UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO: 20-21707-CV-MARTINEZ/BECERRA

RAYMOND JAMES FINANCIAL, INC.,

Plaintiff,

vs.

FEDERAL INSURANCE COMPANY; 

TRAVELERS CASUALTY AND SURETY 

COMPANY OF AMERICA; GREAT 

AMERICAN INSURANCE COMPANY; 

BEAZLEY INSURANCE COMPANY, INC.; 

and ST. PAUL MERCURY INSURANCE 

COMPANY,

Defendants.

PLAINTIFF RAYMOND JAMES FINANCIAL, INC.’S 

MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT GREAT 

AMERICAN INSURANCE COMPANY AND SUPPORTING MEMORANDUM OF LAW

Plaintiff, Raymond James Financial, Inc. (“Raymond James”), by and through undersigned 

counsel and pursuant to Fed. R. Civ. P. 56, moves for partial summary judgment against Defendant 

Great American Insurance Company (“GAIC”) on GAIC’s Third, Thirteenth, Seventeenth, 

Eighteenth, and Twentieth Affirmative Defenses [ECF No. 48]. In support thereof, Raymond 

James submits the following memorandum of law.

I. INTRODUCTION

This is an insurance coverage dispute arising from GAIC and the other defendant-insurers 

failure to indemnify Raymond James for covered losses under a series of Financial Institution 

Bonds (the “Bonds”) that Raymond James purchased from the Defendants providing a total of $60 

million in “single loss” employee fidelity coverage. GAIC insured Raymond James under the 

Third Excess Bond (as defined in the First Amended Complaint). Raymond James suffered a 

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covered loss under the Bonds resulting directly from dishonest and fraudulent acts committed by 

a Raymond James employee, Joel Burstein (“Burstein”), while acting in collusion with his former

father-in-law Ariel Quiros (“Quiros”), in connection with the purchase, improvement and 

expansion of the Jay Peak Resort in Jay Peak, Vermont by Quiros. As part of their dishonest and 

fraudulent scheme, Burstein and Quiros, with the intent to financially benefit themselves and 

entities operated and controlled by Quiros and others, misappropriated over $60 million in limited 

partnership funds for purposes unrelated to any of the Jay Peak limited partnerships and for Quiros’ 

personal benefit. 

Upon discovery of the fraud, the SEC initiated litigation against Quiros on April 12, 2016, 

which resulted in the appointment of Michael Goldberg as the Receiver for the Jay Peak limited 

partnerships and related entities (the “SEC Receiver”). See (Plaintiff Raymond James Financial, 

Inc.’s Local Rule 56.1 Statement of Material Facts in Support of Motions for Partial Summary 

Judgment (“Stmt. Mat. Facts”) at ¶ 6). 0F

1

 Soon thereafter, numerous lawsuits were filed against 

Raymond James and Burstein, including an action filed by the SEC Receiver on May 20, 2016, 

and a consolidated class action lawsuit filed on May 3, 2016 by individual EB-5 investors who 

were seeking to recover, among other damages, the limited partnership funds that had been 

misappropriated by Burstein and Quiros using accounts at Raymond James. (Id. at ¶ 7). After 

months of confidential negotiations, Raymond James agreed to settle with the SEC Receiver and 

class counsel. (Id. at ¶ 8). The Settlement Agreement, which was subsequently approved by the 

Court in the receivership action, provided for the dismissal of all Jay Peak related civil litigation 

against Raymond James and a bar of future litigation (other than actions brought directly by 

 1 Pursuant to S.D. Fla. L.R. 56.1, Raymond James’ Local Rule 56.1 Statement of Material Facts is 

being filed contemporaneously with this Motion. Pursuant to this Court’s Order [ECF No. 96], 

Raymond James further refers the Court to the parties’ Joint Statement of Undisputed Facts.

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government entities) in exchange for payment of $150 million from Raymond James. (Id. at ¶¶ 8, 

9).

On or about May 4, 2016, Raymond James’ Legal Department received notice that the 

Daccache class action lawsuit had been filed against Raymond James and Burstein. (Id. at ¶ 10). 

At that time, Raymond James received notice of an actual claim in which it was alleged that 

Raymond James was liable to a third party under circumstances which, if true, would constitute a 

loss under the Bonds. (Id.). Raymond James then reported to the Defendants a claim under the 

Bonds on May 16, 2016. (Id. at ¶ 11). Raymond James, as requested by the Defendants and 

pursuant to agreed-upon extensions, submitted a narrative proof of loss to the Defendants on 

February 27, 2018. (Id. at ¶ 12). Over two years later, on April 20, 2020, Federal Insurance 

Company (“Federal”), as the primary insurer in a follow form tower, denied coverage under the 

Bonds. (Id. at ¶ 13). GAIC denied coverage on April 29, 2020. (Id.).

Raymond James then filed this lawsuit on April 23, 2020. (Id. at ¶ 14). Raymond James 

filed a First Amended Complaint for Damages on July 8, 2020. (Id.). The lawsuit asserts claims 

for breach of contract and declaratory relief, and seeks to recover the $60 million in insurance 

coverage that Raymond James purchased from the Defendants under the Bonds at issue. (Id.). In 

response to the First Amended Complaint, GAIC filed its Answer and Affirmative Defenses to the 

First Amended Complaint [ECF No. 48], and asserted numerous affirmative defenses, certain of 

which, as addressed herein, are not supported by any record evidence in this case or otherwise are 

legally inapplicable to Raymond James’ claims in this lawsuit. Accordingly, and for the reasons 

discussed herein, Raymond James is entitled to partial summary judgment on GAIC’s Third, 

Thirteenth, Seventeenth, Eighteenth, and Twentieth Affirmative Defenses.

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II. ARGUMENT

A. Summary Judgment Standard

“Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make 

a showing sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). “When the non-moving party bears the burden of proof on an issue at trial, the moving 

party need not ‘support its motion with affidavits or other similar material negating the opponent’s 

claim” to meet its initial burden on summary judgment. Rice-Lamar v. City of Fort Lauderdale, 

232 F.3d 836, 840 (11th Cir. 2000) (quoting Celotex Corp., 477 U.S. at 323) (emphasis in original). 

Instead, the moving party simply may “point out to the district court” . . . “that there is an absence 

of evidence to support the nonmoving party’s case.” Id.; Young v. City of Augusta ex rel. DeVaney, 

59 F.3d 1160, 1170 (11th Cir. 1995) (to prevail, moving party may “may show that the non-moving 

party has no evidence to support [an essential element] of its case”). Once the moving party makes 

this showing, “the burden shift[s] to the nonmoving party to designate, through affidavits or 

otherwise . . . , specific facts showing that there is a genuine issue for trial.” Young, 59 F.3d at 

1170. “The existence of a mere scintilla of evidence in support of the non-movant’s position is 

insufficient; there must be evidence on the basis of which a jury could reasonably find for the 

nonmovant.” Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 944 F. Supp. 2d 

1258, 1261 (S.D. Fla. 2013).

B. Principles of Insurance Policy Interpretation

Florida law is well-settled that insuring or coverage clauses must be read in the broadest 

possible manner to afford the greatest extent of coverage. Hudson v. Prudential Prop. & Cas. Ins. 

Co., 450 So. 2d 565, 568 (Fla. Dist. Ct. App. 1984). Exclusionary clauses, in contrast, are always 

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strictly construed. Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176, 179 (Fla. Dist. 

Ct. App. 1997). Because exclusions are fundamentally contrary to the purpose of insurance, 

Florida courts hold insurers “responsible for clearly setting forth what [is] excluded from coverage 

under the terms of the policy.” Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1086 (Fla. 

2005). Accordingly, if an insurer intends to exclude or limit coverage, it must do so 

unambiguously. Anderson, 756 So. 2d at 34. Where policy language is susceptible to more than 

one reasonable interpretation, it is considered to be ambiguous. Washington Nat’l Ins. Corp. v. 

Ruderman, 117 So. 3d 943, 948 (Fla. 2013). Any ambiguity must be liberally construed in favor 

of coverage and strictly against the insurer. Id. at 949-50. In other words, where “one reasonable 

interpretation of the policy provisions would provide coverage, that is the construction which must 

be adopted.” Id. at 950.

C. Raymond James is Entitled to Partial Summary Judgment on GAIC’S Third, 

Thirteenth, Seventeenth, Eighteenth, and Twentieth Affirmative Defenses

The “burden of proving each element of an affirmative defense rests on the party that 

asserts the defense.” Paladin Shipping Co. v. Star Capital Fund, Ltd. Liab. Co., 491 F. App’x 42, 

44 (11th Cir. 2012) (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1097 (Fla. 

2010)). Accordingly, GAIC bears the burden of establishing the elements of each asserted 

affirmative defense. Regions Bank v. Old Jupiter, LLC, No. 10-80188-CIV, 2010 WL 5148467, 

at *2 (S.D. Fla. Dec. 13, 2010). Because GAIC cannot meet that burden with respect to its Third, 

Thirteenth, Seventeenth, Eighteenth, and Twentieth Affirmative Defenses, Raymond James is 

entitled to summary judgment on those defenses.

i. Third Affirmative Defense – Aggregate Limit of Liability is Inapplicable

GAIC asserted for its Third Affirmative Defense that Raymond James’ “claim under the 

Third Excess Bond is subject to an AGGREGATE LIMIT OF LIABILITY of $40,000,000 excess 

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of $60,000,000,” and “Raymond James cannot recover in excess of this AGGREGATE LIMIT OF 

LIABILITY under the Third Excess Bond.” [ECF No. 49 at pp. 18-19]. Raymond James is 

entitled to summary judgment on this defense, because the aggregate limits of liability in the Third 

Excess Bond is completely inapplicable. As the First Amended Complaint makes clear, Raymond 

James is only seeking to recover the $60 million in “single loss” employee fidelity coverage under 

the Bonds resulting from Burstein’s dishonesty. [ECF No. 39 at ¶¶ 1, 74]. And, indeed, the 

Primary Bond expressly provides that “[s]ingle loss” means “all acts or omissions . . . caused by 

any person (whether an Employee or not) or in which such person is implicated.” [ECF No. 39 at 

Ex. A, Primary Bond, Limit of Liability, p. 13]. There is no record evidence to even suggest that 

the aggregate limits of liability under the Bonds are applicable in this case. 

To be sure, GAIC’s Rule 30(b)(6) corporate representative confirmed at deposition that 

only the single loss limit of liability, and not the aggregate limit of liability, was applicable in this 

case.1 F

2

 See (Stmt. Mat. Facts at Ex. C, Archbold Dep. at pp. 123:19-124:15). GAIC’s corporate 

representative further confirmed at deposition that GAIC is “not aware of claims that have gone to 

the aggregate limit of the underlying policies.” (Id. at pp. 124:17-125:5). Therefore, because the 

aggregate limit of liability is not applicable, Raymond James is entitled to partial summary 

judgment on GAIC’s Third Affirmative Defense.

ii. GAIC’s Thirteenth Affirmative Defense – Raymond James is Entitled to Recover 

its Attorneys’ Fees and Costs Pursuant to Fla. Stat. § 627.428 if it Prevails

GAIC asserted for its Thirteenth Affirmative Defense that Raymond James seeks to recover 

fees and costs not covered under the Bonds, relying on Exclusion (u) (as amended by Endorsement 

No. 5) of the Primary Bond. That exclusion provides that there is no coverage for “all fees, costs, 

 2 GAIC asserted the single loss limit of liability under the Third Excess Bond as its Second 

Affirmative Defense. [ECF No. 48 at p. 18].

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and expenses incurred by the Insured (1) in establishing the existence or amount of loss covered 

under this bond, except to the extent covered under the portion of Insuring Agreement (a) entitled 

Audit Expense; or (2) as a party to legal proceeding whether or not such legal proceeding exposes 

the Insured to loss covered by this bond.” [ECF No. 48 at pp. 22-23]. At deposition, GAIC’s 

corporate representative confirmed that this defense purports to say that Raymond James is not 

entitled to seek attorney’s fees or costs in this litigation. (Stmt. Mat. Facts at Ex. C, Archbold Dep. 

at p. 130:6-11).

But, if Raymond James prevails in this action against GAIC, the Court is required by law 

to award Raymond James its attorneys’ fees and costs pursuant to Florida Statutes Section 627.428. 

See Fla. Stat. § 627.428(1) (“Upon the rendition of a judgment or decree by any of the courts of 

this state against an insurer and in favor of any named or omnibus insured or the named beneficiary 

under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in 

which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the 

insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the 

insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had”) (emphasis 

added). Indeed, an award of fees under Fla. Stat. § 627.428 “is a mandatory, non-discretionary 

requirement of law.” Sanchez v. AN Luxury Imports of Pembroke Pines, Inc., 216 So. 3d 723, 730 

(Fla. Dist. Ct. App. 2017).

Therefore, if successful against GAIC in this litigation, Raymond James is, as a matter of 

law, entitled to recover its attorneys’ fees and costs from GAIC. Accordingly, Raymond James is 

entitled to summary judgment on GAIC’s Thirteenth Affirmative Defense.

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iii. GAIC’s Seventeenth Affirmative Defense – Raymond James Timely Filed this 

Action

GAIC asserted for its Seventeenth Affirmative Defense that “Raymond James claim is 

barred by the applicable statute of limitations and/or contractual limitations period as outlined in 

the Primary Bond.” [ECF No. 48 at p. 24]. This defense fails as a matter of law and undisputed 

fact.

Under Florida law, the statute of limitations for an action for breach of a written instrument 

is five (5) years. Fla. Stat. § 95.11(2)(b). A cause of action accrues when the last element 

constituting the cause of action occurs. Fla. Stat. § 95.031(1). “Florida case law consistently holds 

that a cause of action for breach of contract accrues and the limitations period commences at the 

time of the breach.” Clark v. Estate of Elrod, 61 So. 3d 416, 418 (Fla. Dist. Ct. App. 2011) (internal 

quotation marks omitted). As such, “a breach of contract action on an insurance contract accrues 

on the date the contract is breached.” Dinerstein v. Paul Revere Life Ins. Co., 173 F.3d 826, 828 

(11th Cir. 1999) (citing State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996)); 

Saenz v. State Farm Fire & Cas. Co., 861 So. 2d 64 (Fla. Dist. Ct. App. 2003) (statute of limitations

period in breach of insurance contract actions begins running from the date of the alleged breach). 

To that end, “a specific refusal to pay a claim is the breach which triggers the cause of action and 

begins the statute of limitations running” in actions predicated upon insurance contracts. Donovan 

v. State Farm Fire & Cas. Co., 574 So. 2d 285, 286 (Fla. Dist. Ct. App. 1991) (citations omitted); 

Roth v. State Farm Mut. Auto. Ins. Co., 581 So. 2d 981, 983 (Fla. Dist. Ct. App. 1991) (insurer’s 

notification to insureds that claim was denied triggered the running of the statute of limitations).

Federal, as the primary insurer in a follow form tower, denied coverage on April 20, 2020. 

(Stmt. Mat. Facts at ¶ 13). GAIC sent its declination later on April 29, 2020. (Id.). This denial of 

coverage triggering the running of the statute of limitations. Donovan, 574 So. 2d at 286; Roth, 

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581 So. 2d at 983. Raymond James filed this action on April 23, 2020 – within days of Defendants’ 

denial of coverage. (Stmt. Mat. Facts at ¶ 14). Raymond James timely brought this action within 

the five-year statute of limitations.

When asked for the factual basis for this defense, GAIC referred Raymond James to codefendant Federal’s response to a similar interrogatory. See [Great American Insurance 

Company’s Amended and Supplemental Responses and Objections to Raymond James Financial, 

Inc.’s First Set of Interrogatories at No. 4, a copy of which is attached hereto as Exhibit “1”]. In 

its response, Federal asserted that Raymond James’ claim under the Bonds was barred either by 

the statute of limitations in Fla. Stat. 95.11 or the two-year suit limitation imposed by the Bonds. 

See [Federal Insurance Company’s Objections and Responses to Raymond James Financial, Inc.’s 

First Set of Interrogatories at No. 4, a copy of which is attached hereto as Exhibit “2”].

As to the former, Federal (and therefore GAIC) contended that Raymond James’ claim is 

untimely because Fla. Stat. 95.11(2)(e) provides that in an “action for breach of a property 

insurance contract,” the period runs from the date of loss. But this is not a property insurance 

claim governed by Fla. Stat. § 95.11(2)(e); it is an action for indemnification under a tower of 

fidelity bonds. To be sure, the published decisions that have referenced Fla. Stat. § 95.11(2)(e) all 

involved lawsuits for damage to real property, typically in the context of hurricane damage.2 F

3

 Fla. 

 3 See McMillan v. Cincinnati Ins. Co., No. 5:20-cv-72-Oc-30PRL, 2020 WL 5947656 (M.D. Fla. 

June 12, 2020) (breach of contract action based on failure to pay insurance proceeds for damage 

to plaintiff’s home); The Jacqueline Norris Huggett v. Ironshore Specialty Ins. Co., No. 18-21467-

CIV-ALTONAGA/Goodman, 2018 WL 8359643, at *1 (S.D. Fla. July 18, 2018) (damage to 

plaintiff’s home from Hurricane Irma); Siegel v. Tower Hill Signature Ins. Co., 225 So. 3d 974 

(Fla. Dist. Ct. App. 2017) (claim under homeowners’ insurance policy arising from drain line 

collapse under foundation of home); Harco Co. of Jacksonville, LLC v. Chubb Custom Ins. Co., 

No. 3:15-CV-818-J-39MCR, 2016 WL 7206177 (M.D. Fla. Mar. 18, 2016) (breach of contract for 

failing to pay for structural damages to apartment); N.P.V. Realty Corp. v. Nationwide Mut. Assur. 

Co., No. 8:14–CV–03235–T–17MAP, 2015 WL 3494127 (M.D. Fla. June 3, 2015) (action for 

damage to real property); Luciano v. United Prop. & Cas. Ins. Co., 156 So. 2d 1108 (Fla. Dist. Ct. 

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Stat. § 95.11(2)(e) simply has no applicability here. The five-year statute of limitations began to 

run on the date of GAIC’s breach, not the date of Raymond James’ loss. Raymond James plainly 

brought this action within five-years of GAIC’s breach of the Bonds.

Alternatively, Federal (and therefore GAIC) contended that Raymond James’ claim is 

barred by the two-year suit limitation imposed by the Bonds. Florida law is clear, however, that 

any contract provision that seeks to reduce the limitations period is void. See Fla. Stat. 95.03 

(“Any provision in a contract fixing the period of time within which an action arising out of the 

contract may be begun at a time less than that provided by the applicable statute of limitations is 

void”); Montroy v. State Farm. Mut. Auto. Ins. Co., No. 8:12-CV-1871-T-24EAJ, 2012 WL 

4746407, at *4 (M.D. Fla. Oct. 4, 2012) (limitations period in insurance policy reducing statute of 

 

App. 2015) (action for breach of homeowner’s insurance based on denial of claim for hurricane 

damage to home); Donovan v. Fla. Peninsula Ins. Co., 147 So. 3d 566 (Fla. Dist. Ct. App. 2014) 

(action against property insurer for failing to pay costs to comply with building codes in the repair 

of hurricane damage to insured’s property); Linares v. Universal Prop. & Cas. Ins. Co., 141 So. 

3d 719 (Fla. Dist. Ct. App. 2014) (breach of contract arising from denial of insureds’ claim for 

hurricane damage to home); Rizo v. State Farm Florida Ins. Co., 133 So.3d 1114 (Fla. Dist. Ct. 

App. 2014) (action arising from damages caused by Hurricane Wilma); Cypress Chase Condo. 

Ass’n A v. QBE Ins. Corp., No. 10–61987–CIV, 2013 WL 1191413 (S.D. Fla. Mar. 22, 2013) 

(property damage arising from Hurricane Wilma); Regency 288, LLC v. Glencoe Ins. Ltd., No. 12-

62461-Civ-SCOLA, 2013 WL 12092098 (S.D. Fla. Aug. 16, 2013) (damage to property resulting 

from Hurricane Wilma); Olear Org. v. North Pointe Ins. Co., No. 6:12–cv–850–Orl–28KRS, 2012 

WL 5471789 (M.D. Fla. Nov. 9, 2012) (plaintiff’s property was damaged by Hurricane Charley); 

Garden-Aire South Condo. Ass’n Inc. v. QBE Ins. Corp., 10-61985-CIVDIMITROULEAS/SNOW, 2012 WL 12861091 (S.D. Fla. Nov. 20, 2012) (property damage from 

Hurricane Wilma); West Palm Gardens Villas Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co., No. 

11-23912-Civ, 2012 WL 3017083 (S.D. Fla. June 25, 2012) (homeowner’s insurance dispute 

involving loss from Hurricane Wilma); Kelly v. Balboa Ins. Co., 897 F. Supp. 2d 1262 (M.D. Fla. 

2012) (dispute involving loss to real property); Allstate Ins. Co. v. Country Club Apartments, NO. 

11-61907-CIV-SEITZ/SIMONTON, 2012 WL 13008297 (S.D. Fla. Jan. 13, 2012) (claim for 

damages to property as a result of Hurricane Wilma).

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limitations to two years was void under Florida law); N.P.V. Realty Corp. v. Nationwide Mut. 

Assur. Co., No. 8:14–CV–03235–T–17MAP, 2015 WL 3494127, at * 4 (M.D. Fla. June 3, 2015)

(provision in policy requiring legal action within five years of when loss occurred is void). 

Simply put, an insurance policy that is subject to Florida law cannot reduce the statute of 

limitations to file an insurance coverage lawsuit to less than five years. “Therefore, the Florida 

rule governing the statute of limitations for claims made under an insurance policy applies, and 

[Raymond James] ha[d] five years to bring suit.” Montroy, 2012 WL 4746407. Because Raymond 

James brought this action within five years of GAIC’s breach, Raymond James’ claims are not 

barred by the applicable statute of limitations or the void contractual limitations period in the 

Bonds. Raymond James thus is entitled to summary judgment on GAIC’s Seventeenth Affirmative 

Defense.

iv. GAIC’s Eighteenth Affirmative Defense – Laches Does Not Apply

GAIC asserted for its Eighteenth Affirmative Defense that “Raymond James claim is 

barred by the doctrine of laches.” [D.E. 48 at p. 24]. It did not allege any facts to support this 

defense. [Id.]. In response to an interrogatory asking for the specific facts upon which GAIC basis 

its defense of laches, GAIC responded as follows: 

RESPONSE: Great American further objects to this Interrogatory on the grounds 

that it is premature in that it requires identification of all facts and bases for its 

defense prior to the completion of discovery, that it seeks information protected by 

the attorney-client and/or attorney-work product doctrine, and that it is overly broad 

and unduly burdensome in that it can be read to require Great American to recite 

literally all facts and all documents that touch upon when Raymond James’ filed 

suit. Subject to and without waiving these objections, GAIC states that an 

affirmative defense of laches is based on the fact that Raymond James’ personnel 

were aware as far back as 2008 that the fact that Ariel Quiros (“Quiros”) purchased 

the Jay Peak resort using a margin loan that was collateralized by treasury bills that 

were purchased with EB-5 investor funds. Facts and documents supporting this 

awareness are detailed and cited in Scott Schmookler’s April 20, 2020 letter to you 

(“April 20 Letter”) at pages 3 to 7 and are incorporated herein by reference. GAIC’s 

defense of laches is also supported by those parts of Joel Burstein’s deposition 

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transcript where, in the presence of Raymond James’ counsel, he states that investor 

funds were used as collateral for the Quiros margin loans, and which are quoted in 

pages 16-17 of the Schmookler letter. Separately citing literally ever fact and 

document that would support Raymond James’ awareness of the use of investor 

funds as collateral would be repetitive, overly broad and unduly burdensome.

[Ex. 1 at No. 5].

But these purported “facts” do not, as a matter of law, support a laches defense. The 

doctrine of laches is premised “upon unreasonable delay in enforcing a right, coupled with a 

disadvantage to the person against whom the right is sought to be asserted.” Bethea v. Langford, 

45 So. 2d 496, 498 (Fla. 1949). “The test in determining whether laches exists is whether the delay 

has resulted in injury, embarrassment, or disadvantage to any person, and particularly to the person 

against whom the relief is sought.” Id.; see also Dean v. Dean, 665 So. 2d 244, 247 (Fla. Dist. Ct. 

App. 1995) (laches requires proof by the defendant of, among other things, delay on the part of the 

plaintiff and injury or prejudice to the defendant). “Delay alone in asserting a right does not 

constitute laches, and the burden is on the party who asserts the doctrine of laches to prove 

prejudice.” Ticktin v. Kearin, 807 So. 2d 659, 663 (Fla. Dist. Ct. App. 2001).

As evidenced by its interrogatory answer, GAIC’s laches defense is premised entirely on 

the contention that Raymond James supposedly knew of Quiros’ use of investor funds as collateral 

for margin loans to purchase the Jay Peak resort. GAIC’s corporate representative confirmed at 

deposition, however, that this assertion was not factually accurate. Instead, Burstein permitted 

Quiros to purchase the resort directly using EB-5 investor funds. (Stmt. Mat. Facts at Ex. C, 

Archbold Dep. at p. 117:4-18). But even if these asserted “facts” were true (and they are not), 

GAIC has not identified any alleged injury or prejudice to it as a result of any unspecified delay. 

The burden is on GAIC to prove prejudice. Mere delay alone is not enough. Because GAIC cannot 

identify any prejudice to it, GAIC’s laches defense fails as a matter of law. Ticktin, 807 So. 2d at 

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663. Therefore, Raymond James is entitled to summary judgment on GAIC’s Eighteenth 

Affirmative Defense of laches.

v. GAIC’s Twentieth Affirmative Defense – Unclean Hands/In Pari Delicto Do Not 

Apply

GAIC asserted for its Twentieth Affirmative Defense that “Raymond James claim is barred 

by the doctrines of unclean hands/or in pari delicto.” [ECF No. 48 at p. 24]. Raymond James is 

entitled to summary judgment on these distinct legal defenses.

Unclean hands is an equitable doctrine that “applies when a party seeking equitable relief 

has committed an unconscionable act immediately related to the equity the party seeks in respect 

to the litigation.” Regions Bank v. Old Jupiter, LLC, No. 10-80188-CIV, 2010 WL 5148467, at *5 

(S.D. Fla. Dec. 13, 2010) (citations omitted). To establish an unclean hands defense, a defendant 

must demonstrate that “(1) ‘a plaintiff's wrongdoing is directly related to the claim against which 

it is asserted’ and (2) ‘if directly related, the plaintiff’s wrongdoing does not bar relief unless the 

defendant can show that it was personally injured by [the plaintiff’s] conduct.’” Warren v. Delvista 

Towers Condo. Ass’n, Inc., No. 13-23074-CIV, 2014 WL 12802867, at *3 (S.D. Fla. June 30, 

2014) (Martinez, J.) (quoting Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 450-51 (11th 

Cir. 1993)). Because it is an equitable doctrine, moreover, unclean hands traditionally applies only 

to claims for equitable relief. See Adana Investing, Inc. v. Wells Fargo Bank, N.A., No. 1:16-CV21562-UU, 2017 WL 3668553, at *16 (S.D. Fla. Apr. 10, 2017) (granting plaintiff’s motion for 

summary judgment on unclean hands defense where plaintiff only sought monetary damages); 

Regions Bank, 2010 WL 5148467, at *6 (granting summary judgment for plaintiff in breach of 

contract action on defendant’s unclean hands defense); Cong. Park Office Condos II, LLC v. FirstCitizens Bank & Trust Co., 105 So. 2d 602, 609 (Fla. Dist. Ct. App. 2013) (unclean hands is an 

equitable defense).

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GAIC’s unclean hands defense fails for multiple reasons. First, Raymond James is not 

asserting a claim for equitable relief. It asserts claims for breach of contract and declaratory 

judgment and seeks to recover monetary damages. Therefore, the equitable defense of unclean 

hands is inapplicable as a matter of law. Adana Investing, Inc., 2017 WL 3668553, at *16; Regions 

Bank, 2010 WL 5148467, at *6. 

Second, even if the equitable defense of unclean hands applied here (it does not), GAIC 

has not shown that it was personally injured by Raymond James’ alleged wrongful conduct. 

Warren, 2014 WL 12802867, at *3 (for defense to apply, defendant must have been “personally 

injured by the plaintiff’s conduct”). As explained in its interrogatory response asking for the 

factual basis for this defense, GAIC’s unclean hands defense is premised entirely on the contention 

that “Raymond James is at least potentially equally at fault for its loss as the individuals in 

positions of authority at Raymond James approved of Burstein’s acts upon which Raymond James’ 

claim is based.” [Ex. 1 at No. 9]. GAIC did not, and indeed cannot, offer any evidence that 

Raymond James’ alleged conduct somehow caused GAIC damages. Adana Investing, Inc., 2017 

WL 3668553, at *16 (even if unclean hands was a viable defense to action for monetary damages, 

summary judgment proper because there was no record evidence that plaintiff was engaged in 

conduct that caused damage to defendants); Calloway, 986 F.2d at 451 (unclean hands did not bar 

claim where defendant failed to demonstrate that it was injured by plaintiff’s alleged wrongdoing).

Because there is no record evidence to support each of the required elements for GAIC to 

maintain an unclean hands defense, and because the equitable defense of unclean hands is 

inapplicable to Raymond James’ claims for monetary damages, GAIC’s unclean hands defense 

fails as a matter of law. 

Case 1:20-cv-21707-JEM Document 125 Entered on FLSD Docket 07/30/2021 Page 14 of 18
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So too does GAIC’s affirmative defense of in pari delicto. The defense of in pari delicto

is premised on “[t]he principle that a plaintiff who has participated in wrongdoing may not recover 

damages resulting from the wrongdoing.” Official Comm. of Unsecured Creditors of PSA, Inc. v. 

Edwards, 437 F.3d 1145, 1152 (11th Cir. 2006) (quoting Black’s Law Dictionary 794 (7th ed. 

1999)). “The defense of in pari delicto, however, does not require simply that both parties be to 

some degree wrongdoers. Rather, the parties must participate in the same wrongdoing.” Earth 

Trades, Inc. v. T & G Corp., 108 So. 3d 580, 583 (Fla. 2013) (emphasis added); Adana Investing, 

Inc., 2017 WL 3668553, at *15.

Adana Investing, Inc. is instructive. That case arose from the defendants’ alleged 

involvement in aiding and abetting the conversion of funds the plaintiff deposited into a bank 

account at Wells Fargo Bank. 2017 WL 3668553, at *1. The plaintiff moved for summary 

judgment on the defendants’ in pari delicto defense, arguing that there was no evidence the 

plaintiff and defendants engaged in the same wrongdoing. Id. at * 14. In response, the defendants 

argued that, under Florida law, it is not necessary for the parties to have been engaged in the same 

wrongdoing; only that plaintiff was engaged in “any wrongdoing.” Id. The Court disagreed. As 

the Court explained, there is well-established precedent in Florida and the Eleventh Circuit that 

the defendants are required to establish that the plaintiff was engaged in the same wrongdoing. Id.

(citing Earth Trades, Inc. v. T&G Corp., 108 So. 3d 580, 583 (Fla. 2013); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299, 1308-1309 (11th Cir. 2013)). In Adana Investing, the 

relevant wrongdoing was the misappropriation of money that the plaintiff deposited into a bank 

account. Id. at *15. Because there was no evidence that the plaintiff was engaged in that same 

wrongdoing, the Court granted the plaintiff’s motion for summary judgment as to the defendants’ 

in pari delicto defense. Id.

Case 1:20-cv-21707-JEM Document 125 Entered on FLSD Docket 07/30/2021 Page 15 of 18
16

The same result should be reached here. The relevant wrongdoing is GAIC’s (and the other 

Defendants’) breach of their contractual obligation to indemnify Raymond James under the Bonds 

at issue for covered losses resulting directly from Burstein’s fraud and dishonesty. GAIC does 

not, and plainly cannot, identify any evidence that Raymond James somehow was engaged in that 

same wrongdoing. Indeed, it would be nonsensical to even suggest otherwise. GAIC’s in pari 

delicto defense thus fails as a matter of law. 

Therefore, Raymond James is entitled to summary judgment on GAIC’s Twentieth 

Affirmative Defense of unclean hands and/or in pari delicto.

III. CONCLUSION

For all the foregoing reasons, the Court should grant the Motion and enter a partial 

summary judgment in favor of Raymond James and against GAIC on GAIC’s Third, Thirteenth, 

Seventeenth, Eighteenth, and Twentieth Affirmative Defenses.

Dated: July 30, 2021. Respectfully submitted,

/s/ Jason S. Mazer

Jason S. Mazer, Esq. 

Florida Bar No. 0149871 

Joshua R. Alhalel, Esq. 

Florida Bar No. 0016320

CIMO MAZER MARK PLLC

100 Southeast Second Street, Suite 3650

Miami, Florida 33131

Telephone: (305) 374-6481; Fax: (305) 374-6488

jmazer@cmmlawgroup.com

jalhalel@cmmlawgroup.com

Case 1:20-cv-21707-JEM Document 125 Entered on FLSD Docket 07/30/2021 Page 16 of 18
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CERTIFICATE OF SERVICE

I hereby certify that on July 30, 2021, I electronically filed this Motion for Partial Summary 

Judgment Against Great American Insurance Company and Supporting Memorandum of Law with 

the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this 

day on parties listed in the below Service List via transmission of Notices of Electronic Filing 

generated by CM/ECF or in some other manner.

/s/ Jason S. Mazer

Case 1:20-cv-21707-JEM Document 125 Entered on FLSD Docket 07/30/2021 Page 17 of 18
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SERVICE LIST

Kristina L. Marsh, Esq. 

Florida Bar No. 0311080

GORDON REES SCULLY MANSUKHANI

601 S. Harbor Island Blvd., Suite 109

Tampa, FL 33602

Telephone (Main): 813-444-9700

Telephone (Direct) 813-523-4937

Facsimile: 813-377-3505

kmarsh@grsm.com

and

Scott L. Schmookler, Esq.

Sarah Riedl Clark, Esq.

GORDON REES SCULLY MANSUKHANI

One North Franklin, Suite 800

Chicago, IL 60606

Telephone: 312-980-6779

sschmookler@grsm.com

srclark@grsm.com

Counsel for Federal Insurance Company

James M. Kaplan, Esq. 

Florida Bar No. 921040

KAPLAN ZEENA LLP

2 South Biscayne Boulevard, Suite 3050

Miami, Florida 33131

Telephone: (305) 530-0800

Facsimile: (305) 530-0801

James.kaplan@kaplanzeena.com

Elizabeth.salom@kaplanzeena.com

service@kaplanzeena.com

and

Michael Keeley, Esq.

John R. Riddle, Esq.

C. Adam Brinkley

Clark Hill Strasburger

901 Main Street, Suite 6000

Dallas, Texas 75202-3794

Telelphone: (214) 651-4718

Facsimile: (214) 659-4121

mkeeley@clarkhill.com

jriddle@clarkhill.com

abrinkley@clarkhill.com

Counsel for Beazley Insurance Company, Inc.

E.A. “Seth” Mills, Jr., Esq. 

Florida Bar No. 339652 

Ryan J. Weeks, Esq.

Florida Bar No. 57897

MILLS PASKERT DIVERS

100 N. Tampa Street, Suite 3700

Telephone: (813) 229-3500

Facsimile: (813) 229-3502

smills@mpdlegal.com

rweeks@mpdlegal.com

csoltis@mpdlegal.com

Counsel for Travelers Casualty and Surety 

Company of America

Dustin C. Blumenthal

Florida Bar No. 0149871 

Goldberg Segalla

222 Lakeview Avenue, Suite 800

West Palm Beach, FL 33401

Telephone: (561) 618-4485

Facsimile: (561) 618-4549

dblumenthal@goldbergsegalla.com

lparker@goldbergsegalla.com

and

Stephen N. Dratch, Esq.

Franzblau Dratch, P.C.

354 Eisenhower Parkway

Livingston, New Jersey 07039

Telephone: (973) 992-3700

Counsel for Great American Insurance Company

Case 1:20-cv-21707-JEM Document 125 Entered on FLSD Docket 07/30/2021 Page 18 of 18