 WL 292239, at *12. The Brooks court excluded Mr. Hager's testimony because he offered improper legal conclusions. 2007 WL 892448, at *8-9.
Tiara Condominium Association, Inc. v. Marsh & McLennean Companies, Inc., No. 9:08-cv-80254-Hurley (S.D. Fla. 2014) is the only cited case that is analogous to the instant action. However, the Court disagrees with the Tiara court's Disqualification Ruling, which implied that the Qualification Requirement would be met only by brokers and those with broker's experience. (See Doc. 66-8 (providing a transcript of the Disqualification Ruling in Tiara).) Here, the Court finds that provided that an expert is otherwise qualified, he or she is not required to be a broker, or have experience as a broker, to speak the standard of care of a broker.
Under Federal Rule of Evidence 702, an expert is qualified based on a blend of his knowledge, skill, experience, education, and training. A review of Mr. Hager's resume and Report reveals that he has extensive insurance experience, including the representation of agent and insurer interests as attorney and a position as the former chief executive officer of the National Council on Compensation Insurance (NCCI)—an insurance firm that priced workers' compensation nationwide, similar to the DBA insurance implicated in this case—in a role that regularly involved workers' compensation insurance issues and daily interaction with insurance agents. (See generally Docs. 66-2, Doc. 78-3.) Additionally, the Court finds that Mr. Hager is qualified by both education and experience and that Defendants' challenge to his qualifications go to the weight, and not the admissibility, of his testimony. In that regard, Defendants will have ample opportunity to challenge Mr. Hager's qualifications on cross-examination.
Nonetheless, the Court finds that Mr. Hager's membership on the Florida Legislature is not particularly relevant to the issues at hand and may be unduly prejudicial. Thus, at trial, AMK9 will be precluded from introducing testimony as to Mr. Hager's regulatory or legislative experience in either Iowa or Florida. Indeed, in Mr. Hager's affidavit, he implies that it is his industry experience, and not his legislative or regulatory experience, that is most relevant to the issues in this action. (See Doc. 78-3, ¶ 16.)
As Mr. Hager testified at his deposition, his opinions are "based on what a reasonably prudent insurance agent should and would do in comparable circumstances." (Doc. 78-2, p. 5.) There is no question that the practice of prudent insurance agents is specialized knowledge unknown to the average lay person. Thus, expert testimony is required in this action; indeed, the issues present a classic battle of the experts. Both Mr. Hager and Defendants' expert, Mr. William Austin, are consultants who testify regarding insurance, yet neither actually has experience placing coverage or selling policies. The Court anticipates that the absence of any "hands on" experience will be thoroughly explored in cross-examination, as it was during Mr. Hager's deposition. See Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky, but admissible evidence.").
Defendants also contend that Mr. Hager's opinions do not meet the Reliability Requirement under Daubert on the grounds that Mr. Hager: (1) discounts the relevancy of Ms. Bermudez's failure to provide Ms. Payne with the Canadian Contract as requested; (2) rejects testimony that AMK9 bore the responsibility for failing to obtain DBA coverage prior to the Injuries; (3) lacks knowledge regarding the distinction between program DBA and non-program DBA and (4) will mislead the jury regarding the roles of a broker and an underwriter by opining that Rutherford did not timely bind coverage for AMK9's eventual DBA policy on the Canadian Contract. (Doc. 65, pp. 13-14.)
In a recent order denying a Daubert motion to exclude Mr. Hager's testimony, U.S. District Judge Carlos E. Mendoza stated that, "[t]o the extent [the challenging party] argues that Mr. Hager's opinions are flawed or contrary to the record evidence, this is a matter best addressed at trial by contemporaneous objection or vigorous cross-examination." Hill v. Allianz Life Ins. Co. of N. Am. ("
Finally, Defendants challenge Mr. Hager's helpfulness as an expert. As grounds for their challenge, Defendants argue that: (1) Mr. Hager's purported testimony that Rutherford had heightened obligations due to a special relationship with AMK9 is an impermissible legal opinion; and (2) in repeatedly arguing that Rutherford "breached" its alleged duties to AMK9, Mr. Hager's testimony improperly invades the exclusive province of the Court to "instruct the jury on the law." (Doc. 65, pp. 14-17.) The Court disagrees.
Pursuant to Federal Rule of Evidence 704(a), "[a]n opinion is not objectionable just because it embraces an ultimate issue." Judge Mendoza relied on Rule 704 in denying a similar challenge to Mr. Hager's testimony in Hill. (Hill, Doc. 113, p. 6.) Upon consideration, the Court similarly declines to exclude Mr. Hager's testimony on this basis.
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to issues for which the movant would bear the burden of proof at trial, the "movant must affirmatively show the absence of a genuine issue of material fact, and support its motion with credible evidence demonstrating that no reasonable jury could find for the non-moving party on all of the essential elements of its case." Landolfi v. City of Melbourne, Fla., 515 F. App'x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to issues for which the non-movant would bear the burden of proof at trial, the movant has two options: (1) the movant may simply point out an absence of evidence to support the nonmoving party's case; or (2) the movant may provide "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." U.S. v. Four Parcels of Real Property in Green and Tuscaloosa Cntys. In State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S. at 325).
"The burden then shifts to the non-moving party, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists." Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993)). "A factual dispute is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248) (1986)).
The Court must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the non-movant. Battle, 468 F.3d at 759. However, "[a] court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the non-movant relies, are `implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
Defendants move for summary judgment on the ground that AMK9's claims are barred by a four-year statute of limitations ("
As discussed at the Hearing, two decisions are controlling here—Kelly v. Lodwick, 82 So.3d 855 (Fla. 4th DCA 2011) and Medical Data Systems, Inc. v. Coastal Insurance Group, Inc., 139 So.3d 394 (Fla. 4th DCA 2014). The Court will discuss each decision in turn.
In Kelly, a private school's insurer informed the school and the school's insurance agents that it would not renew the school's casualty policy, which was set to lapse on March 1, 2004. 82 So. 3d at 856. The agents subsequently received a commitment from a second insurer, who was willing to issue the school a new policy effective March 1, 2004, if the agents provided written confirmation to the second insurer indicating that the school desired the new policy ("
On the afternoon of March 1, 2004, a student ("
On April 20, 2005, Student and her mother ("
On appeal, the District Court of Appeal of Florida for the Fourth District ("
Id.
In Medical Data, a national medical debt collector ("
In November 2009, MDS sued Coastal for negligent failure to procure appropriate insurance coverage. Id. MDS later amended its complaint to add American Professional Liability Underwriters, Inc. ("
The Fourth DCA declined to apply Kelly to resolve an appeal of the SJ Ruling on the grounds that: (1) Kelly was decided in the context of a motion to dismiss, while Medical Data was decided on summary judgment; and (2) there was no insurance policy in effect in Kelly, while in Medical Data, there was an insurance policy that did not provide the necessary coverage. Id. at 396. The Fourth DCA determined that Medical Data was more analogous to a case decided by the Supreme Court of Florida—Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061, 1065 (Fla. 2001). Id.
As summarized by the Fourth DCA, in Blumberg, a burglar stole sports cards from the plaintiff's home. Id. After the insurer denied coverage, the homeowner sued the insurer for breach of contract ("
As stated in their SOL Motion, Defendants maintain that Kelly controls the SOL analysis in the instant action. (Doc. 55, pp. 17-19.) Additionally, Defendants contend that Medical Data was wrongly decided and is an incorrect application of the Florida Supreme Court's decision in Blumberg. (See Doc. 93, pp. 34-38.) AMK9 counters that Medical Data controls and, therefore, its cause of action did not accrue until the resolution of the Cicero Lawsuit in 2013. (Doc. 69, pp. 8-13).
Upon consideration, the Court agrees with AMK9. First, as the Fourth DCA highlighted in Medical Data, the key distinction between Kelly and Medical Data was the complete lack of insurance coverage in Kelly verses the existent, yet inadequate, coverage in Medical Data. See Med. Data, 139 So. 3d. at 396. That key distinction exists here because, unlike the facts presented in Kelly, the PA Policy did provide insurance coverage to AMK9—albeit inadequate—at the time of the Injuries. Thus, Kelly is distinguishable, and the Court finds that the facts at issue here are analogous with those of Medical Data, where MDS was covered by a policy that excluded coverage for the FDCPA Litigation initiated against it.
Importantly, as the defendant in the Cicero Lawsuit, AMK9 contended that the PA Policy was comparable to DBA insurance.
Had AMK9 succeeded in its defense in the Cicero Lawsuit, it would have been protected under the DBA, just as if, had MDS had debt collector coverage in Medical Data, it would have similarly been protected in the FDCPA Litigation. Consequently, based on Medical Data, the Court finds that AMK9's cause of action did not accrue until the Cicero Lawsuit was resolved in September of 2013 and, therefore, Defendants' SOL Motion is due to be denied.
Having found that AMK9's claims are not barred by the SOL, the Court now turns to AMK9's motion for summary judgment (Doc. 67). In its Motion, AMK9 seeks summary judgment on all four counts of the SAC based on Ms. Payne's Representations to Ms. Bermudez. To prevail on its Motion, AMK9 must demonstrate that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law on all of the elements of its claims. Fed. R. Civ. P. 56 (a).
In Counts I and IV, AMK9 asserts claims against Defendant for negligent failure to procure insurance and negligent misrepresentation. (Doc. 30, ¶¶ 27-39, 66-75.)
Wolicki-Gables v. Arrow Int'l, Inc., 641 F.Supp.2d 1270, 1288 (M.D. Fla. 2009) (quoting Florida Standard Jury Instructions for Civil Cases [Reorganized], Instruction 401.4), aff'd, 634 F.3d 1296 (11th Cir. 2011).
As to Count I, AMK9 contends that: (1) Defendants assumed a legal duty to procure appropriate insurance coverage to meet AMK9's needs with respect to the Canadian Contract; (2) Defendants breached their legal duty by conveying inaccurate information regarding the availability of DBA insurance for the Canadian Contract; and
(3) Defendants' breach prevented AMK9 from obtaining proper coverage, thereby causing AMK9 significant damages that would otherwise have been avoided. (Doc. 67, p. 12.)
Defendants, however, argue that Ms. Bermudez's failure to provide Ms. Payne with the Canadian Contract or complete an insurance application ("
Upon consideration, the Court finds that the determination of whether Defendants acted reasonably under the circumstances cannot be resolved at the summary judgment stage. Indeed,
Croley v. Matson Nav. Co., 434 F.2d 73, 75 (5th Cir. 1970).
Defendants have produced an e-mail in which Ms. Bermudez stated that she was unsure as to why she did not provide the Canadian Contract to Ms. Payne as requested. (See Doc. 80-6 ("I cannot figure out why the Canada [Statement of Work] was not included").) Construing the facts in the light most favorable to Defendants—the non-moving party—Defendants have provided evidence from which a jury could infer that Ms. Bermudez's Inaction was an oversight. Consequently, a reasonable juror could conclude that Defendants acted reasonably under the circumstances or that Defendants were not the legal cause of AMK9's damages. On the other hand, a reasonable juror could also conclude that, even in spite of Ms. Bermudez's Inaction, Ms. Payne's Representations were unreasonable under the circumstances. In either event, summary judgment is inappropriate. See City of Delray Beach, Fla., 85 F.3d 1527, 1530 (11th Cir. 1996) ("If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.").
For the same reasons, the Court finds that summary judgment is also due to be denied as to AMK9's claim for negligent misrepresentation. Indeed, to enter summary judgment on the negligent misrepresentation claim, the Court must conclude that Defendants were negligent in making a false statement. See Florida Standard Jury Instructions—Civil Cases [Reorganized], Instruction 409.8 (instructing that for a claim for negligent misrepresentation, the jury must find, inter alia, that Defendants were negligent in making the statement). Based on the conflicting inferences that may be drawn from Ms. Bermudez's Inaction and Ms. Payne's Representations, the Court finds that summary judgment is not warranted, particularly in light of Defendants' representations as to the distinction between program and non-program DBA insurance. See supra note 4.
In Count II of the SAC, AMK9 asserts a claim against Defendants for breach of fiduciary duty. In support, AMK9 maintains that: (1) Defendants held themselves out as experts in the field of DBA insurance; (2) AMK9 began an on-going relationship with Defendants in May 2009, during which time Defendants served as AMK9's broker of record for DBA insurance on contracts funded by the USG ("
Generally, a fiduciary has an "affirmative duty of utmost good faith, and full and fair disclosure of all material facts, as well as an affirmative obligation to employ reasonable care to avoid misleading his clients." Sec. & Exch. Comm'n v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 194 (1963). However, the scope of a broker's fiduciary duty in advising an insured as to its insurance needs has not yet been determined under Florida law.
Construing the issue as one of first impression in Florida, U.S. District Judge Daniel D.K. Hurley delved into this novel area in Tiara Condominium Association, Inc. v. March, USA, Inc., 991 F.Supp.2d 1271 (S.D. Fla. 2014). Reviewing case law from various jurisdictions, Judge Hurley concluded that "an insurance agent [generally] has no duty to advise the insured as to the insured's insurance coverage needs" and that this rule is equally applicable to insurance brokers. 991 F. Supp. 2d at 1280. A well-developed body of case law throughout the country recognizes an exception to the general rule "when a broker encourages and engages in a `special relationship' with its client, thereby triggering an enhanced duty of care to advise the client about the amount of coverage prudently needed to meet its complete insurance needs." Id. at 1281. Examples from case law, which support a finding of a "special relationship," include:
Id. (emphasis added). Moreover, relevant factors for the factfinder's consideration in determining whether a broker shared a "special relationship" with its client, include:
Id. As such, "[w]hether an insurance broker shared a `special relationship' with its client is a question of fact for the jury," particularly where the record contains disputed facts regarding these Considerations. Id. at 1281-82.
Defendants contend that AMK9 did not plead that the parties had a special relationship in either its SAC or its Motion. (Doc. 79, p. 17.) However, a review of the SAC reveals that while AMK9 did not use the words "special relationship," it specifically pled that Defendants held themselves out as experts in the field of DBA insurance and that AMK9 relied on that expertise. (Doc. 30, ¶¶ 7, 12, 42.) As such, the Court finds that AMK9 sufficiently pled the existence of the third type of special relationship outlined in Tiara. See Tiara, 991 F. Supp. 2d at 1281. In support, AMK9 submitted affidavit testimony that from May 21, 2008, to April 2011 Defendants were its exclusive brokers for DBA insurance. (E.g., Doc. 67-2, ¶ 5.) AMK9's expert, Mr. Hager, also opines that a special relationship existed between AMK9 and Defendants. (Doc. 66-2 at 11-12.) Defendants' own admissions also support this conclusion. First, in its Answer, Defendants admit that "Ms. Payne had experience placing DBA insurance for her clients." (Doc. 45, ¶ 12.) Additionally, during her deposition, Ms. Payne admitted that she was more knowledgeable about DBA insurance than Ms. Bermudez. (Doc. 67-5, pp. 39-40.)
Defendants, however, contend that: (1) Mr. Hager's opinion as to the existence of a special relationship should be excluded on the basis of their Daubert motion; (2) the existence of a special relationship is question for the jury; and (3) the facts do not otherwise support the finding of a special relationship based on exclusivity in light of AMK9's procurement of the PA Policy through another broker. (Doc. 79, pp. 16-17.) At the Hearing, Defendants also argued that the facts regarding the existence of a special relationship were in dispute—specifically, that the Record Broker Relationship between AMK9 and Defendants ended on December 1, 2009, upon the expiration of the Compass DBA Policy. (See Doc. 93, p. 51-52.)
While the existence of a special relationship is a factual determination, as intimated at the Hearing, summary judgment may be appropriate where there are no material facts in dispute. (See id. pp. 50-51.) A key factor listed in the Considerations is the length and depth of the parties' relationship. Tiara, 991 F. Supp. 2d at 1281. Construing the facts in the light most favorable to Defendants, the Court finds that there is conflicting evidence as to the length of depth of the parties' client relationship from which a reasonable juror could conclude that the parties' relationship was confined solely to matters relating to the Compass DBA Policy. (Compare Doc. 80-12, p. 3 (authorizing Rutherford as AMK9's "exclusive insurance representative with respect to obtaining the DBA renewal proposal and servicing the current DBA policy in force") and supra note 2 (noting that the Compass DBA Policy expired on December 1, 2009), with Doc. 67-2, ¶ 5 (providing affidavit testimony that from May 21, 2008, to April 2011, Defendants were AMK9's exclusive brokers with respect DBA insurance). In light of this factual dispute as to the length and scope of the parties' relationship, the Court declines to grant summary judgment as to Count II. See Tiara, 991 F. Supp. 2d at 1282 ("Where the record contains disputed facts, the resolution of which could provide competent substantial evidence to support a finding of a `special relationship' between a broker and its client, summary judgment is improper; the matter must be resolved by a jury.").
Finally, in Count III, AMK9 alleges that Defendants breached an oral contract, under which Defendants agreed to procure DBA insurance for the Canadian Contract on AMK9's behalf. (Doc. 30, ¶¶ 53-65.)
To prove the existence of a contract under Florida law, a party must establish the following elements: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms. See Kolodziej v. Mason, 774 F.3d 736, 740 (11th Cir. 2014). Moreover, a claim for breach of an oral contract arises only when the parties "mutually assented to a certain and definite proposition and left no essential terms open." Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Cos., Inc., 607 F.3d 742, 746 (11th Cir. 2010) (quoting Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000)).
As the Court suggested at the Hearing, AMK9 has not produced any evidence of an offer, acceptance, or mutual assent on the part of Defendants to procure DBA insurance for the Canadian Contract. (See Doc. 93, pp. 44-45.) Indeed, the e-mail communications submitted to the Court demonstrate the following. First, Ms. Bermudez informed Defendants that AMK9 needed coverage for "a few more contracts" that were not Department of Defense contracts and inquired about coverage options. (Doc. 80-17, p. 3.) In response, Ms. Payne asked Ms. Bermudez about the source of funding and the performance location for the contracts. (Id.) Ms. Bermudez replied, "[t]hey are Canadian Contracts and the work is in Afghanistan." (Id. at 2.) Ms. Payne then advised Ms. Bermudez that the only available option was the PA Policy from Lloyd's of London and asked Ms. Payne for a copy for the Canadian Contract for review by Rutherford's DBA defense attorney "to be sure DBA doesn't apply". (Id.) Absent from this exchange is any evidence of an offer, acceptance, or mutual assent to procure DBA insurance for the Canadian Contract. Indeed, Ms. Payne essentially advised Ms. Bermudez that she would be unable to procure DBA insurance for the Canadian Contract. (See Doc. 80-17, pp. 2-3.) In light of the foregoing, the Court finds that AMK9 has fallen well short of meeting its burden to establish that it is entitled to judgment as a matter of law on its claim from breach of contract. As such, AMK9's Motion as to Count III is due to be denied.
Accordingly, it is hereby
