USCA11 Case: 22-11881 Document: 30-1 Date Filed: 01/23/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11881
Non-Argument Calendar
____________________
NATIONAL INDEMNITY COMPANY OF THE SOUTH,
Plaintiff-Appellee,
versus
MA ALTERNATIVE TRANSPORT SERVICES, INC.,
a Florida Corporation,
SHERRY HENRY,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 22-11881
D.C. Docket No. 6:19-cv-00013-RBD-LHP
____________________
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
This federal case originated when National Indemnity Com-
pany of the South (“the Insurance Company”) filed a complaint in
the district court seeking a declaratory judgment that it owed no
coverage under MA Alternative Transport Services’s (“MA Alter-
native”) liability insurance policy. The Insurance Company claims
that MA Alternative breached the notification and cooperation
clauses in the Policy and that those breaches prejudiced it. The
Insurance Company claims that MA Alternative received a copy of
Sherry Henry’s complaint after it was filed in state court, but failed
to notify or send a copy to the Insurance Company and failed to
apprise the Insurance Company of subsequent developments in the
state court case, thus breaching the notification and cooperation
clauses of the Policy, and prejudicing the Insurance Company (i.e.
the default judgment in Henry’s state lawsuit against MA Alterna-
tive). The district court granted partial summary judgment in fa-
vor of the Insurance Company. See Dist. Ct. Doc. 86. The sum-
mary judgment left certain issues to be tried to a jury, some of
which are relevant to this appeal.
The jury trial was held. The jury found, inter alia, that MA
Alternative had breached the notification and cooperation clauses
in the Policy, and that the Insurance Company suffered prejudice.
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22-11881 Opinion of the Court 3
Appellants make three discrete arguments on appeal. The
first challenges the district court’s failure to grant summary judg-
ment in their favor with respect to the prejudice issue. The second
and third arguments challenge two evidentiary rulings of the dis-
trict court with respect to the jury trial. After careful consideration
of the briefs of the parties and relevant parts of the record, we con-
clude that the judgment of the district court is due to be affirmed.
We write only for the parties who are already familiar with
the facts and the relevant law. Therefore we write only so much
as is necessary for the parties to understand our reasoning.
I.
Appellants’ first issue on appeal is whether the district court
erred in failing to grant summary judgment in their favor on the
prejudice issue. Appellants argue that the state court default judg-
ment (resulting from the breaches of the notification and coopera-
tion clauses of the Policy) did not prejudice the Insurance Com-
pany because it had an opportunity to vacate the default judgment,
but ineffectively pursued that opportunity in state court. We note
that the Appellants implicitly acknowledge on appeal that MA Al-
ternative failed to notify the Insurance Company of Henry’s com-
plaint and other developments in the state court case, thus breach-
ing the notification and cooperation clauses of the Policy. Rather,
Appellants argue that the Insurance Company could have done a
better job in state court in prosecuting the motion to vacate the
default judgment. They argue that the default judgment could
have been vacated easily, and thus there would have been no
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4 Opinion of the Court 22-11881
prejudice. In other words, Appellants argue that they should not
be held responsible for the prejudice that the Insurance Company
suffered on account of the default judgment, which they argue was
caused instead by the Insurance Company’s own inadequate advo-
cacy.
We conclude that this first argument of Appellants on appeal
is without merit for several reasons. First, none of the cases relied
on by Appellants actually support Appellants’ argument. None of
those cases support Appellants’ theory that the Insurance Com-
pany’s alleged ineffective advocacy in the state court with respect
to the motion to vacate the default judgment is the equivalent to,
or sufficiently analogous to, an insurance company’s “unjustifi[ed]
refus[al] to file and pursue a viable motion to set aside the [default]
judgment.” Indem. Ins. Corp. of DC. v. Caylao,
130 So. 3d 783, 787
(Fla. Dist. Ct. App. 2014). As the district court said, the Appellants’
argument relies on a “gross misstatement of the law,” Dist. Ct.
Doc. 86 at 23, or a mere “rabbit trail,” Dist. Ct. Doc. 181 at 192.
Second, as the district court held, at the summary judgment stage
of the proceedings below, there were genuine issues of fact with
respect to the facts Appellants now rely on in arguing that there
was an easy, straightforward way the Insurance Company could
have persuaded the state court to vacate the default judgment. For
example, the district court held that there was a genuine issue of
fact as to whether Duarte Santiago was a co-resident with Magalon
(President of MA Alternative) at the time the process server served
Henry’s complaint on Santiago at MA Alternative’s business
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22-11881 Opinion of the Court 5
address (Magalon’s residence). As the district court noted, the pro-
cess server’s return of service, as well as his affidavit, suggested that
Santiago told the process server that he was a co-resident there.
See Dist. Ct. Doc. 86 at 21 (holding that there was a genuine issue
of fact in this regard based on the “process server’s sworn affidavit
stating that he served Duarte as a co-resident.”). Thus, both as a
legal matter and as a factual matter, Appellants were not entitled
to summary judgment in their favor with respect to Appellants’
first argument on appeal. 1
Accordingly, we conclude that Appellants’ first argument on
appeal is without merit.
II.
Appellants’ second argument on appeal—i.e. that the district
court abused its discretion when it denied Appellants’ motion in
limine filed on Sunday immediately before trial began on Monday
morning—is also wholly without merit. Appellants’ motion
sought to concede the issue of prejudice and thereby exclude any
evidence of the underlying state lawsuit which resulted in the $5
million default judgment. The district court properly denied the
last-minute motion as untimely. Whether or not MA Alternative’s
1 Although Appellants’ motion for summary judgment and briefing in support
thereof to the district court are far from clear that Appellants actually sought
summary judgment in their favor in this regard—as opposed to merely oppos-
ing summary judgment in favor of the Insurance Company—we need not de-
cide that issue.
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6 Opinion of the Court 22-11881
breach of the notification and cooperation clauses of the Policy
prejudiced the Insurance Company had been a disputed issue since
the beginning of the district court proceedings. The district court’s
summary judgement order held there were issues of fact with re-
spect thereto that had to be tried to a jury. Thereafter, the joint
pretrial statement filed on August 12, 2021, and the Pretrial Con-
ference held on August 19, 2021, established that prejudice was a
prime issue for the jury trial. Clearly, Appellants’ eve-of-trial at-
tempt to change a primary issue for trial would have been highly
prejudicial to the Insurance Company whose trial preparation ob-
viously was already set. And Appellants did not explain to the dis-
trict court, and do not explain on appeal, why Appellants had good
cause for this last-minute attempt to obtain leave from the district
court to grant Appellants’ request to make a substantial change in
the structure of the jury trial which had long been mutually agreed
upon and established. Appellants cited no reason in the district
court—and cite none on appeal—why they delayed from August
2021 to Sunday, December 12, 2021, on the very eve of the jury
trial to request such a substantial change in the structure of the
trial. Moreover, Appellants’ concession was not a complete con-
cession of the prejudice issue; it did not eliminate a finding of lia-
bility on the part of the Insurance Company. Rather, it conceded
only that the default judgment could constitute prejudice. Appel-
lants sought to still retain the right to argue that the prejudice was
not caused by MA Alternative’s breaches of the Policy clauses.
They still wanted to argue that the real cause of the prejudice was
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22-11881 Opinion of the Court 7
the Insurance Company’s own ineffective advocacy in seeking to
vacate the default judgment in the state court.
Accordingly, we cannot conclude that the district court
abused its discretion in this regard.
III.
Finally, Appellants’ third argument on appeal is also without
merit. Appellants argue that the district court abused its discretion
in admitting the testimony of Henry’s attorney in the state court
proceedings. That attorney testified that on February 8, 2018, he
mailed a copy of the state court trial judge’s order (“Trial Order”)
noting that the default judgment had been entered against MA Al-
ternative and a date had been set for litigation of damages. The
attorney testified that he then received a telephone call from a male
caller who identified himself as Magalon, indicating that he had re-
ceived the Trial Order. Appellants argue that the attorney’s testi-
mony is inadmissible hearsay. The district court ruled that the ev-
idence was admissible as a statement of a party opponent (because
Magalon was President of MA Alternative). Appellants argued in
the district court and on appeal that there was insufficient authen-
tication—i.e. that there was insufficient evidence that the caller was
in fact Magalon and therefore the evidence could not be admitted
as a statement of a party opponent.
It is true that the mere assertion of identity by a person on a
telephone call may not, by itself, be sufficient to authenticate that
person’s identity. However, “some additional evidence, which
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8 Opinion of the Court 22-11881
‘need not fall in[to] any set pattern’ may provide the necessary
foundation.” United States v. Dhinsa,
243 F.3d 635, 659 (2d Cir.
2001) (quoting Fed.R.Evid. 901(b)(6) advisory committee notes, ex.
6). We cannot conclude that the district court abused its discretion
in finding sufficient authentication and admitting the evidence. In
addition to the caller’s self-identification, the caller implicitly
acknowledged receipt of the February 8, 2018, letter which we
know was mailed to Magalon’s address; the caller asked Henry’s
attorney: “Why is your office sending my company mail?” There
ensued a discussion in which Henry’s attorney explained the Trial
Order and that there had been a default judgment entered against
Magalon’s company and a trial date set to determine damages, in
response to which the caller used profanity and hung up. Rule
901(b)(6) and example 6 in the Advisory Committee Notes support
the district court’s ruling.
We cannot conclude that the district court abused its discre-
tion in this regard. We agree that the Insurance Company pro-
duced “evidence sufficient to support a finding that [Henry’s attor-
ney’s testimony] is what the proponent claims it is.” Fed.R.Evid.
901(a). And Appellants did not rebut the Insurance Company’s
prima facie case; Magalon did not testify at all.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
