# Third District Court of Appeal

State of Florida

Opinion filed December 17, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2625

Lower Tribunal No. 14-8506

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### Great American Insurance

Company of New York

, Petitioner,

vs.



### 2000 Island Boulevard Condominium

Association, Inc., et al.

, Respondents.

A Case of Original Jurisdiction

– Prohibition

Carlton Fields Jordan Burt and Wendy F. Lumish; Mound Cotton Wollan &

Greengrass, and Ira S. Bergman and Jason M. Chodos (Fort Lauderdale)

, for

petitioner.

Bambi G. Blum; Mintz Truppman and Mark J. Mintz; McLuskey &

McDonald and John W. McLuskey, for respondents.

Before SHEPHERD, C.J., and SALTER and LAGOA, JJ.SHEPHERD, C.J.

It has long been said in the courts of this state that “every litigant is entitled

to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis

v. Parks

, 194 So. 613, 615 (Fla. 1939). Regrettably, the trial judge in this case has

abandoned his post as a neutral overseer of the dispute between the parties,

compelling us to grant Great American Insurance Company’s Petition for a Writ of

Prohibition. 1

This case arises out of an insurance coverage dispute between 2000 Island

Boulevard Condominium Association, Inc. and Great American Insurance

Company of New York over whether a “Difference in Conditions” insurance

policy issued by Great American affords the Association coverage for falling

concrete and slab deflection, alleged to have occurred in the condominium parking

garage. The Association filed its complaint on April 1, 2014. The case was

assigned to Miami-Dade Circuit Court Judge David C. Miller. On September 30,

Great American filed its Answer and Affirmative Defenses. The affirmative

defenses raised various exclusions and conditions contained in the insurance

policy, including that Great American was unable to finalize its coverage position

because the Association had failed to provide documents and refused to appear for

an examination under oath. Operating on an “expedited” case management

1 We review the trial court’s order denying disqualification under a de novo

standard of review. Wade v. Wade

, 123 So. 3d 697 (Fla. 3d DCA 2013).

2schedule, the trial court struck Great American’s legal defenses three weeks later,

on October 22, 2014, as “legally invalid.” The remarks upon which Great

American relies in support of disqualification were made at the October 22

hearing, and at a hearing held one week earlier, on October 15, on Great

American’s motion for a protective order to limit discovery of its pre-litigation,

engineering consultant.

At the time of these hearings, no summary judgment motions had been filed,

nor had a single witness ever appeared before the court. Indeed, at the time of the

October 15 hearing, not a single deposition had been taken in the case. Yet,

despite the complete lack of any evidence before the court, the following exchange

took place between the court and Great American’s counsel at the October 15

hearing:

THE COURT: Well, it doesn’t feel like we’re in an

abandonment situation. We’ve got a lawsuit filed. We’ve got an

insurance company that’s not paying a claim. We’ve got them basing

that decision, in part, upon this expert that went out there, and I

imagine he was maybe perhaps even involved in putting together the

list of things they still needed. You said you would give them a report

when they got all of that information to you. It strains all credulity for

me to believe that your carrier has not denied coverage based on the

information they know now.

[DEFENSE COUNSEL]: But they have not.

THE COURT: Then fork over the money

.

3(Emphasis added.) This startling remark, in and of itself, is sufficient to compel

disqualification. Whether Great American is required to “fork over the money” is

the entirety of what is at issue in this case. “While a trial judge may form mental

impressions and opinions during the course of the case, the judge is not permitted

to pre-judge the case.” Kates v. Seidenman

, 881 So. 2d 56, 58 (Fla. 4th DCA

2004); see also Minaya v. State

, 118 So. 3d 926, 929 (Fla. 5th DCA 2013); State v.

Ballard

, 956 So. 2d 470 (Fla. 2d DCA 2007). We agree with Great American that

this remark alone, made without the benefit of any affidavits, sworn testimony or

other competent evidence, is sufficient to leave Great American with an

objectively reasonable fear it will not receive a fair trial. See Williams v. Balch

,

897 So. 2d 498 (Fla. 4th DCA 2005) (holding disqualification required when

judicial comments signal predisposition made prior to consideration of evidence).

Additional remarks made by the trial judge at the October 15 hearing also

compel disqualification. For example, an exchange took place after Great

American’s counsel stated that Great American did not have an opportunity to

complete its investigation before the Association filed suit. Regardless of whether

the court believed or disbelieved this statement, it had an obligation to remain

impartial. Yet, bias was again displayed in the following exchange:

THE COURT: You can’t read the June 26, 2012 letter without

saying this is a denial letter. “We’re not sure,” you can “we’re not

sure” until the cows come home. And, in fact, you won’t be sure

until the jury speaks, and then you won’t be sure until the

4Appellate Court rules, and then you won’t be sure until the

Supreme Court rules after that. Then even if they rule against

you, you won’t be sure that they’re right. You’ll claim that

they’re wrong. That’s just the nature of litigation. That’s how it

works.

Listen, if it were

-- if I were being asked, I would sanction

you for making a specious argument that this person 2 shouldn’t be

deposed and opinions fully addressed. You’ve taken a position,

you’re involved in litigation, you’ve denied coverage, you’ve stated

and specified things. It’s doggone concrete spalling, up or down.

This is not rocket science. This is something that construction’s

been dealing with for many, many, many years. Ever since they

put a piece of steel inside concrete they’ve been having these

issues. It’s not a big deal.

. . .

. . . .

THE COURT: And maybe it is for a lawyer, but I can tell you

for an expert it’s not. This guy was sent out as an expert. The claim

was, for all intents and purposes, denied. Assurances were given

once, we get all of these records we will give you his report. But now

2 This “person” is Samuel Thomas, Great American’s pre-litigation, engineering

consultant. At issue in this hearing was, among other things, Great American’s

motion for protective order pertaining to Mr. Thomas’ opinions, which Great

American argued were protected work product. In pre-litigation communication,

Great American advised the Association that its expert would produce a report and

the report would be provided upon “receipt from the insured of information and

documents requested from it by Great American.” Great American asserts the

filing of the instant law suit prematurely terminated its claims-handling

obligations, including what it considered to be a conditional agreement to generate

a report from its consultant. Great American’s motion presented at least a

colorable work product doctrine argument. See Fla. R. Civ. P. 1.280(b)(5)(B) (“ A

party may discover facts known or opinions held by an expert who has been

retained or specially employed by another party in anticipation of litigation or

preparation for trial and who is not expected to be called as a witness at trial, only

.

. . upon a showing of exceptional circumstances under which it is impracticable for

the party seeking discovery to obtain facts or opinions on the same subject by other

means.).

5we know that he was probably told don’t do a report, because

otherwise they do reports.

So I would instruct that he prepare a report in anticipation of his

deposition and that he answer all questions that he has

-- you can’t

keep claiming you’re going to hire new experts to keep a claim alive

and a claim from being paid.

[DEFENSE COUNSEL]: Well, we’re defending a lawsuit, and

the experts are for a lawsuit.

(Emphasis added.)

In addition to the trial judge’s palpable distrust of Great American’s

willingness to render a coverage determination, the court here goes a step further

by expressing a contemptuous view of Great American (or its counsel’s)

willingness to accept judicial pronouncements. The Court casually states, “That’s

just the nature of litigation. That’s how it works.” A court of law should not be in

the business of casting aspersions on the ability of a party or its counsel to accept

the wisdom of this state’s appellate courts and make unsubstantiated predictions of

how that party will process those decisions.

The court’s unsolicited legal advice to plaintiff’s counsel is also problematic.

This advice came in the form of the following statement: “Listen, if it were

– if I

were being asked, I would sanction you for making a specious argument that this

person shouldn’t be deposed and opinions fully addressed.” (Emphasis added.) A

trial judge crosses the line when he becomes an active participant in the adversarial

process, i.e., gives “tips” to either side. See Chastine v. Broome

, 629 So. 2d 293,

6295 (Fla. 4th DCA 1993). The issue of sanctions was not before the court. Yet,

the court essentially advised plaintiff that, should he request sanctions, the court

would award them. The implication of the court’s statement is clear

– plaintiff’s

counsel should move for sanctions because the court will grant the motion.

The court then went further still in offering legal advice to the plaintiff by

stating “If it were me, I would still ask questions of an opinion nature and get

the statements regarding privilege on the record.” Such legal advice, standing

alone, is sufficient to compel disqualification. See, e.g.

, Blackpool Assocs., Ltd. v.

SM-106, Ltd.

, 839 So. 2d 837, 838 (Fla. 4th DCA 2003) (“We grant relief in

connection with the trial court’s order that denied disqualification as the trial court

provided Blackpool/Kevin Murphy with legal advice and suggestions.”); Shore

Mariner Condo. Ass’n v. Antonious

, 722 So. 2d 247, 248 (Fla. 2d DCA 1998)

(“Trial judges must studiously avoid the appearance of favoring one party in a

lawsuit, and suggesting to counsel or a party how to proceed strategically

constitutes a breach of this principle.”); Leigh v. Smith

, 503 So. 2d 989, 991 (Fla.

5th DCA 1987) (“Certainly an allegation that a judge assisted the opposing

attorney in the trial of the case by ‘signalling’ is sufficient, by itself, to warrant

disqualification.”).

Next, we address the court’s insinuation Great American owes coverage for

the Association’s claim and its assertion that Great American is “keep[ing]

... [the]

7claim from being paid” by expert-shopping. (Emphasis added.) As noted above,

the court stated at the October 15 hearing that “you can't keep claiming you're

going to hire new experts to keep a claim alive and a claim from being paid.” This

statement is particularly problematic coming from a judge presiding over a

coverage dispute. Rather than having an open mind concerning the possibility the

claim, in fact, may not be covered by the policy, the court essentially has found the

claim is covered and has accused Great American of hiring new experts to avoid

paying it. Yet, at this stage of the litigation, the court had absolutely no factual

basis for making any kind of coverage determination. In fact, as the court has

acknowledged, Mr. Thomas, Great American’s pre-litigation engineering

consultant, never even issued a report. The court speculated, without the slightest

evidentiary basis, that Great American told Mr. Thomas not to prepare a report,

because “otherwise they do reports.”

Finally, we address the court’s statement, “ It’s doggone concrete spalling,

up or down. This is not rocket science. This is something that construction’s

been dealing with for many, many, many years. Ever since they put a piece of

steel inside concrete they’ve been having these issues. It’s not a big deal.

. . .”

(Emphasis added.) Again, without any record evidence before it, the court gave its

view of what the facts will show and how an expert will view those facts, namely

that (a) the damage at issue is “concrete spalling”; (b) the construction industry has

8been dealing with this issue for “many, many, many years”; and (c) construction

experts will not find “concrete spalling” to be particularly complex. When a court

transforms itself into one of the litigants, it creates a well-founded fear that a party

will not be dealt with in a fair and impartial manner. See Chillingworth v. State

,

846 So. 2d 674, 676 (Fla. 4th DCA 2003) (“The court’s quest for information in

this case crossed the line of neutrality.”). So too has the trial judge crossed the line

in this case. His remarks confirm the court has pre-judged the facts of this case.

Under these circumstances, disqualification is warranted. See Minaya

, 118 So. 3d

at 929; Kates

, 881 So. 2d at 58. 3

At the October 22 hearing, the court continued improperly to make

unsupported factual findings based upon a barren record. For example, the court

made the following statements:

THE COURT: We all know, don’t we all know that the spalling

is caused by moisture getting into the rebar and the rebar rusting and

expanding and cracking the concrete off.

[DEFENSE COUNSEL]: And if [plaintiff’s counsel] is willing

to stipulate to this-

[THE COURT]: It’s just like if you drop a ball out of a tree it’s

going to hit the ground.

. . . .

3 We acknowledge the court’s statement in this regard ordinarily would not

be sufficient to warrant disqualification. However, “legal sufficiency” is

determined by analyzing the totality of the grounds asserted. See

Zimmerman v. State

, 114 So. 3d 1011, 1011 (Fla. 5th DCA 2012).

9[DEFENSE COUNSEL]: Perhaps they know that this piece

over here fell down two years ago and wouldn’t be covered under this

policy. There’s also-

[THE COURT]: Then you may want to go back to the

inspection when you guys said it was fine or somebody on your

behalf.

[DEFENSE COUNSEL]: I'm sorry?

[THE COURT]: They talked about an inspection before the

policy was written.

. . . .

[DEFENSE COUNSEL]: What we’re saying is we don’t know

what the Plaintiff is claiming. There’s the pool deck-

[THE COURT]: They’re claiming everything, that’s what they

always do.

Regrettably, these statements, which sound more like they are coming from a party

who is arguing the case rather than from a judge who has not taken a single piece

of evidence, lend further credence to Great American’s belief that this court has

pre-judged the facts of this case, is injecting his personal opinions on causation

into the case, and has a bias in favor of the plaintiff.

Finally, at the October 22 hearing, the court again took up the issue of

whether a June 26, 2012, letter sent by Great American was (as Great American

contends) a reservation of rights letter or (as plaintiff contends) a denial letter. On

this issue, the court stated, “I think it’s a denial. I mean, the absence of anything

else

- well, it’s an unkept promise of a denial after explaining why it’s not giving

10coverage. How is that for fancy talk for we’re not paying you. To me, it’s the

same thing, we’re not giving you money.” The “fancy talk” comment is yet

another display of the court’s animosity towards Great American or its counsel.

But this comment reasonably also may be interpreted as something even more

problematic a suggestion that Great American was somehow being deceptive by

using “fancy talk” to disguise a “denial letter” as a “reservation of rights letter.” 4

The implication that Great American has been less than forthright with the

Association by using “fancy talk” to obscure the meaning of its letter is further

grounds for disqualification. See generally DeMetro v. Barad

, 576 So. 2d 1353,

1355 (Fla. 3d DCA 1991) (stating disqualification is appropriate where there is “a

clear implication that the judge will not believe the complaining party’s testimony

in the future”).

We acknowledge some of the trial court’s comments may have been

intended as expressions of wit or erudition on his part. However, the question of

disqualification focuses not on what the judge intended, but rather how the

message is received and the basis of the feeling. See Livingston v. State

, 441 So.

2d 1083, 1086 (Fla. 1983) (“[I]t is not a question of how the judge feels; it is a

question of what feeling resides in the affiant’s mind and the basis for such

4 The June 26 letter reads as a standard reservation of rights letter, citing

potentially applicable policy defenses and exclusions, and requesting information

(albeit considerable in length and breadth) for its use in making a coverage

determination. The word “denial” appears nowhere in the letter.

11feeling.”) quoting State ex rel. Brown v. Dewell

, 179 So. 695, 697-98 (Fla. 1938)).

In the words of the sixteenth century statesman and jurist, Sir Francis Bacon

(1561-1626):

Judges ought to be more learned than witty; more

reverend (sic) than plausible; and more advised than

confident. *** Patience and gravity of hearing is an

essential part of justice; and an overspeaking judge is no

well tuned cymbal.

“Of Judicature,” Francis Bacon Essays

, pub. by J. M. Dent & Sons, 1958, Essay

LVI, pp. 162, 163.

Petition granted.

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