IN THE SUPREME COURT OF FLORIDA TALLAHASSEE,

Filing # 15735769 Electronically Filed 07/09/2014 05:23:21 PMRECEIVED, 7/9/2014 17:28:46, John A. Tomasino, Clerk, Supreme CourtIN THE SUPREME COURT OF FLORIDATALLAHASSEE, FLORIDACASE NO. SC14-1083District Case No. 4D12-444PETER R. GENOVESE, M.D.,Petitioner,-vsPROVIDENT LIFE AND ACCIDENTINSURANCE COMPANY and STEVEKORSHOFF,Respondents./BRIEF OF PETITIONER ON JURISDICTIONOn appeal from the Fourth District Court of Appeal of the State of FloridaBECKER & POLIAKOFF, P.A.3111 Stirling RoadFort Lauderdale, FL 33312grosen@becker-poliakoff.comandLIGGIO BENRUBI, P.A.1615 Forum Place, Suite 3BWest Palm Beach, FL 33401rbenrubi@liggiolaw.comandBURLINGTON & ROCKENBACH, P.A.444 West Railroad Avenue, Suite 350West Palm Beach, FL 33401(561) omkbt@FLAppellateLaw.comAttorneys for Petitioner

TABLE OF CONTENTSPAGETABLE OF AUTHORITIESiii-ivPREFACEvSTATEMENT OF THE CASE AND FACTS1-4SUMMARY OF ARGUMENT4-5ARGUMENT5-10THE FOURTH DISTRICT COURT OF APPEAL’SDECISIONEXPRESSLYANDDIRECTLYCONFLICTS WITH DECISIONS OF THIS COURTAND OTHER DISTRICT COURTS OF APPEAL ONCOLLATERAL ESTOPPEL AND OTHER ISSUES.CONCLUSION10CERTIFICATE OF SERVICE11CERTIFICATE OF TYPE SIZE & STYLE12ii

TABLE OF AUTHORITIESCASESPAGEApplegate v. Barnett Bank of Tallahassee,377 So.2d 1150 (Fla. 1979)4, 7, 8Armellini Exp. Lines, Inc. v. Sexton,384 So.2d 310 (Fla. 5th DCA 1980)6Campbell v. State,906 So.2d 293, 295 (Fla. 2d DCA 2004)5Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co.,945 So.2d 1216, 1235 (Fla. 2006)5Gupton v. Vill. Key & Saw Shop, Inc.,656 So.2d 475, 478 (Fla. 1995)9J P Morgan Chase Bank v. Combee,883 So.2d 330, 331 (Fla. 1st DCA 2004)7Ketchem v. Adler,826 So.2d 375 (Fla. 2d DCA 2002)8Lewis v. Connecticut Gen. Life Ins. Co.,427 So.2d 254 (Fla. 5th DCA 1983)6Mayfield v. Mayfield,929 So.2d 671, 672 (Fla. 5th DCA 2006)7Navarro v. Aurora Loan Services, LLC,130 So.3d 775 (Fla. 3d DCA 2014)8Prall v. Prall,50 So. 867, 870 (Fla. 1909)6Seaboard Coast Line R. Co. v. Indus. Contracting Co.,260 So.2d 860, 864 (Fla. 4th DCA 1972)6iii

Sierra by Sierra v. Pub. Health Trust of Dade County,661 So.2d 1296, 1298 (Fla. 3d DCA 1995)9Skidmore, Owings & Merrill v. Volpe Const. Co., Inc.,511 So.2d 642, 644 (Fla. 3d DCA 1987)5State of Fla., Dept. of Transp. v. Gary,513 So.2d 1338, 1340 (Fla. 1st DCA 1987)5iv

PREFACEThis is Petitioner Peter R. Genovese M.D.’s request for discretionary reviewof a February 26, 2014, decision of the Fourth District Court of Appeal reversingthe trial court’s denial of directed verdict in favor of the Defendant below.Petitioner will be referred to as “Petitioner” or “Dr. Genovese.” Respondent,Provident Life and Accident Insurance Company, will be referred to as“Respondent” or “Provident.” The following designation will be used:(A) - Fourth District’s Opinionv

STATEMENT OF THE CASE AND FACTSThis case involves the application of the collateral estoppel doctrine in asituation in which two separate cases arose out of the same disability insurancepolicy issued by Provident to Dr. Genovese. Pursuant to the policy, Dr. Genovesewas entitled to receive lifetime benefits if he became “totally disabled”prior to his 60th birthday. However, if Dr. Genovese became totally disabled on orafter his 60th birthday, he was entitled to benefits only until age 65. Dr. Genovesesubmitted his claim for total disability benefits before his 60th birthday.The first case (“Genovese I”) was filed by Provident and sought adeclaration that Dr. Genovese was not totally disabled pursuant to the policy andsought the return of benefits paid under a reservation of rights (A1-2). After filingsuit, Provident discontinued making monthly benefit payments to Dr. Genovese.Accordingly, he filed a counterclaim alleging breach of contract (A2).At trial in Genovese I, Provident argued for the first time during its rebuttalclosing argument that if Dr. Genovese was totally disabled, he became so after his60th birthday (A2). At the charge conference, Provident requested that the jury beasked to decide not only whether Dr. Genovese was totally disabled, the only issueraised by the pleadings, but also the date on which he became totally disabled(A2). Dr. Genovese objected to the inclusion of this question on the verdict form;his objection was overruled (A2). The jury ultimately concluded that Dr. Genovese1

was totally disabled and that he became so shortly after his 60th birthday (A2).Judgment was entered in favor of Dr. Genovese awarding him all unpaid benefits(A2). That judgment stated that Dr. Genovese prevailed on all counts ofProvident’s Complaint (A1-2). The judgment did not reference the date ofdisability assigned by the jury (A2). Provident neither sought rehearing of thatjudgment, nor appealed it.Provident paid the Genovese I judgment as well as Dr. Genovese’s monthlybenefits until his 65th birthday (A2). However, Provident terminated Dr.Genovese’s disability benefits as of his 65th birthday, relying on the jury finding inGenovese I that his date of disability was after his 60th birthday (A2).Dr. Genovese filed the instant action against Provident (Genovese II),alleging breach of contract based upon Provident’s termination of benefits (A3).Provident moved for summary judgment, arguing that Dr. Genovese was barred bycollateral estoppel from litigating the issue of when he became disabled (A3). Dr.Genovese filed a cross-motion for summary judgment, arguing that collateralestoppel did not bar his action because his date of disability had not been fully andfairly litigated in Genovese I and was not part of the judgment in that case (A3).The trial court denied Provident’s motion and granted Dr. Genovese’s motion(A3). Importantly, Provident failed to provide the trial court with a transcript fromGenovese I (A4); it provided only selected excerpts and pleadings from the case.2

At trial in Genovese II, Provident’s motion for directed verdict based on collateralestoppel was denied (A3). The jury determined that Dr. Genovese became totallydisabled prior to his 60th birthday, entitling him to lifetime benefits (A3).On appeal, the Fourth District disagreed with the trial court and determinedthat Dr. Genovese was barred by the doctrine of collateral estoppel from seeking adetermination of the onset date of his total disability (A1-5). In addressing whetherthe disability onset date was a critical and necessary part of Genovese I andwhether it was actually litigated in that case, two of the requirements forapplication of collateral estoppel, the court noted that Provident had not providedthe trial court with a full transcript from Genovese I (A4). Instead of determiningthat this failure on the part of Provident precluded it from meeting its burden ofestablishing collateral estoppel, the court held:In the absence of a transcript of the proceedings, a reviewing courtcannot disrupt a trial court’s factual findings, and is therefore limitedto reviewing errors that are apparent on the face of the orders,pleadings, and other documents properly filed as part of the record onappeal. See, e.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d1150 (Fla. 1979).***Therefore, the trial court’s submission of the issue by specialinterrogatory verdict to the jury [in Genovese I] is a prima facieindication that it was a critical and necessary part of Genovese I.(A4).3

Additionally, in addressing Dr. Genovese’s claim that he did not have a fulland fair opportunity to litigate the onset date because he could not appeal the fullyfavorable final judgment in Genovese I, the court held:[T]he judgment signed by the court in Genovese I was proposed to thecourt by Genovese, not Provident. A party cannot successfullycomplain about an error for which he or she is responsible, or ofrulings that he or she has invited the trial court to make. Because thetrial court signed the proposed judgment prepared by Genovese inGenovese I, his inability to appeal that judgment or any findings of factwas entirely within his control.(A4-5) (internal citations omitted).SUMMARY OF ARGUMENTThe Fourth District reversed the trial court’s denial of Provident’s Motionfor Directed Verdict based upon collateral estoppel. The Fourth District placed theburden on Dr. Genovese, the non-moving party below and the Appellee in theappeal, to establish that the issue of his date of disability was not determined inGenovese I. The Opinion of the Fourth District conflicts with decisions of thisCourt and other district courts of appeal on the following issues: 1) the courtrelieved Provident of the burden of proof on the collateral estoppel issue, andplaced that burden on Dr. Genovese; 2) the court applied Applegate v. BarnettBank of Tallahassee, 377 So.2d 1150 (Fla. 1979), to Dr. Genovese on a legal issuethat he did not have the burden of proof nor the burden to present an adequate4

record; and 3) the court applied the invited error doctrine against Dr. Genovesewith respect to the judgment in Genovese I despite the fact that he never claimederror in the Genovese I judgment (nor did Provident). Therefore, this Court shouldaccept jurisdiction to review the Fourth District’s decision and resolve this conflict.ARGUMENTTHE FOURTH DISTRICT COURT OF APPEAL’S DECISIONEXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONSOF THIS COURT AND OTHER DISTRICT COURTS OF APPEALON COLLATERAL ESTOPPEL AND OTHER ISSUES.Collateral EstoppelFor the doctrine of collateral estoppel to apply, the following elements mustbe met: (1) an identical issue must be presented in a prior proceeding; (2) the issuemust have been a critical and necessary part of the prior determination; (3) theremust have been a full and fair opportunity to litigate that issue; (4) the parties inthe two proceedings must be identical; and (5) the issues must have been actuallylitigated. See Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d1216, 1235 (Fla. 2006). There is a long line of cases from this Court and thedistrict courts of appeal stating that the burden is on the party asserting the defenseof collateral estoppel to establish each of its elements. See Campbell v. State, 906So.2d 293, 295 (Fla. 2d DCA 2004); Skidmore, Owings & Merrill v. Volpe Const.Co., Inc., 511 So.2d 642, 644 (Fla. 3d DCA 1987); State of Fla., Dept. of Transp.v. Gary, 513 So.2d 1338, 1340 (Fla. 1st DCA 1987). It is also well-established that5

any doubt regarding whether the elements exist should result in the defense beingrejected. Prall v. Prall, 50 So. 867, 870 (Fla. 1909); Seaboard Coast Line R. Co. v.Indus. Contracting Co., 260 So.2d 860, 864 (Fla. 4th DCA 1972). The FourthDistrict did not apply these principles here. Instead, it improperly shifted theburden to Dr. Genovese to establish that the onset date of his disability had notbeen fully and fairly litigated in Genovese I. As such, the Fourth District’s decisionexpressly and directly conflicts with the decisions of this Court and the otherdistrict courts of appeal discussed above.It is well-established that collateral estoppel, or estoppel by judgment,applies only where an issue has been litigated and is the subject of a finaljudgment. Armellini Exp. Lines, Inc. v. Sexton, 384 So.2d 310 (Fla. 5th DCA1980) (recognizing that “a final judgment is necessary to serve as the basis forestoppel by judgment”); Lewis v. Connecticut Gen. Life Ins. Co., 427 So.2d 254(Fla. 5th DCA 1983) (holding that “a jury verdict is not an adjudication, and ajudgment is essential to the operation of either res judicata or estoppel byjudgment”). Here, The Fourth District applied the collateral estoppel doctrine tobar Dr. Genovese’s claims, despite the fact that the date of disability decided bythe jury in Genovese I was not referenced in the Final Judgment. Furthermore, theonset date did not inhere in the Final Judgment because it was not utilized in ornecessary to the determination of damages

J P Morgan Chase Bank v. Combee, 883 So.2d 330, 331 (Fla. 1st DCA 2004) 7 Ketchem v. Adler, 826 So.2d 375 (Fla. 2d DCA 2002) 8 Lewis v. Connecticut Gen. Life Ins. Co., 427 So.2d 254 (Fla. 5th DCA 1983) 6 Mayfield v. Mayfield, 929 So.2d 671, 672 (Fla. 5th DCA 2006) 7 Navarro v. Aurora Loan Services, LLC, 130 So.3d 775 (Fla. 3d DCA 2014) 8