1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION 

CASE NO. 22-22671-CIV-ALTONAGA/Torres

DELIO BATISTA, et al,,

Plaintiffs,

v.

AVANT ASSURANCE INC. et al,

Defendants.

DEFENDANT’S RENEWED RULE 59 MOTION FOR REMITTITUR, OR 

ALTERNATIVELY, NEW TRIAL

Defendant, Avant Assurance, Inc. (“Defendant”), by and through its 

undersigned counsel and pursuant to Rule 59 of the Federal Rules of Civil Procedure

and this Court’s order of August 15, 2023, hereby files its Renewed Rule 59 Motion 

For Remittitur, or Alternatively, New Trial, requesting that the Court grant a 

remittitur or new trial, and in support states as follows: 

INTRODUCTION

What Plaintiffs called “sales” were not actually sales. Instead, what Plaintiffs 

called “sales” were instances in which Plaintiffs—salespersons—successfully filtered 

prospective customers into the next phase of enrolling in an insurance plan. These 

“sales” did not entitle Plaintiffs to any sort of incentive-based pay—not until the 

prospective clients completed the much-longer process of finalizing a plan-selection, 

enrolling-in the plan, and paying their premiums. And yet, the jury awarded 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 1 of 18
2

Plaintiffs damages for these incentive-based payments without any evidence that the 

enrollments were completed or the policies activated. That verdict had to be reached 

through speculation. Plaintiffs—in violation of governing Florida law on contractdamages—failed to present any concrete, non-guesswork evidence establishing their 

damages with definiteness. For these reasons, as detailed below, Defendant 

respectfully requests a remittitur to $0.00 (which fairly reflects the amount of 

contractual-damages evidence presented at trial), or alternatively, a new trial. 

PROCEDURAL POSTURE

1. A jury trial in this matter was completed on July 14, 2023, and the jury 

returned a verdict in favor of Plaintiffs Delio Batista, Carlos Lopez, Mariana Lopez,

and Rafaela Valiente totaling $177,164. See Doc. 104.

2. On July 15, 2023, the court entered its Final Judgment in favor of 

Plaintiffs for $177,164. Doc. 106.

3. On August 3, 2023, Plaintiffs filed their Motion to Alter or Amend 

Judgment to Add Prejudgment Interest. Doc. 111.

4. On August 14, 2023, Defendants filed their Rule 59 Motion for New 

Trial and Unopposed Motion for to Leave to Amend, requesting a new trial, 

remittitur, and leave to amend the motion when the transcripts were completed. Doc. 

113.

5. On August 15, 2023, this Court denied both post-judgment motions

without prejudice and with leave to file renewed motions within 14 days of receipt of 

the trial transcripts. Doc. 114.

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 2 of 18
3

6. The trial transcripts were received by Defendants on September 11, 

2022.

7. In light of the trial court’s denial of the post-trial motions, Defendants 

and Plaintiffs both filed their notices of appeal within 30 days of the denial of the 

motions. Doc. 121; Doc. 122; see Rule 4.

8. Under this Court’s order of August 15, 2023, Defendants hereby renew 

their motion remittitur or new trial, with the benefit of the transcript and filed 

exhibits, and in support of their request state as follows:

MEMORANDUM OF LAW

A. Standard for Rule 59 Relief

Rule 59 governs motions for new trial, providing that a new trial may be 

granted “for any reason for which a new trial has heretofore been granted in an action 

at law in federal court.” Fed. R. Civ. P. 59(a)(1). Federal case law clarifies that a 

motion for new trial may be granted on the grounds that “the verdict is against the 

weight of the evidence, that damages are excessive, or that, for other reasons, the 

trial was not fair to the party moving; and may raise questions of law arising out of 

alleged substantial errors in admission or rejection of evidence or instructions to the 

jury.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).

The decision to grant a new trial rests within the sound discretion of the trial 

court. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). In exercising its 

discretion, a trial court may grant a motion for new trial if it determines that a jury’s 

verdict is against the great (but not merely greater) weight of the evidence. Williams 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 3 of 18
4

v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982). And unlike on a motion for 

judgment as a matter of law, on a motion for new trial a judge is permitted to 

independently re-weigh the evidence. Id. The judge should consider not just the 

evidence in favor of the verdict, but also the evidence in favor of the moving party’s 

position. Id.

B. The Evidence of Damages Was Speculative, Conclusory, and Against the 

Great Weight of the Evidence

In breach of contract action, the damages awarded must not be the result of 

“speculation or guesswork.” Constr. Aggregate Transp., Inc. v. Florida Rock Indus., 

Inc., 710 F.2d 752, 786 (11th Cir. 1983). Instead, “all damages recovered for a breach 

of contract must be proven with certainty, and not left to speculation or conjecture.” 

Hodges v. Fries, 15 So. 682, 684 (Fla. 1894). Although uncertainty or difficulty in 

proving a precise amount of damages will not prevent recovery, the damages awarded 

must still have some reasonable basis in the evidence adduced at trial. Storfer v. 

Guarantee Tr. Life Ins. Co., 666 F. 3d 1277, 1280 (11th Cir. 2012) (citing CentexRooney Const. Co., Inc. v. Martin Cnty., 706 So. 2d 20, 28 (Fla. 4th DCA 1997)).

Under Florida law, the proof adduced in support of damages must be definite 

enough “for a reviewing court to perform its review obligation.” Saewitz v. Saewitz, 

79 So. 3d 831, 833–34 (Fla. 3d DCA 2012). Thus, the party requesting damages must 

“present evidence to justify an award of damages in a definite amount.” Smith v. 

Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989). Additionally, the party 

requesting damages must “‘adduce evidence . . . from which [the trier of facts] could 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 4 of 18
5

properly determine’ the extent of the plaintiff’s alleged economic damages.” Regions 

Bank v. Maroone Chevrolet, L.L.C., 118 So. 3d 251, 257 (Fla. 3d DCA 2013). 

Importantly, when damages must be calculated, conclusory testimony as to a 

total amount of damages does not provide a reasonable basis in the evidence from 

which a jury can calculate damages. Instant One Media, Inc. v. EzFauxDecor, LLC, 

22-11374, 2023 WL 2422196, at *2 (11th Cir. Mar. 9, 2023). Instead, there must be 

some basis in the evidence from which a total amount of damages can be 

independently calculated by the jury. Id.; see e.g., Shumate & Co., Inc. v. Nat’l Ass’n

of Sec. Dealers, Inc., 509 F.2d 147, 153 (5th Cir. 1975) (reversing when “[t]he only 

evidence [the plaintiff] presented regarding his damages at trial was his own 

testimony, unsupported by any relevant data”).

The evidence of alleged commissions and bonuses owed by Defendants in this 

case was speculative and conclusory, and it did not provide reasonable basis in the 

evidence from which the jury could arrive at its damages amounts.

First, all four plaintiffs used the same flawed methodology to calculate their 

commissions damages. When asked how they calculated damages for commissions, 

they each explained that they reviewed their own record of phone sales and compared 

it to the payments they received. See Trial Tr. vol. 1, 96, Doc. 123-1 (Mariana Lopez 

Alcala explaining that she calculated her commission damages by comparing her 

“sales compared to what [she] received as far as deposits”); Trial Tr. vol. 2, 135-36, 

155-57, Doc. 123-2 (Rafaela Valiente explaining that she calculated her commission 

damages by totaling the number of her sales she kept track of and comparing that 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 5 of 18
6

number with the amount she was paid); Trial Tr. vol. 3, 32-45, Doc. 123-3 (Delio 

Batista explaining that he found a 20-25% discrepancy between his phone sales and 

the and commission payments he received); Trial Tr. vol. 3, 115, 139, Doc. 123-3

(Carlos Lopez Alcala explaining that he calculated his damages by comparing “the 

sales that [he] did” with the amount he received in payments).

But the compensation plan did not provide for payment for every successful 

“sale” made by a Plaintiff. Instead, the compensation plan specified that the 

insurance company would pay commissions only for policies that were actually 

“Active”—meaning the client had actually enrolled and paid premiums—and 

therefore were actually “paid by [the] Insurance Carrier.” Compensation Plan, Trial 

Ex. 8, Doc. 116-2.

But as both sides testified, there were multiple steps between Plaintiffs ending 

their calls successfully—with a “sale” as Plaintiffs called it at trial—and a customer 

actually enrolling in an insurance policy, then paying premiums on it, such that 

Plaintiffs would be entitled to a commission. There was no dispute over the process: 

a Plaintiff would pick up the phone and be on the line with a customer who had 

requested to speak to an insurance agent; the Plaintiff would explain the various 

policies and options, including totals costs; the customer would select which policy 

they wanted; then the Plaintiff would indicate the policy choice in the sales 

management software Radiusbob. Trial Tr. vol. 1, 13-4, 31, Doc. 123-1 (Reinier Cortes 

testifying and Plaintiffs’ counsel explaining process to jury). That was the end of the 

Plaintiffs “sale.”

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 6 of 18
7

But after that, the customer service center would complete the actual

enrollment paperwork with the customer and then send the information to the 

insurance company. Trial Tr. vol. 1, 13-4, 31, Doc. 123-1. In short, a Plaintiff’s

entering a so-called “sale” into the software then sending the client or information to 

the customer service department did not mean that the customer would end up 

actually enrolling and paying a premium. Sometimes, customers simply did not stay 

on the line to complete enrollment. Trial Tr. vol. 1, 96, Doc. 123-1. Or sometimes two 

agents—from the same or different agencies—would sell the same policy to the same 

person, but only the agent listed on the final policy would be paid by the carrier. Trial 

Tr. vol 1., 96, Doc. 123-1. Or as Plaintiffs’ counsel asked in his direct examination of 

Mr. Cortes, “Isn’t it true that some people didn’t want to pay?” Trial Tr. vol. 1, 98, 

Doc. 123-1. It was true that some people did not pay to activate their policy; in that 

case, the insurance carrier would not pay. Or, as Ms. Alcala testified that Mr. Cortes 

explained, the discrepancies between her “sales” and commission arose because some 

customers “had not verified or qualified their IDs” during the follow-up, meaning they 

did not actually qualify for enrollment. Trial Tr. vol. 3, 136.

Moreover, during the 2021-22 enrollment period the company instituted a 

mandatory consent form that clients had to sign. If it didn’t get signed, the sale would 

be flagged, and the Plaintiff would not get paid. So the Plaintiffs had to go back to

tagged clients and follow up to get them to sign the mandatory disclosure form. Trial 

Tr. vol. 2, 73-77, Doc. 123-2 (Ms. Alcala explaining consent form follow-up process).

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 7 of 18
8

Despite the undisputed facts that (1) the compensation plan did not pay for 

every successful call or “sale” made by Plaintiffs, (2) a successful call or “sale” made 

by a Plaintiff was only the beginning of a process that might possibly result in a 

commission payment, and (3) numerous hurdles to actual enrollment existed between 

a successful call and a commission—despite these undisputed facts, the Plaintiffs 

testified that they calculated their damages simply by finding the difference between 

their “sales” and the commissions they received. 

For example, Ms. Valiente explained to the jury that in November 2020 she 

recorded 600 policies sold at $10 per policy, but Avant paid her only $2,800. Trial Tr. 

vol. 2, 135-36, Doc. 123-2. According to her calculations, she was owed $6,000, 

meaning she believed she was entitled to every call “sold.” But that does not comport 

with the compensation plan’s commission framework, which only pays commissions 

for active and enrolled customers—customers who completed the process and made 

payments. Compensation Plan, Trial Ex. 8, Doc. 116-2. Each Plaintiffs’ testimony was 

similar in this exact regard—they calculated their damage based on their total sales 

record, subtracted from what they were paid. See, e.g., Trial Tr. vol. 2, 155, Doc. 123-

2 (Ms. Valiente explaining that her total commission claim arose from adding up 

“more or less” her sales record to “get an amount of the total amount of clients”); Trial 

Tr. vol 3, 40, Doc. 123-3 (Mr. Batista explaining that there was a discrepancy of 20 to 

25% between “the sales that [he] had made and the [commission] statements that 

[he] received” and used the difference to calculate an amount owed); Trial Tr. vol. 3, 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 8 of 18
9

139, Doc. 123-3 (Mr. Alcala explaining that he calculated his damages “based on the 

sales that [he] did”).

But, again, it was undisputed that not all successful calls would result in 

commission payments. Therefore, to produce an accurate measure of damages, the 

Plaintiffs would have had to produce some evidence showing they were not paid for 

customers that actually ended up enrolling in policies. No Plaintiff produced any such 

evidence.

Mr. Cortes suggested that if the Plaintiffs believed they were not being paid 

for sales they should have been paid for, they could have followed up on their calls to 

inquire whether enrollment was completed. Trial Tr. vol. 1, 99, Doc. 123-1. When 

asked about this by Plaintiffs’ counsel, Ms. Alcala testified that she did not keep track 

of her customer’s phone numbers on her own, so she was not able to compare her 

sales list with the commission statements she received to check which were not paid.

Therefore, she was unable to discover “which one of the numbers or the sales was 

missing.” Trial Tr. vol. 2, 80. Apparently none of the Plaintiff kept track of this 

information or followed up in this manner, because none of the Plaintiffs testified 

that they made any effort to verify which of their “sales” actually entitled them to a 

commission payment.

Therefore, the damages amounts for commissions are speculative and inflated, 

because each Plaintiff simply testified—incorrectly—that all of their “sales” should 

have resulted in commissions, instead of producing evidence as to which commissions 

they did not receive. See, e.g., Alvarez v. All Star Boxing, Inc., 258 So. 3d 508, 513 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 9 of 18
10

(Fla. 3d DCA 2018) (reversing damages verdict as speculative when it was based on 

expert opinion that made unsupported assumptions about profit splitting, reasoning 

that “no weight may be accorded an . . . opinion which is totally conclusory in nature 

and is unsupported by any discernible, factually based chain of underlying 

reasoning”).

Second, the evidence at trial was conclusory and did not form a reasonable 

basis from which the jury could arrive at its own calculation of damages. None of the 

Plaintiffs provided any documentary evidence in the form of a list of sales that were 

improperly denied commissions. At best, like Ms. Valiente and Mr. Alcala, they 

simply provided a spreadsheet, or a portion of a spreadsheet, showing how many 

successful calls they had recorded or how much they believed they were owed—in 

total. Ms. Valiente’s Photograph of Spreadsheet, Trial Ex. 1, Doc. 116-1; Mr. Alcala’s 

Spreadsheet of Totals Due, Ex. 17, 1-2, Doc. 117-7, Doc. 117-8. At worst, like Ms. 

Alcala and Mr. Batista, they did not even provide such a spreadsheet, but instead 

simply testified as to a total amount of sales, with no explanation of how it was 

calculated—what number of Oscar policies, what number of Friday policies, and so 

on; which sales were paid, which were not. Instead, the Plaintiffs simply testified as 

to a number, without providing any underlying support.

This case is like Instant One Media, cited above.1 In that case, the plaintiff 

attempted to prove lost profits, for breach of contract under Georgia law, and 

1 Instant One Media, Inc. v. EzFauxDecor, LLC, 22-11374, 2023 WL 2422196, at *2 

(11th Cir. Mar. 9, 2023).

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 10 of 18
11

trademark infringement under federal law. In support of the damages amount, the 

plaintiff provided (i) business records for sales of certain months; (ii) testimony that 

sales of the trademarked products totaled $2.3 million of the period in question; (iii) 

testimony that expenses were $300,000 over the same period; and finally (iv) 

testimony that the plaintiffs had “calculated $562,368 in estimated losses” after 

subtracting certain expenses. Id. The plaintiff’s key witness explained the plaintiff’s 

methods of calculation, but the plaintiff did not provide documentary evidence of the 

calculations or the underlying data. Id. The trial court denied a motion for judgment 

as a matter of law. Id.

The Eleventh Circuit Court of Appeals reversed for reconsideration, ruling 

that the evidence adduced did not support lost-profit damages under either a breach 

of contract or trademark infringement theory. In reversing, the court reasoned that 

(1) the plaintiff needed to provide “information or data sufficient to enable [the trier 

of fact] to estimate the amount of the loss with reasonable certainty”; and that (2) 

“[c]onclusory testimony about the estimated amount of profits and generic comments 

on her calculation process do not provide a sufficient ‘basis of computation’ for a jury 

to determine actual damages under the Lanham Act.” Id.; see also Saewitz, 79 So. 3d 

at 833-34 (like Georgia, Florida follows “reasonable certainty” standard for proving 

contractual damages).

Here, just like in Instant One Media, the Plaintiffs provided generic comments 

on their calculation methods and conclusory testimony as to total amounts of 

damages without providing the jury any evidence or data from which the jury could 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 11 of 18
12

come to its own independent conclusion about the proper amount of damages. As in 

Instant One Media, the Plaintiffs’ lack of underlying data left the jury with an

insufficient basis of computation for the jury to determine damages amounts.

This case is also like CE N. Am., LLC v. Certain Underwriters at Lloyds', 

London Subscribing to Policy No. B0799MC036620J, 20-20446-CIV, 2023 WL 

2714024, at *7 (S.D. Fla. Mar. 30, 2023), where, in attempting to overcome a motion 

for summary judgment on their claim for breach of an insurance policy, the Plaintiffs 

produced a spreadsheet of their claimed losses from by an affiant witness. Id. The 

trial court rejected the evidence as conclusory because the affiant:

fails to state how the quantity and price figures displayed in the 

hundreds of entries were calculated; he fails to explain how he 

carried out the inventory counts; he omits any discussion 

regarding the original locations of the alleged inventory losses; 

and, more importantly, he completely fails to address the 

existence or whereabouts of the underlying documentation used 

to compile the spreadsheets.

Id.

Here, just like in CE, Plaintiffs have testified or produced conclusory evidence 

that fails to explain how the total damages were calculated. There is no spreadsheet 

or other documentary evidence of successful calls (Plaintiffs’ “sales”) showing, for 

each call: (1) an identifiable individual (for example a name, phone number, or last 

four digits of social); (2) the insurance provider selected, (3) the commission amount 

that would be due, and (4) confirmation that the individual actually enrolled in a 

policy and then went on to activate it (i.e. pay the first premium). 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 12 of 18
13

Without this information, there is no way to tell what amount was properly

due to each Plaintiff, so that amount could be compared with the amount that was

paid. The Plaintiffs’ conclusory testimony was as a matter of law insufficient to 

support a damages award for commissions owed. See, e.g., Shumate & Co., Inc. v. 

Nat'l Ass'n of Sec. Dealers, Inc., 509 F.2d 147, 153 (5th Cir. 1975) (“The only evidence 

Shumate presented regarding his damages at trial was his own testimony, 

unsupported by any relevant data.”); cf. Perez v. Gulf Coast Mgmt. Co., LLC, CIV.A. 

14-00426-N, 2015 WL 895098, at *6–7 (S.D. Ala. Mar. 3, 2015) (“Rather than merely 

telling the Court in summary fashion what its damages are, a plaintiff seeking 

default judgment must show the Court what those damages are, how they are 

calculated, and where they come from . . . .”); Go Mobile Flooring, LLC v. Blue Banyan 

Sols., Inc., 8:20-CV-3098-CEH-JSS, 2023 WL 2610156, at *4 (M.D. Fla. Mar. 23, 

2023) (pre-trial damages disclosure Rule 26 “by its very terms . . . requires a 

computation, supported by documents”).

Third, at least two Plaintiffs simply conceded that their damages calculations 

were approximations. For example, Ms. Valiente testified that she added up “more or 

less” her total sales to get “an amount of the total amount of clients,” then estimated 

that she should have been paid $9,000 per month instead of $7,000 for 2021. Trial Tr. 

vol. 2, 155. For 2022, she testified that she was paid “around $8,000 per month,” but 

it should have been “[a]round $10,000” per month. Trial Tr. vol. 2, 158-59. She 

provided no explanation how she came to these figures, other than by totaling her 

own record of successful calls. Next, Mr. Batista testified that he should have made 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 13 of 18
14

“[a]pproximately $6,000” per month instead of what he was actually paid, “because 

of the discrepancy” between his sales and commissions. Trial Tr. vol. 3, 40. He 

believed that there was “around 20, 25 percent” of his commissions missing. Trial Tr. 

vol. 3, 45. When asked whether the commission statements from Avant were 

accurate, he replied, “I don’t think so.” Trial Tr. vol. 3, 45. When asked how much he 

“estimate[d]” he was owed, he replied, “What I estimate is $91,056.24.” Trial Tr. vol. 

3, 52.

This testimony does not satisfy Florida’s “reasonable certainty” standard for 

proof of damages for breach of contract, which requires that a plaintiff seeking 

damages “present evidence to justify an award of damages in a definite amount.”

Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989) (emphasis added). 

This also does not comport with Florida’s bar on speculative or estimated damages. 

See, e.g., Saewitz, 79 So. 3d at 833 (“The amount of damages claimed . . . must not be 

based upon speculation or guesswork.”).

Fourth, the same problems that are inherent in the flawed calculations of 

commissions also prevented the jury from being able to accurately gauge whether 

bonuses were owed. The evidence showed between a 20% and 53% difference between 

“sales” and commissions. Trial Tr. vol. 2, 135-36 (Ms. Valiente testifying that in the 

2020 enrollment period she “sold” 600 policies but received commissions for only 280 

policies); Trial Tr. vol. 3, 45 (Mr. Batista testifying that he discovered a 20-25% 

difference between his “sales” and his commissions). As Katrina Guerra testified,

while the agents celebrated when they hit 600 sales of Oscar, agents still “knew you 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 14 of 18
15

had to hit a lot higher than that because things happen.” Trial Tr. vol. 4, 35. She

explained, “[T]hings falls off the books . . . . So although [hitting 600] was kind of 

exciting, we had to do a lot more in order to go ahead and actually have the 600.” 

Trial Tr. vol. 4, 35.

That means for each Plaintiff, it would not be enough to simply testify that 

they began the process of enrolling 600 or 700 or even 1,000 Oscar policies to entitle 

them to the $25,000 bonus. They had to show that 600 policies ended up being active 

and paid. But the Plaintiffs conceded that they made no attempt to discover whether 

any individual policy ended up being enrolled and active. Thus, for example, Ms. 

Valiente claims she sold around 1,000 Oscar policies. But she was admittedly unable 

to prove what percentage of those “sales” ended up actually enrolling and then 

activating. Determining that more than 60% of the clients enrolled and then 

activated would require the jury to speculate. The problem is even more difficult in 

the cases of Mr. Batista and Mr. Alcala. Mr. Batista claims he sold 680 or 690 Oscar 

policies, which means that if even 13% of his “sales” did not result in actual 

enrollments, he was not entitled to the $25,000 bonus. Trial Tr. vol. 3, 50. Mr. Batista 

provided no evidence or testimony that more than 87% of his “sales” should have 

resulted in actual commissions. For his part, Mr. Alcala testified that he sold around 

840 Oscar policies. Trial Tr. vol. 3, 119. That means that if 29% of Mr. Alcala’s Oscar

clients did not finalize, then Mr. Alcala was not entitled to the $25,000 bonus either. 

The only way the jury could have determined that Ms. Valiente, Mr. Batista, 

and Mr. Alcala were owed the $25,000 Oscar bonus would by determining that the 

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 15 of 18
16

parties’ Oscar sales were more than 40%, 13%, and 29% successful in producing 

clients who actually completed the enrollment process and proceeded to activate their 

policies. But no evidence was presented to the jury that would have allowed them to 

make this determination. The evidence of bonus entitlement, and therefore the 

awards for bonuses, was impermissibly speculative.

C. The Jury’s Verdict Is Excessive

Defendant also seeks a remittitur on the ground that the damages are 

excessive. State law governs whether the breach of contract verdict is excessive, while 

federal law governs whether a new trial or remittitur should be granted. Roboserve, 

Ltd. v. Tom's Foods, Inc., 940 F.2d 1441, 1446 (11th Cir. 1991). Under Florida 

Statutes section 768.74, upon a motion this Court is tasked with determining 

whether the verdict “is excessive or inadequate in light of the facts and circumstances 

which were presented to the trier of fact.” In determining whether the verdict is 

excessive, this Court should consider:

(a) Whether the amount awarded is indicative of prejudice, 

passion, or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence 

in reaching a verdict or misconceived the merits of the case 

relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages 

into account or arrived at the amount of damages by speculation 

and conjecture;

(d) Whether the amount awarded bears a reasonable relation to 

the amount of damages proved and the injury suffered; and

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 16 of 18
17

(e) Whether the amount awarded is supported by the evidence 

and is such that it could be adduced in a logical manner by 

reasonable persons.

§ 768.74(5), Fla. Stat. (2023). When deciding whether to grant a new trial based on 

an excessive verdict, the verdict must be so grossly high as to shock the conscience of 

the Court. Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1447 (11th Cir. 1985).

Here, the verdict is grossly disproportionate to the amount proved at trial. For 

the reasons explained above, Plaintiffs’ evidence was both speculative under section 

768.74(5)(c) and bore no reasonable relation to the amount proved under subsection 

(5)(d). Specifically, the damages were speculative, because they were based on flawed 

methodologies, conclusory testimony, and unfounded assumptions described above. 

The evidence bears no reasonable relation to the amount proved for the same 

reasons—the Plaintiffs failed to prove they were owed any commissions, because they 

provided no evidence of specific “sales” that should have resulted in commissions but 

did not. And the Plaintiffs failed to prove they were owed any bonuses, because they 

provided no evidence that they achieved not just 600 “sales,” but 600 Oscar 

enrollments and activations. Therefore, the jury’s verdict should be reduced. Because 

Plaintiffs provided only speculative, conclusory, or methodologically flawed 

evidence—for both bonuses and commissions—the verdict should be reduced to zero.

CONCLUSION

Defendant, Avant Assurance, Inc., respectfully requests that this Court reduce 

the jury’s verdict to $0.00—which reflects the amount of non-speculative and nonCase 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 17 of 18
18

conclusory contractual-damages evidence presented at trial—or in the alternative,

that this Court order a new trial.

LOCAL RULE 7.1(a)(3) CERTIFICATE OF CONFERENCE

Counsel for Defendant certifies that, in accordance with S.D. Fla. L.R. 

7.1(a)(3), he conferred with counsel for Plaintiffs on August 10, 2023, via electronic 

correspondence, in a good faith effort to resolve the issues raised in the instant 

Motion. Plaintiffs stated that they oppose the motion for new trial or remittitur.

Respectfully submitted,

/s/ Samuel Alexander 

Samuel Alexander

Fla Bar No. 1007757

Alexander Appellate Law P.A.

120 S Woodland Blvd Suite 200

DeLand, Florida 32720

(689) 259-5010

samuel@alexanderappeals.com

Counsel for Defendant

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on September 21, 2023, I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system, which will send 

a notice of electronic filing to all counsel of record.

/s/ Samuel Alexander 

Samuel Alexander

Case 1:22-cv-22671-CMA Document 124 Entered on FLSD Docket 09/21/2023 Page 18 of 18