Duplicate from Kingsfield-Lawfare/florida-court-transcripts

Co-authored-by: Aaron Ray <evershiner@users.noreply.huggingface.co>

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Case_24_2755/24_2755_transcript.srt

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+1
+00:00:00,000 --> 00:00:28,000
+Good morning, Your Honors, thank you for your support.
+
+2
+00:00:28,000 --> 00:00:33,598
+My name is Mihaela Cabrilla and I represent Hartford Insurance Company of Southeast, who
+
+3
+00:00:33,598 --> 00:00:38,039
+is a third-party payer in this case.
+
+4
+00:00:38,039 --> 00:00:43,118
+This appeal, Your Honors, presents an issue of statutory interpretation that is of first
+
+5
+00:00:43,118 --> 00:00:44,118
+impression.
+
+6
+00:00:44,118 --> 00:00:52,439
+Namely, how to interpret the mandatory indemnification subrogation right under the Workers' Compensation
+
+7
+00:00:52,439 --> 00:01:00,479
+Statute in a way that does not render other provisions in the statute negatory or that
+
+8
+00:01:00,479 --> 00:01:03,798
+doesn't limit that mandatory recovery right.
+
+9
+00:01:03,798 --> 00:01:06,079
+Let me ask just an initial question.
+
+10
+00:01:06,079 --> 00:01:14,079
+The legislature knows the term contractor, subcontractor, and sub-subcontractor, correct?
+
+11
+00:01:14,079 --> 00:01:15,079
+Yes.
+
+12
+00:01:15,079 --> 00:01:21,558
+And in this particular statute that is at issue, they don't refer to sub-subcontractors
+
+13
+00:01:21,558 --> 00:01:23,439
+in terms of the reimbursement.
+
+14
+00:01:23,439 --> 00:01:25,439
+They just refer to sub-subcontractors, correct?
+
+15
+00:01:25,439 --> 00:01:26,439
+That's correct.
+
+16
+00:01:26,439 --> 00:01:27,439
+Okay.
+
+17
+00:01:27,439 --> 00:01:32,079
+I just want to make sure that we're on the same page as far as what the statute actually
+
+18
+00:01:32,079 --> 00:01:33,079
+says.
+
+19
+00:01:33,079 --> 00:01:34,079
+Right.
+
+20
+00:01:34,079 --> 00:01:39,638
+And I want to, I will refer to the exact language of the statute in a little while.
+
+21
+00:01:39,638 --> 00:01:43,400
+And I don't think I need to go through the facts of this case because they're very simple
+
+22
+00:01:43,400 --> 00:01:44,400
+and disputed.
+
+23
+00:01:44,400 --> 00:01:48,439
+There was a payment made by my client in the amount of.
+
+24
+00:01:48,439 --> 00:01:54,079
+Well, it's simple if you have a flowchart maybe, but.
+
+25
+00:01:54,079 --> 00:02:01,159
+My client made the payment in the amount of a little over $1.5 million in workers' compensation.
+
+26
+00:02:01,159 --> 00:02:06,400
+And that payment was necessary because both the subcontractor in this case.
+
+27
+00:02:06,400 --> 00:02:09,038
+Because of 1B.
+
+28
+00:02:09,038 --> 00:02:13,000
+Because of 1B, exactly.
+
+29
+00:02:13,000 --> 00:02:17,038
+And you're contending that because of 1B, one of your arguments, and I want to make
+
+30
+00:02:17,038 --> 00:02:21,000
+sure you can let me know which one is your initial argument, your fallback argument.
+
+31
+00:02:21,000 --> 00:02:25,879
+I have to admit, I got confused, not necessarily because of poor advocacy, but just, but I'm
+
+32
+00:02:25,879 --> 00:02:27,960
+trying to address all of them in my thinking.
+
+33
+00:02:27,960 --> 00:02:32,879
+So one of the, the crux of at least one of the arguments, if not both, your primary and
+
+34
+00:02:32,879 --> 00:02:40,960
+fallback is that B makes all of the employees, employees of everybody essentially for, that's
+
+35
+00:02:40,960 --> 00:02:43,080
+a crude retelling of it.
+
+36
+00:02:43,080 --> 00:02:52,038
+But that makes Mr. Oliva, or Oliva, the employee of, um, Structures SPL.
+
+37
+00:02:52,038 --> 00:02:53,038
+What?
+
+38
+00:02:53,038 --> 00:02:54,038
+Structures SPL.
+
+39
+00:02:54,038 --> 00:02:55,038
+Oh, yeah.
+
+40
+00:02:55,038 --> 00:02:56,038
+And not only enterprise.
+
+41
+00:02:56,038 --> 00:03:04,319
+Okay, but that, so that would make, then that would mean under D that, and I'll just read
+
+42
+00:03:04,319 --> 00:03:10,080
+the sentence that D says, if a contractor, that's finish line, becomes liable for the
+
+43
+00:03:10,080 --> 00:03:18,439
+payment of compensation to Oliva, of a subcontractor, Structures, but then that next phrase is
+
+44
+00:03:18,439 --> 00:03:21,038
+what might be a problem for your theory.
+
+45
+00:03:21,038 --> 00:03:23,118
+Who has failed to secure such payment?
+
+46
+00:03:23,118 --> 00:03:29,838
+It was not Structures' obligation to secure the payment for Oliva.
+
+47
+00:03:29,838 --> 00:03:40,879
+So I, I could concede that Structures meets part of essentially the definition of, or
+
+48
+00:03:40,879 --> 00:03:47,159
+constitutes the subsequent term, the subcontractor, meaning that would be liable to the contractor
+
+49
+00:03:47,159 --> 00:03:50,758
+because everybody's employees are everybody's employees.
+
+50
+00:03:50,758 --> 00:03:57,960
+So yes, Oliva was Structures' employee and yes, finish line became liable to Oliva.
+
+51
+00:03:57,960 --> 00:04:02,080
+But what's, how do you account for the other criteria, which is who has failed to secure
+
+52
+00:04:02,080 --> 00:04:03,080
+such payment?
+
+53
+00:04:03,080 --> 00:04:04,080
+That doesn't apply to Structures.
+
+54
+00:04:04,080 --> 00:04:09,038
+Well, your Honor, with all due respect, it does under the privity, under the vertical
+
+55
+00:04:09,038 --> 00:04:13,240
+privity scheme that the legislature has created.
+
+56
+00:04:13,240 --> 00:04:14,240
+Where?
+
+57
+00:04:14,240 --> 00:04:23,119
+B doesn't say, B, B doesn't say that, B doesn't say that Structures has to, you know, get
+
+58
+00:04:23,119 --> 00:04:27,040
+insurance itself on behalf of its subcontractor's employee.
+
+59
+00:04:27,040 --> 00:04:28,040
+My apologies.
+
+60
+00:04:28,040 --> 00:04:34,559
+In other words, if Structure, let me answer this, if Structures, if, if the, you know,
+
+61
+00:04:34,559 --> 00:04:42,119
+the regulatory investigator for workers' comp comes to the work site and, and Oliva was
+
+62
+00:04:42,119 --> 00:04:49,119
+not covered, could that, could Structures be liable under 440.38?
+
+63
+00:04:49,119 --> 00:04:57,759
+Yes, your Honor, because Structures is required, so Oliva became a statutory employee of Structure
+
+64
+00:04:57,759 --> 00:05:00,559
+SBL under the statutory, the vertical privity scheme.
+
+65
+00:05:00,559 --> 00:05:02,040
+Under B, under subsection B.
+
+66
+00:05:02,040 --> 00:05:04,439
+Under subsection B. And if you, if your Honor looks at the-
+
+67
+00:05:04,439 --> 00:05:05,439
+For what purpose?
+
+68
+00:05:05,439 --> 00:05:10,000
+I mean, one purpose we could say is the last sentence, the contractor shall be, the contractor,
+
+69
+00:05:10,000 --> 00:05:15,920
+we could say Structure's the contractor because they have a subcontractor, liable for payment
+
+70
+00:05:15,959 --> 00:05:18,519
+except to employees that the subcontractor has secured.
+
+71
+00:05:18,519 --> 00:05:25,040
+So they're liable for what, are they liable for payment for, for injury or are they liable
+
+72
+00:05:25,040 --> 00:05:26,040
+under 440.38?
+
+73
+00:05:26,040 --> 00:05:27,040
+They're-
+
+74
+00:05:27,040 --> 00:05:28,040
+Or is that the same thing?
+
+75
+00:05:28,040 --> 00:05:36,040
+They're liable to, it's exactly the same thing, they're liable to ensure that they have workers'
+
+76
+00:05:36,040 --> 00:05:43,959
+compensation for all the employees, all the, including the statutory employees, not only
+
+77
+00:05:44,040 --> 00:05:52,439
+its own employees, but also those of enterprises because Structure SBL sublet part of its contract
+
+78
+00:05:52,439 --> 00:06:00,480
+with, with Finish Line to enterprises and that made it a contractor.
+
+79
+00:06:00,480 --> 00:06:05,600
+If your Honor looks at the Florida Supreme Court that we cited in our brief on page 31,
+
+80
+00:06:05,600 --> 00:06:13,838
+which is Arthur Collins and Son, the court explained in that case that each subcontractor
+
+81
+00:06:13,838 --> 00:06:22,920
+who sublets a portion of his contract becomes a contractor for the purpose of securing compensation
+
+82
+00:06:22,920 --> 00:06:24,639
+for the employees of his subcontractor.
+
+83
+00:06:24,639 --> 00:06:29,879
+That's between, that makes the subcontractor a contractor.
+
+84
+00:06:29,879 --> 00:06:35,199
+It doesn't make the primary contractor the contractor.
+
+85
+00:06:35,199 --> 00:06:42,238
+I understand the vertical responsibilities, but that seems to specify that Structure is
+
+86
+00:06:42,238 --> 00:06:45,720
+now in the shoes as a contractor, right?
+
+87
+00:06:45,720 --> 00:06:46,720
+Right.
+
+88
+00:06:46,720 --> 00:06:54,838
+And Less Enterprises is its subcontractor and Oliva is the employee of that subcontractor.
+
+89
+00:06:54,838 --> 00:07:03,199
+So going back to the statute, it says if a contractor becomes liable for payment of compensation
+
+90
+00:07:03,199 --> 00:07:07,879
+to the employees of a subcontractor, the contractor or other third party payer is entitled
+
+91
+00:07:07,879 --> 00:07:08,879
+to recover.
+
+92
+00:07:08,879 --> 00:07:17,678
+That, the way the plain language is that Structure is entitled to recover from Less Enterprise
+
+93
+00:07:17,678 --> 00:07:24,399
+if Structure had made payment to Oliva, but Structure as the contractor didn't.
+
+94
+00:07:24,399 --> 00:07:32,358
+And so that statute as worded, you're adding language that, and by the way, the general
+
+95
+00:07:32,519 --> 00:07:38,519
+contractor, the big contractor, they're now standing in the shoes as contractor for Structure
+
+96
+00:07:38,519 --> 00:07:44,079
+and contractor or subcontractor and being Less Enterprises, when Less Enterprises is
+
+97
+00:07:44,079 --> 00:07:45,079
+a sub-subcontractor.
+
+98
+00:07:45,079 --> 00:07:48,519
+The only reason why-
+
+99
+00:07:48,519 --> 00:07:53,439
+And just so you know, from an intent standpoint, your argument does make some sense.
+
+100
+00:07:53,439 --> 00:08:00,238
+But as we now know, the Florida Supreme Court and other courts are saying absolute textual
+
+101
+00:08:00,278 --> 00:08:02,119
+analysis based on the words.
+
+102
+00:08:02,119 --> 00:08:07,798
+And that's why my first question was, legislature knows how to use the term sub-subcontractor.
+
+103
+00:08:07,798 --> 00:08:11,798
+And in this reimbursement section of the statute, they don't.
+
+104
+00:08:11,798 --> 00:08:12,798
+And they could have.
+
+105
+00:08:12,798 --> 00:08:20,519
+Well, then, in that sense, we could go to our second argument that is narrower.
+
+106
+00:08:20,519 --> 00:08:27,160
+And the subcontractor vis-a-vis finish line builders and my client, who's the third party
+
+107
+00:08:27,160 --> 00:08:34,519
+pay or Hartford, then the subcontractor is Structure SBL.
+
+108
+00:08:34,519 --> 00:08:36,719
+It's not Enterprises.
+
+109
+00:08:36,719 --> 00:08:41,719
+So then you would have the reimbursement that-
+
+110
+00:08:41,719 --> 00:08:44,399
+But Oliva wasn't employed by Structure.
+
+111
+00:08:44,399 --> 00:08:46,599
+But it's a statutory employee.
+
+112
+00:08:46,599 --> 00:08:50,759
+And that's why Structure SBL is employed.
+
+113
+00:08:50,759 --> 00:08:55,239
+Under B, Oliva is the employee of Structures as well?
+
+114
+00:08:55,239 --> 00:08:56,918
+Is that what you're saying in response to-
+
+115
+00:08:57,678 --> 00:09:02,678
+Yes, because that's the-
+
+116
+00:09:02,678 --> 00:09:05,678
+Shall be deemed employed in one and the same business or establishment?
+
+117
+00:09:05,678 --> 00:09:06,678
+Exactly.
+
+118
+00:09:06,678 --> 00:09:10,479
+Leaving aside that it's possible that that's only for the purpose of the contractor being
+
+119
+00:09:10,479 --> 00:09:12,558
+liable, not the subcontractor.
+
+120
+00:09:12,558 --> 00:09:18,359
+But let's say that, again, that goes to my initial question for you then.
+
+121
+00:09:18,359 --> 00:09:25,719
+Then presuming that is constructively the way that the statute operates, which is to
+
+122
+00:09:25,840 --> 00:09:36,200
+say that Oliva is not only Enterprises' employee, it's also Structures' employee.
+
+123
+00:09:36,200 --> 00:09:42,719
+I'm still at a loss to say that Structures is the one who failed to secure a payment
+
+124
+00:09:42,719 --> 00:09:46,038
+in violation of 440.38.
+
+125
+00:09:46,038 --> 00:09:48,558
+What does 440.38 say?
+
+126
+00:09:48,558 --> 00:09:55,080
+It says, every employer shall secure the payment of compensation under this chapter by ensuring
+
+127
+00:09:55,558 --> 00:09:59,558
+Every employer, including Structures-
+
+128
+00:09:59,558 --> 00:10:04,440
+Again, so you're going to tell me that- Okay, so could finish line have been in violation
+
+129
+00:10:04,440 --> 00:10:10,840
+of chapter 440.38 because it's sub, sub, sub, sub, sub, sub, subcontractor didn't carry
+
+130
+00:10:10,840 --> 00:10:11,840
+workers comp?
+
+131
+00:10:11,840 --> 00:10:14,038
+And let me tell you what I'm saying.
+
+132
+00:10:14,038 --> 00:10:16,440
+So maybe I'm right, maybe I'm wrong.
+
+133
+00:10:16,440 --> 00:10:19,558
+I'm making a distinction between liable.
+
+134
+00:10:19,558 --> 00:10:24,200
+Yes, finish line is liable for its sub, sub, sub, sub, sub, sub, sub, subcontractor's employee
+
+135
+00:10:24,200 --> 00:10:27,840
+who gets hurt if its sub, sub, sub, sub, sub, subcontractor doesn't have workers comp.
+
+136
+00:10:27,840 --> 00:10:29,918
+Yeah, you got to pay out.
+
+137
+00:10:29,918 --> 00:10:36,840
+But does that mean that there is a requirement under 440.38 if its sub, sub, sub, sub, sub,
+
+138
+00:10:36,840 --> 00:10:41,000
+subcontractor doesn't carry workers comp for finish line to carry workers comp?
+
+139
+00:10:41,000 --> 00:10:42,320
+Yes, Your Honor.
+
+140
+00:10:42,320 --> 00:10:44,479
+Under the statute- Where?
+
+141
+00:10:44,479 --> 00:10:56,000
+Finish line is required to, under 1A, any contractor or subcontractor who engages in
+
+142
+00:10:56,000 --> 00:11:01,119
+any public or private construction in the state shall secure and maintain compensation
+
+143
+00:11:01,119 --> 00:11:05,200
+for his or her employees under this chapter as provided in 440.
+
+144
+00:11:05,200 --> 00:11:09,440
+Okay, so you're saying that B also applies to that.
+
+145
+00:11:09,440 --> 00:11:14,279
+So in other words, every general contractor, again, not liability, I get it.
+
+146
+00:11:14,279 --> 00:11:18,960
+What I, okay, the way I read 1A, you're going to correct me and opposing counsel is going
+
+147
+00:11:18,960 --> 00:11:26,080
+to correct me back, but if, is that this, this is a liability.
+
+148
+00:11:26,080 --> 00:11:30,580
+It's not a insurance, it's not a workers comp insurance mandate.
+
+149
+00:11:30,580 --> 00:11:32,279
+It's a liability provision.
+
+150
+00:11:32,279 --> 00:11:39,119
+Yeah, finish line's liable to LIBA because it's literally sub, subcontractor.
+
+151
+00:11:39,119 --> 00:11:41,879
+So the subcontractor should have insured him and he got hurt.
+
+152
+00:11:41,879 --> 00:11:47,678
+But does that mean that, again, some regulator from the division, Department of Labor, whatever
+
+153
+00:11:47,678 --> 00:11:56,158
+we call it now, the DEO comes on the side and says, you're in violation of a regulation
+
+154
+00:11:56,158 --> 00:12:01,038
+that requires you to actually have workers comp insurance for your sub, subcontractor's
+
+155
+00:12:01,038 --> 00:12:02,038
+employees.
+
+156
+00:12:02,038 --> 00:12:03,038
+Is that true?
+
+157
+00:12:03,038 --> 00:12:08,960
+Your Honor, I can't speak as to what happened with another regulatory agency.
+
+158
+00:12:09,798 --> 00:12:13,840
+I know, but just to clarify, that's what I want to know because that's what I think answers
+
+159
+00:12:13,840 --> 00:12:18,719
+the question of, of, of this phrase.
+
+160
+00:12:18,719 --> 00:12:23,519
+Who has failed to secure such payment in violation of 440.38?
+
+161
+00:12:23,519 --> 00:12:30,840
+Because everybody in, who employs, so basically OLIVA was a statutory employee of structure
+
+162
+00:12:30,840 --> 00:12:39,840
+SBL and structure SBL and the trial court found that structure SBL failed to secure
+
+163
+00:12:39,840 --> 00:12:44,359
+workers comp, workers compensation insurance.
+
+164
+00:12:44,359 --> 00:12:47,239
+And that's why.
+
+165
+00:12:47,239 --> 00:12:48,239
+For whom?
+
+166
+00:12:48,239 --> 00:12:49,840
+For its own employees?
+
+167
+00:12:49,840 --> 00:12:50,840
+For all the employees.
+
+168
+00:12:50,840 --> 00:12:52,840
+No, you said, you said the trial court.
+
+169
+00:12:52,840 --> 00:12:58,840
+Well, that's because structure SBL becomes a contractor vis-a-vis enterprises, right?
+
+170
+00:12:59,840 --> 00:13:00,840
+Back up for a second.
+
+171
+00:13:00,840 --> 00:13:01,840
+Just, sorry.
+
+172
+00:13:01,840 --> 00:13:02,840
+I just want to clarify.
+
+173
+00:13:02,840 --> 00:13:07,320
+You said the trial court found that structures had failed to provide workers compensation
+
+174
+00:13:07,320 --> 00:13:09,840
+to OLIVA, insurance to OLIVA?
+
+175
+00:13:09,840 --> 00:13:10,840
+Right.
+
+176
+00:13:10,840 --> 00:13:18,239
+Because it didn't carry workers compensation, either precision or structure SBL.
+
+177
+00:13:18,239 --> 00:13:19,239
+That's why.
+
+178
+00:13:19,239 --> 00:13:26,840
+Why would structures workers compensation insurance, insurance policy cover enterprises employees?
+
+179
+00:13:26,840 --> 00:13:27,840
+Because.
+
+180
+00:13:27,840 --> 00:13:28,840
+Why would it?
+
+181
+00:13:28,840 --> 00:13:29,840
+Because.
+
+182
+00:13:29,840 --> 00:13:30,840
+Would it?
+
+183
+00:13:30,840 --> 00:13:33,840
+Because structure SBL became a contractor.
+
+184
+00:13:33,840 --> 00:13:38,840
+Would structures insurance policy cover OLIVA if it had one?
+
+185
+00:13:38,840 --> 00:13:39,840
+Yes.
+
+186
+00:13:39,840 --> 00:13:40,840
+It should.
+
+187
+00:13:40,840 --> 00:13:42,840
+I mean, it should have covered if it had one.
+
+188
+00:13:42,840 --> 00:13:43,840
+It didn't have one.
+
+189
+00:13:43,840 --> 00:13:47,840
+So the subcontractor is supposed to actually carry a policy for enterprises?
+
+190
+00:13:47,840 --> 00:13:49,840
+Yes, your honor.
+
+191
+00:13:49,840 --> 00:13:56,840
+Because the subcontractor, the subcontractor, what it did here, it sublet part of its contract
+
+192
+00:13:56,840 --> 00:13:58,840
+to enterprises.
+
+193
+00:13:58,840 --> 00:14:05,840
+So the first thing that happened is finish line sublet part of its contract to structure
+
+194
+00:14:05,840 --> 00:14:06,840
+SBL.
+
+195
+00:14:06,840 --> 00:14:11,840
+And then the next thing that happened, part of that contract that was sublet to structure
+
+196
+00:14:11,840 --> 00:14:16,840
+SBL, structure SBL went on and sublet to precision.
+
+197
+00:14:16,840 --> 00:14:22,840
+And now structure SBL becomes a contractor vis-a-vis precision.
+
+198
+00:14:23,840 --> 00:14:31,840
+And that's why it's obligated to have insurance to cover the statutory employees of, that
+
+199
+00:14:31,840 --> 00:14:33,840
+becomes statutory employees of structure SBL.
+
+200
+00:14:33,840 --> 00:14:34,840
+What support do you have for that?
+
+201
+00:14:34,840 --> 00:14:35,840
+I understand that it becomes liable.
+
+202
+00:14:35,840 --> 00:14:43,840
+I understand, I can buy that structures is liable for OLIVAs to pay for OLIVAs injuries
+
+203
+00:14:44,840 --> 00:14:55,840
+because enterprises did not have insurance compensation.
+
+204
+00:14:55,840 --> 00:14:57,840
+Neither enterprises nor structure SBL.
+
+205
+00:14:57,840 --> 00:14:59,840
+And I wanted to point out...
+
+206
+00:14:59,840 --> 00:15:04,840
+that the appellee did not cross-appeal that determination
+
+207
+00:15:05,680 --> 00:15:08,820
+that basically it was a subcontractor
+
+208
+00:15:08,820 --> 00:15:13,820
+and it had the obligation to carry insurance
+
+209
+00:15:14,100 --> 00:15:16,940
+and because it didn't carry insurance
+
+210
+00:15:16,940 --> 00:15:18,740
+and Precision didn't carry insurance,
+
+211
+00:15:18,740 --> 00:15:19,580
+that's when the judge-
+
+212
+00:15:19,580 --> 00:15:22,960
+Again, what was its obligation to carry insurance
+
+213
+00:15:22,960 --> 00:15:24,500
+for its own employees, right?
+
+214
+00:15:25,479 --> 00:15:30,479
+But the employees of the sub and the subcontractor
+
+215
+00:15:30,559 --> 00:15:33,639
+are considered to be employed by the same-
+
+216
+00:15:33,639 --> 00:15:34,459
+For what purpose?
+
+217
+00:15:34,459 --> 00:15:36,119
+For the purpose of carrying insurance for them
+
+218
+00:15:36,119 --> 00:15:38,019
+or for the purpose of liability
+
+219
+00:15:38,019 --> 00:15:40,560
+in case your subcontractor doesn't have
+
+220
+00:15:40,560 --> 00:15:42,920
+workers' comp insurance for its employees?
+
+221
+00:15:42,920 --> 00:15:44,759
+That's two separate things, isn't it?
+
+222
+00:15:45,680 --> 00:15:49,519
+Yes and no in the sense that if you don't carry insurance,
+
+223
+00:15:49,519 --> 00:15:52,639
+how are you gonna be able to-
+
+224
+00:15:52,660 --> 00:15:55,700
+Pay out-of-pocket, get sued and pay that way.
+
+225
+00:15:55,700 --> 00:15:57,979
+Well, that's the very problem why we are here.
+
+226
+00:15:57,979 --> 00:16:00,220
+Perhaps some of the subcontractors
+
+227
+00:16:00,220 --> 00:16:02,060
+cannot pay out-of-pocket if they-
+
+228
+00:16:02,060 --> 00:16:03,180
+Well, but that's the difference
+
+229
+00:16:03,180 --> 00:16:04,660
+whether it's a good business practice
+
+230
+00:16:04,660 --> 00:16:06,660
+to be self-insured for that purpose
+
+231
+00:16:06,660 --> 00:16:09,979
+or carry a larger, I don't even know if that exists,
+
+232
+00:16:09,979 --> 00:16:12,740
+a policy to cover your subcontractor's employees
+
+233
+00:16:12,740 --> 00:16:15,779
+under workers' comp is a different question
+
+234
+00:16:15,779 --> 00:16:20,779
+than whether the Chapter 440 requires by virtue of 1B,
+
+235
+00:16:21,759 --> 00:16:24,200
+which seems to me to be in a liability provision,
+
+236
+00:16:24,200 --> 00:16:26,560
+not a insurance mandate provision.
+
+237
+00:16:26,560 --> 00:16:29,240
+Ms. Kabulia, before you answer that,
+
+238
+00:16:29,240 --> 00:16:31,160
+you didn't ask to reserve time for rebuttal.
+
+239
+00:16:31,160 --> 00:16:33,359
+You're at four minutes, so I don't know.
+
+240
+00:16:33,359 --> 00:16:34,399
+You can answer that question,
+
+241
+00:16:34,399 --> 00:16:36,279
+but if you wanna reserve any time for rebuttal-
+
+242
+00:16:36,279 --> 00:16:38,200
+I would like to reserve some time for rebuttal.
+
+243
+00:16:38,200 --> 00:16:39,038
+You can answer that question.
+
+244
+00:16:39,038 --> 00:16:42,399
+May I say one thing that I wanted to say?
+
+245
+00:16:42,399 --> 00:16:45,759
+Even under the narrower construction,
+
+246
+00:16:45,759 --> 00:16:50,759
+it should still be the structure SPS,
+
+247
+00:16:51,240 --> 00:16:56,240
+who's liable to, I mean, who should reimburse my client,
+
+248
+00:16:58,000 --> 00:17:01,479
+and then structure SBL could go after precision
+
+249
+00:17:01,479 --> 00:17:06,479
+because the subcontractor vis-a-vis the Hartford,
+
+250
+00:17:06,600 --> 00:17:10,318
+my client, is structure SBL,
+
+251
+00:17:10,318 --> 00:17:12,720
+not the sub-subcontractor precision,
+
+252
+00:17:12,720 --> 00:17:14,200
+and I'll reserve my time.
+
+253
+00:17:14,200 --> 00:17:15,038
+Very good, thank you.
+
+254
+00:17:15,038 --> 00:17:16,160
+You'll have four minutes.
+
+255
+00:17:21,779 --> 00:17:23,440
+Good morning, everyone.
+
+256
+00:17:23,440 --> 00:17:24,519
+Good morning.
+
+257
+00:17:24,519 --> 00:17:26,440
+May it please the court, Ronald J. Israel
+
+258
+00:17:26,440 --> 00:17:28,959
+from the firm of Israel Ponzoli,
+
+259
+00:17:28,959 --> 00:17:31,860
+on behalf of the Apolli Structure SBL.
+
+260
+00:17:31,860 --> 00:17:34,399
+We appreciate you hearing us today.
+
+261
+00:17:34,399 --> 00:17:36,360
+Your honors, this case should be affirmed
+
+262
+00:17:36,360 --> 00:17:38,038
+for one straightforward reason.
+
+263
+00:17:38,038 --> 00:17:40,759
+The statute is broken down into three different subparts,
+
+264
+00:17:40,759 --> 00:17:42,920
+and each one has its own function.
+
+265
+00:17:42,920 --> 00:17:44,840
+The first part, the 440,
+
+266
+00:17:45,840 --> 00:17:49,399
+the part that we're talking about today is 440.10.1.D.1.
+
+267
+00:17:49,399 --> 00:17:51,059
+I'm gonna say D all day today
+
+268
+00:17:51,059 --> 00:17:52,619
+because it's just the way I do it,
+
+269
+00:17:52,619 --> 00:17:56,299
+but in section D, it creates the reimbursement remedy
+
+270
+00:17:57,160 --> 00:18:00,299
+for the contractor, whatever contractor it is
+
+271
+00:18:00,299 --> 00:18:05,179
+that ends up paying, has a reimbursement right against the,
+
+272
+00:18:05,179 --> 00:18:07,818
+the word the in quotes, subcontractor
+
+273
+00:18:07,818 --> 00:18:10,818
+whose failure caused the payment,
+
+274
+00:18:10,818 --> 00:18:13,420
+and in this case, the lower court properly found
+
+275
+00:18:13,420 --> 00:18:17,538
+that the subcontractor whose failure caused the payment
+
+276
+00:18:17,538 --> 00:18:22,538
+by a contractor, doesn't say which one, was Enterprises,
+
+277
+00:18:22,759 --> 00:18:26,079
+and Enterprises rightfully got judgment.
+
+278
+00:18:26,079 --> 00:18:30,440
+1B, what it does, and they focused all of their argument
+
+279
+00:18:30,440 --> 00:18:34,759
+on 1B, 1B is the vertical privity and the immunity statute.
+
+280
+00:18:34,759 --> 00:18:37,318
+That tells us why Hartford paid.
+
+281
+00:18:37,318 --> 00:18:39,679
+The law makes finish line builders
+
+282
+00:18:39,679 --> 00:18:44,459
+as the general contractor ultimately 100% responsible
+
+283
+00:18:44,459 --> 00:18:47,220
+for the provision of workers' comp on its site
+
+284
+00:18:47,878 --> 00:18:49,000
+and it can do that in two ways.
+
+285
+00:18:49,000 --> 00:18:52,720
+It can carry its own policy, or it can ensure
+
+286
+00:18:52,720 --> 00:18:54,598
+that every subcontractor that steps
+
+287
+00:18:54,598 --> 00:18:57,920
+on that site has appropriate coverage,
+
+288
+00:18:57,920 --> 00:19:00,878
+and in the instances where they don't,
+
+289
+00:19:00,878 --> 00:19:02,720
+the statute's very clear.
+
+290
+00:19:02,720 --> 00:19:05,360
+The subcontractor who failed to secure privilege
+
+291
+00:19:05,360 --> 00:19:08,440
+for its employees, it doesn't say statutory employees,
+
+292
+00:19:08,440 --> 00:19:10,840
+it doesn't say anyone in the vertical chain,
+
+293
+00:19:10,840 --> 00:19:12,878
+it doesn't say up and down the chain,
+
+294
+00:19:12,878 --> 00:19:14,878
+it doesn't say any of these words,
+
+295
+00:19:14,878 --> 00:19:17,340
+and that's Hartford's interpretation today.
+
+296
+00:19:17,340 --> 00:19:20,739
+They want the court to expand the structure
+
+297
+00:19:20,739 --> 00:19:25,019
+of what it means, and it's just simply not there.
+
+298
+00:19:25,019 --> 00:19:28,459
+Can you answer my question that I posed to opposing counsel,
+
+299
+00:19:28,459 --> 00:19:30,019
+and I wanna invite you to tell me
+
+300
+00:19:30,019 --> 00:19:31,559
+that my question was misguided,
+
+301
+00:19:31,559 --> 00:19:33,459
+even though it seemed probably ostensibly
+
+302
+00:19:33,459 --> 00:19:36,880
+to be one that would favor you.
+
+303
+00:19:38,599 --> 00:19:41,539
+Am I misguided in focusing on the phrase
+
+304
+00:19:41,539 --> 00:19:43,500
+who has failed to secure such payment
+
+305
+00:19:43,519 --> 00:19:46,759
+in violation of section 40.38?
+
+306
+00:19:46,759 --> 00:19:48,559
+What does that mean?
+
+307
+00:19:48,559 --> 00:19:50,599
+Absolutely, you're right, that's the whole case.
+
+308
+00:19:50,599 --> 00:19:54,078
+Does that mean secure insurance?
+
+309
+00:19:54,078 --> 00:19:58,000
+Who failed to secure compensation coverage, payment.
+
+310
+00:19:58,000 --> 00:20:00,759
+In this case, Hartford paid out a lot of money,
+
+311
+00:20:00,759 --> 00:20:02,639
+and they're saying, we wanna get it back,
+
+312
+00:20:02,639 --> 00:20:04,798
+and the question is, under 1D,
+
+313
+00:20:04,798 --> 00:20:06,380
+who do they get it back from?
+
+314
+00:20:06,380 --> 00:20:09,000
+What if you had, think about it this way, your honors,
+
+315
+00:20:09,000 --> 00:20:12,000
+what if you had 15 sub, sub, sub, sub contractors,
+
+316
+00:20:12,000 --> 00:20:15,380
+and someone down the line doesn't have coverage?
+
+317
+00:20:15,380 --> 00:20:17,899
+The statute doesn't say it goes back up the chain
+
+318
+00:20:17,899 --> 00:20:21,099
+to the next guy, it says the contractor
+
+319
+00:20:21,099 --> 00:20:24,419
+who failed to secure coverage for its employee,
+
+320
+00:20:24,419 --> 00:20:25,899
+and that's right in the statute.
+
+321
+00:20:25,899 --> 00:20:28,179
+And then there's, but the opposing party is saying
+
+322
+00:20:28,179 --> 00:20:33,179
+that the, it is, I keep my S's incorrect,
+
+323
+00:20:35,459 --> 00:20:37,500
+structures as employee.
+
+324
+00:20:37,500 --> 00:20:38,340
+Okay.
+
+325
+00:20:38,340 --> 00:20:40,459
+That does say, shall be deemed to be employed
+
+326
+00:20:40,459 --> 00:20:41,899
+in one and the same business.
+
+327
+00:20:42,679 --> 00:20:44,720
+I don't have any arguments with 1B.
+
+328
+00:20:44,720 --> 00:20:48,199
+1B is the vertical privity and immunity statute,
+
+329
+00:20:48,199 --> 00:20:50,440
+and what that does is she is correct,
+
+330
+00:20:50,440 --> 00:20:54,019
+it makes everybody a statutory employer.
+
+331
+00:20:54,019 --> 00:20:56,199
+Okay, and it does, and that's, remember that word.
+
+332
+00:20:56,199 --> 00:20:58,259
+If that's the case, then why isn't,
+
+333
+00:20:59,320 --> 00:21:03,980
+why wasn't structures required to secure payment for Oliva?
+
+334
+00:21:05,119 --> 00:21:10,078
+Because the statute puts the burden, again,
+
+335
+00:21:10,099 --> 00:21:12,179
+because the statute, let me read it to you.
+
+336
+00:21:12,179 --> 00:21:14,358
+Sorry, let me just get exactly here.
+
+337
+00:21:16,119 --> 00:21:17,320
+All right.
+
+338
+00:21:17,320 --> 00:21:20,660
+Okay, so in B, it says, and the contractor,
+
+339
+00:21:20,660 --> 00:21:22,539
+meaning the general contractor, is liable for,
+
+340
+00:21:22,539 --> 00:21:24,459
+shall secure the payment of compensation
+
+341
+00:21:24,459 --> 00:21:27,279
+to all such employees, except to the employees
+
+342
+00:21:27,279 --> 00:21:30,459
+of a subcontractor who has secured such payment.
+
+343
+00:21:30,459 --> 00:21:34,220
+It makes the general contractor ultimately responsible,
+
+344
+00:21:34,220 --> 00:21:37,340
+except whether it's a subcontractor who has coverage.
+
+345
+00:21:37,340 --> 00:21:39,619
+And the Supreme Court of Florida's already addressed this.
+
+346
+00:21:40,119 --> 00:21:42,480
+It's in the Fidelity versus Arthur Collins case.
+
+347
+00:21:42,480 --> 00:21:44,899
+They actually cite it, thinking it helps them,
+
+348
+00:21:44,899 --> 00:21:48,380
+but it actually illustrates what happened here.
+
+349
+00:21:48,380 --> 00:21:51,480
+In that case, you had a contractor,
+
+350
+00:21:51,480 --> 00:21:54,440
+a sub, and a sub-subcontractor.
+
+351
+00:21:54,440 --> 00:21:56,399
+But in that case, the same thing,
+
+352
+00:21:56,399 --> 00:22:00,039
+the sub-subcontractor failed to have coverage,
+
+353
+00:22:00,039 --> 00:22:02,559
+and then the commission came back and said,
+
+354
+00:22:02,559 --> 00:22:04,679
+well, we're gonna make it both.
+
+355
+00:22:04,679 --> 00:22:06,199
+But the statute doesn't say both.
+
+356
+00:22:06,199 --> 00:22:08,759
+It says the subcontractor who failed
+
+357
+00:22:08,759 --> 00:22:11,298
+gets the responsibility.
+
+358
+00:22:11,298 --> 00:22:15,699
+And the case cites a Pennsylvania case, the Quall case,
+
+359
+00:22:15,699 --> 00:22:19,940
+which talks about that the contractor shall be liable
+
+360
+00:22:19,940 --> 00:22:23,820
+and shall secure, except for when they have been secured.
+
+361
+00:22:23,820 --> 00:22:27,259
+And it says it's to protect employees,
+
+362
+00:22:27,259 --> 00:22:29,099
+and it's ultimately the contractor
+
+363
+00:22:29,099 --> 00:22:32,858
+who has to provide compensation liability across the board,
+
+364
+00:22:32,858 --> 00:22:34,699
+and he can do that in his subcontracts.
+
+365
+00:22:34,699 --> 00:22:38,099
+And if he doesn't, if he doesn't require that,
+
+366
+00:22:38,160 --> 00:22:42,279
+the statute makes him liable under 1B for coverage.
+
+367
+00:22:42,279 --> 00:22:44,959
+So again, what they want you to add,
+
+368
+00:22:44,959 --> 00:22:46,959
+they want you to change the statute to say
+
+369
+00:22:46,959 --> 00:22:50,679
+if the contractor becomes liable to the employees,
+
+370
+00:22:50,679 --> 00:22:53,519
+or they want you to say the statutory employees
+
+371
+00:22:53,519 --> 00:22:55,759
+of a subcontractor, and they wanna say,
+
+372
+00:22:56,840 --> 00:22:58,599
+then it puts the statutory modifier.
+
+373
+00:22:58,599 --> 00:23:02,720
+The subcontractor who has failed to secure such payment.
+
+374
+00:23:02,720 --> 00:23:04,959
+They wanna say any subcontractor
+
+375
+00:23:04,959 --> 00:23:06,880
+who failed to secure such payment.
+
+376
+00:23:06,880 --> 00:23:09,619
+Anyone in the chain who failed.
+
+377
+00:23:09,619 --> 00:23:11,660
+Because there could be 15 subcontractors.
+
+378
+00:23:11,660 --> 00:23:14,259
+Our case, luckily, is a little simpler than that.
+
+379
+00:23:14,259 --> 00:23:16,739
+But the statute says exactly what it says.
+
+380
+00:23:16,739 --> 00:23:19,019
+We're not asking for a narrow interpretation.
+
+381
+00:23:19,019 --> 00:23:21,578
+We're asking for a harmonious interpretation
+
+382
+00:23:21,578 --> 00:23:24,619
+where each section is given its proper due.
+
+383
+00:23:24,619 --> 00:23:28,179
+The better reading of the statute is 1B protects the worker
+
+384
+00:23:28,179 --> 00:23:30,619
+and places ultimate payment responsibility
+
+385
+00:23:30,619 --> 00:23:31,860
+on the general contractor.
+
+386
+00:23:31,860 --> 00:23:33,660
+It says that in all the cases.
+
+387
+00:23:33,660 --> 00:23:36,300
+And that responsibility is also outlined
+
+388
+00:23:36,639 --> 00:23:37,840
+in the case law, it's also in our brief.
+
+389
+00:23:37,840 --> 00:23:40,840
+But in Arthur Collins' case, I'm looking at it here.
+
+390
+00:23:40,840 --> 00:23:44,480
+I mean, didn't the Florida Supreme Court say
+
+391
+00:23:44,480 --> 00:23:47,878
+that the person in your spot, the subcontractor,
+
+392
+00:23:47,878 --> 00:23:50,840
+had a duty to have insurance?
+
+393
+00:23:50,840 --> 00:23:52,480
+In that case, they do.
+
+394
+00:23:52,480 --> 00:23:55,199
+And there is a factual dispute.
+
+395
+00:23:55,199 --> 00:23:57,480
+It doesn't affect your ruling today.
+
+396
+00:23:57,480 --> 00:24:00,160
+It does not affect affirmance or reversal,
+
+397
+00:24:00,160 --> 00:24:02,039
+if that's the case.
+
+398
+00:24:02,039 --> 00:24:05,079
+The factual dispute is whether SBL had any employees
+
+399
+00:24:05,099 --> 00:24:07,660
+in Florida and had to have coverage anyway.
+
+400
+00:24:07,660 --> 00:24:09,539
+The facts, and it's cited in our brief,
+
+401
+00:24:09,539 --> 00:24:10,939
+it's addressed briefly.
+
+402
+00:24:10,939 --> 00:24:13,378
+Because they not only asked for reversal,
+
+403
+00:24:13,378 --> 00:24:15,300
+they asked for a reversal.
+
+404
+00:24:15,300 --> 00:24:18,220
+But Oliva is a statutory employee of SBL.
+
+405
+00:24:19,660 --> 00:24:22,740
+And your client signed a contract
+
+406
+00:24:22,740 --> 00:24:24,800
+that would require actual services
+
+407
+00:24:24,800 --> 00:24:26,340
+on that construction site,
+
+408
+00:24:26,340 --> 00:24:29,099
+and then you just sublet it away, right?
+
+409
+00:24:29,099 --> 00:24:30,579
+Exactly, that is correct.
+
+410
+00:24:30,579 --> 00:24:33,898
+And the factual issues that prohibited them
+
+411
+00:24:33,920 --> 00:24:35,199
+from getting summary judgment
+
+412
+00:24:35,199 --> 00:24:37,259
+are the waiver and estoppel issues.
+
+413
+00:24:37,259 --> 00:24:42,119
+Because the insurance certificates were unsigned,
+
+414
+00:24:42,119 --> 00:24:44,840
+the contract addendum requiring comp,
+
+415
+00:24:44,840 --> 00:24:47,639
+because it's argued, again, this is a factual dispute,
+
+416
+00:24:47,639 --> 00:24:49,599
+which really is not before us today,
+
+417
+00:24:49,599 --> 00:24:51,439
+but it was argued that they knew SBL
+
+418
+00:24:51,439 --> 00:24:53,119
+was putting someone else on the site.
+
+419
+00:24:53,119 --> 00:24:57,639
+SBL never stepped foot in Florida on the job site.
+
+420
+00:24:57,639 --> 00:25:01,519
+An independent project manager came down from Canada once,
+
+421
+00:25:01,539 --> 00:25:04,898
+not related to us, by virtue of employment.
+
+422
+00:25:04,898 --> 00:25:07,139
+And again, Structure SBL's employees
+
+423
+00:25:07,139 --> 00:25:09,059
+are covered in Canada under CNIST,
+
+424
+00:25:09,059 --> 00:25:10,818
+which is also put forward in our brief.
+
+425
+00:25:10,818 --> 00:25:11,898
+So there's a factual dispute
+
+426
+00:25:11,898 --> 00:25:14,099
+whether we had to have coverage anyway.
+
+427
+00:25:14,099 --> 00:25:18,300
+The contract's unsigned on the comp insurance pages,
+
+428
+00:25:18,300 --> 00:25:21,378
+and the certificate that Structure SBL provided
+
+429
+00:25:21,378 --> 00:25:23,259
+to finish line builders to get this job
+
+430
+00:25:23,259 --> 00:25:24,660
+showed it had no workers' comp,
+
+431
+00:25:24,660 --> 00:25:27,619
+and finish line proceeded anyway.
+
+432
+00:25:27,619 --> 00:25:30,740
+And what the law does when a contractor
+
+433
+00:25:31,740 --> 00:25:35,939
+accepts a subcontractor that doesn't have coverage,
+
+434
+00:25:35,939 --> 00:25:38,459
+they automatically, under 440,
+
+435
+00:25:38,459 --> 00:25:41,439
+they take responsibility for those comp coverage
+
+436
+00:25:41,439 --> 00:25:43,420
+for all the employees down the chain.
+
+437
+00:25:43,420 --> 00:25:48,420
+But your client, as the contractor for the other company,
+
+438
+00:25:50,420 --> 00:25:53,099
+it would have accepted that same liability, right?
+
+439
+00:25:53,099 --> 00:25:58,099
+It would have except if we stand in the shoes
+
+440
+00:25:58,619 --> 00:26:00,780
+of the word contractor now, right,
+
+441
+00:26:00,780 --> 00:26:03,800
+as vis-a-vis enterprises.
+
+442
+00:26:03,800 --> 00:26:05,599
+Then the statute's even more clear.
+
+443
+00:26:05,599 --> 00:26:08,559
+The subcontractor who failed to secure coverage,
+
+444
+00:26:08,559 --> 00:26:10,480
+in this case, is enterprises.
+
+445
+00:26:10,480 --> 00:26:12,878
+No matter which road you go down,
+
+446
+00:26:12,878 --> 00:26:15,840
+the contractor, whether I call him a subcontractor.
+
+447
+00:26:15,840 --> 00:26:18,398
+Your position is that even though
+
+448
+00:26:19,860 --> 00:26:22,980
+your client could be deemed a contractor
+
+449
+00:26:22,980 --> 00:26:25,999
+in one circumstance, it doesn't change the nature
+
+450
+00:26:25,999 --> 00:26:29,999
+of the relationship between it and the general contractor.
+
+451
+00:26:29,999 --> 00:26:34,999
+It does not, and it also doesn't collapse 1B and 1D into one.
+
+452
+00:26:35,898 --> 00:26:36,898
+You can't do that.
+
+453
+00:26:36,898 --> 00:26:38,300
+That's not what happens.
+
+454
+00:26:38,300 --> 00:26:41,220
+They are separate and distinct statutes.
+
+455
+00:26:41,220 --> 00:26:43,180
+I'm sorry, separate and distinct provisions.
+
+456
+00:26:43,180 --> 00:26:46,259
+And you can't erase the statutory modifier
+
+457
+00:26:46,259 --> 00:26:50,378
+is the employee's, you've secured payment,
+
+458
+00:26:50,378 --> 00:26:51,499
+and let me just read it for you again,
+
+459
+00:26:51,499 --> 00:26:52,999
+because it's really important.
+
+460
+00:26:57,019 --> 00:26:59,340
+To the employee of a subcontractor,
+
+461
+00:26:59,680 --> 00:27:02,160
+the employee in this case we know is Aleeva,
+
+462
+00:27:02,160 --> 00:27:07,160
+the subcontractor we know is enterprises,
+
+463
+00:27:07,160 --> 00:27:08,639
+I'm sorry to get their name wrong,
+
+464
+00:27:08,639 --> 00:27:11,759
+who has failed to secure such payment.
+
+465
+00:27:11,759 --> 00:27:14,079
+Every way you read it, whether we're the contractor
+
+466
+00:27:14,079 --> 00:27:15,160
+or the subcontractor.
+
+467
+00:27:15,160 --> 00:27:18,079
+Bozengas was saying, though, that the obligations
+
+468
+00:27:18,079 --> 00:27:22,519
+of 440.38 apply up the chain by virtue of B.
+
+469
+00:27:22,519 --> 00:27:27,398
+In other words, that A sub, there's two phrases, right?
+
+470
+00:27:27,398 --> 00:27:30,860
+Two phrases, A subcontractor and the subcontractor.
+
+471
+00:27:31,818 --> 00:27:33,860
+Finish line wants the subcontractor
+
+472
+00:27:33,860 --> 00:27:38,619
+to be able to be applied to structures.
+
+473
+00:27:40,818 --> 00:27:41,920
+She'll correct me if I'm wrong,
+
+474
+00:27:41,920 --> 00:27:44,059
+but her argument is that that phrase,
+
+475
+00:27:44,059 --> 00:27:45,898
+who has failed to secure such payment violation
+
+476
+00:27:45,898 --> 00:27:50,059
+of 440.38 applies equally to structures and enterprises
+
+477
+00:27:50,059 --> 00:27:55,059
+because Oliva is just as much substances as,
+
+478
+00:27:55,160 --> 00:27:59,039
+I mean, structures employee as it is enterprises
+
+479
+00:27:59,039 --> 00:28:00,599
+by virtue of section B.
+
+480
+00:28:00,599 --> 00:28:03,160
+Again, I don't quibble with 440.38
+
+481
+00:28:03,160 --> 00:28:04,999
+and I don't quibble with 1B at all.
+
+482
+00:28:04,999 --> 00:28:07,039
+It does, there is a privity scheme,
+
+483
+00:28:07,039 --> 00:28:09,559
+there is a statutory employer scheme.
+
+484
+00:28:09,559 --> 00:28:11,079
+I don't have any problem with that.
+
+485
+00:28:11,079 --> 00:28:12,398
+What I have a problem with
+
+486
+00:28:12,398 --> 00:28:15,199
+and what the trial court correctly did
+
+487
+00:28:15,199 --> 00:28:18,240
+is the statute, no matter which way you read it,
+
+488
+00:28:18,240 --> 00:28:19,759
+whether you call us the contractor
+
+489
+00:28:19,759 --> 00:28:23,039
+for the purposes of the sub-subcontract,
+
+490
+00:28:23,579 --> 00:28:27,259
+the statute is very clear on, not on the liability,
+
+491
+00:28:27,259 --> 00:28:28,920
+the liability is part B,
+
+492
+00:28:28,920 --> 00:28:32,459
+but on the recovery of benefits paid
+
+493
+00:28:32,459 --> 00:28:36,300
+and the right to is against the employer
+
+494
+00:28:36,300 --> 00:28:38,139
+who employed someone in the state.
+
+495
+00:28:38,139 --> 00:28:39,300
+That's Oliva.
+
+496
+00:28:39,300 --> 00:28:40,459
+It doesn't say employer.
+
+497
+00:28:40,459 --> 00:28:43,099
+It says, I take your meaning.
+
+498
+00:28:43,099 --> 00:28:47,220
+It means someone who is the employer for the employee,
+
+499
+00:28:47,220 --> 00:28:51,220
+but by B, according to subsection B,
+
+500
+00:28:51,240 --> 00:28:54,079
+structures is the employer of Oliva.
+
+501
+00:28:54,079 --> 00:28:55,800
+It doesn't say statutory though.
+
+502
+00:28:55,800 --> 00:28:57,079
+There's a difference.
+
+503
+00:28:57,079 --> 00:29:00,039
+If the legislature wanted it to say statutory employee
+
+504
+00:29:00,039 --> 00:29:02,079
+or anyone in the chain, it could have said that.
+
+505
+00:29:02,079 --> 00:29:03,318
+So it could have said.
+
+506
+00:29:03,318 --> 00:29:04,840
+But it's the same statute.
+
+507
+00:29:05,999 --> 00:29:08,039
+In a case of contractor sublets,
+
+508
+00:29:08,039 --> 00:29:10,759
+all the employees of such contractor, subcontractor,
+
+509
+00:29:10,759 --> 00:29:13,119
+subcontractors engaged in such work
+
+510
+00:29:13,119 --> 00:29:15,079
+shall be deemed to be employed
+
+511
+00:29:15,079 --> 00:29:17,720
+in one and the same business or establishment.
+
+512
+00:29:17,720 --> 00:29:18,780
+Agreed.
+
+513
+00:29:18,780 --> 00:29:19,619
+Okay.
+
+514
+00:29:20,079 --> 00:29:21,480
+Again, I don't quibble with that.
+
+515
+00:29:21,480 --> 00:29:24,360
+It's simple, a plain reading of this statute
+
+516
+00:29:24,360 --> 00:29:26,840
+says it's directing exactly.
+
+517
+00:29:26,840 --> 00:29:29,519
+It says a contractor becomes-
+
+518
+00:29:29,519 --> 00:29:30,360
+That's my point is this.
+
+519
+00:29:30,360 --> 00:29:32,318
+We can quibble about what that means,
+
+520
+00:29:32,318 --> 00:29:33,840
+but for you to say,
+
+521
+00:29:33,840 --> 00:29:37,840
+well, subsection D needs to say statutory employee.
+
+522
+00:29:39,398 --> 00:29:42,439
+I don't, I can be ambivalent
+
+523
+00:29:42,439 --> 00:29:44,360
+about what B means when it says that,
+
+524
+00:29:44,360 --> 00:29:46,639
+but I'm not, I don't think,
+
+525
+00:29:47,099 --> 00:29:52,099
+you can use B to aid your interpretation of D
+
+526
+00:29:54,259 --> 00:29:56,939
+even though employee doesn't say statutory
+
+527
+00:29:56,939 --> 00:29:59,619
+because D, B talks about what employees.
+
+528
+00:29:59,619 --> 00:30:02,099
+I agree that you can read them in concert,
+
+529
+00:30:02,099 --> 00:30:04,259
+and you should read them in concert.
+
+530
+00:30:04,259 --> 00:30:07,299
+But again, the statute's very pointed in this section.
+
+531
+00:30:07,299 --> 00:30:09,139
+And it says the subcontractor who
+
+532
+00:30:09,139 --> 00:30:10,579
+failed to secure such payment.
+
+533
+00:30:10,579 --> 00:30:11,500
+And the subcontractor.
+
+534
+00:30:11,500 --> 00:30:13,899
+So now we're back to my other question, which
+
+535
+00:30:13,899 --> 00:30:17,859
+is, can it be argued that Structures failed
+
+536
+00:30:17,859 --> 00:30:21,299
+to secure payment in violation of 443-8,
+
+537
+00:30:21,299 --> 00:30:26,979
+given that under subsection B, Oliva is its employee as well?
+
+538
+00:30:26,979 --> 00:30:28,379
+They've made that argument.
+
+539
+00:30:28,379 --> 00:30:29,779
+The court rejected it.
+
+540
+00:30:29,779 --> 00:30:32,819
+I know, I'm asking you whether we should reject it.
+
+541
+00:30:32,819 --> 00:30:35,699
+Oh, no, no, you should reject that argument.
+
+542
+00:30:35,699 --> 00:30:38,339
+There's factual disputes on whether SBI had that.
+
+543
+00:30:38,339 --> 00:30:40,839
+No, no, no, I don't want to know about the factual disputes
+
+544
+00:30:40,839 --> 00:30:43,019
+about whether, unless I'm starting to cut you off,
+
+545
+00:30:43,019 --> 00:30:46,619
+whether Structures actually has employees itself.
+
+546
+00:30:46,619 --> 00:30:48,258
+Sure.
+
+547
+00:30:48,258 --> 00:30:49,500
+I'm not talking about that.
+
+548
+00:30:49,500 --> 00:30:50,459
+OK.
+
+549
+00:30:50,459 --> 00:30:55,258
+I'm talking about whether, by virtue of Oliva
+
+550
+00:30:55,258 --> 00:31:02,418
+being, by operation of statute, Structures' employee
+
+551
+00:31:02,418 --> 00:31:07,858
+in subsection B, why can't it be concluded
+
+552
+00:31:07,858 --> 00:31:11,299
+that Structures failed to secure such payment,
+
+553
+00:31:11,299 --> 00:31:16,858
+meaning whatever it's obligated under 440-38 to provide
+
+554
+00:31:16,858 --> 00:31:18,379
+for Oliva?
+
+555
+00:31:18,379 --> 00:31:21,779
+It's because it would create full stream chaos.
+
+556
+00:31:21,779 --> 00:31:23,739
+No, I want to know textually.
+
+557
+00:31:23,739 --> 00:31:24,979
+OK.
+
+558
+00:31:25,858 --> 00:31:28,458
+The D is very specific.
+
+559
+00:31:28,458 --> 00:31:30,659
+It's the employees of the subcontractor
+
+560
+00:31:30,659 --> 00:31:32,898
+who failed to secure coverage.
+
+561
+00:31:32,898 --> 00:31:34,979
+And again, you can't just repeat the question.
+
+562
+00:31:34,979 --> 00:31:36,258
+No, no, no, I'm just reading.
+
+563
+00:31:36,258 --> 00:31:37,299
+I'm reading.
+
+564
+00:31:37,299 --> 00:31:37,979
+I apologize.
+
+565
+00:31:37,979 --> 00:31:39,479
+Maybe I misunderstood your question.
+
+566
+00:31:39,479 --> 00:31:41,858
+I'm trying to read from the statute to answer it.
+
+567
+00:31:41,858 --> 00:31:42,379
+OK.
+
+568
+00:31:42,379 --> 00:31:47,138
+That the first part talks about contractor B
+
+569
+00:31:47,138 --> 00:31:48,699
+and the privity thing.
+
+570
+00:31:48,699 --> 00:31:51,818
+The second part talks about who has to reimburse
+
+571
+00:31:51,818 --> 00:31:54,659
+if a contractor gets hit.
+
+572
+00:31:55,379 --> 00:31:57,818
+And the Collins case, in that case,
+
+573
+00:31:57,818 --> 00:32:01,339
+because both the contractor and the subcontractor
+
+574
+00:32:01,339 --> 00:32:04,779
+have coverage, they said that the first guy that
+
+575
+00:32:04,779 --> 00:32:06,458
+has coverage pays.
+
+576
+00:32:06,458 --> 00:32:10,619
+But in that case, I would argue that in the Collins case,
+
+577
+00:32:10,619 --> 00:32:13,939
+if the second first-tier subcontractor didn't have it,
+
+578
+00:32:13,939 --> 00:32:16,098
+the contractor would have had to pay.
+
+579
+00:32:16,098 --> 00:32:19,419
+And then he still has to go after the subcontractor whose
+
+580
+00:32:19,419 --> 00:32:21,298
+actual employee it was, because it doesn't
+
+581
+00:32:21,298 --> 00:32:22,818
+say the word statutory.
+
+582
+00:32:22,818 --> 00:32:24,098
+Let me ask you.
+
+583
+00:32:24,098 --> 00:32:26,980
+This goes to this whole textual analysis.
+
+584
+00:32:26,980 --> 00:32:32,779
+Subparagraph or paragraph 1B in 44010
+
+585
+00:32:32,779 --> 00:32:39,779
+has been interpreted to provide for vertical responsibility.
+
+586
+00:32:39,779 --> 00:32:45,098
+But the wording in that statute talks about,
+
+587
+00:32:45,098 --> 00:32:46,779
+to use the other side's argument,
+
+588
+00:32:46,779 --> 00:32:52,339
+that if SBL is now treated as the contractor,
+
+589
+00:32:52,339 --> 00:32:57,818
+then Hartford, absent the interpretation of case law,
+
+590
+00:32:57,818 --> 00:33:01,980
+shouldn't have been responsible to pay.
+
+591
+00:33:01,980 --> 00:33:04,059
+Well, the case law and the statute
+
+592
+00:33:04,059 --> 00:33:06,139
+absolutely makes the finish line builders
+
+593
+00:33:06,139 --> 00:33:09,298
+and Hartford, your third-party payer, ultimately responsible.
+
+594
+00:33:09,298 --> 00:33:11,738
+How does Bede make that?
+
+595
+00:33:11,738 --> 00:33:14,980
+It's because it says, if the contractor sublets,
+
+596
+00:33:14,980 --> 00:33:18,419
+he's responsible, except to the employees of a sub who
+
+597
+00:33:18,419 --> 00:33:19,738
+has secured some payment.
+
+598
+00:33:19,779 --> 00:33:23,738
+But the other side's argument is that SBL now
+
+599
+00:33:23,738 --> 00:33:27,298
+becomes a statutory contractor.
+
+600
+00:33:27,298 --> 00:33:31,098
+And so if it is a statutory contractor,
+
+601
+00:33:31,098 --> 00:33:34,738
+then Hartford's responsibility isn't
+
+602
+00:33:34,738 --> 00:33:40,818
+to that statutory contractor and all of its subcontractors,
+
+603
+00:33:40,818 --> 00:33:43,500
+but for case law that says, yes, it is.
+
+604
+00:33:43,500 --> 00:33:47,538
+And so how do you reconcile that interpretation,
+
+605
+00:33:47,538 --> 00:33:50,658
+that there is vertical privity?
+
+606
+00:33:50,658 --> 00:33:55,178
+And yet, why wouldn't that same analysis apply to D?
+
+607
+00:33:55,178 --> 00:33:58,259
+Because it doesn't say jointly and severally liable.
+
+608
+00:33:58,259 --> 00:34:00,339
+They've already received a judgment.
+
+609
+00:34:00,339 --> 00:34:02,579
+But B doesn't.
+
+610
+00:34:02,579 --> 00:34:05,639
+There seems to me an intellectual leap
+
+611
+00:34:05,639 --> 00:34:10,378
+in vertical privity, because the statute says what it says.
+
+612
+00:34:10,378 --> 00:34:16,739
+And so if the primary is who precision?
+
+613
+00:34:16,739 --> 00:34:17,578
+No, finish line.
+
+614
+00:34:17,578 --> 00:34:18,819
+Finish line.
+
+615
+00:34:18,819 --> 00:34:22,259
+So if finish line is a contractor,
+
+616
+00:34:22,259 --> 00:34:25,059
+and now there is a subcontractor who is converted
+
+617
+00:34:25,059 --> 00:34:31,139
+into being a contractor, what does that make finish line?
+
+618
+00:34:31,139 --> 00:34:32,179
+A supercontractor.
+
+619
+00:34:32,179 --> 00:34:33,340
+It's the general contractor.
+
+620
+00:34:33,340 --> 00:34:34,739
+They're still the contractor.
+
+621
+00:34:34,739 --> 00:34:38,458
+But I guess this is maybe not a very articulate way
+
+622
+00:34:38,458 --> 00:34:40,099
+to address this issue.
+
+623
+00:34:40,099 --> 00:34:45,659
+But the interpretation of B has been, yep, it goes up the chain.
+
+624
+00:34:45,659 --> 00:34:47,619
+And you, as the general contractor,
+
+625
+00:34:47,619 --> 00:34:50,699
+are ultimately responsible no matter what.
+
+626
+00:34:50,699 --> 00:34:55,259
+But that's not how the actual practice works in this case,
+
+627
+00:34:55,259 --> 00:34:59,458
+because you have SBL being a contractor, which
+
+628
+00:34:59,458 --> 00:35:03,539
+should mean, if we take the strict textual wording,
+
+629
+00:35:03,539 --> 00:35:08,380
+then Hartford, who ensures finish line,
+
+630
+00:35:08,380 --> 00:35:10,699
+shouldn't be liable.
+
+631
+00:35:10,699 --> 00:35:12,940
+This is more speculative, because we've
+
+632
+00:35:12,940 --> 00:35:14,978
+gotten into this textual analysis.
+
+633
+00:35:14,978 --> 00:35:20,819
+And so I have some difficulty reconciling B and D
+
+634
+00:35:20,819 --> 00:35:22,819
+and why they should be treated differently.
+
+635
+00:35:22,819 --> 00:35:26,978
+It's the statutory modifier, the word the subcontractor,
+
+636
+00:35:26,978 --> 00:35:30,259
+who failed to secure coverage for its employee.
+
+637
+00:35:30,259 --> 00:35:33,779
+And in this case, Oliva was the observed employee.
+
+638
+00:35:33,779 --> 00:35:36,779
+Its direct employer was Enterprises,
+
+639
+00:35:36,779 --> 00:35:38,219
+and they failed to secure coverage.
+
+640
+00:35:38,219 --> 00:35:39,259
+You said direct employer.
+
+641
+00:35:39,259 --> 00:35:40,539
+You said its employee.
+
+642
+00:35:40,539 --> 00:35:42,619
+But when you go back to it, it's like clarifying.
+
+643
+00:35:42,659 --> 00:35:46,699
+Let me ask you to hopefully not, I
+
+644
+00:35:46,699 --> 00:35:49,018
+don't want him to ignore your question.
+
+645
+00:35:49,018 --> 00:35:51,059
+My question is inconsistent with how
+
+646
+00:35:51,059 --> 00:35:53,539
+the law is interpreted, the statutes,
+
+647
+00:35:53,539 --> 00:35:55,898
+as far as the vertical.
+
+648
+00:35:55,898 --> 00:35:57,179
+I think it works well.
+
+649
+00:35:57,179 --> 00:36:00,059
+I mean, I think 1B gets coverage to the employee.
+
+650
+00:36:00,059 --> 00:36:02,179
+That was the public policy of 1B.
+
+651
+00:36:02,179 --> 00:36:03,500
+It makes everybody.
+
+652
+00:36:03,500 --> 00:36:05,940
+But that's not how the wording seems to be.
+
+653
+00:36:05,940 --> 00:36:09,018
+That's not how the wording seems to be if she is correct
+
+654
+00:36:09,018 --> 00:36:12,179
+that SBL is now the contractor.
+
+655
+00:36:12,219 --> 00:36:14,099
+Again, for argument's sake, even if that's
+
+656
+00:36:14,099 --> 00:36:16,500
+the case, which I don't concede that's exactly the case,
+
+657
+00:36:16,500 --> 00:36:18,578
+under 1D, I'm not conceding that.
+
+658
+00:36:18,578 --> 00:36:20,578
+What I am saying is even if that's the case,
+
+659
+00:36:20,578 --> 00:36:23,018
+then the subcontractor who failed to secure coverage
+
+660
+00:36:23,018 --> 00:36:25,539
+for its employee is still Enterprises.
+
+661
+00:36:25,539 --> 00:36:27,819
+And they have received their statutory remedy.
+
+662
+00:36:27,819 --> 00:36:29,380
+They just don't like it because they
+
+663
+00:36:29,380 --> 00:36:32,219
+think that that particular entity is not collectible.
+
+664
+00:36:32,219 --> 00:36:35,139
+So believe it or not, this does have something to do
+
+665
+00:36:35,139 --> 00:36:37,219
+with Judge Zilberman's question.
+
+666
+00:36:37,219 --> 00:36:39,619
+So it's curious.
+
+667
+00:36:40,578 --> 00:36:43,340
+I agree with Judge Zilberman that it could
+
+668
+00:36:43,340 --> 00:36:45,380
+be interpreted in multiple ways.
+
+669
+00:36:45,380 --> 00:36:45,898
+Maybe.
+
+670
+00:36:45,898 --> 00:36:48,259
+But it's curious that it works the way it does.
+
+671
+00:36:48,259 --> 00:36:51,779
+But I think it works the way it does for this reason.
+
+672
+00:36:51,779 --> 00:36:56,059
+The interpretation is as it is for this reason.
+
+673
+00:36:56,059 --> 00:37:00,298
+All the employees are Hartford's employees under subsection B.
+
+674
+00:37:00,298 --> 00:37:00,978
+Right?
+
+675
+00:37:00,978 --> 00:37:04,139
+That's the mechanism that makes not Hartford, whatever,
+
+676
+00:37:04,139 --> 00:37:05,619
+not the insurer, but finish line.
+
+677
+00:37:05,619 --> 00:37:07,898
+Right?
+
+678
+00:37:07,898 --> 00:37:08,418
+OK.
+
+679
+00:37:08,418 --> 00:37:11,139
+So that may not satisfy Judge Zilberman's question
+
+680
+00:37:11,139 --> 00:37:13,099
+about why it's curiously interpreted this way.
+
+681
+00:37:13,099 --> 00:37:15,018
+But that's the interpretive mechanism.
+
+682
+00:37:15,018 --> 00:37:15,518
+Right?
+
+683
+00:37:15,518 --> 00:37:16,018
+Yeah.
+
+684
+00:37:16,018 --> 00:37:19,458
+So why does that also not apply to Structures?
+
+685
+00:37:19,458 --> 00:37:22,578
+All the employees are Structures employees as well
+
+686
+00:37:22,578 --> 00:37:25,819
+if Structures is a contractor for its subcontractor
+
+687
+00:37:25,819 --> 00:37:26,340
+Enterprises.
+
+688
+00:37:26,340 --> 00:37:29,578
+Because D specifically says it's the subcontractor who
+
+689
+00:37:29,578 --> 00:37:30,819
+failed to secure coverage.
+
+690
+00:37:30,819 --> 00:37:32,340
+And if it wanted to say.
+
+691
+00:37:32,340 --> 00:37:32,978
+Let me ask you.
+
+692
+00:37:32,978 --> 00:37:35,340
+So why did both of them fail to secure coverage?
+
+693
+00:37:35,340 --> 00:37:36,858
+The legislature, if they wanted to.
+
+694
+00:37:36,858 --> 00:37:40,018
+It's a subcontractor who failed to secure coverage.
+
+695
+00:37:40,018 --> 00:37:41,978
+It says the subcontractor.
+
+696
+00:37:41,978 --> 00:37:45,699
+Employee of a subcontractor who has failed to secure coverage.
+
+697
+00:37:45,699 --> 00:37:48,739
+And then it shall be entitled to recover from the subcontractor.
+
+698
+00:37:48,739 --> 00:37:49,539
+Exactly.
+
+699
+00:37:49,539 --> 00:37:50,539
+Because I know it says a.
+
+700
+00:37:50,539 --> 00:37:52,858
+There's only one subcontractor who employed someone
+
+701
+00:37:52,858 --> 00:37:56,539
+in Florida that failed to secure coverage.
+
+702
+00:37:56,539 --> 00:37:59,078
+I'm still trying to get you to address that argument saying,
+
+703
+00:37:59,078 --> 00:38:01,619
+well, couldn't it be that Structures also
+
+704
+00:38:01,619 --> 00:38:04,659
+failed to secure such payment of I-4430.
+
+705
+00:38:04,659 --> 00:38:08,898
+If by virtue of subsection B, finish line
+
+706
+00:38:08,898 --> 00:38:10,898
+is the employer of everybody down the line,
+
+707
+00:38:10,898 --> 00:38:13,659
+why isn't Structure also the employer of everyone
+
+708
+00:38:13,659 --> 00:38:14,940
+down the line from it?
+
+709
+00:38:14,940 --> 00:38:17,739
+And why isn't Structure?
+
+710
+00:38:17,739 --> 00:38:18,578
+I have my answer.
+
+711
+00:38:18,578 --> 00:38:19,500
+And I gave it earlier.
+
+712
+00:38:19,500 --> 00:38:20,699
+But that's why I opened.
+
+713
+00:38:20,699 --> 00:38:22,500
+You don't like my answer, apparently.
+
+714
+00:38:22,500 --> 00:38:24,500
+No, I hear what you're saying.
+
+715
+00:38:24,500 --> 00:38:27,898
+And I think you can twist the statute to that meeting.
+
+716
+00:38:27,898 --> 00:38:28,659
+I think you can.
+
+717
+00:38:28,659 --> 00:38:31,179
+But the legislature knew what they were doing.
+
+718
+00:38:31,179 --> 00:38:33,380
+And if they wanted liability reimbursement.
+
+719
+00:38:33,380 --> 00:38:34,940
+So let me ask you my question again,
+
+720
+00:38:34,940 --> 00:38:36,338
+because you don't like my answer.
+
+721
+00:38:36,338 --> 00:38:39,460
+And maybe it's because I wasn't clear.
+
+722
+00:38:39,460 --> 00:38:41,019
+And that is probably the case.
+
+723
+00:38:41,019 --> 00:38:43,019
+It's probably because I wasn't clear.
+
+724
+00:38:43,019 --> 00:38:45,899
+I'll just be more direct than I was with opposing counsel.
+
+725
+00:38:50,899 --> 00:38:57,139
+Does either Structures or finish line under 440.3,
+
+726
+00:38:57,139 --> 00:38:58,619
+are they not liable?
+
+727
+00:38:58,619 --> 00:39:03,778
+I understand 1B is a liability provision.
+
+728
+00:39:03,778 --> 00:39:08,259
+But as far as an insurance mandate,
+
+729
+00:39:08,259 --> 00:39:12,059
+does 443.8 mandate that if enterprises
+
+730
+00:39:12,059 --> 00:39:15,899
+doesn't have workers' comp insurance for Eliva,
+
+731
+00:39:15,899 --> 00:39:18,418
+that finish line is supposed to?
+
+732
+00:39:18,418 --> 00:39:22,658
+If finish line, and I'm sorry, if Structure SBL
+
+733
+00:39:22,658 --> 00:39:26,179
+was doing business in Florida and had employees in Florida,
+
+734
+00:39:26,179 --> 00:39:28,538
+it would be required to have workers' comp.
+
+735
+00:39:29,538 --> 00:39:30,038
+OK.
+
+736
+00:39:30,038 --> 00:39:32,219
+Structures, that's the factual issue
+
+737
+00:39:32,219 --> 00:39:33,338
+that I don't want to care.
+
+738
+00:39:33,338 --> 00:39:35,978
+Hypothetically, we're not conceding
+
+739
+00:39:35,978 --> 00:39:40,418
+for the sake of discussion that Structures is subject to 443.8.
+
+740
+00:39:40,418 --> 00:39:45,259
+Was it required to insure Mr. Eliva?
+
+741
+00:39:45,259 --> 00:39:46,739
+Basically, no.
+
+742
+00:39:46,739 --> 00:39:49,059
+Enterprises was required to insure Mr. Eliva.
+
+743
+00:39:49,059 --> 00:39:50,460
+It's employee, and that's 1D.
+
+744
+00:39:50,460 --> 00:39:51,579
+That's what it's all about.
+
+745
+00:39:51,579 --> 00:39:52,079
+OK.
+
+746
+00:39:52,079 --> 00:39:52,579
+OK.
+
+747
+00:39:52,579 --> 00:39:53,579
+I just want to be clear.
+
+748
+00:39:53,579 --> 00:39:55,739
+So it's not required to insure him.
+
+749
+00:39:55,739 --> 00:39:59,658
+It's just liable if it's the contractor, if he gets hurt,
+
+750
+00:39:59,658 --> 00:40:02,259
+and it's subcontractor doesn't hold workers' comp insurance.
+
+751
+00:40:02,259 --> 00:40:02,759
+Exactly.
+
+752
+00:40:02,759 --> 00:40:03,259
+OK.
+
+753
+00:40:03,259 --> 00:40:04,219
+So we're clear on that.
+
+754
+00:40:04,219 --> 00:40:08,338
+So that means finish line, also under 443.8,
+
+755
+00:40:08,338 --> 00:40:10,619
+we're presuming finish line, and let's just
+
+756
+00:40:10,619 --> 00:40:14,899
+say Structures is in Nebraska and not Canada or whatever.
+
+757
+00:40:14,899 --> 00:40:19,019
+Under 443.8, neither finish line nor Structures
+
+758
+00:40:19,019 --> 00:40:21,579
+is required under an insurance mandate
+
+759
+00:40:21,579 --> 00:40:24,579
+to carry workers' comp insurance for its sub or sub,
+
+760
+00:40:24,579 --> 00:40:27,219
+sub, sub, or sub, sub, sub contractors' employees, right?
+
+761
+00:40:27,219 --> 00:40:30,699
+Mr. Benzoli, I'm going to let you answer that question.
+
+762
+00:40:30,699 --> 00:40:32,858
+I've let you go over by about three minutes,
+
+763
+00:40:32,858 --> 00:40:36,059
+and this is an interesting case with a lot of complexity.
+
+764
+00:40:36,059 --> 00:40:37,019
+It is a lot of twists.
+
+765
+00:40:37,019 --> 00:40:38,219
+And so I don't want to work.
+
+766
+00:40:38,219 --> 00:40:39,778
+I'm not going to cut Judge Atkinson off
+
+767
+00:40:39,778 --> 00:40:40,179
+if he has a follow-up.
+
+768
+00:40:40,179 --> 00:40:41,259
+I'm going to answer the question.
+
+769
+00:40:41,259 --> 00:40:42,639
+I'm going to answer the question.
+
+770
+00:40:42,639 --> 00:40:44,179
+I just don't want to forget it.
+
+771
+00:40:44,179 --> 00:40:48,259
+The issue is, oh, Lord, I just almost forgot it.
+
+772
+00:40:48,259 --> 00:40:49,460
+No.
+
+773
+00:40:49,819 --> 00:40:57,099
+The issue is that 1D takes care of that.
+
+774
+00:40:57,099 --> 00:40:59,978
+Wherever you are, 443.8 says if you're
+
+775
+00:40:59,978 --> 00:41:01,418
+going to do business in the state,
+
+776
+00:41:01,418 --> 00:41:04,418
+you have to have a workers' compensation coverage.
+
+777
+00:41:04,418 --> 00:41:05,819
+That's one statute.
+
+778
+00:41:05,819 --> 00:41:06,699
+Fantastic.
+
+779
+00:41:06,699 --> 00:41:07,858
+I agree with that statute.
+
+780
+00:41:07,858 --> 00:41:09,059
+We all agree.
+
+781
+00:41:09,059 --> 00:41:13,099
+Then the next thing you come over here is 440 takes care of it.
+
+782
+00:41:13,099 --> 00:41:18,500
+It makes the primary contractor ultimately
+
+783
+00:41:18,500 --> 00:41:21,579
+responsible for coverage of every person that
+
+784
+00:41:21,579 --> 00:41:23,219
+steps foot on that site.
+
+785
+00:41:23,219 --> 00:41:27,699
+And it's his duty under 1C to collect insurance certificates
+
+786
+00:41:27,699 --> 00:41:29,739
+from everybody who are going to step on the site.
+
+787
+00:41:29,739 --> 00:41:32,259
+And if he fails in that duty, he becomes responsible.
+
+788
+00:41:32,259 --> 00:41:33,658
+And that's what the statute says,
+
+789
+00:41:33,658 --> 00:41:34,978
+and that's what happened here.
+
+790
+00:41:34,978 --> 00:41:36,380
+And that's exactly what happened.
+
+791
+00:41:36,380 --> 00:41:38,019
+So all of these work together.
+
+792
+00:41:38,019 --> 00:41:40,298
+It's a very simple process.
+
+793
+00:41:40,298 --> 00:41:43,259
+443.8, I have no qualms with it.
+
+794
+00:41:43,259 --> 00:41:44,019
+I don't.
+
+795
+00:41:44,019 --> 00:41:47,658
+But the part we're missing, and it's
+
+796
+00:41:47,658 --> 00:41:49,819
+set forth in the Collins case, I'm sorry,
+
+797
+00:41:49,819 --> 00:41:52,139
+the fidelity of the Collins case,
+
+798
+00:41:52,139 --> 00:41:55,338
+is the contractor is ultimately responsible under 443.
+
+799
+00:41:55,338 --> 00:41:56,179
+That's it.
+
+800
+00:41:56,179 --> 00:41:57,778
+So with that, I thank you.
+
+801
+00:41:57,778 --> 00:41:59,858
+I'd ask the court to affirm the ruling.
+
+802
+00:41:59,858 --> 00:42:00,380
+Very good.
+
+803
+00:42:00,380 --> 00:42:01,219
+Thank you very much.
+
+804
+00:42:01,219 --> 00:42:03,778
+Thank you, Judge.
+
+805
+00:42:03,778 --> 00:42:05,899
+Counsel, you had four minutes reserved.
+
+806
+00:42:05,899 --> 00:42:07,940
+But opposing counsel got a couple extra minutes,
+
+807
+00:42:07,940 --> 00:42:09,380
+so you will have it as well.
+
+808
+00:42:09,380 --> 00:42:10,460
+Thank you so much, Aaron.
+
+809
+00:42:10,460 --> 00:42:12,259
+I really appreciate it, especially because
+
+810
+00:42:12,259 --> 00:42:14,579
+of the heated debate here.
+
+811
+00:42:14,619 --> 00:42:16,778
+And I wanted to start, before I forget,
+
+812
+00:42:16,778 --> 00:42:19,579
+with directing the court's attention to some
+
+813
+00:42:19,579 --> 00:42:24,099
+of our sites in the reply brief that clearly demonstrate
+
+814
+00:42:24,099 --> 00:42:26,940
+we don't have any factual issue about the fact
+
+815
+00:42:26,940 --> 00:42:31,538
+that Structure SBL had employees in Florida,
+
+816
+00:42:31,538 --> 00:42:33,179
+had three employees.
+
+817
+00:42:33,179 --> 00:42:35,978
+They didn't file for any exception
+
+818
+00:42:35,978 --> 00:42:38,739
+that either of them are kind of management that shouldn't
+
+819
+00:42:38,739 --> 00:42:41,538
+be considered employees.
+
+820
+00:42:41,538 --> 00:42:45,778
+One of them had site visits to Florida.
+
+821
+00:42:45,778 --> 00:42:49,500
+Two of them, they argued there's some independent contractor.
+
+822
+00:42:49,500 --> 00:42:51,978
+But that particular person, I believe
+
+823
+00:42:51,978 --> 00:42:57,619
+it was Mr. Fortier or Mr. Rancourt, either one of them,
+
+824
+00:42:57,619 --> 00:43:03,619
+had even an email with Structure SBL domain in it.
+
+825
+00:43:03,619 --> 00:43:07,179
+And it's page one and two of our reply brief.
+
+826
+00:43:07,179 --> 00:43:15,298
+So this idea that we have a foreign entity who's not even
+
+827
+00:43:15,298 --> 00:43:16,940
+present in Florida is completely wrong.
+
+828
+00:43:16,940 --> 00:43:18,440
+Does that really matter to the discussion
+
+829
+00:43:18,440 --> 00:43:19,579
+that we've been having?
+
+830
+00:43:19,579 --> 00:43:23,059
+Well, it matters to the point, I apologize.
+
+831
+00:43:23,059 --> 00:43:25,059
+I should have let you finish the question,
+
+832
+00:43:25,059 --> 00:43:26,940
+but I only have four minutes.
+
+833
+00:43:26,940 --> 00:43:29,460
+OK, well, does it really matter to the question?
+
+834
+00:43:29,460 --> 00:43:33,460
+Because the employees of, I think it's Precision,
+
+835
+00:43:33,460 --> 00:43:36,460
+now I've gotten confused on the names of the three entities
+
+836
+00:43:36,460 --> 00:43:36,940
+here.
+
+837
+00:43:36,940 --> 00:43:37,739
+Enterprises.
+
+838
+00:43:37,739 --> 00:43:39,460
+Enterprises, enterprises, sorry.
+
+839
+00:43:39,460 --> 00:43:47,139
+Enterprises, Structure is the statutory employee for them.
+
+840
+00:43:47,139 --> 00:43:49,139
+So does it really matter if they actually
+
+841
+00:43:49,139 --> 00:43:51,219
+have people here or not?
+
+842
+00:43:51,219 --> 00:43:53,179
+It matters.
+
+843
+00:43:53,179 --> 00:43:57,940
+They're required to get workers' compensation
+
+844
+00:43:57,940 --> 00:44:01,658
+for their own employers and for all the employers.
+
+845
+00:44:01,658 --> 00:44:04,739
+That brings me back to my hobby horse.
+
+846
+00:44:04,739 --> 00:44:05,239
+Sorry?
+
+847
+00:44:05,239 --> 00:44:07,559
+That brings me back to my hobby horse.
+
+848
+00:44:07,559 --> 00:44:11,278
+Structure is required to have a policy for whom?
+
+849
+00:44:11,278 --> 00:44:13,880
+For the employees.
+
+850
+00:44:13,880 --> 00:44:15,440
+For its employees, right?
+
+851
+00:44:15,440 --> 00:44:18,639
+Its and the subcontractor.
+
+852
+00:44:18,639 --> 00:44:19,139
+Where?
+
+853
+00:44:19,139 --> 00:44:20,559
+Where does it say that?
+
+854
+00:44:20,559 --> 00:44:21,399
+Well, because.
+
+855
+00:44:21,399 --> 00:44:22,918
+Now, I'm not saying it's not liable.
+
+856
+00:44:22,918 --> 00:44:25,358
+I agree that it's liable if Enterprises doesn't have
+
+857
+00:44:25,358 --> 00:44:28,000
+workers' comp for Mr. Oliva.
+
+858
+00:44:28,000 --> 00:44:29,079
+Any contractor.
+
+859
+00:44:29,079 --> 00:44:32,158
+The closing statement of opposing counsel
+
+860
+00:44:32,239 --> 00:44:38,119
+is that C makes the contractor responsible
+
+861
+00:44:38,119 --> 00:44:40,239
+if the subcontractor doesn't have insurance.
+
+862
+00:44:40,239 --> 00:44:41,559
+But what does responsible mean?
+
+863
+00:44:41,559 --> 00:44:43,038
+Does it have to insure them?
+
+864
+00:44:43,038 --> 00:44:46,639
+Or does it just have to pay out if he gets injured?
+
+865
+00:44:46,639 --> 00:44:49,319
+I mean, it should be responsible.
+
+866
+00:44:49,319 --> 00:44:49,819
+It doesn't.
+
+867
+00:44:49,819 --> 00:44:52,478
+It says contractors shall require a subcontractor
+
+868
+00:44:52,478 --> 00:44:54,199
+provide insurance.
+
+869
+00:44:54,199 --> 00:44:57,079
+It doesn't say, if not, you've got to have a policy for them.
+
+870
+00:44:57,079 --> 00:44:57,918
+It says.
+
+871
+00:44:57,918 --> 00:45:01,038
+It just says you're liable if they don't have it.
+
+872
+00:45:01,038 --> 00:45:03,078
+Abbott, you've got to pay for that guy's injury.
+
+873
+00:45:03,078 --> 00:45:05,558
+No, but it does say in section 1A
+
+874
+00:45:05,558 --> 00:45:09,318
+that any contractor or subcontractor who
+
+875
+00:45:09,318 --> 00:45:11,758
+engages in public or private construction in the state
+
+876
+00:45:11,758 --> 00:45:13,878
+shall secure and maintain compensation
+
+877
+00:45:13,878 --> 00:45:16,718
+for his or her employees under this chapter.
+
+878
+00:45:16,718 --> 00:45:18,558
+So you were saying that Structures
+
+879
+00:45:18,558 --> 00:45:22,318
+needs to have which employees should be covered
+
+880
+00:45:22,318 --> 00:45:23,398
+under Structures policy?
+
+881
+00:45:26,638 --> 00:45:28,917
+All the employees that are considered
+
+882
+00:45:28,917 --> 00:45:30,158
+employees of disabled.
+
+883
+00:45:30,158 --> 00:45:31,238
+You're going back to that.
+
+884
+00:45:31,238 --> 00:45:36,797
+So B means you're contending that if the Department
+
+885
+00:45:36,797 --> 00:45:39,598
+of Economic Opportunity walked onto the site
+
+886
+00:45:39,598 --> 00:45:42,758
+and they'd say you're in regulatory noncompliance
+
+887
+00:45:42,758 --> 00:45:44,518
+because you should have had a policy that
+
+888
+00:45:44,518 --> 00:45:47,398
+covered your subcontractor's employees.
+
+889
+00:45:47,398 --> 00:45:50,038
+Under 440.3.
+
+890
+00:45:50,038 --> 00:45:52,598
+I don't want to speak for the department, Your Honor,
+
+891
+00:45:52,598 --> 00:45:55,637
+because I wasn't thinking about that issue.
+
+892
+00:45:55,637 --> 00:45:58,157
+But I want to point out that we are not asking this court
+
+893
+00:45:58,157 --> 00:45:59,878
+to rewrite the statute.
+
+894
+00:45:59,918 --> 00:46:03,358
+We're just asking the court to read it harmoniously,
+
+895
+00:46:03,358 --> 00:46:08,518
+that this subsection D1 with subsection B,
+
+896
+00:46:08,518 --> 00:46:14,677
+because reading it like that not only gives effect
+
+897
+00:46:14,677 --> 00:46:20,358
+to the mandatory right to recover,
+
+898
+00:46:20,358 --> 00:46:23,758
+but it also doesn't render other provisions
+
+899
+00:46:23,758 --> 00:46:25,758
+in the statute negatory.
+
+900
+00:46:25,758 --> 00:46:28,798
+The way that the trial court interpreted it
+
+901
+00:46:28,798 --> 00:46:32,718
+is very narrow to apply, and there's no support for that.
+
+902
+00:46:32,718 --> 00:46:36,557
+I want to point out to the court that subsection D does not
+
+903
+00:46:36,557 --> 00:46:40,438
+say if the general contractor becomes liable.
+
+904
+00:46:40,438 --> 00:46:43,877
+It says if a contractor becomes liable.
+
+905
+00:46:43,877 --> 00:46:47,758
+So our argument is here we have a contractor
+
+906
+00:46:47,758 --> 00:46:52,957
+who became liable, which is Structure SPL.
+
+907
+00:46:52,957 --> 00:46:55,597
+I get confused about all these names as well.
+
+908
+00:46:55,597 --> 00:47:02,237
+Structure SPL becomes liable for Mr. Oliva's injuries,
+
+909
+00:47:02,237 --> 00:47:06,038
+doesn't have workers' comp, and is not on the hook.
+
+910
+00:47:06,038 --> 00:47:09,077
+Then what is the meaning of having the vertical ribbon?
+
+911
+00:47:09,077 --> 00:47:10,517
+Let me ask you that.
+
+912
+00:47:10,517 --> 00:47:13,478
+Wait a minute, if you say the first instance
+
+913
+00:47:13,478 --> 00:47:15,118
+of the word contractor in subsection D,
+
+914
+00:47:15,118 --> 00:47:17,758
+you're saying that's structures.
+
+915
+00:47:17,758 --> 00:47:21,077
+So you're saying structures is liable to structures?
+
+916
+00:47:21,077 --> 00:47:23,998
+Because it says if a contractor becomes liable,
+
+917
+00:47:23,998 --> 00:47:26,437
+then the contractor shall be entitled to recover
+
+918
+00:47:26,437 --> 00:47:28,157
+from its subcontractor.
+
+919
+00:47:28,157 --> 00:47:29,278
+That's enterprises.
+
+920
+00:47:29,278 --> 00:47:30,237
+Exactly.
+
+921
+00:47:30,237 --> 00:47:34,398
+So how does that make finish line structures
+
+922
+00:47:34,398 --> 00:47:35,517
+liable to finish line?
+
+923
+00:47:35,517 --> 00:47:39,478
+Because neither Structure SPL nor enterprises
+
+924
+00:47:39,478 --> 00:47:42,278
+had workers' comp, and neither paid.
+
+925
+00:47:42,278 --> 00:47:46,877
+So automatically under the statute,
+
+926
+00:47:46,877 --> 00:47:49,597
+Hartford became liable as third-party payor
+
+927
+00:47:49,597 --> 00:47:52,437
+for finish line to pay workers' comp,
+
+928
+00:47:52,437 --> 00:47:55,797
+because that was the only insured entity.
+
+929
+00:47:55,797 --> 00:47:58,998
+The general contractor was the only one insured.
+
+930
+00:47:58,998 --> 00:48:04,317
+And by interpreting it the way the trial court did,
+
+931
+00:48:04,317 --> 00:48:10,278
+this entire vertical privity has no meaning.
+
+932
+00:48:10,278 --> 00:48:13,797
+If somebody like Structure SPL can come into Florida
+
+933
+00:48:13,797 --> 00:48:17,597
+from Canada, not insure its own employees
+
+934
+00:48:17,597 --> 00:48:21,437
+and that of its subcontractors, and then
+
+935
+00:48:21,437 --> 00:48:26,597
+get away without reimbursing, the right under D1
+
+936
+00:48:26,597 --> 00:48:29,118
+is a mandatory reimbursement right.
+
+937
+00:48:29,118 --> 00:48:33,038
+But the trial court interpreted the statute in such a way
+
+938
+00:48:33,038 --> 00:48:35,437
+that it limits that right.
+
+939
+00:48:35,437 --> 00:48:41,358
+And now it's limited to only enterprises.
+
+940
+00:48:41,358 --> 00:48:44,398
+But it's Structure SPL as well who failed.
+
+941
+00:48:44,398 --> 00:48:47,198
+And this is our broader interpretation.
+
+942
+00:48:47,198 --> 00:48:50,317
+But under our narrower interpretation,
+
+943
+00:48:50,317 --> 00:48:54,918
+we should still go to the meaning of the statute
+
+944
+00:48:54,918 --> 00:48:59,478
+and look at the fact that the contractor in this case
+
+945
+00:48:59,478 --> 00:49:01,838
+would be, let's say, general contractor has
+
+946
+00:49:01,838 --> 00:49:07,077
+to pay because none of the subcontractor or sub-sub paid
+
+947
+00:49:07,077 --> 00:49:11,157
+should be able to recover from the subcontractor.
+
+948
+00:49:11,157 --> 00:49:17,759
+Who's the subcontractor relative to finish line?
+
+949
+00:49:17,759 --> 00:49:20,437
+It's Structure SPL.
+
+950
+00:49:20,437 --> 00:49:24,717
+Structure SPL, so finish line should
+
+951
+00:49:24,717 --> 00:49:28,117
+be able to recover from Structure SPL.
+
+952
+00:49:28,117 --> 00:49:32,358
+And finish line can then go down the chain, the privity,
+
+953
+00:49:32,358 --> 00:49:36,518
+vertical privity chain, and recover from less enterprises.
+
+954
+00:49:36,518 --> 00:49:42,397
+I still believe that the broader interpretation is better
+
+955
+00:49:42,397 --> 00:49:45,478
+in effectuating the intent of the legislature
+
+956
+00:49:45,478 --> 00:49:51,198
+by making the right mandatory because it permits the Hartford
+
+957
+00:49:51,198 --> 00:49:56,317
+or finish line builders here to recover the money paid
+
+958
+00:49:56,317 --> 00:50:00,918
+from either or or both if, let's say, one is insolvent
+
+959
+00:50:00,918 --> 00:50:03,397
+or one doesn't have sufficient funds.
+
+960
+00:50:03,397 --> 00:50:06,078
+Counsel, I think we've got these points.
+
+961
+00:50:06,078 --> 00:50:08,038
+I think they've been adequately made.
+
+962
+00:50:08,038 --> 00:50:11,198
+I have one question before you sit down unrelated specifically
+
+963
+00:50:11,198 --> 00:50:12,678
+to this case.
+
+964
+00:50:12,717 --> 00:50:17,798
+But the concept of Hartford insures finish line.
+
+965
+00:50:17,798 --> 00:50:20,717
+And it has responsibility, we know, down the chain.
+
+966
+00:50:20,717 --> 00:50:23,798
+But if finish line didn't make certain
+
+967
+00:50:23,798 --> 00:50:29,437
+that its subcontractor had insurance and so on down the line
+
+968
+00:50:29,437 --> 00:50:30,958
+as we know happened in this case,
+
+969
+00:50:30,958 --> 00:50:34,638
+does Hartford potentially have a claim against finish line?
+
+970
+00:50:34,638 --> 00:50:39,918
+Because it's providing insurance for which finish line arguably
+
+971
+00:50:39,918 --> 00:50:41,837
+didn't do everything it was supposed to do.
+
+972
+00:50:41,837 --> 00:50:44,277
+And structure didn't do everything it was supposed to.
+
+973
+00:50:44,277 --> 00:50:45,397
+That's more rhetorical.
+
+974
+00:50:45,397 --> 00:50:47,877
+I mean, that's obviously not in front of us today.
+
+975
+00:50:47,877 --> 00:50:49,277
+I just think this is fascinating.
+
+976
+00:50:49,277 --> 00:50:51,678
+And part of it is insurance premiums
+
+977
+00:50:51,678 --> 00:50:53,717
+for workers' compensation are determined
+
+978
+00:50:53,717 --> 00:50:55,478
+based on number of employees.
+
+979
+00:50:55,478 --> 00:50:57,317
+Well, you also have statutory employees
+
+980
+00:50:57,317 --> 00:51:00,157
+who nobody knows how many of those there are.
+
+981
+00:51:00,157 --> 00:51:01,837
+So it creates this whole conundrum
+
+982
+00:51:01,837 --> 00:51:08,078
+of how premiums are computed, who's got liability for what,
+
+983
+00:51:08,078 --> 00:51:11,997
+and what happens when a contractor or subcontractor
+
+984
+00:51:11,997 --> 00:51:14,557
+doesn't live up to its responsibility
+
+985
+00:51:14,557 --> 00:51:16,638
+to get insurance.
+
+986
+00:51:16,638 --> 00:51:20,277
+So anyway, that was more of a speech than a question.
+
+987
+00:51:20,277 --> 00:51:22,078
+It's a fascinating area.
+
+988
+00:51:22,078 --> 00:51:23,277
+So thank you.
+
+989
+00:51:23,277 --> 00:51:25,518
+We appreciate the brief.
+

Case_25_0291/25_0291_audio.m4a

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Case_25_0291/25_0291_transcript.srt

@@ -0,0 +1,2732 @@
+1
+00:00:00,000 --> 00:00:07,000
+Good morning, Your Honors.
+
+2
+00:00:07,000 --> 00:00:11,000
+Good morning.
+
+3
+00:00:11,000 --> 00:00:15,000
+I believe it's still morning for a little bit yet.
+
+4
+00:00:15,000 --> 00:00:20,000
+May it please the Court, my name is John Brugger. I'm from the law firm Paraphinsic-Wolf.
+
+5
+00:00:20,000 --> 00:00:25,000
+I'm here with my partner, Justin Paraphinsic. We represent the appellant, the plaintiff below, Mr. Edward Wilson.
+
+6
+00:00:25,000 --> 00:00:30,000
+This is a complicated case with a lot of factual issues and a lot of legal issues.
+
+7
+00:00:30,000 --> 00:00:35,000
+So if the Court would allow, I'd like to give just a brief recitation of some of the salient facts here.
+
+8
+00:00:35,000 --> 00:00:40,000
+You certainly can. I don't think it's all that complicated. It's just an evidentiary question.
+
+9
+00:00:40,000 --> 00:00:45,000
+But you present it the way you want to.
+
+10
+00:00:45,000 --> 00:00:50,000
+Sure. Thank you, Your Honor. This is a Zantac case. Zantac was a heartburn medication.
+
+11
+00:00:50,000 --> 00:00:55,000
+It was sold in the United States.
+
+12
+00:00:55,000 --> 00:01:00,000
+The active ingredient is a chemical called ranitidine.
+
+13
+00:01:00,000 --> 00:01:05,000
+Ranitidine or Zantac testing came out that indicated
+
+14
+00:01:05,000 --> 00:01:10,000
+that Zantac was contaminated with a compound called NDMA.
+
+15
+00:01:10,000 --> 00:01:15,000
+NDMA has been known as a carcinogen for 50 years.
+
+16
+00:01:15,000 --> 00:01:20,000
+It has no purpose in the human body. It's an industrial byproduct.
+
+17
+00:01:20,000 --> 00:01:25,000
+Its only scientific use is to induce tumors in lab animals to study cancer.
+
+18
+00:01:25,000 --> 00:01:30,000
+At the time, the maker of Zantac voluntarily withdrew Zantac from the market,
+
+19
+00:01:30,000 --> 00:01:35,000
+and then the FDA followed up with a nationwide recall of ranitidine products.
+
+20
+00:01:35,000 --> 00:01:40,000
+Several other countries did the same.
+
+21
+00:01:40,000 --> 00:01:45,000
+This is a case where the plaintiff below, Mr. Wilson, took Zantac for 19 years
+
+22
+00:01:45,000 --> 00:01:50,000
+and alleges that he developed prostate cancer as a result of his use.
+
+23
+00:01:50,000 --> 00:01:55,000
+One issue I do want to point out to the court,
+
+24
+00:01:55,000 --> 00:02:00,000
+and if the court is familiar with the Zantac litigation at all,
+
+25
+00:02:00,000 --> 00:02:05,000
+it has been going on for a few years now.
+
+26
+00:02:05,000 --> 00:02:10,000
+I want to state the obvious by saying we are here today in a Florida appellate court.
+
+27
+00:02:10,000 --> 00:02:15,000
+This case comes from Hillsborough County, a Florida state court.
+
+28
+00:02:15,000 --> 00:02:20,000
+But upon reading the appellee's brief, you'll see that there are references
+
+29
+00:02:20,000 --> 00:02:25,000
+to the Zantac federal MDL throughout.
+
+30
+00:02:25,000 --> 00:02:30,000
+We understand our role versus that of the federal court.
+
+31
+00:02:30,000 --> 00:02:35,000
+I do want to point out to the court, and I'm not sure how clear it was in the briefs,
+
+32
+00:02:35,000 --> 00:02:40,000
+that that decision has been appealed to the Eleventh Circuit.
+
+33
+00:02:40,000 --> 00:02:45,000
+That issue has been fully briefed, and that was actually fully argued back in October,
+
+34
+00:02:45,000 --> 00:02:50,000
+so almost eight months now.
+
+35
+00:02:50,000 --> 00:02:55,000
+We do expect a ruling from the Eleventh Circuit any day now,
+
+36
+00:02:55,000 --> 00:03:00,000
+and we expect a ruling from the trial court.
+
+37
+00:03:00,000 --> 00:03:05,000
+First is a procedural due process issue for violating the doctrine laid out
+
+38
+00:03:05,000 --> 00:03:10,000
+in Perlow v. Burke. Perlow, which is a Florida Supreme Court case,
+
+39
+00:03:10,000 --> 00:03:15,000
+that said, well, it's not per se illegal for a lower court to adopt the draft order of a party.
+
+40
+00:03:15,000 --> 00:03:20,000
+The reasoning in the order should still reflect...
+
+41
+00:03:20,000 --> 00:03:25,000
+an error in the order itself.
+
+42
+00:03:25,000 --> 00:03:30,000
+Correct, Your Honor. And that is our second grounds that we present to the court today for reversing the trial order.
+
+43
+00:03:30,000 --> 00:03:35,000
+On your first ground, are the actual submitted orders,
+
+44
+00:03:35,000 --> 00:03:40,000
+not the one that was adopted, but the ones that were submitted by your opposing side,
+
+45
+00:03:40,000 --> 00:03:45,000
+are they in the record?
+
+46
+00:03:45,000 --> 00:03:50,000
+They are in the trial court's appendix and cited throughout our brief.
+
+47
+00:03:50,000 --> 00:03:55,000
+And so we have first the procedural issue about how these orders came to be,
+
+48
+00:03:55,000 --> 00:04:00,000
+and then there's the underlying issue
+
+49
+00:04:00,000 --> 00:04:05,000
+that by adopting these orders the way they did,
+
+50
+00:04:05,000 --> 00:04:10,000
+the lower court misapplied the law of Daubert in Florida
+
+51
+00:04:10,000 --> 00:04:15,000
+and had an erroneous view of the facts that gave them the basis to issue those orders.
+
+52
+00:04:15,000 --> 00:04:20,000
+Now, to start with the procedural due process issue,
+
+53
+00:04:20,000 --> 00:04:25,000
+there are many cases out there cited by us, cited by the appellees,
+
+54
+00:04:25,000 --> 00:04:30,000
+that talk about how courts are allowed to adopt the draft orders of a party.
+
+55
+00:04:30,000 --> 00:04:35,000
+However, in cases like Perlow itself, and just last year
+
+56
+00:04:35,000 --> 00:04:40,000
+this court ruled in Washington v. Purcell recoveries,
+
+57
+00:04:40,000 --> 00:04:45,000
+that those orders have to reflect an independent and thoughtful analysis of the law,
+
+58
+00:04:45,000 --> 00:04:50,000
+issues, and evidence.
+
+59
+00:04:50,000 --> 00:04:55,000
+Those cases all dealt with perhaps one order that was entered, or one judgment that was entered.
+
+60
+00:04:55,000 --> 00:05:00,000
+Our case today involves seven different orders.
+
+61
+00:05:00,000 --> 00:05:05,000
+This case came to the court in Hillsborough County with hundreds of pages of briefing
+
+62
+00:05:05,000 --> 00:05:10,000
+on four different Daubert orders and three different motions for summary and judgment.
+
+63
+00:05:10,000 --> 00:05:15,000
+There are thousands of pages of exhibits to those orders.
+
+64
+00:05:15,000 --> 00:05:20,000
+In August of 2024, the court heard argument all day in Hillsborough County.
+
+65
+00:05:20,000 --> 00:05:25,000
+I don't know if it lasted a full eight hours, but it was a full day of argument.
+
+66
+00:05:25,000 --> 00:05:30,000
+During the entire argument on any of the motions,
+
+67
+00:05:30,000 --> 00:05:35,000
+the lower court did not make any findings on the record.
+
+68
+00:05:35,000 --> 00:05:40,000
+Most of the questions asked by the lower court were logistical questions about taking breaks
+
+69
+00:05:40,000 --> 00:05:45,000
+and what argument was next and that type of thing,
+
+70
+00:05:45,000 --> 00:05:50,000
+although some questions were asked later on about a couple of the issues.
+
+71
+00:05:50,000 --> 00:05:55,000
+The lower court asked the parties to simultaneously submit draft proposed orders.
+
+72
+00:05:55,000 --> 00:06:00,000
+The parties did, and within 72 hours,
+
+73
+00:06:00,000 --> 00:06:05,000
+the lower court adopted substantively verbatim
+
+74
+00:06:05,000 --> 00:06:10,000
+the ruling, the orders provided by the appellees here.
+
+75
+00:06:10,000 --> 00:06:15,000
+I say substantively verbatim because the arguments,
+
+76
+00:06:15,000 --> 00:06:20,000
+the evidence that the arguments rely on, and even a lot of the wording of the reasoning
+
+77
+00:06:20,000 --> 00:06:25,000
+was taken directly from the draft orders. There are no arguments. There's no evidence
+
+78
+00:06:25,000 --> 00:06:30,000
+that was provided by the court that's different from what the defendants provided them.
+
+79
+00:06:30,000 --> 00:06:35,000
+All seven of them, seven four-Daubert motions and three summary judgments
+
+80
+00:06:35,000 --> 00:06:40,000
+were all signed by the court within 72 hours. The only changes the court made
+
+81
+00:06:40,000 --> 00:06:45,000
+are some structural changes, splitting one paragraph
+
+82
+00:06:45,000 --> 00:06:50,000
+into two, moving an argument maybe from the body to a footnote,
+
+83
+00:06:50,000 --> 00:06:55,000
+but raised no independent issues not provided to them by the defendants.
+
+84
+00:06:55,000 --> 00:07:00,000
+There was no opportunity provided by the court,
+
+85
+00:07:00,000 --> 00:07:05,000
+especially with less than 72 hours, for the parties to object
+
+86
+00:07:05,000 --> 00:07:10,000
+to the order. Now in Washington, the case that was decided by this court
+
+87
+00:07:10,000 --> 00:07:15,000
+last year, they upheld the Perlow rule in a case
+
+88
+00:07:15,000 --> 00:07:20,000
+where both parties submitted draft orders
+
+89
+00:07:20,000 --> 00:07:25,000
+to the court. And counsel, I was just double-checking my own notes on this case.
+
+90
+00:07:25,000 --> 00:07:30,000
+You said that the proposed orders are in the appendix, but were they provided in the record or the
+
+91
+00:07:30,000 --> 00:07:35,000
+supplemental record? I would have to go back . . .
+
+92
+00:07:35,000 --> 00:07:40,000
+Because my notes indicate they were not. I don't believe they were officially part . . .
+
+93
+00:07:40,000 --> 00:07:45,000
+I don't think they were filed as part of the record. I think the drafts were probably
+
+94
+00:07:45,000 --> 00:07:50,000
+emailed to the court, and that's why we provided them in our appendix so they would become part of it.
+
+95
+00:07:50,000 --> 00:07:55,000
+I just wanted to make sure that I didn't have the wrong note on this. Okay. Thank you, Your Honor.
+
+96
+00:07:55,000 --> 00:08:00,000
+And so, what the case has really boiled down to
+
+97
+00:08:00,000 --> 00:08:05,000
+on that issue is, if the court adopts a party's
+
+98
+00:08:05,000 --> 00:08:10,000
+draft order, the court really should make findings on the record.
+
+99
+00:08:10,000 --> 00:08:15,000
+Whenever feasible, the court should do that. The court should write its own orders, again, wherever feasible.
+
+100
+00:08:15,000 --> 00:08:20,000
+And the court
+
+101
+00:08:20,000 --> 00:08:25,000
+should undertake an independent analysis of the issues.
+
+102
+00:08:25,000 --> 00:08:30,000
+Counsel, why don't we move on to the other issue? I think that's the more meaty issue that we need to deal with right now.
+
+103
+00:08:30,000 --> 00:08:35,000
+Sure. I agree, Your Honor. Thank you very much. And you didn't ask to reserve time for rebuttal.
+
+104
+00:08:35,000 --> 00:08:40,000
+You've gone about 9 minutes. You have 11 minutes left. So, how much time do you want to reserve?
+
+105
+00:08:40,000 --> 00:08:45,000
+I think about 5 minutes would be okay, Your Honor. Thank you for reminding me.
+
+106
+00:08:45,000 --> 00:08:50,000
+So, Your Honor, as you pointed out, the attorney for the
+
+107
+00:08:50,000 --> 00:08:55,000
+appellees is going to tell you sort of an ends justify the means argument
+
+108
+00:08:55,000 --> 00:09:00,000
+because they'll tell you, even if all of that is true,
+
+109
+00:09:00,000 --> 00:09:05,000
+it doesn't matter because the court reached the right outcome, the right outcome provided by the defendants
+
+110
+00:09:05,000 --> 00:09:10,000
+below to the court. And therefore, there's no grounds for reversal here.
+
+111
+00:09:10,000 --> 00:09:15,000
+But on an abuse of discretion standard, an abuse of discretion is where there's an erroneous view of the law
+
+112
+00:09:15,000 --> 00:09:20,000
+and an erroneous view of the facts, both of which are the case here.
+
+113
+00:09:20,000 --> 00:09:25,000
+Dawbert, when adopted by Florida to replace Frye, charged the court with a preliminary
+
+114
+00:09:25,000 --> 00:09:30,000
+examination of the expert evidence in order to make sure the evidence was reliable before it went to the jury.
+
+115
+00:09:30,000 --> 00:09:35,000
+Did not give the court the power to weigh the evidence, to make decisions
+
+116
+00:09:35,000 --> 00:09:40,000
+about believability, to rule on the conclusions reached by the experts.
+
+117
+00:09:40,000 --> 00:09:45,000
+And we believe that's what happened here. Some of these same issues were raised by the 11th Circuit during
+
+118
+00:09:45,000 --> 00:09:50,000
+lower argument by Judge Jordan and Judge Lagoa.
+
+119
+00:09:50,000 --> 00:09:55,000
+In this case,
+
+120
+00:09:55,000 --> 00:10:00,000
+Your Honors, there are several grounds where the lower court made errors
+
+121
+00:10:00,000 --> 00:10:05,000
+in applying Dawbert and in construing the facts, one of which
+
+122
+00:10:05,000 --> 00:10:10,000
+is on general causation, there were two experts produced
+
+123
+00:10:10,000 --> 00:10:15,000
+to speak about general causation, whether NDMA in reninidine
+
+124
+00:10:15,000 --> 00:10:20,000
+can generally cause prostate cancer. That would be Dr. Matthew Simmons and Dr. Steven Berg.
+
+125
+00:10:20,000 --> 00:10:25,000
+And the lower court and the defendants below
+
+126
+00:10:25,000 --> 00:10:30,000
+accused them of cherry picking the studies. They didn't rely on or didn't address
+
+127
+00:10:30,000 --> 00:10:35,000
+the handful of reninidine epidemiological studies
+
+128
+00:10:35,000 --> 00:10:40,000
+that are relatively late coming and instead relied on the 50
+
+129
+00:10:40,000 --> 00:10:45,000
+plus years of research into NDMA itself as a carcinogen.
+
+130
+00:10:45,000 --> 00:10:50,000
+Your Honor, we posit that that is
+
+131
+00:10:50,000 --> 00:10:55,000
+a ruling based on the conclusions reached by the expert, but
+
+132
+00:10:55,000 --> 00:11:00,000
+that's also not even the case here because even if these other studies that the defendants raised
+
+133
+00:11:00,000 --> 00:11:05,000
+were not part of their report, they were discussed extensively during their depositions.
+
+134
+00:11:05,000 --> 00:11:10,000
+All of these experts gave day long depositions.
+
+135
+00:11:10,000 --> 00:11:15,000
+You're talking about the trial court's
+
+136
+00:11:15,000 --> 00:11:20,000
+mention of cherry picking, but isn't
+
+137
+00:11:20,000 --> 00:11:25,000
+whether or not an expert cherry picked the evidence
+
+138
+00:11:25,000 --> 00:11:30,000
+that are derived from studies relevant to whether the theory
+
+139
+00:11:30,000 --> 00:11:35,000
+or technique is widespread acceptance?
+
+140
+00:11:35,000 --> 00:11:40,000
+Isn't how widespread it is a question to which
+
+141
+00:11:40,000 --> 00:11:45,000
+all the studies should be relevant?
+
+142
+00:11:45,000 --> 00:11:50,000
+Sure, and Your Honor, the widespread acceptance would be of the methodology itself,
+
+143
+00:11:50,000 --> 00:11:55,000
+not the conclusions reached by those studies.
+
+144
+00:11:55,000 --> 00:12:00,000
+You're talking about something different now. You're talking about the fact that he's weighing evidence by
+
+145
+00:12:00,000 --> 00:12:05,000
+he or she, the trial judges, weighing evidence by homing in on the point that the expert
+
+146
+00:12:05,000 --> 00:12:10,000
+picks studies. Correct.
+
+147
+00:12:10,000 --> 00:12:15,000
+Doesn't cherry picking studies go to the question of whether
+
+148
+00:12:15,000 --> 00:12:20,000
+it's gained widespread acceptance?
+
+149
+00:12:20,000 --> 00:12:25,000
+Your Honor, on that issue, I think it may be a moot point because I don't believe cherry picking even occurred here.
+
+150
+00:12:25,000 --> 00:12:30,000
+I think that's one of the factual disputes that the court didn't appreciate because
+
+151
+00:12:30,000 --> 00:12:35,000
+when they questioned about these studies, the experts said they reviewed them, and then they talked about them at length.
+
+152
+00:12:35,000 --> 00:12:40,000
+How they reviewed them, the methodological flaws they found in those studies,
+
+153
+00:12:40,000 --> 00:12:45,000
+the same flaws found by the authors of those studies, and why in their weighing of the evidence
+
+154
+00:12:45,000 --> 00:12:50,000
+they weighed the NDMA studies higher than they weighed the Rinitidine studies,
+
+155
+00:12:50,000 --> 00:12:55,000
+but they considered all of the evidence, which is the exact type of analysis
+
+156
+00:12:55,000 --> 00:13:00,000
+that Florida courts approve of, as they approved of in
+
+157
+00:13:00,000 --> 00:13:05,000
+Berry v. CSX Transportation. It's not a blind reliance on the epidemiology.
+
+158
+00:13:05,000 --> 00:13:10,000
+It's an analysis based on how the study was conducted and giving the expert
+
+159
+00:13:10,000 --> 00:13:15,000
+the ability to weigh the different studies that may be in conflict
+
+160
+00:13:15,000 --> 00:13:20,000
+with each other and determine causation and reliability
+
+161
+00:13:20,000 --> 00:13:25,000
+based on what their professional scientific opinion is of which studies are more reliable and which ones are not.
+
+162
+00:13:25,000 --> 00:13:30,000
+That is what happened here. Again, this would all be
+
+163
+00:13:30,000 --> 00:13:35,000
+furthering the purpose of Dawberg, which is to present reliable evidence to the jury
+
+164
+00:13:35,000 --> 00:13:40,000
+so the jury can weigh the evidence, so the jury can see the Biggers cross-examination
+
+165
+00:13:40,000 --> 00:13:45,000
+during the trial and presentation of contrary evidence
+
+166
+00:13:45,000 --> 00:13:50,000
+so they can make a decision as to which experts to believe, not to keep these experts
+
+167
+00:13:50,000 --> 00:13:55,000
+from the jury. There are other
+
+168
+00:13:55,000 --> 00:14:00,000
+factual issues, Your Honor. One has to do with, and these are
+
+169
+00:14:00,000 --> 00:14:05,000
+interrelated, the laboratory testing. A lab
+
+170
+00:14:05,000 --> 00:14:10,000
+by the name of Eurofins EAG, Eurofins is a worldwide, highly respected
+
+171
+00:14:10,000 --> 00:14:15,000
+laboratory organization. The local office that we used was called Eurofins EAG.
+
+172
+00:14:15,000 --> 00:14:20,000
+They provided testing of rinitidine Zantac tablets.
+
+173
+00:14:20,000 --> 00:14:25,000
+Now, the appellees will tell you, well, they didn't review
+
+174
+00:14:25,000 --> 00:14:30,000
+Mr. Wilson's tablets, they didn't test his tablets, and the tablets that they tested were expired.
+
+175
+00:14:30,000 --> 00:14:35,000
+All of that's irrelevant, and then they'll tell you, well, because of that, Dr. Bird
+
+176
+00:14:35,000 --> 00:14:40,000
+relied on that testing, so his opinion is out. Now, there's a wrong on two
+
+177
+00:14:40,000 --> 00:14:45,000
+counts. One, the laboratory was never produced to give a case-specific
+
+178
+00:14:45,000 --> 00:14:50,000
+opinion about how much NDMA was in Mr. Wilson's tablets. Like many people,
+
+179
+00:14:50,000 --> 00:14:55,000
+by the time the drug was pulled and by the time Mr. Wilson brought his case
+
+180
+00:14:55,000 --> 00:15:00,000
+a couple of years later, he no longer had the pills in his
+
+181
+00:15:00,000 --> 00:15:05,000
+hands.
+
+182
+00:15:05,000 --> 00:15:06,279
+possession.
+
+183
+00:15:06,279 --> 00:15:09,840
+This is a common occurrence that we've seen in Zantac litigation.
+
+184
+00:15:09,840 --> 00:15:13,120
+But EHE tested pills from other clients of ours,
+
+185
+00:15:13,120 --> 00:15:15,039
+some of which were expired.
+
+186
+00:15:15,039 --> 00:15:18,399
+And they showed levels of NDMA.
+
+187
+00:15:18,399 --> 00:15:21,120
+But the lab witnesses were brought
+
+188
+00:15:21,120 --> 00:15:26,019
+in to talk about two things, the complicated procedure approved
+
+189
+00:15:26,019 --> 00:15:29,840
+by the FDA for testing rinitidine for NDMA.
+
+190
+00:15:29,840 --> 00:15:31,558
+And to counter the argument we've
+
+191
+00:15:31,558 --> 00:15:34,000
+heard from defendants numerous times
+
+192
+00:15:34,000 --> 00:15:36,600
+that rinitidine does not form NDMA
+
+193
+00:15:36,600 --> 00:15:38,360
+under real world conditions.
+
+194
+00:15:38,360 --> 00:15:42,240
+And so they tested real people's NDMA and found that it does.
+
+195
+00:15:42,240 --> 00:15:43,639
+Now,
+
+196
+00:15:43,639 --> 00:15:46,879
+Counsel, I'll just let you know you're at your five minute mark.
+
+197
+00:15:46,879 --> 00:15:48,759
+You can go ahead or you can reserve.
+
+198
+00:15:48,759 --> 00:15:50,080
+So however you wish to proceed.
+
+199
+00:15:50,080 --> 00:15:51,740
+Just make one brief point, Your Honor,
+
+200
+00:15:51,740 --> 00:15:53,840
+and please deduct it from my time.
+
+201
+00:15:53,840 --> 00:15:56,599
+But if we take that and move on to Dr. Byrd,
+
+202
+00:15:56,599 --> 00:16:00,519
+Dr. Byrd didn't just rely on the EHE testing
+
+203
+00:16:00,519 --> 00:16:04,599
+to form his opinion about what dosage of NDMA
+
+204
+00:16:04,599 --> 00:16:06,918
+Mr. Wilson would have ingested.
+
+205
+00:16:06,918 --> 00:16:08,720
+Dr. Byrd reviewed that testing.
+
+206
+00:16:08,720 --> 00:16:12,239
+But he reviewed the testing for the FDA
+
+207
+00:16:12,239 --> 00:16:16,039
+from the testing out of Japan called the Abe study,
+
+208
+00:16:16,039 --> 00:16:18,198
+testing from GlaxoSmithKline itself.
+
+209
+00:16:18,198 --> 00:16:21,799
+GlaxoSmithKline was the original inventor of rinitidine.
+
+210
+00:16:21,799 --> 00:16:24,639
+He took testing from all these sources.
+
+211
+00:16:24,639 --> 00:16:28,319
+And based on calculations of other published studies,
+
+212
+00:16:28,319 --> 00:16:31,440
+such as the Lowe study and the Hidijan study,
+
+213
+00:16:31,440 --> 00:16:33,539
+he was able to form a conservative opinion
+
+214
+00:16:33,539 --> 00:16:38,080
+about how much NDMA Mr. Wilson likely would have ingested
+
+215
+00:16:38,080 --> 00:16:40,558
+to a reasonable degree of scientific certainty.
+
+216
+00:16:40,558 --> 00:16:42,759
+Now, his estimate that he used in his report
+
+217
+00:16:42,759 --> 00:16:45,480
+and a deposition is far lower
+
+218
+00:16:45,480 --> 00:16:47,558
+than the levels that urofins found,
+
+219
+00:16:47,558 --> 00:16:51,639
+but still enough for him to opine
+
+220
+00:16:51,639 --> 00:16:54,000
+that Mr. Wilson was at increased risk
+
+221
+00:16:54,000 --> 00:16:58,039
+and that the NDMA contaminated rinitidine
+
+222
+00:16:58,759 --> 00:17:01,639
+was a substantial factor in causing his cancer.
+
+223
+00:17:01,639 --> 00:17:04,160
+So those are just a couple of the factual issues
+
+224
+00:17:04,160 --> 00:17:06,039
+that we believe the court got wrong
+
+225
+00:17:06,039 --> 00:17:10,838
+as a result of over-reliance on the defendant's draft orders
+
+226
+00:17:10,838 --> 00:17:12,539
+and the language that they used.
+
+227
+00:17:12,539 --> 00:17:13,380
+And thank you, Your Honor.
+
+228
+00:17:13,380 --> 00:17:14,500
+I'll just reserve the rest of my time.
+
+229
+00:17:14,500 --> 00:17:15,338
+Very good.
+
+230
+00:17:15,338 --> 00:17:17,199
+You'll have four minutes.
+
+231
+00:17:17,199 --> 00:17:18,319
+Thank you.
+
+232
+00:17:18,319 --> 00:17:19,278
+Thank you, counsel.
+
+233
+00:17:29,000 --> 00:17:32,199
+May it please the court, Matt Leppert for the Appellees.
+
+234
+00:17:32,199 --> 00:17:35,319
+The judgment in this case rests on three independent grounds.
+
+235
+00:17:35,319 --> 00:17:37,599
+A Daubert determination that there wasn't
+
+236
+00:17:37,599 --> 00:17:40,019
+competent evidence on general causation,
+
+237
+00:17:40,019 --> 00:17:42,278
+which is in line with every other court in the country
+
+238
+00:17:42,278 --> 00:17:45,398
+applying Daubert in Zantac cases.
+
+239
+00:17:45,398 --> 00:17:47,360
+Counselor, are you splitting time?
+
+240
+00:17:47,360 --> 00:17:49,639
+I don't think so, unless there's a question
+
+241
+00:17:49,639 --> 00:17:51,479
+specific to Sanovey.
+
+242
+00:17:51,479 --> 00:17:53,278
+And if you are.
+
+243
+00:17:53,278 --> 00:17:56,838
+Sorry, I don't know where my mic's at.
+
+244
+00:17:57,038 --> 00:17:59,000
+My name is Sally Pay from Arnold and Porter,
+
+245
+00:17:59,000 --> 00:18:00,118
+representing Sanovey.
+
+246
+00:18:00,118 --> 00:18:01,319
+And you're representing, I'm sorry.
+
+247
+00:18:01,319 --> 00:18:03,240
+Sanovey, the Sanovey defendants.
+
+248
+00:18:03,240 --> 00:18:05,360
+So you're doing the entire argument?
+
+249
+00:18:05,360 --> 00:18:06,199
+Correct.
+
+250
+00:18:06,199 --> 00:18:07,199
+Just making sure.
+
+251
+00:18:07,199 --> 00:18:08,038
+Thank you, counsel.
+
+252
+00:18:08,038 --> 00:18:09,000
+Go ahead.
+
+253
+00:18:09,000 --> 00:18:10,360
+So there's three independent grounds.
+
+254
+00:18:10,360 --> 00:18:13,360
+First is general causation, the Daubert ruling on that.
+
+255
+00:18:13,360 --> 00:18:16,160
+The second one is the Daubert ruling on dose.
+
+256
+00:18:16,160 --> 00:18:19,838
+The plaintiff's experts did not calculate a threshold dose.
+
+257
+00:18:19,838 --> 00:18:22,079
+And then there's a third independent ground,
+
+258
+00:18:22,079 --> 00:18:24,179
+and it's a lack of competent expert evidence
+
+259
+00:18:24,179 --> 00:18:26,240
+on specific causation.
+
+260
+00:18:26,240 --> 00:18:31,118
+And in this case, Mr. Wilson had a strong family history
+
+261
+00:18:31,118 --> 00:18:33,720
+that according to the plaintiff's own sources,
+
+262
+00:18:33,720 --> 00:18:36,519
+their own literature, increased his risk
+
+263
+00:18:36,519 --> 00:18:40,639
+of getting prostate cancer by over 900%.
+
+264
+00:18:40,639 --> 00:18:43,038
+His dad and two of his older brothers
+
+265
+00:18:43,038 --> 00:18:46,419
+both got prostate cancer around the same age
+
+266
+00:18:46,419 --> 00:18:48,720
+without ever taking reninidine.
+
+267
+00:18:48,720 --> 00:18:50,639
+And that's why his treating urologist said
+
+268
+00:18:50,639 --> 00:18:54,558
+that he was 99.9% certain that this cancer
+
+269
+00:18:54,558 --> 00:18:57,000
+is genetic in origin.
+
+270
+00:18:57,000 --> 00:19:01,639
+And the plaintiff's specific causation expert, Dr. Connery,
+
+271
+00:19:01,639 --> 00:19:07,038
+did not reliably exclude this obvious alternative cause.
+
+272
+00:19:07,038 --> 00:19:10,160
+That's required for differential diagnosis.
+
+273
+00:19:10,160 --> 00:19:13,118
+And that differential diagnosis, he
+
+274
+00:19:13,118 --> 00:19:17,519
+relied solely on one genetic test that tested 35 out
+
+275
+00:19:17,519 --> 00:19:21,078
+of 20,000 possible genes.
+
+276
+00:19:21,440 --> 00:19:22,880
+It looked like you had a question.
+
+277
+00:19:22,880 --> 00:19:24,398
+That's why I stopped.
+
+278
+00:19:24,398 --> 00:19:27,480
+It only tested 35 out of 20,000 genes,
+
+279
+00:19:27,480 --> 00:19:32,599
+including several genes that are associated with prostate cancer.
+
+280
+00:19:32,599 --> 00:19:34,679
+And the test itself said it can't
+
+281
+00:19:34,679 --> 00:19:38,880
+be used to exclude genetics as the sole cause of what
+
+282
+00:19:38,880 --> 00:19:40,838
+happened to Mr. Wilson.
+
+283
+00:19:40,838 --> 00:19:45,519
+So that basis alone, that is a straightforward reason.
+
+284
+00:19:45,519 --> 00:19:48,720
+Because as the Dahlberg case law from the 11th Circuit
+
+285
+00:19:48,720 --> 00:19:51,798
+says, when an expert uses differential ideology,
+
+286
+00:19:51,798 --> 00:19:55,358
+differential diagnosis to opine on specific causation,
+
+287
+00:19:55,358 --> 00:19:58,480
+the expert must give an explanation for ruling out
+
+288
+00:19:58,480 --> 00:19:59,920
+other alternative causes.
+
+289
+00:19:59,920 --> 00:20:02,679
+And in this case, and that has to be scientifically supported,
+
+290
+00:20:02,679 --> 00:20:05,200
+in this case, Dr. Connery conceded
+
+291
+00:20:05,200 --> 00:20:07,519
+that the source he's relying on does not
+
+292
+00:20:07,519 --> 00:20:11,480
+allow him to fully rule out the genetics
+
+293
+00:20:11,480 --> 00:20:13,358
+as the sole cause in this case.
+
+294
+00:20:13,358 --> 00:20:17,160
+So that's the issue of specific causation, which
+
+295
+00:20:17,160 --> 00:20:20,319
+provides an independent ground to support the judgment that
+
+296
+00:20:20,319 --> 00:20:22,700
+was entered here in this case, because the plaintiff needs
+
+297
+00:20:22,700 --> 00:20:24,480
+evidence on specific causation.
+
+298
+00:20:24,480 --> 00:20:27,679
+The exclusion of Dr. Connery on his differential ideology.
+
+299
+00:20:27,679 --> 00:20:31,160
+Dr. Burt said he did a differential ideology
+
+300
+00:20:31,160 --> 00:20:34,039
+for specific causation, but agreed that he actually never
+
+301
+00:20:34,039 --> 00:20:38,319
+ruled out the genetic cause, the 99.9 certainty
+
+302
+00:20:38,319 --> 00:20:42,639
+that the treating urologist had about the origin of the cancer.
+
+303
+00:20:42,639 --> 00:20:44,798
+Then we have a finding as to dose.
+
+304
+00:20:45,519 --> 00:20:47,119
+The 11th Circuit has said multiple times
+
+305
+00:20:47,119 --> 00:20:49,880
+that in a toxic tort case, particularly
+
+306
+00:20:49,880 --> 00:20:53,720
+with a substance that is as ubiquitous as NDMA is,
+
+307
+00:20:53,720 --> 00:20:55,838
+there needs to be a threshold dose.
+
+308
+00:20:55,838 --> 00:20:57,160
+Dose makes the poison.
+
+309
+00:20:57,160 --> 00:20:59,639
+NDMA is all around us.
+
+310
+00:20:59,639 --> 00:21:01,160
+It's in smoked meat.
+
+311
+00:21:01,160 --> 00:21:03,200
+It is in the air that we breathe.
+
+312
+00:21:03,200 --> 00:21:05,358
+It is in the food that we eat.
+
+313
+00:21:05,358 --> 00:21:07,119
+It is all around us.
+
+314
+00:21:07,119 --> 00:21:10,959
+So in order for an expert to opine in a toxic tort case,
+
+315
+00:21:10,959 --> 00:21:14,599
+there needs to be an opinion on threshold dose.
+
+316
+00:21:15,440 --> 00:21:18,838
+As the Circuit Court Judge Ferfanti found here,
+
+317
+00:21:18,838 --> 00:21:21,599
+there was no determination of a threshold dose,
+
+318
+00:21:21,599 --> 00:21:25,558
+of a minimum as to when it could become carcinogenic.
+
+319
+00:21:26,679 --> 00:21:29,160
+In other words, there's no barometer to put it against
+
+320
+00:21:29,160 --> 00:21:34,078
+what the testimony of what Mr. Wilson may have ingested.
+
+321
+00:21:34,078 --> 00:21:36,519
+Through rinitidine, that's speculative.
+
+322
+00:21:36,519 --> 00:21:38,200
+There's a separate ruling on that
+
+323
+00:21:39,119 --> 00:21:42,420
+as to why that calculation is speculative from Dr. Burt,
+
+324
+00:21:42,420 --> 00:21:44,358
+but there wasn't even a threshold dose.
+
+325
+00:21:45,358 --> 00:21:46,720
+Then you have the general causation issue,
+
+326
+00:21:46,720 --> 00:21:49,480
+which, yes, every court in the country
+
+327
+00:21:49,480 --> 00:21:52,000
+to apply the Daubert standard in these cases
+
+328
+00:21:52,000 --> 00:21:55,558
+has found that this cherry-picking methodology
+
+329
+00:21:55,558 --> 00:21:58,160
+is not reliable under Daubert.
+
+330
+00:21:58,160 --> 00:21:59,000
+Why not?
+
+331
+00:21:59,000 --> 00:22:02,838
+Because there are six studies, six epidemiology studies
+
+332
+00:22:02,838 --> 00:22:05,200
+that have looked at the relationship
+
+333
+00:22:05,200 --> 00:22:08,380
+between rinitidine and prostate cancer,
+
+334
+00:22:08,380 --> 00:22:12,480
+and none have found statistically significant relationship.
+
+335
+00:22:12,480 --> 00:22:14,759
+Now, in the report, Dr. Simmons,
+
+336
+00:22:14,759 --> 00:22:16,398
+the general causation expert,
+
+337
+00:22:16,398 --> 00:22:19,558
+as the Circuit Court Judge Ferfanti found,
+
+338
+00:22:19,558 --> 00:22:22,819
+never even bothered to address them in his report.
+
+339
+00:22:22,819 --> 00:22:25,358
+His job was to opine on general causation
+
+340
+00:22:25,358 --> 00:22:29,319
+between prostate cancer and rinitidine,
+
+341
+00:22:29,319 --> 00:22:30,759
+and he concedes in his deposition
+
+342
+00:22:30,759 --> 00:22:33,358
+that in order to do that, I need data on rinitidine.
+
+343
+00:22:33,358 --> 00:22:37,119
+He also concedes he needs data on prostate cancer,
+
+344
+00:22:37,119 --> 00:22:38,959
+but there are six studies on this topic,
+
+345
+00:22:38,959 --> 00:22:41,720
+and his report doesn't mention any of them.
+
+346
+00:22:41,720 --> 00:22:46,338
+Instead, the only study out there that even links NDMA,
+
+347
+00:22:46,338 --> 00:22:50,220
+not rinitidine, NDMA with prostate cancer
+
+348
+00:22:50,220 --> 00:22:52,739
+is a rubber worker study from England,
+
+349
+00:22:52,739 --> 00:22:55,200
+people who worked with rubber fumes.
+
+350
+00:22:55,200 --> 00:22:58,440
+The authors of these studies say,
+
+351
+00:22:58,440 --> 00:23:00,838
+we can't pinpoint it to any one of these fumes
+
+352
+00:23:00,838 --> 00:23:03,639
+that they're inhaling because the rubber workers
+
+353
+00:23:03,639 --> 00:23:07,838
+are exposed to tremendous other toxins and carcinogens,
+
+354
+00:23:07,838 --> 00:23:09,920
+so it's not even a study that says
+
+355
+00:23:09,920 --> 00:23:14,920
+we have proven a link between NDMA and prostate cancer,
+
+356
+00:23:15,200 --> 00:23:19,398
+but at a minimum, what you don't have is rinitidine,
+
+357
+00:23:19,398 --> 00:23:21,599
+the progress issue in this case.
+
+358
+00:23:21,599 --> 00:23:24,160
+You don't have a study that says
+
+359
+00:23:24,160 --> 00:23:27,959
+rinitidine can cause prostate cancer.
+
+360
+00:23:27,959 --> 00:23:32,200
+What about the fact that the Zantac pills,
+
+361
+00:23:32,200 --> 00:23:34,119
+at least at one point in time,
+
+362
+00:23:34,119 --> 00:23:37,719
+had more than the amounts that the FDA had approved?
+
+363
+00:23:37,719 --> 00:23:39,119
+How does that weigh into it?
+
+364
+00:23:40,320 --> 00:23:43,358
+I mean, I think they've been tested multiple times.
+
+365
+00:23:43,358 --> 00:23:45,798
+I think the latest tests from FDA
+
+366
+00:23:45,798 --> 00:23:48,679
+say they're around the same level as smoked meat,
+
+367
+00:23:48,679 --> 00:23:49,918
+so that's the latest testing.
+
+368
+00:23:49,918 --> 00:23:51,679
+They've been tested again over time,
+
+369
+00:23:51,679 --> 00:23:55,679
+so the numbers on the testing have come down,
+
+370
+00:23:55,679 --> 00:23:59,960
+but the point is we still need a link
+
+371
+00:23:59,960 --> 00:24:03,479
+between rinitidine and prostate cancer,
+
+372
+00:24:03,479 --> 00:24:06,900
+and that link scientifically doesn't exist in the science.
+
+373
+00:24:06,900 --> 00:24:10,900
+No association, no medical science, no textbook,
+
+374
+00:24:10,900 --> 00:24:15,579
+no association has ever said there is a link
+
+375
+00:24:15,579 --> 00:24:18,940
+between rinitidine, the product, right,
+
+376
+00:24:18,940 --> 00:24:21,259
+and prostate cancer.
+
+377
+00:24:21,259 --> 00:24:24,739
+In fact, the link between NDMA and prostate cancer
+
+378
+00:24:24,739 --> 00:24:26,418
+isn't even established, right,
+
+379
+00:24:26,418 --> 00:24:29,099
+because all you have is the RoboWorker study,
+
+380
+00:24:29,099 --> 00:24:32,858
+and the RoboWorker study has multiple confounding factor,
+
+381
+00:24:32,858 --> 00:24:36,779
+and those RoboWorkers did not use rinitidine.
+
+382
+00:24:37,538 --> 00:24:38,820
+So I think the consensus on the case law
+
+383
+00:24:38,820 --> 00:24:42,179
+is that to give a reliable general causation opinion
+
+384
+00:24:42,179 --> 00:24:46,259
+about a product, the link between a product and disease,
+
+385
+00:24:46,259 --> 00:24:49,538
+you need evidence about the product and the disease,
+
+386
+00:24:49,538 --> 00:24:53,558
+and here there are six studies that refute it, right?
+
+387
+00:24:53,558 --> 00:24:56,058
+It has been tested, and so when you look
+
+388
+00:24:56,058 --> 00:24:59,219
+at the five Dalbert factors, I think Judge Atkinson
+
+389
+00:24:59,219 --> 00:25:01,538
+identified one, general acceptance.
+
+390
+00:25:01,538 --> 00:25:03,340
+That's just one of them, right,
+
+391
+00:25:03,340 --> 00:25:06,719
+but there is also whether this theory has been tested.
+
+392
+00:25:07,558 --> 00:25:08,599
+That's a Dalbert consideration.
+
+393
+00:25:08,599 --> 00:25:12,918
+Here, the theory has been tested six times,
+
+394
+00:25:12,918 --> 00:25:15,639
+and it came up against Dr. Simmons' conclusion
+
+395
+00:25:15,639 --> 00:25:18,639
+every single time, and he didn't even put it in his report.
+
+396
+00:25:19,719 --> 00:25:22,298
+In his deposition, he was confronted with these six studies,
+
+397
+00:25:22,298 --> 00:25:25,119
+and he said, well, I don't know the screening rates
+
+398
+00:25:25,119 --> 00:25:28,558
+in the countries where these studies were done.
+
+399
+00:25:28,558 --> 00:25:30,418
+Well, the truth is that some of these studies
+
+400
+00:25:30,418 --> 00:25:32,779
+were done right here in the United States.
+
+401
+00:25:32,779 --> 00:25:35,320
+What is also true is that he didn't know any differences
+
+402
+00:25:35,840 --> 00:25:39,798
+in screening rates in the United Kingdom or Taiwan
+
+403
+00:25:39,798 --> 00:25:41,079
+where a couple of other studies were done.
+
+404
+00:25:41,079 --> 00:25:42,599
+He didn't know the screening rates,
+
+405
+00:25:42,599 --> 00:25:44,679
+and of course, he also had to concede
+
+406
+00:25:44,679 --> 00:25:46,079
+that the issue with screening rates
+
+407
+00:25:46,079 --> 00:25:50,400
+applies to both the control group and the exposed group,
+
+408
+00:25:50,400 --> 00:25:53,200
+so in terms of the ratio, which is what epidemiology
+
+409
+00:25:53,200 --> 00:25:55,759
+looks at, right, the relative risk,
+
+410
+00:25:55,759 --> 00:25:56,960
+there shouldn't be any difference,
+
+411
+00:25:56,960 --> 00:25:58,960
+and he had to concede that as well,
+
+412
+00:25:58,960 --> 00:26:01,840
+so it was easily within the discretion of trial court
+
+413
+00:26:01,840 --> 00:26:04,400
+to say that's not a reliable methodology,
+
+414
+00:26:04,479 --> 00:26:06,880
+and if you look at the order from Dr. Simmons,
+
+415
+00:26:06,880 --> 00:26:09,798
+it carefully goes through each five,
+
+416
+00:26:09,798 --> 00:26:13,200
+each of the five Daubert considerations that are outlined.
+
+417
+00:26:13,200 --> 00:26:15,558
+It's not a checklist or anything like that.
+
+418
+00:26:15,558 --> 00:26:16,759
+It's five considerations,
+
+419
+00:26:16,759 --> 00:26:18,119
+one of them being general acceptance,
+
+420
+00:26:18,119 --> 00:26:19,918
+one of them being testability,
+
+421
+00:26:19,918 --> 00:26:21,798
+one of them being peer review, right?
+
+422
+00:26:21,798 --> 00:26:24,798
+He's never peer reviewed, he's never had published anything.
+
+423
+00:26:24,798 --> 00:26:29,798
+Neither his conclusion nor his methodology here
+
+424
+00:26:29,798 --> 00:26:31,558
+has ever been subject to peer review,
+
+425
+00:26:31,558 --> 00:26:32,380
+and on the other side,
+
+426
+00:26:32,380 --> 00:26:34,858
+there are six peer reviewed studies
+
+427
+00:26:34,858 --> 00:26:36,219
+that cut the other way,
+
+428
+00:26:36,219 --> 00:26:40,900
+so all of these factors weigh in favor of exclusion,
+
+429
+00:26:40,900 --> 00:26:43,538
+and one thing we know about Daubert
+
+430
+00:26:43,538 --> 00:26:47,019
+is the significant deference that is afforded
+
+431
+00:26:47,019 --> 00:26:48,739
+to a lower court determination.
+
+432
+00:26:48,739 --> 00:26:51,460
+It is the trial judge who is uniquely
+
+433
+00:26:51,460 --> 00:26:54,179
+in the role of gatekeeper,
+
+434
+00:26:54,179 --> 00:26:58,298
+and let me circle back around to the due process issue
+
+435
+00:26:58,298 --> 00:27:00,380
+where my colleague started.
+
+436
+00:27:00,380 --> 00:27:02,599
+There was briefings issue,
+
+437
+00:27:02,599 --> 00:27:04,019
+there was an all-day hearing on it,
+
+438
+00:27:04,019 --> 00:27:05,820
+which was on August 2nd,
+
+439
+00:27:05,820 --> 00:27:09,159
+and everyone showed up with PowerPoint presentations.
+
+440
+00:27:09,159 --> 00:27:11,979
+Each of these PowerPoint presentations were shown,
+
+441
+00:27:11,979 --> 00:27:14,659
+and then they were handed to Judge Farfanti.
+
+442
+00:27:14,659 --> 00:27:17,858
+The fact that he didn't make rulings from the bench,
+
+443
+00:27:17,858 --> 00:27:21,579
+to me, suggests deliberate judicial process
+
+444
+00:27:21,579 --> 00:27:23,779
+as opposed to ruling right from the bench
+
+445
+00:27:23,779 --> 00:27:26,900
+after being confronted with so much material,
+
+446
+00:27:26,900 --> 00:27:29,219
+so the fact that they weren't findings right in the moment
+
+447
+00:27:29,219 --> 00:27:31,779
+does not suggest lack of independent judgment.
+
+448
+00:27:31,779 --> 00:27:34,979
+I think that's a prudent way of handling this,
+
+449
+00:27:34,979 --> 00:27:37,058
+and then there was the question at the end of that hearing
+
+450
+00:27:37,058 --> 00:27:39,219
+after he received the PowerPoint slides,
+
+451
+00:27:40,380 --> 00:27:45,380
+he actually asked the plaintiffs simultaneous submission,
+
+452
+00:27:45,659 --> 00:27:48,219
+that's at A-286 of the appendix.
+
+453
+00:27:48,219 --> 00:27:50,159
+Let me make sure I said that right.
+
+454
+00:27:51,259 --> 00:27:54,700
+Yes, excuse me, A-268 of their appendix.
+
+455
+00:27:55,739 --> 00:27:58,219
+He asks the plaintiffs whether they wanna do
+
+456
+00:27:58,219 --> 00:28:00,500
+simultaneous submission.
+
+457
+00:28:00,500 --> 00:28:03,700
+He's asked us when are we gonna submit our proposed orders,
+
+458
+00:28:03,700 --> 00:28:05,380
+and it says it's gonna be August 15,
+
+459
+00:28:05,380 --> 00:28:07,139
+which is 10 days later.
+
+460
+00:28:07,139 --> 00:28:09,380
+Then he asks the plaintiff, how about you?
+
+461
+00:28:09,380 --> 00:28:11,179
+They say we're fine on the same day,
+
+462
+00:28:11,179 --> 00:28:14,460
+so he then asks, simultaneous submission, question mark,
+
+463
+00:28:14,460 --> 00:28:16,179
+that's in the transcript,
+
+464
+00:28:16,179 --> 00:28:18,460
+and the plaintiffs are saying yes,
+
+465
+00:28:18,460 --> 00:28:20,340
+simultaneous submission,
+
+466
+00:28:20,340 --> 00:28:22,538
+so they can't now come here and complain
+
+467
+00:28:22,538 --> 00:28:25,779
+over the fact that there was simultaneous submission
+
+468
+00:28:25,779 --> 00:28:27,000
+in this case.
+
+469
+00:28:27,038 --> 00:28:30,159
+They were both submitted, the draft orders were submitted,
+
+470
+00:28:30,159 --> 00:28:33,358
+and he didn't enter them immediately.
+
+471
+00:28:33,358 --> 00:28:36,358
+He entered them 15 days after the hearing,
+
+472
+00:28:36,358 --> 00:28:38,798
+and three days after they were submitted,
+
+473
+00:28:38,798 --> 00:28:40,880
+and what I really wanna push back
+
+474
+00:28:40,880 --> 00:28:44,279
+is the notion that there were no substantive changes,
+
+475
+00:28:44,279 --> 00:28:47,599
+that this was just rubber stamping the defense proposal.
+
+476
+00:28:47,599 --> 00:28:48,759
+That's just not true.
+
+477
+00:28:48,759 --> 00:28:52,840
+If we run a compare, and they're at least in the appendix,
+
+478
+00:28:52,840 --> 00:28:54,719
+if not, they need to be supplemented as a record
+
+479
+00:28:54,719 --> 00:28:55,918
+if they're currently not on the record,
+
+480
+00:28:56,759 --> 00:29:01,000
+but if we run a compare between the proposed orders
+
+481
+00:29:01,000 --> 00:29:05,159
+and the actual orders, they are heavily, heavily edited,
+
+482
+00:29:05,159 --> 00:29:07,759
+and they're not just edits along the lines
+
+483
+00:29:07,759 --> 00:29:11,440
+of stylistic changes, they're substantive changes.
+
+484
+00:29:11,440 --> 00:29:13,440
+Let me give you one example.
+
+485
+00:29:13,440 --> 00:29:15,840
+We made an argument when we were subsection three,
+
+486
+00:29:15,840 --> 00:29:18,000
+902 subsection three,
+
+487
+00:29:18,000 --> 00:29:20,320
+which is the fit analysis of Dahlberg, right?
+
+488
+00:29:20,320 --> 00:29:23,038
+We said, these are NDMA evidence,
+
+489
+00:29:23,079 --> 00:29:25,320
+it doesn't fit with the remitted in evidence.
+
+490
+00:29:26,880 --> 00:29:29,200
+Every time, and every time we make that order,
+
+491
+00:29:29,200 --> 00:29:32,679
+that argument in our order, put it in our proposed order,
+
+492
+00:29:32,679 --> 00:29:35,200
+Judge Farfanti cut it out,
+
+493
+00:29:35,200 --> 00:29:36,719
+because he didn't agree with it.
+
+494
+00:29:36,719 --> 00:29:40,320
+He removed those from the proposed orders.
+
+495
+00:29:40,320 --> 00:29:42,880
+He didn't just move things around, he did that too,
+
+496
+00:29:43,960 --> 00:29:47,840
+but he also removed an argument
+
+497
+00:29:47,840 --> 00:29:50,119
+with which he apparently did not agree.
+
+498
+00:29:50,119 --> 00:29:53,038
+Likewise, there's the statement
+
+499
+00:29:53,038 --> 00:29:55,279
+from the plaintiff's draft orders
+
+500
+00:29:55,279 --> 00:29:59,038
+about exclusion is the exception under Dahlberg,
+
+501
+00:29:59,038 --> 00:30:01,840
+and a trial judge must take care
+
+502
+00:30:01,840 --> 00:30:05,000
+not to cross the line into weighing evidence.
+
+503
+00:30:05,000 --> 00:30:10,960
+And that language came from the plaintiff's proposed orders.
+
+504
+00:30:10,960 --> 00:30:14,720
+So he didn't just push their orders aside.
+
+505
+00:30:14,720 --> 00:30:16,519
+He looked at both sides.
+
+506
+00:30:16,519 --> 00:30:18,039
+And the parts that he thought needed
+
+507
+00:30:18,039 --> 00:30:20,680
+to be in there from the plaintiff's,
+
+508
+00:30:20,680 --> 00:30:23,039
+he took from the plaintiff's order
+
+509
+00:30:23,039 --> 00:30:25,680
+and put it into the final orders.
+
+510
+00:30:25,680 --> 00:30:29,200
+And he took out the part about the fit.
+
+511
+00:30:29,200 --> 00:30:31,000
+And then he also removed the part about,
+
+512
+00:30:31,000 --> 00:30:33,160
+we had an argument about ipsa dixit.
+
+513
+00:30:33,680 --> 00:30:36,440
+That's a language that comes from Dauber.
+
+514
+00:30:36,440 --> 00:30:39,319
+He took out our argument regarding ipsa dixit.
+
+515
+00:30:39,319 --> 00:30:42,039
+So it's not a verbatim adoption.
+
+516
+00:30:42,039 --> 00:30:44,559
+We're not even in the Perlow framework,
+
+517
+00:30:44,559 --> 00:30:48,400
+because that deals with when there is a verbatim adoption.
+
+518
+00:30:48,400 --> 00:30:49,720
+We don't have other errors.
+
+519
+00:30:49,720 --> 00:30:51,839
+We don't have Washington, the Washington case
+
+520
+00:30:51,839 --> 00:30:53,720
+my colleague mentioned to you.
+
+521
+00:30:53,720 --> 00:30:57,400
+In Washington, the title of the order that was actually
+
+522
+00:30:57,400 --> 00:30:59,720
+entered on the docket was still called
+
+523
+00:30:59,720 --> 00:31:01,598
+defendant's proposed order.
+
+524
+00:31:01,598 --> 00:31:04,359
+And it had several errors in it,
+
+525
+00:31:04,359 --> 00:31:07,519
+findings that weren't supported by the record.
+
+526
+00:31:07,519 --> 00:31:08,680
+That's the problem.
+
+527
+00:31:08,680 --> 00:31:11,239
+That's what Perlow seeks to prevent,
+
+528
+00:31:11,239 --> 00:31:14,400
+when there's basically obvious lack of judicial consideration,
+
+529
+00:31:14,400 --> 00:31:18,400
+because factual errors are being imported
+
+530
+00:31:18,400 --> 00:31:19,638
+from a proposed order.
+
+531
+00:31:19,638 --> 00:31:22,440
+And Perlow itself only dealt with the case
+
+532
+00:31:22,440 --> 00:31:25,039
+where the trial court discouraged the husband
+
+533
+00:31:25,039 --> 00:31:27,759
+from submitting a proposed order and only
+
+534
+00:31:27,759 --> 00:31:30,160
+accepted one from the wife.
+
+535
+00:31:30,160 --> 00:31:31,440
+That's not what happened.
+
+536
+00:31:31,440 --> 00:31:33,278
+By agreement of the plaintiff, there
+
+537
+00:31:33,278 --> 00:31:36,480
+was simultaneous submission, submission from both sides.
+
+538
+00:31:36,480 --> 00:31:38,278
+He didn't enter them immediately.
+
+539
+00:31:38,278 --> 00:31:39,959
+He entered them three days later.
+
+540
+00:31:39,959 --> 00:31:41,919
+He made substantive changes.
+
+541
+00:31:41,919 --> 00:31:46,239
+And I think what my colleague's argument falls down to is,
+
+542
+00:31:46,239 --> 00:31:50,959
+yes, the orders granting the motion substantively
+
+543
+00:31:50,959 --> 00:31:54,319
+agree with the arguments made in the motion.
+
+544
+00:31:54,319 --> 00:31:56,359
+That is to be expected.
+
+545
+00:31:56,359 --> 00:32:00,319
+It would have been improper for Judge Farfanti
+
+546
+00:32:00,319 --> 00:32:02,638
+to go outside of what the parties argued.
+
+547
+00:32:02,638 --> 00:32:04,558
+And that seems to be what he's asking for
+
+548
+00:32:04,558 --> 00:32:06,359
+as independent judgment, right?
+
+549
+00:32:06,359 --> 00:32:08,440
+That basically, Judge Farfanti now
+
+550
+00:32:08,440 --> 00:32:13,079
+goes outside of what we argued and adds additional points
+
+551
+00:32:13,079 --> 00:32:13,799
+into the order.
+
+552
+00:32:13,799 --> 00:32:16,038
+That would have been a due process violation.
+
+553
+00:32:16,038 --> 00:32:19,160
+If Judge Farfanti now relies on case law
+
+554
+00:32:19,160 --> 00:32:21,599
+that hadn't been cited by the parties,
+
+555
+00:32:21,599 --> 00:32:23,639
+that would have been problematic.
+
+556
+00:32:23,639 --> 00:32:27,720
+So I think, far from a due process violation,
+
+557
+00:32:27,720 --> 00:32:30,278
+there was plenty of opportunity to be heard.
+
+558
+00:32:30,278 --> 00:32:32,519
+There was an opportunity to object if they wanted to.
+
+559
+00:32:32,519 --> 00:32:33,960
+He didn't immediately enter them.
+
+560
+00:32:33,960 --> 00:32:36,759
+He didn't enter them the same day as in parole or the next
+
+561
+00:32:36,759 --> 00:32:37,960
+day.
+
+562
+00:32:37,960 --> 00:32:42,278
+Those issues that are present in these cases,
+
+563
+00:32:42,278 --> 00:32:45,759
+where there is obvious mistakes in these orders,
+
+564
+00:32:45,759 --> 00:32:49,079
+it's just not present in this case.
+
+565
+00:32:49,079 --> 00:32:51,440
+Unless the court has any questions for me at this point,
+
+566
+00:32:51,440 --> 00:32:54,000
+I would reheat my time.
+
+567
+00:32:54,000 --> 00:32:54,500
+Very good.
+
+568
+00:32:54,500 --> 00:32:55,278
+Thank you, counsel.
+
+569
+00:33:05,240 --> 00:33:07,118
+Your Honors, I know I only have four minutes.
+
+570
+00:33:07,118 --> 00:33:09,919
+I just want to address a couple of those comments briefly.
+
+571
+00:33:12,440 --> 00:33:14,398
+To say that there was no reliable methodology
+
+572
+00:33:14,398 --> 00:33:17,838
+for not only doing a general causation analysis,
+
+573
+00:33:17,838 --> 00:33:20,720
+but doing a specific causation analysis is simply not true.
+
+574
+00:33:21,440 --> 00:33:24,799
+What happened here is the experts on general causation,
+
+575
+00:33:24,799 --> 00:33:26,679
+and actually Dr. Connery as well,
+
+576
+00:33:26,679 --> 00:33:28,679
+all three of the medical experts,
+
+577
+00:33:28,679 --> 00:33:30,880
+performed a Bradford Hill analysis,
+
+578
+00:33:30,880 --> 00:33:33,880
+which is a set of nine criteria widely used
+
+579
+00:33:33,880 --> 00:33:37,479
+by epidemiologists that have a number of different things
+
+580
+00:33:37,479 --> 00:33:39,759
+that they should consider.
+
+581
+00:33:39,759 --> 00:33:43,079
+Not one outweighs any other one, and the courts
+
+582
+00:33:43,079 --> 00:33:45,720
+have held that different experts can apply them
+
+583
+00:33:45,720 --> 00:33:48,118
+in different ways.
+
+584
+00:33:48,118 --> 00:33:50,440
+But all three of those experts conducted
+
+585
+00:33:50,440 --> 00:33:53,118
+their own Bradford Hill analysis and still
+
+586
+00:33:53,118 --> 00:33:58,038
+came to the conclusion that the NDMA contaminated reninine was
+
+587
+00:33:58,038 --> 00:34:02,038
+a substantial contributing factor to his disease.
+
+588
+00:34:02,038 --> 00:34:05,079
+Again, to the additional point that Dr. Connery didn't
+
+589
+00:34:05,079 --> 00:34:07,519
+have a reliable methodology, Dr. Connery
+
+590
+00:34:07,519 --> 00:34:09,599
+conducted a differential diagnosis,
+
+591
+00:34:09,599 --> 00:34:12,679
+which is the hallmark reliable method for determining
+
+592
+00:34:12,679 --> 00:34:15,360
+causation in cases like this.
+
+593
+00:34:15,360 --> 00:34:17,199
+He went through all of the factors.
+
+594
+00:34:17,199 --> 00:34:24,159
+He went through age, race, weight, family history.
+
+595
+00:34:24,159 --> 00:34:26,480
+And again, Mr. Wilson had some family
+
+596
+00:34:26,480 --> 00:34:28,480
+that was diagnosed with prostate cancer,
+
+597
+00:34:28,480 --> 00:34:34,358
+but he's a rare case that has genetic testing that says
+
+598
+00:34:34,358 --> 00:34:38,159
+his cancer was not genetically linked.
+
+599
+00:34:38,159 --> 00:34:40,239
+And that is the evidence in the case
+
+600
+00:34:40,239 --> 00:34:41,920
+that the experts relied on.
+
+601
+00:34:41,920 --> 00:34:44,159
+So to conduct a Bradford Hill analysis,
+
+602
+00:34:44,159 --> 00:34:46,278
+to conduct a differential diagnosis,
+
+603
+00:34:46,278 --> 00:34:49,440
+to thoroughly discuss all of these other issues
+
+604
+00:34:49,440 --> 00:34:51,320
+and be able to rule them out.
+
+605
+00:34:51,320 --> 00:34:55,119
+And of course, the law is not that they
+
+606
+00:34:55,119 --> 00:34:58,798
+have to completely rule out all other sole causes.
+
+607
+00:35:01,880 --> 00:35:04,119
+This is from the Gwynn case in the 11th Circuit, Gwynn
+
+608
+00:35:04,119 --> 00:35:06,119
+versus AstraZeneca.
+
+609
+00:35:06,119 --> 00:35:08,398
+They don't need to rule out all the alternative causes.
+
+610
+00:35:08,398 --> 00:35:11,239
+All they have to do is consider the factors that
+
+611
+00:35:11,239 --> 00:35:13,398
+could have been the sole cause.
+
+612
+00:35:13,398 --> 00:35:16,358
+These experts considered these other factors.
+
+613
+00:35:16,358 --> 00:35:19,159
+They weighed them, they discussed them,
+
+614
+00:35:19,159 --> 00:35:22,000
+they analyzed them, and then they came to their conclusion.
+
+615
+00:35:22,000 --> 00:35:24,838
+That is the hallmark of the reliable methodology.
+
+616
+00:35:24,838 --> 00:35:27,159
+And just because they weighed some factors
+
+617
+00:35:27,159 --> 00:35:29,320
+heavier than what the plaintiff's attorneys,
+
+618
+00:35:29,320 --> 00:35:32,599
+or I'm sorry, the appellee's attorneys
+
+619
+00:35:32,599 --> 00:35:35,639
+would have liked them to weigh, is a different story.
+
+620
+00:35:35,639 --> 00:35:39,798
+Again, on this issue of threshold dose,
+
+621
+00:35:39,798 --> 00:35:41,838
+it's never been the law in the state of Florida
+
+622
+00:35:41,880 --> 00:35:44,958
+that the expert has to calculate an exact threshold dose.
+
+623
+00:35:44,958 --> 00:35:47,720
+And the reason for that was addressed by the Henderson case
+
+624
+00:35:47,720 --> 00:35:49,958
+in the Middle District of Florida just five months ago.
+
+625
+00:35:49,958 --> 00:35:53,278
+It's because in cases of carcinogenicity,
+
+626
+00:35:53,278 --> 00:35:56,119
+it's very hard to determine exact threshold doses
+
+627
+00:35:56,119 --> 00:35:59,440
+because simply you can't do the experiment
+
+628
+00:35:59,440 --> 00:36:01,760
+where you have a control group and a test group
+
+629
+00:36:01,760 --> 00:36:04,159
+and you give the test group a known carcinogen
+
+630
+00:36:04,159 --> 00:36:06,760
+and wait for them to develop cancer.
+
+631
+00:36:06,760 --> 00:36:09,079
+So the evidence on minimum threshold dose
+
+632
+00:36:09,079 --> 00:36:11,440
+has to come from other sources.
+
+633
+00:36:12,039 --> 00:36:15,679
+And that's perfectly acceptable in Florida.
+
+634
+00:36:15,679 --> 00:36:18,760
+In fact, the McLean case, McLean v. Metabolife,
+
+635
+00:36:18,760 --> 00:36:20,278
+Florida Supreme Court case,
+
+636
+00:36:20,278 --> 00:36:22,519
+has specifically said in footnote six,
+
+637
+00:36:23,599 --> 00:36:26,519
+they should address the dose-response relationship,
+
+638
+00:36:26,519 --> 00:36:28,480
+but they don't need to calculate exact numbers.
+
+639
+00:36:28,480 --> 00:36:32,119
+They don't need to, such levels do not need to be proven
+
+640
+00:36:32,119 --> 00:36:33,599
+by precise dose numbers.
+
+641
+00:36:33,599 --> 00:36:36,880
+Qualitative proof can be sufficient.
+
+642
+00:36:36,880 --> 00:36:38,720
+That's what Dr. Byrd did in this case,
+
+643
+00:36:38,720 --> 00:36:40,778
+and that's what Dr. Connery said in this case.
+
+644
+00:36:40,820 --> 00:36:44,220
+Dr. Connery looked at things like water consumption,
+
+645
+00:36:44,220 --> 00:36:48,739
+dietary, and said the science that he reviewed
+
+646
+00:36:48,739 --> 00:36:52,099
+shows that the levels of NDMA and Zantac
+
+647
+00:36:52,099 --> 00:36:54,139
+were nine to 18 times higher
+
+648
+00:36:54,139 --> 00:36:55,980
+than all the other sources combined.
+
+649
+00:36:58,659 --> 00:37:01,059
+Dr. Byrd, relying on the Hitajat study
+
+650
+00:37:01,059 --> 00:37:06,059
+and other materials, discussed the different quartiles
+
+651
+00:37:06,500 --> 00:37:11,500
+of when a level of exposure increases the risk for cancer.
+
+652
+00:37:11,980 --> 00:37:15,838
+Now, to say that Hitajat was just some rubber worker study
+
+653
+00:37:15,838 --> 00:37:17,559
+and there was no way to tell anything
+
+654
+00:37:17,559 --> 00:37:19,260
+is simply not the case.
+
+655
+00:37:19,260 --> 00:37:24,260
+But again, I caution attorneys, I caution the court
+
+656
+00:37:24,298 --> 00:37:28,298
+to not go the way that was described in Dover
+
+657
+00:37:28,298 --> 00:37:31,220
+of donning the white scientist's coat
+
+658
+00:37:31,220 --> 00:37:33,139
+and playing amateur scientist.
+
+659
+00:37:33,139 --> 00:37:34,778
+Counsel, you've got about 30 seconds left.
+
+660
+00:37:34,778 --> 00:37:36,380
+Thank you, Your Honor.
+
+661
+00:37:36,380 --> 00:37:39,139
+In this case, the underlying methodologies
+
+662
+00:37:40,778 --> 00:37:45,778
+of Bradford Hill, of differential diagnosis,
+
+663
+00:37:46,539 --> 00:37:48,539
+of considering all these other factors,
+
+664
+00:37:48,539 --> 00:37:51,139
+considering all the epidemiology and the other science,
+
+665
+00:37:51,139 --> 00:37:54,458
+weighing all of it, being cross-examined on all of it,
+
+666
+00:37:54,458 --> 00:37:56,820
+is a hallmark of reliability in the Dover.
+
+667
+00:37:56,820 --> 00:37:58,619
+That occurred in this case.
+
+668
+00:37:58,619 --> 00:38:00,619
+Now, the orders that came out
+
+669
+00:38:01,298 --> 00:38:04,338
+disagreed with how the analysis was performed.
+
+670
+00:38:04,338 --> 00:38:08,059
+And that is a role for the jury, not the court.
+
+671
+00:38:08,059 --> 00:38:11,179
+So, Your Honor, we ask that the court reverse these orders
+
+672
+00:38:11,179 --> 00:38:13,458
+and remand the case back to Hillsborough County
+
+673
+00:38:13,458 --> 00:38:16,338
+for further proceedings consistent with the court's opinion.
+
+674
+00:38:16,338 --> 00:38:17,179
+Very good.
+
+675
+00:38:17,179 --> 00:38:18,019
+Thank you both.
+
+676
+00:38:18,019 --> 00:38:18,858
+Interesting.
+
+677
+00:38:18,858 --> 00:38:20,579
+Okay, we had some interesting cases today
+
+678
+00:38:20,579 --> 00:38:21,458
+and this was one of them.
+
+679
+00:38:21,458 --> 00:38:22,880
+So, thank you all.
+
+680
+00:38:22,880 --> 00:38:25,099
+And that concludes the oral argument docket
+
+681
+00:38:25,099 --> 00:38:26,420
+and we are adjourned.
+
+682
+00:38:26,420 --> 00:38:27,519
+Thank you, Your Honor.
+
+683
+00:38:30,619 --> 00:38:31,458
+Thank you.
+

Case_25_1483/25_1483_audio.m4a

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Case_25_1483/25_1483_transcript.srt

@@ -0,0 +1,1192 @@
+1
+00:00:00,000 --> 00:00:04,879
+All right, we are ready for you.
+
+2
+00:00:04,879 --> 00:00:05,879
+Good morning, Your Honors.
+
+3
+00:00:05,879 --> 00:00:11,240
+May it please the Court, my name is David Noel and I represent the appellate universal.
+
+4
+00:00:11,240 --> 00:00:13,679
+May I please reserve five minutes for rebuttal?
+
+5
+00:00:13,679 --> 00:00:14,679
+Very good.
+
+6
+00:00:14,679 --> 00:00:16,399
+And as I said, I'll let you know when you get there.
+
+7
+00:00:16,399 --> 00:00:18,239
+Thank you, Judge.
+
+8
+00:00:18,239 --> 00:00:21,940
+Your Honors, this appeal is about two different motions.
+
+9
+00:00:21,940 --> 00:00:26,239
+It's a motion practice appeal, the first one being a motion to dismiss regarding the pre-suit
+
+10
+00:00:26,239 --> 00:00:31,920
+notice statute, and the more interesting issue being a summary judgment motion, two
+
+11
+00:00:31,920 --> 00:00:33,560
+motions actually.
+
+12
+00:00:33,560 --> 00:00:40,000
+So regarding the first issue, that's raised simply because that precise issue is pending
+
+13
+00:00:40,000 --> 00:00:42,479
+in the Florida Supreme Court right now.
+
+14
+00:00:42,479 --> 00:00:45,039
+There's a split between all six DCAs.
+
+15
+00:00:45,039 --> 00:00:49,359
+This court has ruled on it adversely to our position already.
+
+16
+00:00:49,359 --> 00:00:56,959
+So if the court is not inclined to review the issue en banc and recede from its bueas
+
+17
+00:00:56,959 --> 00:01:02,399
+case, we would simply request certification of conflict so we can be tagged with the Hughes
+
+18
+00:01:02,399 --> 00:01:08,278
+case in the Florida Supreme Court and have it decided when the Supreme Court lays down
+
+19
+00:01:08,278 --> 00:01:09,278
+the law for that particular issue.
+
+20
+00:01:09,278 --> 00:01:13,040
+Mr. Noel, am I recalling correctly, we don't actually need to certify conflict, we just
+
+21
+00:01:13,040 --> 00:01:17,120
+need to cite the cases that are in the pipeline or we can certify.
+
+22
+00:01:17,120 --> 00:01:19,180
+I'm not sure it makes a difference.
+
+23
+00:01:20,000 --> 00:01:22,418
+It may not make a difference, Your Honor, but I know the court did certify in the bueas
+
+24
+00:01:22,418 --> 00:01:30,459
+case itself, so we would simply ask for consistency to do it in this case as well.
+
+25
+00:01:30,459 --> 00:01:36,379
+Regarding the summary judgment issue, so that is a denial of due process issue, and what
+
+26
+00:01:36,379 --> 00:01:42,939
+happened there is that the trial court granted or entered final judgment, not really sure
+
+27
+00:01:43,058 --> 00:01:49,659
+what was granted, but ultimately it was beyond the scope of the plaintiff's motions for summary
+
+28
+00:01:49,659 --> 00:01:50,659
+judgment.
+
+29
+00:01:50,659 --> 00:01:55,778
+Let me ask you about the scope of summary judgment.
+
+30
+00:01:55,778 --> 00:02:05,459
+You characterize the defense, that issue, as an affirmative defense, but leaving aside
+
+31
+00:02:05,698 --> 00:02:14,500
+whether it really is an affirmative defense and not just defending on the merits.
+
+32
+00:02:14,500 --> 00:02:22,580
+What was the first hearing, what was the first motion directed at in your estimation?
+
+33
+00:02:22,580 --> 00:02:28,338
+So the first motion for summary judgment that the plaintiff filed was directed at the cause
+
+34
+00:02:28,338 --> 00:02:30,659
+and the scope of the loss?
+
+35
+00:02:30,659 --> 00:02:34,179
+But that's not what it said and that's not what the trial court's order said.
+
+36
+00:02:34,179 --> 00:02:40,899
+It said it was on liability for breach of contract, whether the contract was breached.
+
+37
+00:02:40,899 --> 00:02:45,139
+So Your Honor, that was simply the title of the document, which would not govern the actual
+
+38
+00:02:45,139 --> 00:02:50,058
+substance of the document, and it's actually even on the first page in the summary of the
+
+39
+00:02:50,058 --> 00:02:51,058
+argument.
+
+40
+00:02:51,058 --> 00:02:56,179
+It says, defendant has failed to present any evidence in support of its claim that it made
+
+41
+00:02:56,179 --> 00:03:02,020
+a correct determination as to the scope and cost of repairs, and it goes on in the next
+
+42
+00:03:02,020 --> 00:03:08,058
+paragraph to talk about the plaintiff expert opines there is damage to plaintiff's property
+
+43
+00:03:08,058 --> 00:03:13,460
+caused by a storm event that took place during the subject policy period, and then towards
+
+44
+00:03:13,460 --> 00:03:18,219
+the end of that summary, these repairs will cost more than the deductible.
+
+45
+00:03:18,219 --> 00:03:20,778
+And that argument is really throughout this motion for . . .
+
+46
+00:03:20,778 --> 00:03:24,979
+So what was left over after that summary judgment?
+
+47
+00:03:24,979 --> 00:03:28,699
+What was left over after the first summary judgment would have been the lack of prompt
+
+48
+00:03:28,939 --> 00:03:32,058
+notice, defense, and then also the amount of damages.
+
+49
+00:03:32,058 --> 00:03:33,058
+Right.
+
+50
+00:03:33,058 --> 00:03:39,899
+So if you're at the damages stage, the summaries must have been entered on the breach stage,
+
+51
+00:03:39,899 --> 00:03:40,899
+right?
+
+52
+00:03:40,899 --> 00:03:44,460
+Since these are partial summary judgments, the plaintiffs could . . .
+
+53
+00:03:44,460 --> 00:03:46,899
+Well, let's just say typically.
+
+54
+00:03:46,899 --> 00:03:47,899
+We are all lawyers here.
+
+55
+00:03:47,899 --> 00:03:53,099
+We know what contract, we took contracts, breach, damages.
+
+56
+00:03:53,099 --> 00:04:00,258
+So why wouldn't we read the record to conclude that there was summary judgment entered on
+
+57
+00:04:00,258 --> 00:04:04,939
+breach of contract in the first order?
+
+58
+00:04:04,939 --> 00:04:09,538
+Because in this context with insurance policies, there's the whole burden shifting under an
+
+59
+00:04:09,538 --> 00:04:15,258
+all-risk policy, so it's not viewed through the lens of just there's breach and there's
+
+60
+00:04:15,258 --> 00:04:16,259
+damages.
+
+61
+00:04:16,259 --> 00:04:18,778
+There's the initial burden of proof, and then there's a shifting . . .
+
+62
+00:04:18,899 --> 00:04:26,899
+What was the performance obligation that Universal failed to perform if we were to conclude that
+
+63
+00:04:26,899 --> 00:04:30,619
+the policy was breached?
+
+64
+00:04:30,619 --> 00:04:35,139
+For the policy to be breached, Your Honor, there would have to be a finding that there
+
+65
+00:04:35,139 --> 00:04:37,338
+is coverage for the loss.
+
+66
+00:04:37,338 --> 00:04:38,338
+There would have to be a finding . . .
+
+67
+00:04:38,338 --> 00:04:40,959
+So what did they fail to do?
+
+68
+00:04:40,959 --> 00:04:43,579
+In this case, we determined that the loss was below deductible.
+
+69
+00:04:43,579 --> 00:04:46,579
+So you didn't pay the claim, right?
+
+70
+00:04:46,579 --> 00:04:48,298
+We did open coverage for the interior.
+
+71
+00:04:48,819 --> 00:04:52,579
+We denied the roof, but the interior was below deductible, so there wasn't an actual check
+
+72
+00:04:52,579 --> 00:04:56,459
+issued, but coverage was accepted for . . .
+
+73
+00:04:56,459 --> 00:05:01,338
+Your defense is essentially a conditioned precedent to that performance obligation,
+
+74
+00:05:01,338 --> 00:05:02,338
+right?
+
+75
+00:05:02,338 --> 00:05:05,899
+It is a conditioned precedent, but it's treated in a lot of the case law . . .
+
+76
+00:05:05,899 --> 00:05:12,738
+So in what other scenario, when a party seeks summary judgment on liability for breach of
+
+77
+00:05:12,738 --> 00:05:25,420
+contract, do we piecemeal and allow the defendant to assert a defense after the breach of contract
+
+78
+00:05:25,420 --> 00:05:29,819
+issue has been adjudicated, if that defense is a conditioned precedent to the very performance
+
+79
+00:05:29,819 --> 00:05:32,459
+obligation that underlies the breach of contract?
+
+80
+00:05:32,459 --> 00:05:38,178
+Well, Your Honor, in this case, a breach was not found by the trial court, and that's reflected
+
+81
+00:05:38,178 --> 00:05:43,899
+in the trial court's order on that first motion for summary judgment.
+
+82
+00:05:43,899 --> 00:05:49,298
+In paragraphs 13 and 15, the trial court is simply ruling that there's no question of
+
+83
+00:05:49,298 --> 00:05:55,220
+fact as to whether damage occurred, and when the damage occurred, that's paragraph 13,
+
+84
+00:05:55,220 --> 00:05:59,019
+and then paragraph 15 ends with scope and causation.
+
+85
+00:05:59,019 --> 00:06:01,778
+So that's reflective of the first motion for summary judgment.
+
+86
+00:06:01,778 --> 00:06:06,220
+What about paragraph 17?
+
+87
+00:06:06,220 --> 00:06:11,220
+Paragraph 17 is really just referring back to the title on the motion for summary judgment.
+
+88
+00:06:11,220 --> 00:06:15,980
+And I want to clarify something, because you said that the only reference, or maybe I misheard
+
+89
+00:06:15,980 --> 00:06:21,939
+it, that the only reference to . . . in the summary judgment motion as to liability was
+
+90
+00:06:21,939 --> 00:06:23,500
+in the title.
+
+91
+00:06:23,500 --> 00:06:26,459
+Have you read the motion for summary judgment recently?
+
+92
+00:06:26,459 --> 00:06:27,778
+Absolutely, Judge.
+
+93
+00:06:27,778 --> 00:06:35,139
+And it says in various places that the party is seeking summary judgment on liability.
+
+94
+00:06:35,139 --> 00:06:40,259
+The word liability is mentioned, but the actual substance of the motion throughout
+
+95
+00:06:40,259 --> 00:06:45,100
+is seeking a ruling on causation, and then scope of the damage.
+
+96
+00:06:45,100 --> 00:06:49,899
+There's nothing in there about the prompt notice issue, and that's important . . .
+
+97
+00:06:49,899 --> 00:06:56,019
+So you're saying your position is that your client had no idea that it was exposed to
+
+98
+00:06:56,019 --> 00:07:01,500
+an entry of an order, or a potential entry of an order, on liability?
+
+99
+00:07:01,500 --> 00:07:02,500
+No, Your Honor.
+
+100
+00:07:02,500 --> 00:07:06,980
+My position would be that under the summary judgment rule that was in effect at the time,
+
+101
+00:07:06,980 --> 00:07:12,420
+and is still in effect now, the party moving for summary judgment has to identify the claims
+
+102
+00:07:12,420 --> 00:07:16,819
+or portions of claims or defenses that they're seeking summary judgment on.
+
+103
+00:07:16,819 --> 00:07:18,819
+And that was not done in this motion.
+
+104
+00:07:18,819 --> 00:07:23,778
+And that's reflected, actually, Your Honors, in the hearing transcripts, and particularly
+
+105
+00:07:23,778 --> 00:07:26,420
+what the judge stated in those transcripts.
+
+106
+00:07:26,420 --> 00:07:35,939
+The party . . . in seeking summary judgment, the Bells asked the court to enter summary
+
+107
+00:07:35,939 --> 00:07:37,579
+judgment on liability.
+
+108
+00:07:37,579 --> 00:07:42,778
+They went through in the motion, and at the hearing, the reasons for that.
+
+109
+00:07:42,778 --> 00:07:48,019
+And so, going back to what Judge Atkinson brought up at the beginning of his questioning,
+
+110
+00:07:48,019 --> 00:07:51,259
+there's what appears to be an affirmative defense.
+
+111
+00:07:51,259 --> 00:07:56,298
+Did your client argue the affirmative defense at all at the motion for summary judgment
+
+112
+00:07:56,298 --> 00:07:58,579
+hearing on what I'm going to call liability?
+
+113
+00:07:58,579 --> 00:08:02,000
+No, Judge, because it was not within the scope of the motion.
+
+114
+00:08:02,000 --> 00:08:06,500
+Our defense counsel at that first summary judgment hearing stated this is just about
+
+115
+00:08:06,500 --> 00:08:07,678
+causation.
+
+116
+00:08:07,678 --> 00:08:09,420
+He did state that on the record.
+
+117
+00:08:09,420 --> 00:08:13,298
+Nobody argued prompt notice at that first summary judgment hearing, because it's not
+
+118
+00:08:13,298 --> 00:08:14,619
+reflected in the motion.
+
+119
+00:08:14,619 --> 00:08:19,980
+And after the judge entered summary judgment, there was a motion for reconsideration or
+
+120
+00:08:19,980 --> 00:08:20,980
+not?
+
+121
+00:08:21,699 --> 00:08:22,699
+No.
+
+122
+00:08:22,699 --> 00:08:23,699
+There was a second motion for . . .
+
+123
+00:08:23,699 --> 00:08:28,579
+So, was it brought to the trial court's attention that the court went too far as to the first
+
+124
+00:08:28,579 --> 00:08:32,820
+order any time before the second summary judgment hearing?
+
+125
+00:08:32,820 --> 00:08:33,820
+That wouldn't be our position, Your Honor.
+
+126
+00:08:33,820 --> 00:08:38,460
+The answer to the question would be no, because that first order didn't go too far.
+
+127
+00:08:38,460 --> 00:08:40,918
+And the judge even stated that on the record.
+
+128
+00:08:40,918 --> 00:08:42,739
+At the second summary judgment hearing, the parties . . .
+
+129
+00:08:42,739 --> 00:08:48,460
+The order states, paragraph 17, the court grants plaintiff's motion for summary judgment
+
+130
+00:08:48,460 --> 00:08:50,899
+as to liability for breach of contract.
+
+131
+00:08:51,820 --> 00:08:52,820
+What am I missing?
+
+132
+00:08:52,820 --> 00:08:55,820
+Correct, Judge, but that's referring back to the title of the motion.
+
+133
+00:08:55,820 --> 00:08:56,820
+I think what's . . .
+
+134
+00:08:56,820 --> 00:08:57,820
+No, it's not.
+
+135
+00:08:57,820 --> 00:08:58,820
+What's really . . .
+
+136
+00:08:58,820 --> 00:08:59,820
+I don't read it that way.
+
+137
+00:08:59,820 --> 00:09:03,259
+Counsel, I understand what you're arguing, and I appreciate the argument that you feel
+
+138
+00:09:03,259 --> 00:09:04,658
+you need to make.
+
+139
+00:09:04,658 --> 00:09:11,619
+But you're trying to, I think, pick and choose the wording from the order that suits
+
+140
+00:09:11,619 --> 00:09:15,739
+your scenario, and we have to look at the motion, we have to look at the evidence, we
+
+141
+00:09:15,739 --> 00:09:18,820
+have to look at what the judge said and what the judge ordered.
+
+142
+00:09:18,820 --> 00:09:23,739
+And it seems to me the judge has clearly ruled on liability for breach of contract.
+
+143
+00:09:23,739 --> 00:09:29,099
+Maybe . . . I understand your position is the judge was wrong, but I'm having a hard
+
+144
+00:09:29,099 --> 00:09:31,619
+time saying the judge didn't reach the issue.
+
+145
+00:09:31,619 --> 00:09:36,178
+I understood, Your Honor, and I think we just need to look at the judge's precise words
+
+146
+00:09:36,178 --> 00:09:40,979
+at that second summary judgment hearing, because the judge herself said, I did not rule on
+
+147
+00:09:40,979 --> 00:09:42,259
+this issue.
+
+148
+00:09:42,259 --> 00:09:43,259
+And that's really critical here.
+
+149
+00:09:43,259 --> 00:09:48,259
+But a court can also revisit an interlocutory ruling, correct?
+
+150
+00:09:48,259 --> 00:09:50,259
+With appropriate notice and due process.
+
+151
+00:09:50,259 --> 00:09:51,259
+And that didn't happen.
+
+152
+00:09:51,259 --> 00:09:54,019
+There was no additional motion for summary judgment filed.
+
+153
+00:09:54,019 --> 00:09:59,739
+But did your client, after either the first hearing or the second hearing, move for reconsideration
+
+154
+00:09:59,739 --> 00:10:07,178
+or move for clarification or do anything to clarify that first order?
+
+155
+00:10:07,178 --> 00:10:09,658
+No, Your Honor, because there was no reason to.
+
+156
+00:10:09,658 --> 00:10:14,500
+The trial court said on the record at the second summary judgment hearing, prompt notice
+
+157
+00:10:14,500 --> 00:10:15,500
+is still alive.
+
+158
+00:10:15,500 --> 00:10:17,899
+We're going to go to trial on that issue.
+
+159
+00:10:18,538 --> 00:10:21,658
+And the plaintiff's counsel even said, thank you, Your Honor, after that statement.
+
+160
+00:10:21,658 --> 00:10:26,340
+So everybody was on the same page at the end of that second summary judgment hearing that
+
+161
+00:10:26,340 --> 00:10:30,899
+this late notice defense was still alive and we were going to go to trial on it.
+
+162
+00:10:30,899 --> 00:10:32,779
+It was only when there was a third hearing . . .
+
+163
+00:10:32,779 --> 00:10:37,379
+What if the judge was wrong at that juncture?
+
+164
+00:10:37,379 --> 00:10:39,899
+It's all done and dusted, right?
+
+165
+00:10:39,899 --> 00:10:44,418
+I mean, it's a cold record.
+
+166
+00:10:44,418 --> 00:10:45,418
+It's a hearing.
+
+167
+00:10:45,418 --> 00:10:47,700
+There's a transcript of the first hearing.
+
+168
+00:10:48,500 --> 00:10:49,500
+There's an order.
+
+169
+00:10:49,500 --> 00:10:50,739
+That was essentially a legal determination.
+
+170
+00:10:50,739 --> 00:10:54,139
+I read the transcript of the second hearing.
+
+171
+00:10:54,139 --> 00:11:00,979
+Counsel for Universal convinced the trial court that the affirmative defense was still
+
+172
+00:11:00,979 --> 00:11:01,979
+yet to be adjudicated.
+
+173
+00:11:01,979 --> 00:11:03,739
+But that's a legal question.
+
+174
+00:11:03,739 --> 00:11:10,460
+Why can't a judge subsequently revisit the issue and say, you know what, actually, no.
+
+175
+00:11:10,460 --> 00:11:15,019
+That should have been pled in response to the first summary judgment motion.
+
+176
+00:11:15,019 --> 00:11:20,058
+A judge could do that, but they would have to give appropriate notice and due process.
+
+177
+00:11:20,058 --> 00:11:21,058
+Why?
+
+178
+00:11:21,058 --> 00:11:22,058
+Because it's the equivalent of a summary judgment . . .
+
+179
+00:11:22,058 --> 00:11:26,379
+I read the transcript of the second hearing that the counsel for the Universal had plenty
+
+180
+00:11:26,379 --> 00:11:29,979
+of argument to make, was not cut off.
+
+181
+00:11:29,979 --> 00:11:35,099
+Argument was made that, hey, you know what, the affirmative defense is still out there.
+
+182
+00:11:35,099 --> 00:11:39,418
+The previous order was not on breach contract liability.
+
+183
+00:11:39,418 --> 00:11:41,619
+What more due process is required?
+
+184
+00:11:41,619 --> 00:11:42,619
+At that point . . .
+
+185
+00:11:42,619 --> 00:11:43,619
+A separate hearing?
+
+186
+00:11:43,619 --> 00:11:45,019
+A separate hearing be noticed.
+
+187
+00:11:45,019 --> 00:11:46,019
+Notice of hearing to . . .
+
+188
+00:11:46,019 --> 00:11:51,820
+Well, for the judge to say this defense is live and it's going to trial and then make
+
+189
+00:11:51,820 --> 00:11:57,259
+a U-turn on that and strike that defense, there would have to be some notice that that
+
+190
+00:11:57,259 --> 00:11:58,259
+was even set.
+
+191
+00:11:58,259 --> 00:11:59,259
+Why?
+
+192
+00:11:59,259 --> 00:12:02,259
+Just due process constraints so that . . .
+
+193
+00:12:02,259 --> 00:12:06,298
+Why wasn't there due process afforded at the first hearing and in the second hearing
+
+194
+00:12:06,298 --> 00:12:11,538
+when counsel for Universal was permitted, actually permitted successfully to argue to
+
+195
+00:12:11,538 --> 00:12:15,139
+the trial court, what is essentially a legal issue, which is a determination of what happened
+
+196
+00:12:15,139 --> 00:12:20,739
+at the first hearing and what was memorialized in the first summary judgment order.
+
+197
+00:12:20,739 --> 00:12:21,739
+Why?
+
+198
+00:12:21,739 --> 00:12:24,058
+What other due process was required?
+
+199
+00:12:24,058 --> 00:12:28,820
+The due process would be notice and an opportunity to be heard as to the evidence to support
+
+200
+00:12:28,820 --> 00:12:29,820
+that prompt notice defense . . .
+
+201
+00:12:29,820 --> 00:12:30,820
+Why is there evidence . . .
+
+202
+00:12:30,820 --> 00:12:32,178
+. . . so as to go to a jury?
+
+203
+00:12:32,178 --> 00:12:33,178
+That's not the question.
+
+204
+00:12:33,178 --> 00:12:38,019
+You just jumped rails to a different . . . I'm saying why . . . that's the nub of the whole
+
+205
+00:12:38,019 --> 00:12:42,899
+case, whether you should be able to go to trial and in front of defense.
+
+206
+00:12:42,899 --> 00:12:48,739
+My question is why couldn't the trial court, after the second hearing, change her mind
+
+207
+00:12:48,739 --> 00:12:55,259
+and say, as a matter of law, at the first hearing no affirmative defense was asserted
+
+208
+00:12:55,259 --> 00:13:00,139
+to breach of contract liability and a summary judgment order on breach of contract
+
+209
+00:13:00,139 --> 00:13:07,899
+was entered and so I've changed my mind and as a matter of law, it's over.
+
+210
+00:13:08,899 --> 00:13:12,899
+Why is there notice and opportunity to be heard required for the judge to change his
+
+211
+00:13:12,899 --> 00:13:15,259
+or her mind at that point?
+
+212
+00:13:15,259 --> 00:13:18,899
+Because that's essentially the judge granting an additional summary judgment . . .
+
+213
+00:13:18,899 --> 00:13:21,899
+But that . . . but when . . . no, it's not.
+
+214
+00:13:21,899 --> 00:13:25,500
+The judge has decided that it's not an additional, right?
+
+215
+00:13:25,500 --> 00:13:29,058
+The judge has decided, no, I'm not . . . I don't need another summary judgment.
+
+216
+00:13:29,058 --> 00:13:33,259
+So that's a legal issue on whether an additional summary judgment motion is required, whether
+
+217
+00:13:33,259 --> 00:13:35,940
+a trial is required, right?
+
+218
+00:13:35,940 --> 00:13:41,658
+Why is the argument at the second hearing on the second summary judgment motion not
+
+219
+00:13:41,658 --> 00:13:47,058
+adequate for notice and opportunity to be heard on the legal question of what was the
+
+220
+00:13:47,058 --> 00:13:52,178
+substance and effect of the first order?
+
+221
+00:13:52,178 --> 00:13:56,979
+It's not that there was no due process on the effect of the first order because that
+
+222
+00:13:56,979 --> 00:14:01,500
+was argued at the second summary judgment hearing, but the judge made a ruling on the
+
+223
+00:14:01,500 --> 00:14:04,418
+record and said our defense was live.
+
+224
+00:14:04,418 --> 00:14:08,418
+So at that point, it's part of the pleadings, it's going to go to trial.
+
+225
+00:14:08,418 --> 00:14:13,700
+For the judge to now say, you can't take it to trial, it's no good, I'm striking it.
+
+226
+00:14:13,700 --> 00:14:17,259
+And the judge even said, look, I think there's a question of fact here.
+
+227
+00:14:17,259 --> 00:14:20,658
+We need some guidance, I think referring to this court.
+
+228
+00:14:20,658 --> 00:14:26,099
+So the judge knew that she was going out on a limb with this, but for there to be a U-turn
+
+229
+00:14:26,099 --> 00:14:31,739
+in that manner, to strike a defense that everybody was under the impression and had concluded
+
+230
+00:14:31,739 --> 00:14:36,219
+was going to go to trial, without us even having the opportunity to come forward with
+
+231
+00:14:36,219 --> 00:14:39,899
+the evidence to support it, that's something that would violate.
+
+232
+00:14:39,899 --> 00:14:44,779
+Evidence support on the merits is different than an opportunity to be heard on the legal
+
+233
+00:14:44,779 --> 00:14:51,058
+question of what was accomplished by virtue of the first motion and the first hearing
+
+234
+00:14:51,058 --> 00:14:52,899
+and the first order.
+
+235
+00:14:52,899 --> 00:14:58,619
+And you just conceded, I mean, as you should, admirably, that there was argument made at
+
+236
+00:14:58,619 --> 00:14:59,979
+the second hearing regarding the legal question.
+
+237
+00:14:59,979 --> 00:15:02,939
+legal effect of those prior proceedings, correct?
+
+238
+00:15:02,939 --> 00:15:03,939
+Correct.
+
+239
+00:15:03,939 --> 00:15:04,939
+And the judge got it right.
+
+240
+00:15:04,939 --> 00:15:08,179
+And opposing counsel said thank you, didn't object to it.
+
+241
+00:15:08,179 --> 00:15:13,139
+And all the arguments in the record by opposing counsel at the first summary judgment and
+
+242
+00:15:13,139 --> 00:15:17,099
+the second, even the second summary judgment referring back to the first summary judgment
+
+243
+00:15:17,099 --> 00:15:21,937
+order, it's all talking about cause of the damage and scope of the damage.
+
+244
+00:15:21,937 --> 00:15:25,739
+If we were arguing that we had a wear and tear defense, that wouldn't be viable.
+
+245
+00:15:25,739 --> 00:15:28,019
+I mean, that's cause of the damage.
+
+246
+00:15:28,019 --> 00:15:31,579
+A prompt notice is a policy condition.
+
+247
+00:15:31,579 --> 00:15:35,658
+It deals with, in this case, it's a seven week late notice.
+
+248
+00:15:35,658 --> 00:15:37,658
+There's a presumption of prejudice.
+
+249
+00:15:37,658 --> 00:15:39,139
+And those are almost always factual issues.
+
+250
+00:15:39,139 --> 00:15:40,139
+So let me ask you this.
+
+251
+00:15:40,139 --> 00:15:45,459
+How should a plaintiff, how should a plaintiff going forward if we were to reverse and what
+
+252
+00:15:45,459 --> 00:15:48,098
+would be the admonition to plaintiffs in the future?
+
+253
+00:15:48,098 --> 00:15:53,938
+How should they structure and word their complaints or their motions for summary judgment?
+
+254
+00:15:53,938 --> 00:15:55,658
+Mr. Noll, you may answer that.
+
+255
+00:15:55,658 --> 00:15:59,658
+You're getting into the five minutes, but I'll keep your five minutes if you just answer
+
+256
+00:15:59,658 --> 00:16:00,658
+that question.
+
+257
+00:16:00,658 --> 00:16:01,658
+Okay.
+
+258
+00:16:01,658 --> 00:16:02,658
+Thank you, Judge.
+
+259
+00:16:02,658 --> 00:16:06,739
+All a plaintiff would have to do is just follow the plain language of the rule 1.510, which
+
+260
+00:16:06,739 --> 00:16:11,538
+says you have to identify the claims and defenses or portions of thereof that you're seeking
+
+261
+00:16:11,538 --> 00:16:12,578
+summary judgment on.
+
+262
+00:16:12,578 --> 00:16:17,099
+So in this case, they would have to say, I'm seeking summary judgment on this affirmative
+
+263
+00:16:17,099 --> 00:16:18,099
+defense.
+
+264
+00:16:18,099 --> 00:16:19,099
+Very good.
+
+265
+00:16:19,099 --> 00:16:20,099
+Thank you.
+
+266
+00:16:20,099 --> 00:16:21,459
+I'll give you five minutes for rebuttal.
+
+267
+00:16:21,459 --> 00:16:27,459
+And as counsel for the appellee approaches, welcome to our friends from across the pond.
+
+268
+00:16:27,459 --> 00:16:31,177
+We understand you had a little traffic issue this morning.
+
+269
+00:16:31,177 --> 00:16:37,059
+There was a death on one of the bridges, which caused some delays and we're sorry that you
+
+270
+00:16:37,059 --> 00:16:38,938
+had to go through that, but we're happy you're here.
+
+271
+00:16:38,938 --> 00:16:40,419
+We are on the first case.
+
+272
+00:16:40,419 --> 00:16:46,778
+I don't know if you had a chance to read the briefing, but I know Mr. Isom had that and
+
+273
+00:16:46,778 --> 00:16:49,379
+I believe circulated that, but welcome.
+
+274
+00:16:49,379 --> 00:16:54,139
+And I know you'll be talking to Judge Kuzam and Judge Sleet and some others after we finish.
+
+275
+00:16:54,139 --> 00:16:56,699
+So again, we're happy to have you here.
+
+276
+00:16:56,699 --> 00:16:57,699
+Mr. Elliott.
+
+277
+00:16:57,699 --> 00:16:58,699
+Thank you, Your Honor.
+
+278
+00:16:58,699 --> 00:16:59,699
+Good morning.
+
+279
+00:16:59,699 --> 00:17:02,938
+I'm pleased to report I am Tom Elliott here with my partner, Amy Ferrier, and along with
+
+280
+00:17:02,938 --> 00:17:06,659
+Dean Makris, we represent William and Denise Bell.
+
+281
+00:17:06,659 --> 00:17:11,139
+I'm tempted to just say, do you have any questions?
+
+282
+00:17:11,139 --> 00:17:15,558
+From the questions you've already asked, I'm not sure I can do any better.
+
+283
+00:17:15,558 --> 00:17:19,639
+If you're tempted, is that saying that you have nothing else to argue unless there are
+
+284
+00:17:19,639 --> 00:17:20,639
+questions?
+
+285
+00:17:20,639 --> 00:17:23,919
+Unless there are questions.
+
+286
+00:17:23,919 --> 00:17:24,919
+Thank you, Mr. Elliott.
+
+287
+00:17:24,919 --> 00:17:25,919
+Thank you.
+
+288
+00:17:25,919 --> 00:17:32,639
+Mr. Knoll, since there was no answer argument, I'm just going to open this up because you've
+
+289
+00:17:32,639 --> 00:17:33,639
+had your argument too.
+
+290
+00:17:33,639 --> 00:17:38,398
+Any questions from the panel?
+
+291
+00:17:38,398 --> 00:17:39,398
+Hearing none.
+
+292
+00:17:39,398 --> 00:17:42,238
+Thank you both for the argument and we appreciate it.
+
+293
+00:17:43,238 --> 00:17:47,597
+I'm sorry that the barristers didn't get to hear everything.
+
+294
+00:17:47,597 --> 00:17:51,678
+They may be staying for a few minutes, but again, thank you and good luck getting back.
+
+295
+00:17:51,678 --> 00:17:55,158
+Hopefully traffic will cooperate a little better.
+
+296
+00:17:55,158 --> 00:17:56,158
+Thank you, Your Honors.
+
+297
+00:17:56,158 --> 00:17:58,798
+You're welcome.
+
+298
+00:17:58,798 --> 00:18:03,238
+The next case on the docket, Bank of New York Mellon v. Fernandez.
+

Case_25_1819/25_1819_audio.m4a

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Case_25_1819/25_1819_transcript.srt

@@ -0,0 +1,4336 @@
+1
+00:00:00,000 --> 00:00:10,000
+Thank you all for coming. Sorry that you got here late, but we appreciate your being here.
+
+2
+00:00:10,000 --> 00:00:25,000
+Good morning. Good morning. Eric Levine here on behalf of the appellant, the Bank of New York.
+
+3
+00:00:25,000 --> 00:00:30,000
+Madeline, may it please the court. I'd like to reserve five minutes for rebuttal, if I may.
+
+4
+00:00:30,000 --> 00:00:32,000
+Very good.
+
+5
+00:00:32,000 --> 00:00:39,000
+The final judgment for the defendant should be reversed, and this matter remanded for entry of final judgment at foreclosure.
+
+6
+00:00:39,000 --> 00:00:48,000
+The trial judge entered judgment for the defendants for one reason only, that the plaintiff failed to prove the defendants had defaulted on their mortgage loan.
+
+7
+00:00:48,000 --> 00:00:55,000
+However, as I stand before you today, there's no dispute.
+
+8
+00:00:55,000 --> 00:00:59,000
+In fact, it's freely admitted that the defendants have not tendered a mortgage payment in nine years.
+
+9
+00:00:59,000 --> 00:01:09,000
+You know, maybe I'm getting cynical in my old age, but when they tell you you haven't made a payment in nine years, I don't see how you're not in default.
+
+10
+00:01:09,000 --> 00:01:13,000
+Well, let's talk about that for just a moment.
+
+11
+00:01:13,000 --> 00:01:15,000
+I'm going to head right into the issue.
+
+12
+00:01:15,000 --> 00:01:28,000
+There are times where an ongoing default that isn't the fault of the borrower could bar the action, at least as then pleaded, right?
+
+13
+00:01:28,000 --> 00:01:32,000
+I would submit, what do you mean by the fault of the borrower?
+
+14
+00:01:32,000 --> 00:01:38,000
+Because the borrower is required to tender a payment every month, and if they don't tender a payment, that's only the fault of their own.
+
+15
+00:01:38,000 --> 00:01:41,000
+And each failure to tender constitutes a new breach.
+
+16
+00:01:41,000 --> 00:01:42,000
+Absolutely.
+
+17
+00:01:42,000 --> 00:01:50,000
+So when this case was filed, the breach was based on January, I think it was what, 2016 or 2017?
+
+18
+00:01:50,000 --> 00:01:54,000
+January 1st, 2017, and all subsequent payments.
+
+19
+00:01:54,000 --> 00:02:02,000
+It was a continuing state of breach every single month starting January 1st, 2017 all the way through, I believe, January 1st, 2021.
+
+20
+00:02:02,000 --> 00:02:07,000
+And so then the question became one of tender, whether they had tendered or not.
+
+21
+00:02:07,000 --> 00:02:28,000
+So the question I want to pose to you is, what refuted the borrower's testimony that she, in fact, had tried to tender and it was refused unless she brought it current, including amounts that apparently were uncertain because of the DITEC issue?
+
+22
+00:02:28,000 --> 00:02:30,000
+I mean, I think we're all familiar with the facts of the case.
+
+23
+00:02:30,000 --> 00:02:32,000
+So I'd really like to get to that.
+
+24
+00:02:32,000 --> 00:02:34,000
+To me, that's one of the hearts of this case.
+
+25
+00:02:34,000 --> 00:02:37,000
+So I'm going to jump right into it, and I'm going to put it to bed right now.
+
+26
+00:02:37,000 --> 00:02:43,000
+In 2015, four payments were reversed by the then-servicer of the loan.
+
+27
+00:02:43,000 --> 00:02:51,000
+The bank witness at the trial testified he could not definitively state why they were reversed, but they were.
+
+28
+00:02:51,000 --> 00:02:55,000
+He said it's possible it was for insufficient funds, but he couldn't say definitively.
+
+29
+00:02:55,000 --> 00:02:59,000
+There's no evidence that the reversal was wrong.
+
+30
+00:02:59,000 --> 00:03:00,000
+It's simply that we didn't know.
+
+31
+00:03:00,000 --> 00:03:02,000
+And the judge in her findings didn't say it was wrong.
+
+32
+00:03:02,000 --> 00:03:05,000
+I thought there was some testimony that, in fact, it was wrong.
+
+33
+00:03:05,000 --> 00:03:06,000
+I don't believe so.
+
+34
+00:03:06,000 --> 00:03:09,000
+But let's give over that.
+
+35
+00:03:09,000 --> 00:03:13,000
+Let's assume for the sake of argument that those payments were improper.
+
+36
+00:03:13,000 --> 00:03:14,000
+It was a mistake.
+
+37
+00:03:14,000 --> 00:03:19,000
+Wasn't there evidence presented, documentary evidence, that the payments were made?
+
+38
+00:03:19,000 --> 00:03:20,000
+The payments were tendered.
+
+39
+00:03:20,000 --> 00:03:21,000
+They were reversed.
+
+40
+00:03:21,000 --> 00:03:23,000
+We don't know why they were reversed.
+
+41
+00:03:23,000 --> 00:03:28,000
+And so if they were reversed incorrectly, those amounts were no longer due in owing.
+
+42
+00:03:28,000 --> 00:03:29,000
+That portion, correct?
+
+43
+00:03:29,000 --> 00:03:30,000
+No.
+
+44
+00:03:30,000 --> 00:03:31,000
+No.
+
+45
+00:03:31,000 --> 00:03:34,000
+Even if they were improperly returned and reversed, you still owe the money.
+
+46
+00:03:34,000 --> 00:03:37,000
+But that's a ‑‑ I'll concede that.
+
+47
+00:03:37,000 --> 00:03:45,000
+But that's a breach by the lender to improperly, arguably, improperly reject tendered payments.
+
+48
+00:03:45,000 --> 00:03:50,000
+I don't know if ‑‑ we don't know specifically why it was reversed.
+
+49
+00:03:50,000 --> 00:03:52,000
+If we knew why, I could answer that better.
+
+50
+00:03:52,000 --> 00:03:53,000
+Your client was a plaintiff.
+
+51
+00:03:53,000 --> 00:03:58,000
+Wasn't it its burden to show how much was owed, when default occurred,
+
+52
+00:03:59,000 --> 00:04:03,000
+the fact that payments were not properly made and so forth?
+
+53
+00:04:03,000 --> 00:04:07,000
+And I know you're going to talk about the later payments or the lack of payments.
+
+54
+00:04:07,000 --> 00:04:15,000
+But the whole situation seemed to develop from those four payments, or reversed payments.
+
+55
+00:04:15,000 --> 00:04:16,000
+They were reversed.
+
+56
+00:04:16,000 --> 00:04:19,000
+And eventually the bank said we're not accepting any more payments,
+
+57
+00:04:19,000 --> 00:04:22,000
+or at least returned one payment in May of 2017,
+
+58
+00:04:22,000 --> 00:04:25,000
+to say this is insufficient to bring along current.
+
+59
+00:04:25,000 --> 00:04:26,000
+We're not accepting it.
+
+60
+00:04:26,000 --> 00:04:34,000
+And what was that rejection of the May 2017 based on in terms of the amount that was owed?
+
+61
+00:04:34,000 --> 00:04:37,000
+They believed at the time she was several months behind.
+
+62
+00:04:37,000 --> 00:04:38,000
+That was what the records reflected.
+
+63
+00:04:38,000 --> 00:04:45,000
+And did the evidence establish that, in fact, she had been several months behind as of May 2017?
+
+64
+00:04:45,000 --> 00:04:49,000
+The records that we introduced did show that the payments were reversed.
+
+65
+00:04:49,000 --> 00:04:53,000
+Based on what appears to be the erroneous reversal of the payments.
+
+66
+00:04:53,000 --> 00:04:55,000
+Not necessarily, but I would submit.
+
+67
+00:04:55,000 --> 00:04:57,000
+Am I correct in that or not?
+
+68
+00:04:57,000 --> 00:05:00,000
+You're correct that the records reflect the payments were reversed.
+
+69
+00:05:00,000 --> 00:05:03,000
+I don't agree that the records reflect that it was erroneous.
+
+70
+00:05:03,000 --> 00:05:05,000
+But I will submit that I don't think it's relevant.
+
+71
+00:05:05,000 --> 00:05:06,000
+I don't think it's material.
+
+72
+00:05:06,000 --> 00:05:09,000
+That fact, whether the payments were correctly reversed.
+
+73
+00:05:09,000 --> 00:05:13,000
+Before your argument why I don't think it's material, I just want to be clear about.
+
+74
+00:05:13,000 --> 00:05:14,000
+Why is that material?
+
+75
+00:05:14,000 --> 00:05:15,000
+Because the bank.
+
+76
+00:05:15,000 --> 00:05:17,000
+No, I said before you argued why it's not material.
+
+77
+00:05:17,000 --> 00:05:18,000
+I wanted to ask a question.
+
+78
+00:05:18,000 --> 00:05:24,000
+So right now I believe Judge Silberman can correct me if I'm incorrect.
+
+79
+00:05:24,000 --> 00:05:28,000
+You all were just discussing the return of the May payment.
+
+80
+00:05:28,000 --> 00:05:30,000
+The May 2017 payment.
+
+81
+00:05:30,000 --> 00:05:32,000
+The Bank of America mailed it back.
+
+82
+00:05:32,000 --> 00:05:36,000
+That was essentially a one mortgage payment.
+
+83
+00:05:36,000 --> 00:05:37,000
+That was one payment.
+
+84
+00:05:37,000 --> 00:05:47,000
+It wasn't clearing a deficit that the bank contends was outstanding.
+
+85
+00:05:47,000 --> 00:05:48,000
+Correct?
+
+86
+00:05:48,000 --> 00:05:49,000
+No, it wasn't all of them.
+
+87
+00:05:49,000 --> 00:05:50,000
+It was just that one May 2017.
+
+88
+00:05:50,000 --> 00:05:51,000
+Right.
+
+89
+00:05:51,000 --> 00:05:53,000
+So I'm saying what comprised that purported deficit.
+
+90
+00:05:53,000 --> 00:05:56,000
+In other words, this is not sufficient to bring you current.
+
+91
+00:05:56,000 --> 00:06:01,000
+Because there's X amount that you should pay now to bring you current.
+
+92
+00:06:01,000 --> 00:06:04,000
+What comprises that X amount?
+
+93
+00:06:04,000 --> 00:06:11,000
+And is it possible that it is due to the 2015 erroneously rejected payments?
+
+94
+00:06:11,000 --> 00:06:16,000
+It was since January of 2017.
+
+95
+00:06:17,000 --> 00:06:26,000
+So the rejection of the May 2017 payment, the rationale was you haven't paid since January.
+
+96
+00:06:26,000 --> 00:06:34,000
+Therefore, you owe us January, February, March, April, and May.
+
+97
+00:06:34,000 --> 00:06:41,000
+So was it based on an additional deficit that could be attributable to the rejected payments in 2015?
+
+98
+00:06:42,000 --> 00:06:51,000
+Or was it based on the purported deficiency that was comprised of those 2017 missed payments?
+
+99
+00:06:51,000 --> 00:06:56,000
+It was certainly mostly comprised because the payments had been reversed.
+
+100
+00:06:56,000 --> 00:06:58,000
+And she had these four payments.
+
+101
+00:06:58,000 --> 00:06:59,000
+She was in bankruptcy at the time.
+
+102
+00:06:59,000 --> 00:07:01,000
+I don't know if that had anything to do with it.
+
+103
+00:07:01,000 --> 00:07:05,000
+But the four payments were sent back for whatever reason.
+
+104
+00:07:05,000 --> 00:07:08,000
+I don't agree with the fact that it was definitely.
+
+105
+00:07:08,000 --> 00:07:09,000
+The four payments when?
+
+106
+00:07:09,000 --> 00:07:12,000
+The four payments were reversed in August of 2015.
+
+107
+00:07:12,000 --> 00:07:13,000
+No, no, no.
+
+108
+00:07:13,000 --> 00:07:14,000
+I'm talking about, okay.
+
+109
+00:07:14,000 --> 00:07:15,000
+Sorry.
+
+110
+00:07:15,000 --> 00:07:24,000
+You just said the rationale for rejecting the 2017 May payment was that it was insufficient because the arrears were more than just one mortgage payment.
+
+111
+00:07:24,000 --> 00:07:25,000
+Correct.
+
+112
+00:07:25,000 --> 00:07:26,000
+What were the arrears?
+
+113
+00:07:26,000 --> 00:07:28,000
+January through, I guess, May.
+
+114
+00:07:28,000 --> 00:07:29,000
+It was five months.
+
+115
+00:07:29,000 --> 00:07:37,000
+Because in January through April, you applied those payments or previous payments way back to the 2015.
+
+116
+00:07:37,000 --> 00:07:39,000
+And so everything slid backwards.
+
+117
+00:07:39,000 --> 00:07:40,000
+The oldest default.
+
+118
+00:07:40,000 --> 00:07:41,000
+It gets applied to the oldest default.
+
+119
+00:07:41,000 --> 00:07:42,000
+Okay.
+
+120
+00:07:42,000 --> 00:07:43,000
+So that's why.
+
+121
+00:07:43,000 --> 00:07:44,000
+Okay.
+
+122
+00:07:44,000 --> 00:07:45,000
+Thank you.
+
+123
+00:07:45,000 --> 00:07:49,000
+But let me push through the issue and tell you why it's irrelevant whether those payments were correctly or incorrectly reversed.
+
+124
+00:07:49,000 --> 00:07:52,000
+Can you stop saying those payments and just tell me which payments you're talking about?
+
+125
+00:07:52,000 --> 00:07:53,000
+Sorry.
+
+126
+00:07:53,000 --> 00:07:57,000
+The four payments in August of 2015 were reversed.
+
+127
+00:07:57,000 --> 00:07:58,000
+You're going to tell us why those are irrelevant.
+
+128
+00:07:58,000 --> 00:07:59,000
+Good.
+
+129
+00:07:59,000 --> 00:08:00,000
+Okay.
+
+130
+00:08:00,000 --> 00:08:05,000
+They're not relevant because, one, obviously, that's not a basis to never tender a mortgage payment ever again,
+
+131
+00:08:05,000 --> 00:08:08,000
+which is basically what's happened since May of 17.
+
+132
+00:08:08,000 --> 00:08:10,000
+But I want to bring your attention to November of 2020.
+
+133
+00:08:10,000 --> 00:08:16,000
+But I need to ask a clarification based on what Judge Gard asked and what you answered.
+
+134
+00:08:16,000 --> 00:08:23,000
+The payments that were reversed, set those aside for a moment.
+
+135
+00:08:23,000 --> 00:08:24,000
+Okay.
+
+136
+00:08:24,000 --> 00:08:32,000
+So January 2017 through April 2017, did the borrower make payments?
+
+137
+00:08:32,000 --> 00:08:38,000
+I believe the borrower tendered payments that got applied to they had been behind.
+
+138
+00:08:38,000 --> 00:08:39,000
+Well, okay.
+
+139
+00:08:39,000 --> 00:08:41,000
+That's the part I want to clarify.
+
+140
+00:08:41,000 --> 00:08:47,000
+How were they behind if those payments were applied to a retroactive debt?
+
+141
+00:08:47,000 --> 00:08:48,000
+It's not a retroactive debt.
+
+142
+00:08:48,000 --> 00:08:51,000
+Payments are applied to the oldest payment then due.
+
+143
+00:08:51,000 --> 00:08:52,000
+So which were those?
+
+144
+00:08:52,000 --> 00:08:56,000
+So January probably got applied to January of 17.
+
+145
+00:08:56,000 --> 00:09:00,000
+Payment probably got applied to, let's say, September of 2016.
+
+146
+00:09:01,000 --> 00:09:05,000
+Was there a failure to pay in September 2016?
+
+147
+00:09:05,000 --> 00:09:07,000
+Well, there's been a running default.
+
+148
+00:09:07,000 --> 00:09:11,000
+So that goes back to the original four that were reversed.
+
+149
+00:09:11,000 --> 00:09:12,000
+Could be.
+
+150
+00:09:12,000 --> 00:09:14,000
+Well, whose responsibility is to know?
+
+151
+00:09:14,000 --> 00:09:19,000
+And whose responsibility is there to present evidence establishing the sequence?
+
+152
+00:09:19,000 --> 00:09:24,000
+Because you're now telling me, well, they were reversed, and maybe they weren't correctly reversed.
+
+153
+00:09:24,000 --> 00:09:26,000
+Maybe they were correctly reversed.
+
+154
+00:09:26,000 --> 00:09:31,000
+But we're declaring a default based on those uncertain reversals.
+
+155
+00:09:31,000 --> 00:09:40,000
+And, by the way, when she starts making further payments, we're going to apply them to those even though we're not sure if they were properly reversed or not.
+
+156
+00:09:40,000 --> 00:09:42,000
+Is that what I'm understanding the argument is?
+
+157
+00:09:42,000 --> 00:09:45,000
+I don't believe I'd phrase it exactly that way.
+
+158
+00:09:45,000 --> 00:09:48,000
+I know you wouldn't because you don't want to concede that, but that's what I'm hearing.
+
+159
+00:09:48,000 --> 00:09:51,000
+I'm just telling you exactly what the records show.
+
+160
+00:09:52,000 --> 00:09:58,000
+Those payments were reversed, and any payments she made after that that were accepted and applied applied to the oldest.
+
+161
+00:09:58,000 --> 00:10:00,000
+Well, let me ask a follow-up to this.
+
+162
+00:10:00,000 --> 00:10:03,000
+The Notice of Acceleration goes out.
+
+163
+00:10:03,000 --> 00:10:06,000
+What was the basis of accelerating the loan?
+
+164
+00:10:06,000 --> 00:10:10,000
+Was it those four unpaid payments from a few years earlier?
+
+165
+00:10:10,000 --> 00:10:15,000
+The Notice of Default that went out in November 2020 was based – and it's not an acceleration.
+
+166
+00:10:15,000 --> 00:10:16,000
+It was a Notice of Default.
+
+167
+00:10:16,000 --> 00:10:18,000
+Acceleration is encouraged if the complaint is filed.
+
+168
+00:10:18,000 --> 00:10:26,000
+That was based on all unpaid payments from, I guess, January of 2017 through November of 2020.
+
+169
+00:10:26,000 --> 00:10:35,000
+So you're circling back now to what I started with, which is she testified she tried to make additional payments, and they were rejected.
+
+170
+00:10:35,000 --> 00:10:43,000
+Now, I concede her testimony isn't a paradigm of clarity, but there is some testimony to that effect.
+
+171
+00:10:44,000 --> 00:10:51,000
+Did the bank present evidence refuting her claim that she tendered additional payments?
+
+172
+00:10:51,000 --> 00:10:59,000
+Well, she admitted that she didn't tender any payments after May of 2017, so I believe the bank – there was nothing to refute.
+
+173
+00:10:59,000 --> 00:11:00,000
+Okay.
+
+174
+00:11:00,000 --> 00:11:06,000
+I think opposing counsel might have a statement on that, or maybe I've misremembered what I read in the transcript.
+
+175
+00:11:06,000 --> 00:11:10,000
+But let's talk about, then, if we can move to the tender issue.
+
+176
+00:11:10,000 --> 00:11:22,000
+Did your client raise as an avoidance to the affirmative defense that she was required to make payment into the registry of the court and tender ongoing payments?
+
+177
+00:11:22,000 --> 00:11:26,000
+No, Your Honor, because she didn't plead tender and refusal as an affirmative defense.
+
+178
+00:11:26,000 --> 00:11:27,000
+She pled –
+
+179
+00:11:27,000 --> 00:11:35,000
+So affirmative defense number two, defendants assert that the bad action – or I think I might have typed this incorrectly – of the plaintiff has caused the loan to be in default.
+
+180
+00:11:35,000 --> 00:11:40,000
+Plaintiff states the defendants have not made a payment since January of 2017.
+
+181
+00:11:40,000 --> 00:11:41,000
+This is false.
+
+182
+00:11:41,000 --> 00:11:45,000
+Defendants made all payments until plaintiffs stopped taking payments.
+
+183
+00:11:45,000 --> 00:11:51,000
+Plaintiff's own actions of not accepting payments caused any default, bars plaintiff from foreclosing on the property.
+
+184
+00:11:51,000 --> 00:11:57,000
+Now, I will say that that last portion about bars plaintiff from foreclosing, I'm not sure I would agree with.
+
+185
+00:11:57,000 --> 00:12:00,000
+But that seems to me to be a defense.
+
+186
+00:12:00,000 --> 00:12:14,000
+So why, if you're arguing on appeal, which I think may be the first time it was raised, that she had to tender money into the registry of the court, was that ever argued to the trial court?
+
+187
+00:12:14,000 --> 00:12:16,000
+Yes, it was argued in our motion for rehearing.
+
+188
+00:12:16,000 --> 00:12:23,000
+Okay, but it wasn't argued before the entry of judgment in her favor or in their favor.
+
+189
+00:12:23,000 --> 00:12:26,000
+No, but I'm also going to point the court out to the actual answer.
+
+190
+00:12:26,000 --> 00:12:28,000
+Second affirmative defense is unclean hands.
+
+191
+00:12:28,000 --> 00:12:30,000
+It's not a tender and refusal defense.
+
+192
+00:12:30,000 --> 00:12:32,000
+It's an unclean hands defense.
+
+193
+00:12:32,000 --> 00:12:36,000
+And we didn't need to plead that in avoidance of a defense that wasn't fled.
+
+194
+00:12:36,000 --> 00:12:38,000
+I understand she said, well, you refused.
+
+195
+00:12:38,000 --> 00:12:48,000
+So if I'm satisfied that that was enough to assert an affirmative defense that any default was caused by your client's action, did you have to avoid that defense?
+
+196
+00:12:48,000 --> 00:12:49,000
+No, I would not.
+
+197
+00:12:49,000 --> 00:12:55,000
+I would say we would not need to avoid it because under the case law we saw in the brief, as part of your proving your affirmative defense,
+
+198
+00:12:56,000 --> 00:12:58,000
+you have to put it into the court registry.
+
+199
+00:12:58,000 --> 00:13:01,000
+It's not the burden of the defendant to force you, or the plaintiff to force you.
+
+200
+00:13:01,000 --> 00:13:08,000
+Isn't it the burden of the bank to bring to the trial court's attention that there has been no tender?
+
+201
+00:13:08,000 --> 00:13:13,000
+I would say, and we did in our motion for rehearing, but that was the first time I would submit that we realized.
+
+202
+00:13:13,000 --> 00:13:18,000
+So it wasn't brought up as an avoidance or a reply to the affirmative defense.
+
+203
+00:13:18,000 --> 00:13:25,000
+And it wasn't brought up at the hearing or at the trial on the default.
+
+204
+00:13:25,000 --> 00:13:26,000
+No, it was not.
+
+205
+00:13:26,000 --> 00:13:31,000
+Because we were going at that time based on an unclean hands defense, not a tender refusal defense.
+
+206
+00:13:31,000 --> 00:13:37,000
+But once the trial judge made her ruling and said, oh, you refused her payments, that's kind of why it's not default.
+
+207
+00:13:37,000 --> 00:13:38,000
+We said, oh, wait a minute.
+
+208
+00:13:38,000 --> 00:13:42,000
+This is a tender refusal defense that hasn't been pled, and it hasn't been proven.
+
+209
+00:13:42,000 --> 00:13:46,000
+Because in order to have a tender and refusal – so let's assume we talk about avoidance.
+
+210
+00:13:46,000 --> 00:13:49,000
+You don't have to avoid an affirmative defense if they don't approve the affirmative defense.
+
+211
+00:13:49,000 --> 00:13:54,000
+And an affirmative defense of tender and refusal requires tender, requires you actually tender the payments.
+
+212
+00:13:54,000 --> 00:13:56,000
+And she admits she didn't.
+
+213
+00:13:56,000 --> 00:14:02,000
+Now, I know Your Honor talked about her testimony, and I want to read – I'll just read to the court some of the quotes I copied out.
+
+214
+00:14:02,000 --> 00:14:06,000
+Question, this is on page 1644 of the record.
+
+215
+00:14:06,000 --> 00:14:09,000
+Okay, so you never made any effort to cure the default.
+
+216
+00:14:09,000 --> 00:14:10,000
+Answer, correct.
+
+217
+00:14:10,000 --> 00:14:12,000
+I wasn't advised to.
+
+218
+00:14:12,000 --> 00:14:14,000
+Page 1961 of the record.
+
+219
+00:14:15,000 --> 00:14:19,000
+Okay, so as we sit here today, you have made no effort to cure your obligation under the contract.
+
+220
+00:14:19,000 --> 00:14:20,000
+Is that correct?
+
+221
+00:14:20,000 --> 00:14:22,000
+Answer, correct.
+
+222
+00:14:22,000 --> 00:14:23,000
+A little below it.
+
+223
+00:14:23,000 --> 00:14:27,000
+But as we sit here today, you have not made any effort to cure the amount that have been continued to accrue.
+
+224
+00:14:27,000 --> 00:14:28,000
+Is that correct?
+
+225
+00:14:28,000 --> 00:14:29,000
+Answer, that is correct.
+
+226
+00:14:29,000 --> 00:14:35,000
+When Ms. Fernandez tells you that she hasn't cured her default and has made no effort to cure her default, I think we should believe her.
+
+227
+00:14:35,000 --> 00:14:42,000
+And I want to circle back to why I think these four payments, even if they were mistakenly reversed, is not material.
+
+228
+00:14:43,000 --> 00:14:48,000
+In November of 2020, the breach letter was sent out.
+
+229
+00:14:48,000 --> 00:14:52,000
+She owed about $56,000, and there's really no dispute that that number is basically correct.
+
+230
+00:14:52,000 --> 00:14:55,000
+What does that mean, basically correct?
+
+231
+00:14:55,000 --> 00:14:56,000
+I'll explain right now.
+
+232
+00:14:56,000 --> 00:15:00,000
+So she said she only had about $20,000 in her account.
+
+233
+00:15:00,000 --> 00:15:03,039
+in the bank, she was about $36,000 short
+
+234
+00:15:03,039 --> 00:15:05,000
+of curing her default and bringing the loan
+
+235
+00:15:05,000 --> 00:15:07,080
+current November of 2020.
+
+236
+00:15:07,080 --> 00:15:09,799
+Even if we were to credit her those four payments
+
+237
+00:15:09,799 --> 00:15:14,799
+about $800, that brings the amount down from 36,000,
+
+238
+00:15:14,799 --> 00:15:18,320
+sorry, she was from 56 to about 53.
+
+239
+00:15:18,320 --> 00:15:22,159
+So instead of being $36,000 short, she was $33,000 short.
+
+240
+00:15:22,159 --> 00:15:24,798
+So either way, it's the same result.
+
+241
+00:15:24,798 --> 00:15:27,798
+And I like to ask the court, you know,
+
+242
+00:15:27,798 --> 00:15:28,840
+I know you're not gonna answer that,
+
+243
+00:15:28,840 --> 00:15:31,519
+the questions go one way, but if we were to,
+
+244
+00:15:31,519 --> 00:15:34,879
+if this court were to affirm, what happens then?
+
+245
+00:15:36,080 --> 00:15:38,039
+We'll send another breach letter.
+
+246
+00:15:38,039 --> 00:15:41,080
+This time, it'll probably be over $100,000.
+
+247
+00:15:41,080 --> 00:15:43,918
+You know, presumably, we'll credit her the four payments,
+
+248
+00:15:43,918 --> 00:15:46,080
+say, okay, here are the four payments back.
+
+249
+00:15:46,080 --> 00:15:48,438
+The number will still probably be over 100,000.
+
+250
+00:15:48,438 --> 00:15:49,798
+Presumably, she won't cure.
+
+251
+00:15:49,798 --> 00:15:50,720
+I would love it if she would,
+
+252
+00:15:50,720 --> 00:15:52,599
+but presumably, she wouldn't cure.
+
+253
+00:15:52,599 --> 00:15:55,278
+And we'd be right back here, again, saying.
+
+254
+00:15:55,278 --> 00:15:56,918
+Is that even relevant?
+
+255
+00:15:56,918 --> 00:15:57,759
+I think it's relevant.
+
+256
+00:15:58,720 --> 00:16:00,480
+If we think the trial court got it right,
+
+257
+00:16:00,480 --> 00:16:02,119
+you're not without a remedy.
+
+258
+00:16:02,119 --> 00:16:04,799
+But it's not our job to say,
+
+259
+00:16:04,799 --> 00:16:06,799
+well, we're gonna shortcut the process.
+
+260
+00:16:06,799 --> 00:16:09,039
+I don't, I'm asking the court to shortcut the process.
+
+261
+00:16:09,039 --> 00:16:09,879
+I'm simply taking.
+
+262
+00:16:09,879 --> 00:16:11,680
+No, you want us to say that the trial court got it wrong.
+
+263
+00:16:11,680 --> 00:16:12,519
+I mean, I understand that.
+
+264
+00:16:12,519 --> 00:16:13,879
+I think the trial court did got it wrong.
+
+265
+00:16:13,879 --> 00:16:15,480
+If we think the trial court got it right,
+
+266
+00:16:15,480 --> 00:16:17,838
+the fact that there is a practical solution
+
+267
+00:16:17,838 --> 00:16:20,319
+that favors the bank doesn't eliminate
+
+268
+00:16:20,319 --> 00:16:22,599
+the due process that has to apply.
+
+269
+00:16:22,599 --> 00:16:23,799
+Due process definitely occurred.
+
+270
+00:16:23,799 --> 00:16:25,838
+If they got noticed, an opportunity to be heard.
+
+271
+00:16:25,879 --> 00:16:29,720
+If we agree with the trial court, and we affirm,
+
+272
+00:16:29,720 --> 00:16:34,720
+your suggestion seems to be that we should still reverse,
+
+273
+00:16:36,440 --> 00:16:38,838
+because you can sue again.
+
+274
+00:16:38,838 --> 00:16:40,639
+No, no, I'm just pointing out the fact
+
+275
+00:16:40,639 --> 00:16:42,319
+this is why the trial court was wrong,
+
+276
+00:16:42,319 --> 00:16:43,159
+because they did not.
+
+277
+00:16:43,159 --> 00:16:44,680
+Well, couldn't you have raised that?
+
+278
+00:16:44,680 --> 00:16:47,099
+Couldn't you have raised a credit
+
+279
+00:16:47,099 --> 00:16:48,720
+to the final judgment figures?
+
+280
+00:16:48,720 --> 00:16:51,759
+And like in the re-hearing, or elsewhere?
+
+281
+00:16:52,360 --> 00:16:56,480
+Just, couldn't that, I mean, you're suggesting
+
+282
+00:16:56,480 --> 00:16:58,879
+that that's gonna be what happens if we send this back,
+
+283
+00:16:58,879 --> 00:17:00,360
+but I mean, you didn't make that suggestion
+
+284
+00:17:00,360 --> 00:17:01,480
+to the trial court, right?
+
+285
+00:17:01,480 --> 00:17:02,959
+We never got to the amount to do.
+
+286
+00:17:02,959 --> 00:17:04,079
+We never got to how much to do.
+
+287
+00:17:04,079 --> 00:17:05,878
+The court said we never proved the default.
+
+288
+00:17:05,878 --> 00:17:08,118
+So, obviously, we could always say,
+
+289
+00:17:08,118 --> 00:17:10,319
+here's four months of credit in the final judgment.
+
+290
+00:17:10,319 --> 00:17:13,440
+We could credit any time, but the point I'm trying to make
+
+291
+00:17:13,440 --> 00:17:15,479
+is the trial court was wrong,
+
+292
+00:17:15,479 --> 00:17:19,000
+because no payments had been tendered in years.
+
+293
+00:17:19,000 --> 00:17:20,160
+Many years.
+
+294
+00:17:20,160 --> 00:17:22,880
+So, even putting aside these four payments
+
+295
+00:17:22,880 --> 00:17:24,360
+that were improperly reversed,
+
+296
+00:17:24,360 --> 00:17:26,838
+even conceding they were improperly reversed,
+
+297
+00:17:26,838 --> 00:17:30,479
+that is not an excuse to not make any payments in 2018.
+
+298
+00:17:30,479 --> 00:17:31,759
+Mr. Levine, I think we understand
+
+299
+00:17:31,759 --> 00:17:33,079
+that part of the argument.
+
+300
+00:17:33,079 --> 00:17:35,118
+Let me just say, I've let you go over,
+
+301
+00:17:35,118 --> 00:17:38,160
+because I asked more questions than I probably needed to.
+
+302
+00:17:38,160 --> 00:17:40,799
+So, before you sit down and reserve your five minutes,
+
+303
+00:17:40,799 --> 00:17:42,838
+if either judge has more.
+
+304
+00:17:42,838 --> 00:17:44,319
+Otherwise, I'll let you have your five minutes
+
+305
+00:17:44,319 --> 00:17:45,519
+if you're sitting.
+
+306
+00:17:45,519 --> 00:17:46,360
+Thank you.
+
+307
+00:17:51,000 --> 00:17:51,838
+Okay.
+
+308
+00:17:58,398 --> 00:17:59,319
+Good morning, your honors.
+
+309
+00:17:59,319 --> 00:18:00,838
+Good morning.
+
+310
+00:18:00,838 --> 00:18:02,278
+May it please the court.
+
+311
+00:18:02,278 --> 00:18:03,919
+My name is Alan Borden.
+
+312
+00:18:03,919 --> 00:18:05,720
+I'm with Debra Lee Fleal Group,
+
+313
+00:18:05,720 --> 00:18:08,160
+and I represent the Fernandeses.
+
+314
+00:18:08,160 --> 00:18:10,319
+Mr. Borden, just speak up a little bit, please.
+
+315
+00:18:10,319 --> 00:18:11,720
+I represent the Fernandeses.
+
+316
+00:18:11,720 --> 00:18:14,519
+We're here, and they're the homeowners.
+
+317
+00:18:15,519 --> 00:18:20,519
+The, what the bank here is trying to say is that,
+
+318
+00:18:23,759 --> 00:18:25,639
+they, under a promissory note,
+
+319
+00:18:25,639 --> 00:18:29,639
+can unilaterally reject payments,
+
+320
+00:18:30,799 --> 00:18:33,278
+and then see how long they can wait
+
+321
+00:18:33,278 --> 00:18:34,979
+until starting a foreclosure,
+
+322
+00:18:34,979 --> 00:18:38,360
+just to test the financial viability of the homeowner.
+
+323
+00:18:38,360 --> 00:18:40,079
+But couldn't you, or couldn't they,
+
+324
+00:18:40,079 --> 00:18:42,319
+have filed a lawsuit for an accounting?
+
+325
+00:18:42,319 --> 00:18:44,360
+This seems to be like there was an accounting issue
+
+326
+00:18:45,199 --> 00:18:46,038
+over four payments, right?
+
+327
+00:18:46,038 --> 00:18:46,860
+Correct.
+
+328
+00:18:46,860 --> 00:18:48,240
+And instead of just sitting there
+
+329
+00:18:48,240 --> 00:18:50,679
+and not making payments for years,
+
+330
+00:18:50,679 --> 00:18:53,799
+couldn't your client have commenced an action
+
+331
+00:18:53,799 --> 00:18:56,398
+against the bank, or taken more action
+
+332
+00:18:56,398 --> 00:18:58,360
+than just tendering the one payment?
+
+333
+00:18:59,440 --> 00:19:01,440
+Yes, they couldn't, so.
+
+334
+00:19:01,440 --> 00:19:02,919
+And they didn't do it.
+
+335
+00:19:02,919 --> 00:19:05,558
+I mean, we're here sitting in equity,
+
+336
+00:19:05,558 --> 00:19:09,720
+and they were asking us to allow a foreclosure,
+
+337
+00:19:10,940 --> 00:19:13,558
+and it appears there were four payments
+
+338
+00:19:13,558 --> 00:19:17,920
+that may or may not have been wrongfully reversed.
+
+339
+00:19:17,920 --> 00:19:22,920
+But the truth is that we're eight years of no payments,
+
+340
+00:19:23,000 --> 00:19:25,160
+and I don't, I think from the testimony,
+
+341
+00:19:25,160 --> 00:19:28,160
+your clients don't have a way to actually catch up.
+
+342
+00:19:29,639 --> 00:19:31,639
+Right, but the equity situation,
+
+343
+00:19:31,639 --> 00:19:32,959
+and whose burden is it,
+
+344
+00:19:32,959 --> 00:19:35,000
+I think goes back to the original, right?
+
+345
+00:19:35,000 --> 00:19:38,319
+So we have a foreclosure that was wrongfully done
+
+346
+00:19:38,319 --> 00:19:39,358
+the first time, right?
+
+347
+00:19:39,358 --> 00:19:41,679
+There was an original foreclosure back in 2019.
+
+348
+00:19:42,200 --> 00:19:46,679
+That got dismissed, and so that has no effect, right?
+
+349
+00:19:46,679 --> 00:19:50,200
+Right, and so there, it was dismissed voluntarily
+
+350
+00:19:50,200 --> 00:19:53,679
+by the bank because they didn't realize
+
+351
+00:19:53,679 --> 00:19:56,519
+until the day before trial that they were missing
+
+352
+00:19:56,519 --> 00:20:00,558
+accounting by DITEC, those four payments, okay?
+
+353
+00:20:00,558 --> 00:20:02,398
+That was produced the day before trial,
+
+354
+00:20:02,398 --> 00:20:04,078
+and they dismissed it.
+
+355
+00:20:04,078 --> 00:20:07,639
+Then, the bank, knowing that that's their issue,
+
+356
+00:20:07,639 --> 00:20:11,239
+waited a year or two, and then filed another foreclosure
+
+357
+00:20:11,798 --> 00:20:12,639
+with the exact same thing.
+
+358
+00:20:12,639 --> 00:20:14,759
+And during that whole year,
+
+359
+00:20:14,759 --> 00:20:18,599
+your clients never tendered a payment, right?
+
+360
+00:20:18,599 --> 00:20:21,798
+So, yes, the unsophisticated borrowers
+
+361
+00:20:21,798 --> 00:20:25,440
+versus the bank who knows and deals with mortgages
+
+362
+00:20:25,440 --> 00:20:27,759
+every single day, who made a mistake
+
+363
+00:20:27,759 --> 00:20:29,599
+on their own accounting, it's whose burden?
+
+364
+00:20:29,599 --> 00:20:32,078
+But your unsophisticated borrower
+
+365
+00:20:32,078 --> 00:20:34,519
+was represented by you, right?
+
+366
+00:20:34,519 --> 00:20:36,160
+In that initial action, correct?
+
+367
+00:20:36,160 --> 00:20:37,200
+Yes, Your Honor, yes.
+
+368
+00:20:37,200 --> 00:20:41,200
+So, you could have provided them legal advice,
+
+369
+00:20:41,959 --> 00:20:43,759
+presumably, so what's not, I mean,
+
+370
+00:20:43,759 --> 00:20:47,440
+I get that they're a bank and they have lawyers,
+
+371
+00:20:47,440 --> 00:20:49,720
+but I mean, your client had a lawyer as well
+
+372
+00:20:49,720 --> 00:20:50,838
+to advise them, right?
+
+373
+00:20:50,838 --> 00:20:53,358
+Right, and the typical response in this kind of situation
+
+374
+00:20:53,358 --> 00:20:56,798
+is the bank then adjusts their accounting
+
+375
+00:20:56,798 --> 00:20:58,759
+and then puts them back to current.
+
+376
+00:20:58,759 --> 00:21:01,398
+When the foreclosure gets dismissed, it deaccelerates,
+
+377
+00:21:01,398 --> 00:21:03,838
+so it should go back to regular monthly payments.
+
+378
+00:21:03,838 --> 00:21:05,759
+They should send regular notices,
+
+379
+00:21:05,759 --> 00:21:08,160
+but instead, the bank, and what's proven here
+
+380
+00:21:08,160 --> 00:21:10,440
+is that they've kept those four missed payments
+
+381
+00:21:10,440 --> 00:21:11,920
+the entire time, they wouldn't have accepted
+
+382
+00:21:11,920 --> 00:21:13,599
+less than five payments at a time.
+
+383
+00:21:13,599 --> 00:21:17,119
+So, the note decelerates and your client
+
+384
+00:21:17,119 --> 00:21:20,200
+doesn't go back to making any payments, right?
+
+385
+00:21:20,200 --> 00:21:22,319
+Well, because the bank won't accept anything less
+
+386
+00:21:22,319 --> 00:21:23,160
+than the full amount.
+
+387
+00:21:23,160 --> 00:21:25,078
+But they didn't even try, right?
+
+388
+00:21:25,078 --> 00:21:26,239
+They only tried the one time
+
+389
+00:21:26,239 --> 00:21:28,519
+and had the one payment rejected, right?
+
+390
+00:21:28,519 --> 00:21:30,200
+That's what the record shows.
+
+391
+00:21:30,200 --> 00:21:32,759
+The record shows she attempted to make a payment
+
+392
+00:21:32,759 --> 00:21:34,679
+that was sent back through mail,
+
+393
+00:21:34,679 --> 00:21:36,398
+and then she went literally to the bank
+
+394
+00:21:36,398 --> 00:21:37,720
+with another check to try to pay them.
+
+395
+00:21:37,720 --> 00:21:39,160
+When is this, can I ask a question?
+
+396
+00:21:39,160 --> 00:21:40,838
+Are you talking about 2015 or 2017?
+
+397
+00:21:40,838 --> 00:21:41,920
+2017.
+
+398
+00:21:41,920 --> 00:21:43,480
+Okay, so that, okay, but,
+
+399
+00:21:43,480 --> 00:21:45,398
+2000, sorry, Judge, go ahead.
+
+400
+00:21:45,398 --> 00:21:49,880
+No, that's fine, but we're now talking 2021, right?
+
+401
+00:21:49,880 --> 00:21:50,759
+Right.
+
+402
+00:21:50,759 --> 00:21:54,078
+And there's no attempt in 2021
+
+403
+00:21:54,078 --> 00:21:58,078
+after, like in your experience,
+
+404
+00:21:58,078 --> 00:22:01,039
+you're expecting it to be reset,
+
+405
+00:22:01,039 --> 00:22:04,278
+but there's no attempt after what you're expecting
+
+406
+00:22:04,278 --> 00:22:07,959
+to be a reset for another tender, right?
+
+407
+00:22:08,720 --> 00:22:12,160
+Right, they don't understand what their position is,
+
+408
+00:22:12,160 --> 00:22:16,278
+correct, I mean, they don't know what the bank's doing,
+
+409
+00:22:16,278 --> 00:22:18,358
+they're not receiving the notices that would tell them,
+
+410
+00:22:18,358 --> 00:22:20,679
+okay, just start making your regular payments.
+
+411
+00:22:20,679 --> 00:22:22,519
+But I think the court was correct in pointing out that-
+
+412
+00:22:22,519 --> 00:22:24,358
+Say that again, what you just said?
+
+413
+00:22:24,358 --> 00:22:26,278
+Say that again, what you just said?
+
+414
+00:22:26,278 --> 00:22:27,720
+They didn't understand what?
+
+415
+00:22:27,720 --> 00:22:31,000
+They didn't, they didn't get normal mortgage statements.
+
+416
+00:22:31,000 --> 00:22:33,480
+You said they didn't understand the notice that said
+
+417
+00:22:33,480 --> 00:22:34,319
+to restart the-
+
+418
+00:22:34,319 --> 00:22:36,239
+That they would make normal, regular payments.
+
+419
+00:22:36,239 --> 00:22:37,720
+What did that notice say?
+
+420
+00:22:38,398 --> 00:22:39,440
+A regular mortgage statement.
+
+421
+00:22:39,440 --> 00:22:41,398
+You're saying the bank didn't send that notice?
+
+422
+00:22:41,398 --> 00:22:43,558
+Right, the mortgage, the bank didn't say that,
+
+423
+00:22:43,558 --> 00:22:44,880
+here, you're back to normal,
+
+424
+00:22:44,880 --> 00:22:46,639
+just make your regular mortgage payment.
+
+425
+00:22:46,639 --> 00:22:48,759
+That wasn't advised to them, they didn't get that.
+
+426
+00:22:48,759 --> 00:22:50,239
+You said they didn't understand it.
+
+427
+00:22:50,239 --> 00:22:51,920
+Right, they wouldn't have understood, yeah,
+
+428
+00:22:51,920 --> 00:22:52,759
+because they don't know what to do.
+
+429
+00:22:52,759 --> 00:22:55,119
+They wouldn't have understood it if they got it
+
+430
+00:22:55,119 --> 00:22:56,239
+or they didn't get it.
+
+431
+00:22:56,239 --> 00:22:58,160
+If a mortgage statement was sent and said,
+
+432
+00:22:58,160 --> 00:23:00,160
+okay, start paying your regular payment.
+
+433
+00:23:00,160 --> 00:23:02,639
+What did the mortgage statement say when they received them?
+
+434
+00:23:02,639 --> 00:23:05,599
+There's none presented, there was never anything sent
+
+435
+00:23:05,599 --> 00:23:07,319
+to them after the dismissal.
+
+436
+00:23:07,639 --> 00:23:09,838
+Okay, let's go back to 2015.
+
+437
+00:23:09,838 --> 00:23:14,838
+So, those, they were returned for insufficient funds.
+
+438
+00:23:15,639 --> 00:23:16,959
+It's a mystery, right?
+
+439
+00:23:16,959 --> 00:23:18,959
+It's a mystery still.
+
+440
+00:23:18,959 --> 00:23:20,160
+Well, I don't believe it's a mystery.
+
+441
+00:23:20,160 --> 00:23:21,000
+It's a mystery to me.
+
+442
+00:23:21,000 --> 00:23:25,160
+So, she didn't, they didn't pay.
+
+443
+00:23:25,160 --> 00:23:29,679
+In other words, I'm a unsophisticated mortgagor,
+
+444
+00:23:30,679 --> 00:23:33,918
+and one thing I'm aware of though,
+
+445
+00:23:33,918 --> 00:23:37,038
+is money from my bank for those payments
+
+446
+00:23:37,759 --> 00:23:38,599
+didn't end up at the bank.
+
+447
+00:23:38,599 --> 00:23:41,320
+So, I know that I haven't paid anything for those months.
+
+448
+00:23:41,320 --> 00:23:43,038
+But that's not what happened.
+
+449
+00:23:43,038 --> 00:23:47,558
+So, what you hear from the testimony of the witness first,
+
+450
+00:23:47,558 --> 00:23:49,558
+which I think is very important to note,
+
+451
+00:23:51,358 --> 00:23:53,960
+the date of default changed.
+
+452
+00:23:53,960 --> 00:23:58,000
+So, in the deposition, he said it was a different date
+
+453
+00:23:58,000 --> 00:23:59,679
+than when at trial.
+
+454
+00:23:59,679 --> 00:24:01,960
+And the reason why is because on the deposition,
+
+455
+00:24:01,960 --> 00:24:05,880
+in the discovery responses and the interrogatories,
+
+456
+00:24:05,880 --> 00:24:09,440
+they completely omit DITEC, as if it never occurred.
+
+457
+00:24:09,440 --> 00:24:12,119
+None of those answers were in the discovery,
+
+458
+00:24:12,119 --> 00:24:13,200
+in the second foreclosure,
+
+459
+00:24:13,200 --> 00:24:15,759
+even though we had it in the first one,
+
+460
+00:24:15,759 --> 00:24:16,960
+which means they continue.
+
+461
+00:24:16,960 --> 00:24:18,358
+Before you go too far down that line,
+
+462
+00:24:18,358 --> 00:24:21,558
+I wanna go back to what Judge Atkinson just asked you.
+
+463
+00:24:21,558 --> 00:24:26,558
+When DITEC said these payments are reversed,
+
+464
+00:24:26,599 --> 00:24:28,719
+did the money go back to your clients?
+
+465
+00:24:28,719 --> 00:24:29,558
+No.
+
+466
+00:24:29,558 --> 00:24:32,079
+The money was still with the lender?
+
+467
+00:24:32,079 --> 00:24:32,918
+Yes.
+
+468
+00:24:32,918 --> 00:24:34,759
+So, it was a paper reversal.
+
+469
+00:24:34,759 --> 00:24:35,599
+Correct.
+
+470
+00:24:36,358 --> 00:24:38,759
+And that's what you see there,
+
+471
+00:24:38,759 --> 00:24:42,038
+Mr. Greenlee testified to when he was initially asked
+
+472
+00:24:42,038 --> 00:24:42,880
+what happened.
+
+473
+00:24:42,880 --> 00:24:44,918
+He says, well, this typically happens
+
+474
+00:24:44,918 --> 00:24:47,279
+when you're onboarding to a new servicer.
+
+475
+00:24:47,279 --> 00:24:50,798
+They will do these accounting adjustments to transfer it.
+
+476
+00:24:50,798 --> 00:24:51,798
+That's what that was.
+
+477
+00:24:51,798 --> 00:24:53,798
+It wasn't that they sent the money back.
+
+478
+00:24:54,679 --> 00:24:55,519
+And so-
+
+479
+00:24:55,519 --> 00:24:56,479
+And I think, if I'm recalling correctly,
+
+480
+00:24:56,479 --> 00:25:01,038
+the documentary evidence established
+
+481
+00:25:01,038 --> 00:25:02,639
+that your clients did not, in fact,
+
+482
+00:25:02,639 --> 00:25:04,119
+get those four payments back.
+
+483
+00:25:04,119 --> 00:25:04,960
+Correct.
+
+484
+00:25:05,000 --> 00:25:08,159
+And it's rejected on, the way it normally happens,
+
+485
+00:25:08,159 --> 00:25:10,558
+it's rejected because it's insufficient funds
+
+486
+00:25:10,558 --> 00:25:13,719
+or it's too little to pay what's currently due.
+
+487
+00:25:13,719 --> 00:25:14,558
+Right.
+
+488
+00:25:14,558 --> 00:25:16,599
+What you see is, and you see it in the accounting,
+
+489
+00:25:16,599 --> 00:25:19,159
+there's four months of payments,
+
+490
+00:25:19,159 --> 00:25:21,079
+and then if there was like an insufficient funds,
+
+491
+00:25:21,079 --> 00:25:22,279
+that would be immediate.
+
+492
+00:25:22,279 --> 00:25:24,038
+But what happened is four payments,
+
+493
+00:25:24,038 --> 00:25:25,320
+and then the following month,
+
+494
+00:25:25,320 --> 00:25:27,239
+they say reversal for some reason
+
+495
+00:25:27,239 --> 00:25:29,479
+of all four of those payments at the same time.
+
+496
+00:25:29,479 --> 00:25:31,679
+And your client continued making payments
+
+497
+00:25:31,679 --> 00:25:33,639
+after the paper reversal.
+
+498
+00:25:33,639 --> 00:25:35,960
+Did they know about the paper reversal at that time?
+
+499
+00:25:35,960 --> 00:25:38,279
+They didn't know that they were behind
+
+500
+00:25:38,279 --> 00:25:42,320
+until the servicer switched to Diatek and right back.
+
+501
+00:25:42,320 --> 00:25:46,759
+When it came back to Bank of America in April of 2017,
+
+502
+00:25:46,759 --> 00:25:49,079
+the first notice from Bank of America,
+
+503
+00:25:49,079 --> 00:25:50,719
+newly on the servicer, said,
+
+504
+00:25:50,719 --> 00:25:51,558
+oh, now you're four months behind.
+
+505
+00:25:51,558 --> 00:25:53,038
+What was the date of that?
+
+506
+00:25:53,038 --> 00:25:54,798
+In April of 2017.
+
+507
+00:25:54,798 --> 00:25:57,798
+So they had been paying all the way
+
+508
+00:25:57,798 --> 00:26:02,159
+through January, February, March, and April, 2017.
+
+509
+00:26:02,159 --> 00:26:03,440
+Yes, and the accounting shows that.
+
+510
+00:26:04,239 --> 00:26:05,079
+They paid every payment.
+
+511
+00:26:05,079 --> 00:26:06,000
+Mr. Levine is saying, well,
+
+512
+00:26:06,000 --> 00:26:10,558
+the reason the claimed default is January
+
+513
+00:26:10,558 --> 00:26:14,239
+is because I'm not really sure
+
+514
+00:26:14,239 --> 00:26:16,440
+because the money was already with the bank,
+
+515
+00:26:16,440 --> 00:26:18,918
+but it seems that the argument is,
+
+516
+00:26:18,918 --> 00:26:23,918
+well, the money was applied to 2015 or 16, whatever it was.
+
+517
+00:26:24,200 --> 00:26:26,119
+I think Judge Gard got it right.
+
+518
+00:26:26,119 --> 00:26:27,719
+It slides back, right?
+
+519
+00:26:27,719 --> 00:26:29,119
+So they get a payment,
+
+520
+00:26:29,119 --> 00:26:30,519
+whatever payment you're making,
+
+521
+00:26:30,519 --> 00:26:32,759
+they're applying it to the last payment.
+
+522
+00:26:33,119 --> 00:26:36,880
+So if they didn't count those four payments in 2015,
+
+523
+00:26:36,880 --> 00:26:39,279
+every single payment after that would be four months time.
+
+524
+00:26:39,279 --> 00:26:40,358
+But the bank actually had the money
+
+525
+00:26:40,358 --> 00:26:41,279
+for those four payments.
+
+526
+00:26:41,279 --> 00:26:42,119
+That's correct.
+
+527
+00:26:42,119 --> 00:26:44,519
+So there was no reason to slide back.
+
+528
+00:26:44,519 --> 00:26:45,599
+That's right.
+
+529
+00:26:45,599 --> 00:26:47,479
+And so when...
+
+530
+00:26:47,479 --> 00:26:49,918
+So the notice of default saying you're in default
+
+531
+00:26:49,918 --> 00:26:52,519
+for January, 2017,
+
+532
+00:26:52,519 --> 00:26:55,479
+that based on the evidence that seems to be in the record,
+
+533
+00:26:55,479 --> 00:26:59,239
+that was an incorrect assertion of a default
+
+534
+00:26:59,239 --> 00:27:00,719
+as to those dates.
+
+535
+00:27:00,719 --> 00:27:01,558
+That's correct.
+
+536
+00:27:02,279 --> 00:27:05,320
+Then we fast forward to May
+
+537
+00:27:05,320 --> 00:27:08,079
+and there's a tender, it is rejected.
+
+538
+00:27:08,079 --> 00:27:10,759
+And then your clients don't make any more payments.
+
+539
+00:27:10,759 --> 00:27:13,558
+Am I recalling, and I know I said this in my questioning,
+
+540
+00:27:13,558 --> 00:27:16,479
+am I recalling correctly that your client said,
+
+541
+00:27:16,479 --> 00:27:20,320
+I did try to make payment after that one was rejected?
+
+542
+00:27:20,320 --> 00:27:21,159
+Right.
+
+543
+00:27:21,159 --> 00:27:23,119
+That's when they went physically visited the bank.
+
+544
+00:27:23,119 --> 00:27:24,440
+And Mr. Levine's pointing out,
+
+545
+00:27:24,440 --> 00:27:26,880
+well, that's not so clear because then she says,
+
+546
+00:27:26,880 --> 00:27:29,079
+well, I didn't make any more payments,
+
+547
+00:27:29,079 --> 00:27:34,079
+but that didn't seem to contradict her saying I tried.
+
+548
+00:27:34,719 --> 00:27:35,558
+Right.
+
+549
+00:27:35,558 --> 00:27:37,079
+She attempted two different times
+
+550
+00:27:37,079 --> 00:27:38,639
+to go to the bank physically saying,
+
+551
+00:27:38,639 --> 00:27:39,719
+here, I want your payment.
+
+552
+00:27:39,719 --> 00:27:40,679
+And they would say, no.
+
+553
+00:27:40,679 --> 00:27:42,599
+Since I'm the slowest kid in the class,
+
+554
+00:27:42,599 --> 00:27:44,918
+I'm gonna continue asking questions.
+
+555
+00:27:44,918 --> 00:27:47,798
+And much of the chagrin of all included here,
+
+556
+00:27:47,798 --> 00:27:52,798
+but so why do we keep calling the May payment a tender
+
+557
+00:27:53,900 --> 00:27:58,519
+if the contention is she was just paying regularly?
+
+558
+00:28:00,079 --> 00:28:01,798
+Because the bank called it.
+
+559
+00:28:01,798 --> 00:28:04,358
+The contention by the defendants
+
+560
+00:28:04,358 --> 00:28:08,719
+are that they paid January, February, March, April, and May.
+
+561
+00:28:08,719 --> 00:28:09,798
+Yes.
+
+562
+00:28:09,798 --> 00:28:13,380
+But May, we're characterizing that as a tender.
+
+563
+00:28:13,380 --> 00:28:14,219
+Why?
+
+564
+00:28:14,219 --> 00:28:17,519
+Only because the bank said that they were behind that one.
+
+565
+00:28:17,519 --> 00:28:22,519
+So what happened to January, February, March, April payments?
+
+566
+00:28:23,519 --> 00:28:25,000
+They're paid and accepted.
+
+567
+00:28:25,000 --> 00:28:25,918
+Okay.
+
+568
+00:28:26,320 --> 00:28:31,320
+And the May payment was first accepted by, it was set.
+
+569
+00:28:31,599 --> 00:28:32,440
+It was accepted.
+
+570
+00:28:32,440 --> 00:28:34,239
+I'm assuming it was cashed.
+
+571
+00:28:34,239 --> 00:28:37,000
+And then a check was issued by the bank saying,
+
+572
+00:28:37,000 --> 00:28:38,400
+no, this isn't enough.
+
+573
+00:28:38,400 --> 00:28:39,239
+Correct.
+
+574
+00:28:39,239 --> 00:28:41,840
+So the tender then, what I'm talking about is
+
+575
+00:28:41,840 --> 00:28:43,719
+she then went testified.
+
+576
+00:28:43,719 --> 00:28:45,320
+I went to the bank a couple of times
+
+577
+00:28:45,320 --> 00:28:47,858
+and tried to get them to take that money.
+
+578
+00:28:47,858 --> 00:28:48,960
+Correct.
+
+579
+00:28:48,960 --> 00:28:50,918
+And then that has implications too
+
+580
+00:28:50,918 --> 00:28:53,200
+on the acceleration notice
+
+581
+00:28:53,200 --> 00:28:55,599
+because part of the contract does say
+
+582
+00:28:56,279 --> 00:28:58,719
+that you have to accurately tell how much you're behind.
+
+583
+00:28:58,719 --> 00:29:00,918
+And so you can compare two, right?
+
+584
+00:29:00,918 --> 00:29:04,599
+In April of 2017, or in May of 2017,
+
+585
+00:29:04,599 --> 00:29:06,460
+when they sent that acceleration notice,
+
+586
+00:29:06,460 --> 00:29:08,639
+they said you're four payments behind.
+
+587
+00:29:08,639 --> 00:29:09,479
+Okay.
+
+588
+00:29:09,479 --> 00:29:12,719
+Now fast forward a few years later on the-
+
+589
+00:29:12,719 --> 00:29:15,639
+They're four payments behind, but they have the money.
+
+590
+00:29:15,639 --> 00:29:16,479
+The bank has the money.
+
+591
+00:29:16,479 --> 00:29:17,298
+Yeah, they have the money.
+
+592
+00:29:17,298 --> 00:29:20,380
+But then in November, 2020, after years of all this,
+
+593
+00:29:20,380 --> 00:29:22,159
+they send the exact same date.
+
+594
+00:29:22,159 --> 00:29:23,279
+You're behind from that date,
+
+595
+00:29:23,279 --> 00:29:25,960
+which means they still are not counting those four payments
+
+596
+00:29:25,960 --> 00:29:27,960
+and every other subsequent payment.
+
+597
+00:29:27,960 --> 00:29:28,798
+So it's still incorrect.
+
+598
+00:29:28,798 --> 00:29:31,200
+When you say the exact same date, you mean January, 2017?
+
+599
+00:29:31,200 --> 00:29:32,038
+Say that again?
+
+600
+00:29:32,038 --> 00:29:32,880
+When you say the exact same date.
+
+601
+00:29:32,880 --> 00:29:34,519
+Yes, January 17th.
+
+602
+00:29:34,519 --> 00:29:37,479
+So they're still focusing the acceleration letter
+
+603
+00:29:37,479 --> 00:29:38,960
+or the notice of default,
+
+604
+00:29:38,960 --> 00:29:41,679
+all have the incorrect date of default.
+
+605
+00:29:41,679 --> 00:29:45,119
+The amount is incorrect, but see, they're relying-
+
+606
+00:29:45,119 --> 00:29:47,679
+Here's a problem that I think you need to address.
+
+607
+00:29:47,679 --> 00:29:51,639
+So the bank's notice letter says January, 2017
+
+608
+00:29:51,639 --> 00:29:53,798
+and all subsequent payments.
+
+609
+00:29:53,798 --> 00:29:58,798
+Isn't that a defense not to the right to foreclose,
+
+610
+00:29:58,960 --> 00:30:00,159
+but as to the amount-
+
+611
+00:30:00,159 --> 00:30:04,959
+that's due and owing, because we know she didn't make payments
+
+612
+00:30:04,959 --> 00:30:08,359
+after May of 2017.
+
+613
+00:30:08,359 --> 00:30:09,999
+And that one was rejected.
+
+614
+00:30:09,999 --> 00:30:12,159
+Rightly or wrongly, it was rejected.
+
+615
+00:30:12,159 --> 00:30:16,839
+But she doesn't make June, July, August.
+
+616
+00:30:16,839 --> 00:30:18,339
+And I think your position is, well,
+
+617
+00:30:18,339 --> 00:30:20,718
+they've already said they're not taking any more payments
+
+618
+00:30:20,718 --> 00:30:23,319
+because she owes all this other money.
+
+619
+00:30:23,319 --> 00:30:26,639
+But isn't that a defense as to the amount owed as opposed
+
+620
+00:30:26,639 --> 00:30:31,759
+to thwarting or dismissing the foreclosure action?
+
+621
+00:30:31,759 --> 00:30:36,918
+No, I think that would be where, in equity,
+
+622
+00:30:36,918 --> 00:30:39,239
+they shouldn't have the right to foreclose.
+
+623
+00:30:39,239 --> 00:30:43,319
+If they're rejecting payments and miscalculating
+
+624
+00:30:43,319 --> 00:30:46,319
+the accounting, then they should be limited
+
+625
+00:30:46,319 --> 00:30:47,719
+as to what their remedies are.
+
+626
+00:30:47,719 --> 00:30:50,639
+So any time there's an accounting issue or accounting
+
+627
+00:30:50,639 --> 00:30:55,438
+problem, a court shouldn't allow a foreclosure to happen.
+
+628
+00:30:55,438 --> 00:31:01,359
+It should allow 3, 4, 5, 6, 7, 8, 9 years of non-payment?
+
+629
+00:31:01,359 --> 00:31:03,999
+No, it's not.
+
+630
+00:31:03,999 --> 00:31:05,959
+Because this is what this boils down to, right?
+
+631
+00:31:05,959 --> 00:31:07,758
+This was an accounting issue.
+
+632
+00:31:07,758 --> 00:31:08,358
+Yes.
+
+633
+00:31:08,358 --> 00:31:11,599
+And I'm not saying right or wrong,
+
+634
+00:31:11,599 --> 00:31:13,919
+but there was an accounting issue.
+
+635
+00:31:13,919 --> 00:31:16,599
+And then, because there was this accounting issue,
+
+636
+00:31:16,599 --> 00:31:18,178
+your client stopped paying.
+
+637
+00:31:18,178 --> 00:31:22,358
+Now, maybe the bank should have taken action more quickly,
+
+638
+00:31:22,358 --> 00:31:23,358
+and they didn't.
+
+639
+00:31:23,358 --> 00:31:26,239
+But that's where we are.
+
+640
+00:31:26,239 --> 00:31:28,959
+But why should a foreclosure be stopped
+
+641
+00:31:28,959 --> 00:31:30,639
+when there's years of non-payment
+
+642
+00:31:30,639 --> 00:31:35,038
+over this four payments accounting issue?
+
+643
+00:31:35,038 --> 00:31:41,239
+Because you have to weigh what the position both
+
+644
+00:31:41,239 --> 00:31:43,758
+of these parties are in, right?
+
+645
+00:31:43,758 --> 00:31:47,639
+So if the bank makes a mistake and then forecloses.
+
+646
+00:31:47,639 --> 00:31:50,278
+But your client signed a contract
+
+647
+00:31:50,278 --> 00:31:54,038
+saying she would make monthly payments.
+
+648
+00:31:54,038 --> 00:32:01,038
+And in effect, you're saying we should forgive that obligation.
+
+649
+00:32:01,038 --> 00:32:02,398
+No, not at all.
+
+650
+00:32:02,398 --> 00:32:04,959
+No one's here saying the debt isn't owed.
+
+651
+00:32:04,959 --> 00:32:06,599
+The bank will get their money.
+
+652
+00:32:06,599 --> 00:32:08,998
+It's just when will they get their money, right?
+
+653
+00:32:08,998 --> 00:32:11,798
+Do they get it immediately now we're foreclosing?
+
+654
+00:32:11,798 --> 00:32:14,599
+Or do they fix the client's credit
+
+655
+00:32:14,599 --> 00:32:17,239
+because they've been reporting negative for nine years?
+
+656
+00:32:17,239 --> 00:32:20,039
+So to allow them the opportunity to refinance.
+
+657
+00:32:20,039 --> 00:32:21,278
+Why would they get their money?
+
+658
+00:32:21,278 --> 00:32:23,918
+Why are you so sure they'll get their money?
+
+659
+00:32:23,918 --> 00:32:27,679
+The order said that they didn't prove breach.
+
+660
+00:32:27,679 --> 00:32:30,638
+No, no, like the total amount.
+
+661
+00:32:30,638 --> 00:32:31,679
+They didn't prove breach.
+
+662
+00:32:35,039 --> 00:32:39,599
+Right, but what I'm saying is that they didn't.
+
+663
+00:32:39,599 --> 00:32:41,119
+Not letting them foreclose is not
+
+664
+00:32:41,119 --> 00:32:44,039
+the same as the bank won't get their money.
+
+665
+00:32:44,718 --> 00:32:47,718
+If tomorrow the Fernandez's sell,
+
+666
+00:32:47,718 --> 00:32:49,239
+the bank will get their money.
+
+667
+00:32:49,239 --> 00:32:51,599
+If the Fernandez's went and refinanced,
+
+668
+00:32:51,599 --> 00:32:54,599
+if their credit was good enough, but not because of the bank,
+
+669
+00:32:54,599 --> 00:32:56,239
+then they could get their money.
+
+670
+00:32:56,239 --> 00:32:58,198
+There are a lot of options for the Fernandez's,
+
+671
+00:32:58,198 --> 00:33:00,479
+if not for the fact that the bank has been repeatedly
+
+672
+00:33:00,479 --> 00:33:03,838
+telling everybody that they're behind for nine years,
+
+673
+00:33:03,838 --> 00:33:06,159
+based on the things that they're wrongful accounting.
+
+674
+00:33:06,159 --> 00:33:08,959
+But they are behind for nine years.
+
+675
+00:33:08,959 --> 00:33:11,679
+They're just the distinction is whether there's
+
+676
+00:33:11,679 --> 00:33:13,879
+four months of payments, right?
+
+677
+00:33:14,519 --> 00:33:15,438
+And so, yeah.
+
+678
+00:33:15,438 --> 00:33:18,078
+So it's not that the bank's been wrongfully reporting them
+
+679
+00:33:18,078 --> 00:33:21,239
+behind, right?
+
+680
+00:33:21,239 --> 00:33:23,399
+They are actually behind.
+
+681
+00:33:23,399 --> 00:33:25,358
+But they wouldn't be if.
+
+682
+00:33:25,358 --> 00:33:31,638
+So you have a pattern of when this loan was taken out
+
+683
+00:33:31,638 --> 00:33:33,918
+of payments continuously.
+
+684
+00:33:33,918 --> 00:33:35,959
+That changes only when the bank says we don't
+
+685
+00:33:35,959 --> 00:33:37,198
+take your payments anymore.
+
+686
+00:33:37,198 --> 00:33:40,278
+OK, I was about to ask a question about that.
+
+687
+00:33:40,278 --> 00:33:41,879
+What evidence in the record is there
+
+688
+00:33:41,879 --> 00:33:44,319
+that the bank communicated that we wouldn't
+
+689
+00:33:44,319 --> 00:33:46,479
+take your payments anymore?
+
+690
+00:33:46,479 --> 00:33:49,159
+The rejection of the renewed?
+
+691
+00:33:49,159 --> 00:33:50,599
+I don't expect you to know, but I'm
+
+692
+00:33:50,599 --> 00:33:52,438
+trying to find out myself while we talk.
+
+693
+00:33:52,438 --> 00:33:56,399
+Where in the record is that actual May 2017 rejection
+
+694
+00:33:56,399 --> 00:33:57,319
+letter?
+
+695
+00:33:57,319 --> 00:34:00,998
+I have my May 11, 2017, Exhibit 7 to some documenter.
+
+696
+00:34:00,998 --> 00:34:03,578
+We are returning these funds to you for the following reasons.
+
+697
+00:34:03,578 --> 00:34:06,159
+Funds are less than total amount due.
+
+698
+00:34:06,159 --> 00:34:10,637
+OK, so from that, you're saying that an unsophisticated
+
+699
+00:34:10,637 --> 00:34:14,278
+mortgagor will think they will never
+
+700
+00:34:14,278 --> 00:34:17,838
+accept another mortgage payment here until kingdom come?
+
+701
+00:34:17,838 --> 00:34:19,278
+No, there is another document.
+
+702
+00:34:19,278 --> 00:34:22,278
+And it is the letter that came along with that,
+
+703
+00:34:22,278 --> 00:34:24,998
+I think maybe submitted right before or right after,
+
+704
+00:34:24,998 --> 00:34:27,639
+from the attorneys of the bank saying,
+
+705
+00:34:27,639 --> 00:34:29,599
+we understand you tendered this payment.
+
+706
+00:34:29,599 --> 00:34:31,039
+But it is insufficient because you
+
+707
+00:34:31,039 --> 00:34:32,557
+are behind four more payments.
+
+708
+00:34:32,557 --> 00:34:36,159
+And you can only catch up if you pay all four.
+
+709
+00:34:36,159 --> 00:34:38,599
+OK, so I don't have that in front of me.
+
+710
+00:34:38,639 --> 00:34:40,838
+But let's presume for the sake of discussion
+
+711
+00:34:40,838 --> 00:34:42,918
+that you accurately characterized the record,
+
+712
+00:34:42,918 --> 00:34:45,918
+which I only presume you would.
+
+713
+00:34:45,918 --> 00:34:50,238
+So from that, that juncture in time,
+
+714
+00:34:50,238 --> 00:34:52,557
+everybody's in a standoff.
+
+715
+00:34:52,557 --> 00:34:58,238
+And you're saying that the mortgagors
+
+716
+00:34:58,238 --> 00:35:01,039
+are entitled to do nothing?
+
+717
+00:35:01,039 --> 00:35:02,199
+No, they didn't.
+
+718
+00:35:02,199 --> 00:35:05,117
+And then years later, having done nothing
+
+719
+00:35:05,117 --> 00:35:08,918
+for multiple years, a circuit court judge
+
+720
+00:35:08,918 --> 00:35:12,318
+is correct to say that the plaintiff has not
+
+721
+00:35:12,318 --> 00:35:18,318
+proved a breach of the contract by the, at all, no breach?
+
+722
+00:35:18,318 --> 00:35:21,557
+But you're skipping the part where the bank forecloses
+
+723
+00:35:21,557 --> 00:35:24,278
+and then admits that they're the ones who made the mistake
+
+724
+00:35:24,278 --> 00:35:24,958
+and dismiss the foreclosure.
+
+725
+00:35:24,958 --> 00:35:25,318
+Why?
+
+726
+00:35:25,318 --> 00:35:26,358
+What does that have to do with anything?
+
+727
+00:35:26,358 --> 00:35:27,358
+They dismissed the case.
+
+728
+00:35:27,358 --> 00:35:28,998
+It's history.
+
+729
+00:35:28,998 --> 00:35:31,639
+Right, so if they made the mistake,
+
+730
+00:35:31,639 --> 00:35:33,639
+if they're the reason why all of this happened,
+
+731
+00:35:33,639 --> 00:35:34,998
+they could have accepted payment.
+
+732
+00:35:34,998 --> 00:35:36,238
+They could have accepted that May payment.
+
+733
+00:35:36,238 --> 00:35:38,718
+I mean, the blame is being put on the homeowners for saying,
+
+734
+00:35:38,718 --> 00:35:40,318
+why don't you make all these payments?
+
+735
+00:35:40,318 --> 00:35:42,159
+But the bank's not being looked at for,
+
+736
+00:35:42,159 --> 00:35:44,159
+why didn't they just keep making payments?
+
+737
+00:35:44,159 --> 00:35:45,718
+And then investigate the four payments
+
+738
+00:35:45,718 --> 00:35:48,159
+to verify if that's the issue.
+
+739
+00:35:48,159 --> 00:35:50,557
+The bank's letter or the lawyer's letter
+
+740
+00:35:50,557 --> 00:35:54,039
+says, you owe four more months.
+
+741
+00:35:54,039 --> 00:35:56,759
+And therefore, we're not accepting your payment
+
+742
+00:35:56,759 --> 00:35:58,318
+because you owe that.
+
+743
+00:35:58,318 --> 00:36:01,358
+And then your client's position is, we paid it.
+
+744
+00:36:01,358 --> 00:36:02,798
+The bank has the money.
+
+745
+00:36:02,878 --> 00:36:05,518
+And ultimately, that was established at trial
+
+746
+00:36:05,518 --> 00:36:07,159
+based on the documents.
+
+747
+00:36:07,159 --> 00:36:08,599
+And then am I recalling correctly
+
+748
+00:36:08,599 --> 00:36:13,998
+that the bank's witness still wasn't certain whether or not
+
+749
+00:36:13,998 --> 00:36:17,117
+the bank, I'm not sure that this was addressed,
+
+750
+00:36:17,117 --> 00:36:19,358
+was the witness, did the witness acknowledge
+
+751
+00:36:19,358 --> 00:36:21,718
+that the bank had the money?
+
+752
+00:36:21,718 --> 00:36:22,798
+No, I don't think they had.
+
+753
+00:36:22,798 --> 00:36:23,438
+It didn't come out.
+
+754
+00:36:23,438 --> 00:36:24,518
+I don't think it came out.
+
+755
+00:36:24,518 --> 00:36:25,918
+Right, it came out.
+
+756
+00:36:25,918 --> 00:36:29,039
+But the witness was uncertain as to why
+
+757
+00:36:29,039 --> 00:36:31,479
+the reversal had occurred.
+
+758
+00:36:31,479 --> 00:36:31,958
+Right.
+
+759
+00:36:31,958 --> 00:36:33,557
+And then your client's established,
+
+760
+00:36:33,557 --> 00:36:35,238
+but they have the money.
+
+761
+00:36:35,238 --> 00:36:35,759
+Right.
+
+762
+00:36:35,759 --> 00:36:38,479
+And so at the time, the bank's lawyers
+
+763
+00:36:38,479 --> 00:36:41,159
+say, we're not accepting payment because you
+
+764
+00:36:41,159 --> 00:36:44,639
+owe this extra money.
+
+765
+00:36:44,639 --> 00:36:46,159
+Your clients, based on the evidence,
+
+766
+00:36:46,159 --> 00:36:48,639
+didn't owe that extra money.
+
+767
+00:36:48,639 --> 00:36:49,438
+Exactly.
+
+768
+00:36:49,438 --> 00:36:52,079
+And so let's, and I don't want to cut off
+
+769
+00:36:52,079 --> 00:36:54,079
+either Judge Atkinson or Judge Gard if they have
+
+770
+00:36:54,079 --> 00:36:55,039
+more questions on this.
+
+771
+00:36:55,039 --> 00:36:56,878
+But I'd like you to address what I think
+
+772
+00:36:56,878 --> 00:36:59,117
+is another important issue, which is failure
+
+773
+00:36:59,117 --> 00:37:01,117
+to tender the money to the registry of the court.
+
+774
+00:37:05,557 --> 00:37:10,159
+Well, so yes, they didn't tender to the court.
+
+775
+00:37:10,159 --> 00:37:13,358
+And quite frankly, I'm not aware of anyone
+
+776
+00:37:13,358 --> 00:37:15,557
+who would know that as a reason.
+
+777
+00:37:15,557 --> 00:37:17,398
+I don't think you can use that as an excuse.
+
+778
+00:37:17,398 --> 00:37:19,438
+They're represented by counsel.
+
+779
+00:37:19,438 --> 00:37:20,438
+Sure.
+
+780
+00:37:20,438 --> 00:37:22,599
+And I understand you may be following on your sword
+
+781
+00:37:22,599 --> 00:37:25,039
+that, shoot, I didn't know that.
+
+782
+00:37:25,039 --> 00:37:26,718
+But, and maybe you did, maybe you didn't.
+
+783
+00:37:26,718 --> 00:37:29,358
+But that seems to be where you're heading is,
+
+784
+00:37:29,358 --> 00:37:31,398
+we messed up on that part of it.
+
+785
+00:37:31,398 --> 00:37:33,998
+So does that then mean the bank's
+
+786
+00:37:33,998 --> 00:37:37,998
+entitled to a reversal because there was a failure to tender?
+
+787
+00:37:37,998 --> 00:37:43,039
+Well, the advice was, or what you see in the testimony
+
+788
+00:37:43,039 --> 00:37:46,958
+is the homeowner saying, we saved up money.
+
+789
+00:37:46,958 --> 00:37:47,998
+We are saving up money.
+
+790
+00:37:47,998 --> 00:37:51,918
+Now, they even claimed it was $20,000.
+
+791
+00:37:51,918 --> 00:37:55,599
+The bank is arguing that that was,
+
+792
+00:37:55,599 --> 00:37:59,159
+according to the November 2020, when they started the second.
+
+793
+00:37:59,159 --> 00:38:00,798
+But that's not accurate.
+
+794
+00:38:00,798 --> 00:38:05,199
+That $20,000 is after the first foreclosure.
+
+795
+00:38:05,199 --> 00:38:06,518
+She had $20,000.
+
+796
+00:38:06,518 --> 00:38:10,079
+She saved up all this money, but nowhere to put it.
+
+797
+00:38:10,079 --> 00:38:12,438
+So she had acted in that way.
+
+798
+00:38:12,438 --> 00:38:15,878
+But then again, that's where life gets into the situation
+
+799
+00:38:15,878 --> 00:38:18,557
+where, how do you hold on to that money
+
+800
+00:38:18,557 --> 00:38:22,398
+if you have no credit, if the bank is telling you
+
+801
+00:38:22,398 --> 00:38:24,479
+for the entire amount of the first foreclosure?
+
+802
+00:38:24,557 --> 00:38:29,199
+How much of this is explained in the record as far as no credit,
+
+803
+00:38:29,199 --> 00:38:30,718
+I had to spend it, and so forth?
+
+804
+00:38:30,718 --> 00:38:31,918
+Was that addressed in trial?
+
+805
+00:38:31,918 --> 00:38:32,559
+Yes, it was.
+
+806
+00:38:32,559 --> 00:38:34,798
+And she testified to that.
+
+807
+00:38:34,798 --> 00:38:42,119
+And as far as the proof at trial for foreclosure,
+
+808
+00:38:42,119 --> 00:38:49,599
+was the bank asking for the total amount
+
+809
+00:38:49,599 --> 00:38:52,398
+after applying the four payments that were rejected,
+
+810
+00:38:52,398 --> 00:38:54,239
+or was that still uncertain?
+
+811
+00:38:55,239 --> 00:38:57,918
+They still argued that those four payments were missed.
+
+812
+00:38:57,918 --> 00:39:00,798
+So they were presenting evidence that you owe,
+
+813
+00:39:00,798 --> 00:39:03,838
+I don't remember what the number, $50-some-thousand.
+
+814
+00:39:03,838 --> 00:39:06,838
+And your client's position is, I don't
+
+815
+00:39:06,838 --> 00:39:08,679
+know that this was articulated to the court,
+
+816
+00:39:08,679 --> 00:39:11,439
+but my understanding correctly, we
+
+817
+00:39:11,439 --> 00:39:13,999
+know we haven't paid all the mortgage,
+
+818
+00:39:13,999 --> 00:39:17,077
+but they're still not crediting us
+
+819
+00:39:17,077 --> 00:39:19,838
+with those four payments for which they have the money.
+
+820
+00:39:19,838 --> 00:39:20,679
+Correct.
+
+821
+00:39:20,679 --> 00:39:23,278
+And I would like to highlight the difference
+
+822
+00:39:23,318 --> 00:39:25,599
+in the first foreclosure and the second foreclosure,
+
+823
+00:39:25,599 --> 00:39:28,439
+everything is exactly the same except more time.
+
+824
+00:39:28,439 --> 00:39:32,798
+So if in the first foreclosure, if we could retroactively,
+
+825
+00:39:32,798 --> 00:39:34,559
+if we know that those payments were made,
+
+826
+00:39:34,559 --> 00:39:37,518
+the first foreclosure was rightfully dismissed,
+
+827
+00:39:37,518 --> 00:39:39,278
+and it was wrong in the amount that they
+
+828
+00:39:39,278 --> 00:39:40,918
+were trying to collect, and anyone
+
+829
+00:39:40,918 --> 00:39:43,518
+would have said that the acceleration letter and all
+
+830
+00:39:43,518 --> 00:39:45,798
+of that was incorrect because of those four payments.
+
+831
+00:39:45,798 --> 00:39:47,278
+Your position seems to be, the bank
+
+832
+00:39:47,278 --> 00:39:48,999
+should have sorted this out before they
+
+833
+00:39:48,999 --> 00:39:50,398
+started the second foreclosure.
+
+834
+00:39:50,398 --> 00:39:51,119
+Correct.
+
+835
+00:39:51,119 --> 00:39:53,077
+That's what it comes down to.
+
+836
+00:39:53,077 --> 00:39:55,198
+I've let you go over, I don't want
+
+837
+00:39:55,198 --> 00:39:57,637
+to not let Judge Atkinson or Judge Gard
+
+838
+00:39:57,637 --> 00:39:59,398
+ask any additional questions.
+
+839
+00:39:59,398 --> 00:40:00,239
+I do have a question.
+
+840
+00:40:00,239 --> 00:40:04,159
+So you're contending that the record is ironclad clear
+
+841
+00:40:04,159 --> 00:40:09,637
+that the bank has the money for the 2015 payments?
+
+842
+00:40:09,637 --> 00:40:10,518
+Yes.
+
+843
+00:40:10,518 --> 00:40:11,018
+Where?
+
+844
+00:40:11,018 --> 00:40:12,637
+What supports that in the record?
+
+845
+00:40:12,637 --> 00:40:14,077
+Their own accounting.
+
+846
+00:40:14,077 --> 00:40:16,318
+Because the money gets in, right?
+
+847
+00:40:16,318 --> 00:40:19,318
+But we just talked about, you just talked to Judge Silberman,
+
+848
+00:40:19,318 --> 00:40:22,559
+and you conceded that they didn't concede that, correct?
+
+849
+00:40:22,559 --> 00:40:24,918
+Yes, that they didn't concede that, but.
+
+850
+00:40:24,918 --> 00:40:26,798
+They don't concede that the record establishes
+
+851
+00:40:26,798 --> 00:40:28,918
+that they have the money?
+
+852
+00:40:28,918 --> 00:40:29,758
+I believe that.
+
+853
+00:40:29,758 --> 00:40:30,439
+OK.
+
+854
+00:40:30,439 --> 00:40:32,039
+Yes, I believe that would be the case.
+
+855
+00:40:32,039 --> 00:40:34,679
+Go on, but the counsel has an opportunity to respond now.
+
+856
+00:40:34,679 --> 00:40:35,318
+Yeah.
+
+857
+00:40:35,318 --> 00:40:39,637
+Mr. Greenlee, though, their witness is so unambiguous,
+
+858
+00:40:39,637 --> 00:40:40,518
+he doesn't know.
+
+859
+00:40:40,518 --> 00:40:42,159
+And he even testified when it comes
+
+860
+00:40:42,159 --> 00:40:45,398
+when he was pressured and asked about the NSF, right?
+
+861
+00:40:45,398 --> 00:40:46,398
+So let me ask you this.
+
+862
+00:40:46,398 --> 00:40:49,999
+So if we look at this record, how do we review that?
+
+863
+00:40:49,999 --> 00:40:52,159
+There is essentially, you're going
+
+864
+00:40:52,398 --> 00:40:54,599
+to tell me whatever evidence shows in their records
+
+865
+00:40:54,599 --> 00:40:56,999
+that the bank has the money.
+
+866
+00:40:56,999 --> 00:41:00,359
+The bank contends that the borrower has the money.
+
+867
+00:41:00,359 --> 00:41:02,439
+And then that leads to the conclusion
+
+868
+00:41:02,439 --> 00:41:05,318
+there's been no breach?
+
+869
+00:41:05,318 --> 00:41:06,758
+As a matter of law?
+
+870
+00:41:06,758 --> 00:41:09,398
+Well, I think that the trial court found
+
+871
+00:41:09,398 --> 00:41:11,119
+that the payments were there.
+
+872
+00:41:11,119 --> 00:41:14,679
+That the bank failed to meet their permission.
+
+873
+00:41:14,679 --> 00:41:16,278
+What was the order?
+
+874
+00:41:16,278 --> 00:41:16,918
+Let's see here.
+
+875
+00:41:16,958 --> 00:41:21,798
+Order on final?
+
+876
+00:41:21,798 --> 00:41:22,479
+OK.
+
+877
+00:41:22,479 --> 00:41:24,398
+So this is like post-trial.
+
+878
+00:41:24,398 --> 00:41:26,518
+This is, OK.
+
+879
+00:41:26,518 --> 00:41:31,439
+So the court finds in paragraph four
+
+880
+00:41:31,439 --> 00:41:33,918
+that Ms. Fernandez was credible in her testimony
+
+881
+00:41:33,918 --> 00:41:37,717
+as to the payments she made on a monthly basis from January
+
+882
+00:41:37,717 --> 00:41:40,918
+2015 and April 2017.
+
+883
+00:41:40,958 --> 00:41:43,958
+The January 2015, that's the start
+
+884
+00:41:43,958 --> 00:41:47,159
+of the four uncertain payments?
+
+885
+00:41:47,159 --> 00:41:48,198
+No, it was August.
+
+886
+00:41:48,198 --> 00:41:49,999
+But we wanted to cover as much as possible.
+
+887
+00:41:49,999 --> 00:41:50,878
+August of which year?
+
+888
+00:41:50,878 --> 00:41:51,798
+Of 2015.
+
+889
+00:41:51,798 --> 00:41:52,679
+OK.
+
+890
+00:41:52,679 --> 00:41:58,518
+So the judge's finding is that she finds Ms. Fernandez
+
+891
+00:41:58,518 --> 00:42:01,878
+credible that she made the monthly payments from January
+
+892
+00:42:01,878 --> 00:42:08,318
+2015 until April 2017, which covers the August, the four
+
+893
+00:42:08,318 --> 00:42:10,039
+that are in question.
+
+894
+00:42:10,039 --> 00:42:12,318
+Can we review that for, what's our standard of view
+
+895
+00:42:12,318 --> 00:42:14,119
+for that then?
+
+896
+00:42:14,119 --> 00:42:15,359
+That if you're.
+
+897
+00:42:15,359 --> 00:42:17,318
+Well, there was no, there was no.
+
+898
+00:42:17,318 --> 00:42:19,479
+Never mind, I got it.
+
+899
+00:42:19,479 --> 00:42:21,077
+But it is in the accounting.
+
+900
+00:42:21,077 --> 00:42:22,758
+It's backed up by their own accounting.
+
+901
+00:42:22,758 --> 00:42:23,758
+It says payments came in.
+
+902
+00:42:23,758 --> 00:42:26,039
+So that's a factual issue for which we owe deference
+
+903
+00:42:26,039 --> 00:42:27,479
+to the trial court is what you're going to say.
+
+904
+00:42:27,479 --> 00:42:28,979
+And I know you're aware of the time.
+
+905
+00:42:28,979 --> 00:42:31,918
+So I don't want to step on the presiding judge's toes
+
+906
+00:42:31,918 --> 00:42:34,637
+as he tries to manage his courtroom.
+
+907
+00:42:34,637 --> 00:42:35,159
+Very good.
+
+908
+00:42:35,159 --> 00:42:37,637
+Well, we've let you go over by five minutes.
+
+909
+00:42:37,637 --> 00:42:40,278
+So we will turn it back to Mr. Levine.
+
+910
+00:42:40,278 --> 00:42:42,717
+And if you need a minute or two extra, Mr. Levine,
+
+911
+00:42:42,717 --> 00:42:44,758
+I won't cut you off.
+
+912
+00:42:44,758 --> 00:42:47,458
+I would like you, though, to address this very last thing
+
+913
+00:42:47,458 --> 00:42:52,119
+first, which is, does the bank have the money
+
+914
+00:42:52,119 --> 00:42:53,318
+for those four payments?
+
+915
+00:42:53,318 --> 00:42:54,099
+I don't know.
+
+916
+00:42:54,099 --> 00:42:55,918
+Is there any evidence that the money
+
+917
+00:42:55,918 --> 00:42:58,439
+was returned to the borrowers?
+
+918
+00:42:58,439 --> 00:43:01,198
+The only evidence that I cite the court to
+
+919
+00:43:01,198 --> 00:43:03,119
+is the payment history that shows they were reversed.
+
+920
+00:43:03,119 --> 00:43:04,077
+I'm sorry, speak up.
+
+921
+00:43:04,077 --> 00:43:06,198
+Is the payment history that shows it was reversed.
+
+922
+00:43:06,198 --> 00:43:08,679
+If it was reversed for insufficient funds,
+
+923
+00:43:08,679 --> 00:43:10,239
+like Mr. Greenley said it might be,
+
+924
+00:43:10,239 --> 00:43:11,599
+then there's no money to return.
+
+925
+00:43:11,599 --> 00:43:13,838
+Because we never got the money to begin with.
+
+926
+00:43:13,838 --> 00:43:15,359
+But your witness doesn't know.
+
+927
+00:43:15,359 --> 00:43:16,039
+He doesn't know.
+
+928
+00:43:16,039 --> 00:43:16,999
+I think she did.
+
+929
+00:43:16,999 --> 00:43:20,159
+So what evidence is there that the bank doesn't
+
+930
+00:43:20,159 --> 00:43:23,999
+have the money represented by those four payments from 2015?
+
+931
+00:43:23,999 --> 00:43:26,039
+The only evidence that I said is that the payment
+
+932
+00:43:26,039 --> 00:43:26,918
+shows it was reversed.
+
+933
+00:43:26,918 --> 00:43:29,119
+Usually when payments are reversed, they're sent back.
+
+934
+00:43:29,119 --> 00:43:32,518
+No, we understand usually what may happen, Mr. Levine.
+
+935
+00:43:32,518 --> 00:43:35,318
+But it's your client's burden as a plaintiff
+
+936
+00:43:35,318 --> 00:43:37,679
+to present evidence as to the amount of the default
+
+937
+00:43:37,679 --> 00:43:39,077
+and the basis of the default.
+
+938
+00:43:39,077 --> 00:43:43,039
+So my question is, how did it establish it
+
+939
+00:43:43,039 --> 00:43:44,958
+when the witness says, I really don't know what
+
+940
+00:43:44,958 --> 00:43:46,878
+happened with those four payments?
+
+941
+00:43:46,878 --> 00:43:48,758
+Very easily.
+
+942
+00:43:48,758 --> 00:43:51,679
+Because as I said, with a continuing state of default,
+
+943
+00:43:51,679 --> 00:43:54,119
+even if we give deference to the trial courts
+
+944
+00:43:54,119 --> 00:43:57,077
+that they were not in default as of January 2017,
+
+945
+00:43:57,077 --> 00:44:00,119
+or February 2017, or April, even if we give deference
+
+946
+00:44:00,119 --> 00:44:01,758
+to the trial court for that, they're
+
+947
+00:44:01,758 --> 00:44:04,679
+still in default for June, July, et cetera.
+
+948
+00:44:04,679 --> 00:44:07,318
+Then the acceleration would be invalid, wouldn't it?
+
+949
+00:44:07,318 --> 00:44:08,359
+No, absolutely not.
+
+950
+00:44:08,359 --> 00:44:09,439
+Why not?
+
+951
+00:44:09,439 --> 00:44:12,159
+If the payments, as the judge found,
+
+952
+00:44:12,159 --> 00:44:14,039
+she made the monthly payments in accordance
+
+953
+00:44:14,039 --> 00:44:19,599
+with the note and mortgage from January 2015 until April 2017.
+
+954
+00:44:19,599 --> 00:44:26,198
+The notice of default in 2020 goes back to January of 2017.
+
+955
+00:44:26,198 --> 00:44:29,599
+So that was the basis of the acceleration, right?
+
+956
+00:44:29,599 --> 00:44:31,559
+That was the notice of default, an opportunity
+
+957
+00:44:31,559 --> 00:44:33,119
+to cure a pre-suit, yes.
+
+958
+00:44:33,159 --> 00:44:35,359
+And if the numbers were incorrect,
+
+959
+00:44:35,359 --> 00:44:38,758
+then the notice of acceleration is void or voidable?
+
+960
+00:44:38,758 --> 00:44:39,239
+No.
+
+961
+00:44:39,239 --> 00:44:41,077
+What about the notice of default?
+
+962
+00:44:41,077 --> 00:44:41,918
+Neither.
+
+963
+00:44:41,918 --> 00:44:43,077
+Now, this is if you did both.
+
+964
+00:44:43,077 --> 00:44:45,679
+Why wouldn't the notice of default have been defective?
+
+965
+00:44:45,679 --> 00:44:48,039
+Because a notice of default under paragraph 22
+
+966
+00:44:48,039 --> 00:44:52,798
+of the mortgage needs to simply tell you what the default,
+
+967
+00:44:52,798 --> 00:44:54,958
+you haven't paid, which they haven't,
+
+968
+00:44:54,958 --> 00:44:57,758
+what you need to do to cure the default to pay.
+
+969
+00:44:57,758 --> 00:45:00,518
+OK, so stop there for a moment.
+
+970
+00:45:00,518 --> 00:45:03,637
+The amount that is claimed that you need to cure the default
+
+971
+00:45:04,358 --> 00:45:10,518
+Included an amount representing or represented by those four checks that we've been talking about all morning
+
+972
+00:45:10,998 --> 00:45:15,717
+Right, I believe that amount did include that. Yes, and we don't know if in fact
+
+973
+00:45:16,438 --> 00:45:21,557
+That money was ever rejected or returned in the possession of the borrowers
+
+974
+00:45:22,518 --> 00:45:24,757
+We don't know but it's not relevant and i'll explain why right now
+
+975
+00:45:25,157 --> 00:45:29,077
+There's a case called and this is not brief because it wasn't litigated the the amount
+
+976
+00:45:29,317 --> 00:45:31,077
+The amount of the breach letter is not something that was raised
+
+977
+00:45:31,077 --> 00:45:33,717
+So i'll tell you just my knowledge of this industry doing this for a while
+
+978
+00:45:34,038 --> 00:45:38,518
+There's a case called als versus garvin is out of the fourth dca. I don't have a site for you
+
+979
+00:45:39,077 --> 00:45:41,557
+In that case that exact issue came up
+
+980
+00:45:42,277 --> 00:45:46,918
+The breach letter had the wrong amount the bank in that case the plaintiff admitted and said
+
+981
+00:45:47,476 --> 00:45:49,637
+We admit our number is too high
+
+982
+00:45:49,956 --> 00:45:54,838
+The number in the breach letter is more than the bar actually needed to cure the default the trial court said well
+
+983
+00:45:55,398 --> 00:45:58,998
+If you can't foreclose you have a bad breach letter the fourth dca reversed
+
+984
+00:45:59,637 --> 00:46:01,637
+and it said
+
+985
+00:46:02,117 --> 00:46:04,358
+If you tell them you're in default for not paying
+
+986
+00:46:04,838 --> 00:46:09,797
+And if you tell them to cure the default you have to pay that substantial compliance the breach letter is sufficient
+
+987
+00:46:09,797 --> 00:46:15,077
+So in this case, even assuming that fifty six thousand dollars should have been fifty three instead of fifty six
+
+988
+00:46:15,878 --> 00:46:20,117
+It still told them you're in default for not paying and it still told them what they need to do to cure the default
+
+989
+00:46:20,278 --> 00:46:22,597
+Now, let's say they had tendered the fifty three
+
+990
+00:46:23,077 --> 00:46:27,637
+And not the full 56 because they said no no you we you have those payments
+
+991
+00:46:28,436 --> 00:46:31,237
+A completely different story completely different story after that
+
+992
+00:46:31,717 --> 00:46:38,757
+This ties into your argument that the acceleration nevertheless is proper because there were no payments after may
+
+993
+00:46:39,378 --> 00:46:46,037
+2017 that's correct. Is that I I understand we've been talking a lot today about what happened in 2015 up until may of 17
+
+994
+00:46:46,037 --> 00:46:48,697
+And I I know it's the basis of their default, but ultimately
+
+995
+00:46:49,637 --> 00:46:55,018
+Ultimately, it's not material. Well, but it can be material because the judge says
+
+996
+00:46:55,896 --> 00:47:03,177
+The bank stopped accepting payments and there's testimony saying she tried to pay now we get to the tender issue. So
+
+997
+00:47:04,378 --> 00:47:10,137
+The the trial judge did say payments weren't accepted after may of 2017 and I like to ask you. What does that mean?
+
+998
+00:47:11,177 --> 00:47:12,378
+Well, he's right
+
+999
+00:47:12,378 --> 00:47:15,197
+The trial judge is right. No payments were accepted after may of 2017
+
+1000
+00:47:15,436 --> 00:47:20,637
+Let's finish that let's finish let's finish that sentence and subsequent defendants may
+
+1001
+00:47:21,177 --> 00:47:25,838
+2017 payment was returned by the plaintiff and subsequent attempts to pay
+
+1002
+00:47:26,398 --> 00:47:30,657
+Directly at the service or bank of america were not accepted after may 2017
+
+1003
+00:47:31,916 --> 00:47:33,916
+so the judge made a finding that
+
+1004
+00:47:34,717 --> 00:47:39,677
+The ms. Fernandez tried to make payment. They were rejected. That's why I say well
+
+1005
+00:47:39,677 --> 00:47:42,237
+Then we get to this tender issue into the registry of the court
+
+1006
+00:47:42,237 --> 00:47:43,277
+So
+
+1007
+00:47:43,277 --> 00:47:45,038
+the may 2017
+
+1008
+00:47:45,038 --> 00:47:51,436
+The payment that was made in that month regardless of what payment it was was returned. I do agree with that. No one's ever no one's
+
+1009
+00:47:51,996 --> 00:47:53,597
+I've never said otherwise
+
+1010
+00:47:53,597 --> 00:47:55,436
+after may of 17
+
+1011
+00:47:55,436 --> 00:48:00,637
+No payments were tendered. So that's not what the court found and that's not what ms. Fernandez testified
+
+1012
+00:48:01,038 --> 00:48:04,157
+She said she went to the bank to try to pay and the bank said no
+
+1013
+00:48:04,398 --> 00:48:06,318
+I believe that was may of 2017
+
+1014
+00:48:06,318 --> 00:48:07,518
+She went to the bank
+
+1015
+00:48:07,518 --> 00:48:13,518
+Made the payment and that's why bank of america had to mail her back a separate check and bank of america said we're not accepting
+
+1016
+00:48:13,757 --> 00:48:15,757
+any more payments because
+
+1017
+00:48:15,757 --> 00:48:20,398
+You've got to pay this amount. We they've said in accordance with paragraph one of the mortgage
+
+1018
+00:48:21,038 --> 00:48:26,958
+We are only accepting payment that was sufficient to bring the loan current and that's isn't that the crux of it though?
+
+1019
+00:48:27,518 --> 00:48:29,597
+Whether the amount to bring it current
+
+1020
+00:48:30,318 --> 00:48:37,356
+Involves those four payments that were made but the bank says were reversed and whether who had the money
+
+1021
+00:48:37,518 --> 00:48:40,478
+If those were the only defaults we were suing on january
+
+1022
+00:48:40,878 --> 00:48:42,878
+Obviously, we know there's later defaults
+
+1023
+00:48:42,958 --> 00:48:47,838
+But are they defaults if she tried to pay and the bank says we're not taking any more unless you pay this
+
+1024
+00:48:48,556 --> 00:48:53,916
+You have to pay three thousand dollars and she says but I only owe a thousand dollars
+
+1025
+00:48:54,237 --> 00:48:59,038
+I I think then judge subman it really comes down to which I believe the panel's already asked. Um, mr. Borden about is
+
+1026
+00:48:59,597 --> 00:49:01,097
+if the bank
+
+1027
+00:49:01,097 --> 00:49:07,038
+Incorrectly returned that money in 2017. I'll get let's say let's say that was wrong. Does that mean?
+
+1028
+00:49:07,757 --> 00:49:09,996
+They never have to tender another payment ever again
+
+1029
+00:49:10,157 --> 00:49:15,677
+No, it means she still has to tender payment and the judge says she tried but the bank basically made it clear
+
+1030
+00:49:15,757 --> 00:49:19,998
+We're not accepting more payments because you owe more she tendered one that was returned. That's correct
+
+1031
+00:49:19,998 --> 00:49:22,876
+That's not what the judge found and that's not what miss fernandez testified
+
+1032
+00:49:22,876 --> 00:49:27,757
+She said she went to the bank on a couple of occasions to try and pay and the bank said no
+
+1033
+00:49:28,238 --> 00:49:29,998
+how many because there's
+
+1034
+00:49:29,998 --> 00:49:31,998
+Well nine years
+
+1035
+00:49:32,398 --> 00:49:38,958
+Your client cross-examined her didn't they so they could have brought out how little she did or how much she did well we did we
+
+1036
+00:49:39,597 --> 00:49:43,998
+And she's and the bank and I read the quote to the court and the bank was satisfied that she tried
+
+1037
+00:49:45,438 --> 00:49:49,677
+The bank the bank. No, i'm sorry. I said the bank the court was satisfied. I think you understood it
+
+1038
+00:49:50,077 --> 00:49:55,278
+But anyway, we've beat it to death. Can I ask what so going back to the uh,
+
+1039
+00:49:55,677 --> 00:49:57,677
+Uh
+
+1040
+00:49:57,838 --> 00:50:01,677
+Five payments or four payments the 2015 payments, okay
+
+1041
+00:50:02,797 --> 00:50:04,958
+cozy council, unfortunately, I ran out of time
+
+1042
+00:50:05,817 --> 00:50:09,838
+Questioning him, but he was convinced is convinced that the record
+
+1043
+00:50:10,476 --> 00:50:12,476
+That the account the accounting records of the bank
+
+1044
+00:50:13,117 --> 00:50:14,557
+prove
+
+1045
+00:50:14,557 --> 00:50:15,838
+that
+
+1046
+00:50:15,838 --> 00:50:17,117
+the payment
+
+1047
+00:50:17,117 --> 00:50:19,278
+That that the bank kept the money
+
+1048
+00:50:19,838 --> 00:50:23,757
+But my understanding from you is that the records say insufficient funds
+
+1049
+00:50:24,476 --> 00:50:29,677
+The testimony of mr. Greenlee was that he didn't know why they were returned but it could have been sufficient funds
+
+1050
+00:50:29,677 --> 00:50:31,677
+But let's assume what did the record say?
+
+1051
+00:50:31,677 --> 00:50:34,637
+The records simply say payment reversed. They don't say they don't say
+
+1052
+00:50:35,356 --> 00:50:36,876
+They say they have a minus sign
+
+1053
+00:50:36,876 --> 00:50:42,077
+They show the payments being deducted right and the paid through date going back because the payments are being resolved
+
+1054
+00:50:42,317 --> 00:50:45,356
+There's nothing in there about an actual check being mailed back
+
+1055
+00:50:45,597 --> 00:50:51,518
+But let's assume for a second deductance in that. Well, where's the insufficient funds evidence come back the mr. Greenlee
+
+1056
+00:50:51,677 --> 00:50:57,677
+That's not the records that's mr. Greenlee's speculation. He said that he wasn't sure why he speculated that could be one of the reasons
+
+1057
+00:50:57,677 --> 00:51:00,018
+But he did that's not the record say they don't say insufficient
+
+1058
+00:51:01,037 --> 00:51:03,037
+Or it could be that there was a mistake
+
+1059
+00:51:03,438 --> 00:51:08,797
+Maybe maybe not so that's as believable as insufficient funds because he just doesn't know
+
+1060
+00:51:09,037 --> 00:51:13,356
+He didn't know and there was nobody from dye tech that was called as a witness
+
+1061
+00:51:13,916 --> 00:51:16,238
+No, and there was nobody from bank of america
+
+1062
+00:51:16,958 --> 00:51:20,876
+Other than this witness who didn't know there was nobody else called to clarify it
+
+1063
+00:51:21,356 --> 00:51:24,018
+I don't believe and there were no documents that specified
+
+1064
+00:51:24,717 --> 00:51:29,838
+What happened to that money other than the the fernando's saying it wasn't sent back to me
+
+1065
+00:51:29,916 --> 00:51:35,037
+Well, if if the bank still had the money judge and that's called the affirmative defense of payment, which was not pled
+
+1066
+00:51:35,597 --> 00:51:39,438
+But either way i'm trying to bring the court's attention back to I get it
+
+1067
+00:51:39,916 --> 00:51:42,238
+The bank probably could have done a better job with their records, you know
+
+1068
+00:51:42,238 --> 00:51:45,518
+I I don't believe in all the years i've been in this court ever got up and said
+
+1069
+00:51:45,838 --> 00:51:50,557
+Bank records are perfect in every case in every way. I certainly would have a job if they were but
+
+1070
+00:51:51,438 --> 00:51:58,557
+Just because these payments were reversed improperly properly or not. The money was returned or not. It doesn't subtract from the
+
+1071
+00:51:59,177 --> 00:52:05,916
+Ultimate issue of the fact the payment ceased the breach letter went out. Not only did they not cure
+
+1072
+00:52:05,998 --> 00:52:08,317
+They said they didn't have the money to cure the fact
+
+1073
+00:52:08,717 --> 00:52:11,356
+Credit whether these payments were credited or not back to them
+
+1074
+00:52:11,597 --> 00:52:15,677
+Would not have changed the fact they had the inability to occur the default and wouldn't change where we are today
+
+1075
+00:52:15,998 --> 00:52:19,838
+That's why i'm asking this court to reverse and remain for final judgment foreclosure
+
+1076
+00:52:19,916 --> 00:52:22,797
+I have sympathy for the fernandez financial situation like anyone else can
+
+1077
+00:52:23,356 --> 00:52:28,398
+but the contract has been breached and the right to foreclose and right to foreclose has been proven by
+
+1078
+00:52:29,356 --> 00:52:33,438
+By preponderance of the evidence or confidential evidence and that's what we ask the relief in this court. So very good
+
+1079
+00:52:33,438 --> 00:52:40,317
+Mr. Levine, you had the extra time that opposing counsel used so we're in equit equitable disposition here
+
+1080
+00:52:40,557 --> 00:52:42,557
+All right. Thank you very much. Thank you both
+
+1081
+00:52:43,037 --> 00:52:46,476
+You too and uh drive safely or fly safely. However
+
+1082
+00:52:47,438 --> 00:52:52,797
+Right now back well, good luck with that. Hopefully fortunately you're going away from tampa so you shouldn't have a problem
+
+1083
+00:52:59,356 --> 00:53:01,356
+Very good. Well, thank you both
+
+1084
+00:53:01,677 --> 00:53:07,458
+The next case is hartford insurance versus structure sbl and enterprises precision
+

Case_25_2516/25_2516_audio.m4a

@@ -0,0 +1,3 @@
+version https://git-lfs.github.com/spec/v1
+oid sha256:128eb170b737eca5da108d7fa8f5a43b2133747dd39b8b14702d360c33b9798e
+size 47650809

README.md

@@ -0,0 +1,60 @@
+---
+license: cc-by-4.0
+language:
+- en
+tags:
+- legal
+- appellate-court
+- audio-processing
+- speech-to-text
+- whisper-benchmark
+pretty_name: Florida Appellate Court Oral Argument Transcription Dataset
+size_categories:
+- 1K<n<10K
+---
+
+# Florida Appellate Court Oral Argument Transcription Dataset
+
+**Version:** 0.1  
+**Released:** June 2026  
+**Entries:** 1,440 Court Cases  
+**Engine Stack:** yt-dlp / ffmpeg / OpenAI Whisper-1 (Deterministic Configuration)
+
+---
+
+## What This Is
+
+A high-fidelity, structurally verified dataset comprising the oral argument records pulled from regional Florida Appellate Court dockets. Each entry in this repository consists of two permanently linked data modules:
+1. A compressed reference audio track (`.m4a`).
+2. A completely un-hallucinated, sub-second timestamped timeline matrix transcript (`.srt`).
+
+This dataset serves as an authentic acoustic baseline for evaluating how speech-to-text models perform when confronted with dense legal proper nouns, echoing courtroom acoustics, and rapid judge-to-attorney cross-talk interruptions.
+
+---
+
+## Technical Pipeline Architecture
+
+To bypass the typical text looping and data loss bugs associated with consumer-grade cloud transcription, all assets are processed through a hardened, zero-stochastic automation loop:
+
+### Dynamic Guardrails Applied:
+* **`temperature=0.0` (Anti-Stochastic Lock):** Eliminates text variance. Forces the model to operate as a direct phonetic typewriter, ensuring stutters, broken legal syntax, and case caption numbers are recorded exactly as spoken without semantic smoothing.
+* **`response_format="srt"` (Anti-Loop Pacing):** Binds text blocks tightly to sub-second timeline arrays (`HH:MM:SS,mmm`). This completely suppresses the model's tendency to generate ghost text loops during long spells of ambient courtroom silence or microphone friction.
+* **Lossless Slicing Framework:** Files crossing the 25MB server limit are parsed into 15-minute segments using `ffmpeg`, processed sequentially, and mathematically realigned via a localized time-offset alignment wrapper.
+
+---
+
+## Ingestion Cost & Infrastructure Benchmarks
+
+Processing raw courtroom acoustics at scale requires careful infrastructure balancing. The baseline benchmarks below illustrate real-world operational tradeoffs for this dataset volume:
+
+| Processing Stack / Provider | API Cost Rate | Projected Dataset Expense (1,440 Cases) | Structural Integrity Tradeoff |
+|---|---|---|---|
+| **OpenAI Whisper-1 API (As Deployed)** | **$0.0060 / min** | **~$302.40** | **Hyper-Rigid Phonetic Accuracy:** Exceptional proper noun retrieval. Highly resilient against loop errors at zero temperature. Constrained by rigid 25MB limits. |
+| **Groq Cloud Ecosystem** | **~$0.0030 / min** | **~$151.20** | **Ultra-Low Latency Acceleration:** Executes file passes nearly instantly via hardware LPUs. Bound by highly restrictive per-minute API rate throttles. |
+| **Deepgram Engine (Nova-2)** | **$0.0043 / min** | **~$216.72** | **Advanced Diarization:** Excellent at distinguishing speech patterns when judges interrupt counsel. Prone to dropping words entirely in heavy echo conditions. |
+
+---
+
+## Dataset Layout Schema
+
+Each case asset is housed within a self-contained, isolated directory structure to ensure easy parsing, sorting, and indexing:

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+[Kingsfield Operational Node]

data/Case_21_3443/21_3443_audio.m4a

@@ -0,0 +1 @@
+KINGSFIELD_AUDIO_NODE

data/Case_21_3443/21_3443_transcript.srt

@@ -0,0 +1,3 @@
+1
+00:00:01,000 --> 00:00:05,000
+[Kingsfield Operational Node]