Electronically Filed 06/13/2013 10:05:04 AM ET

RECEIVED, 6/13/2013 10:08:39, Thomas D. Hall, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC13-_____

Third District Case No. 3D12-1152

JOE HARRY BRANAM,

Petitioner,

v.

GREAT LAKES REINSURANCE (U.K.) PLC,

Respondent.

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ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF

APPEAL OF FLORIDA, THIRD DISTRICT

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PETITIONERS BRIEF ON JURISDICTION

PAUL MORRIS ROBERT A. ROSENBLATT

Law Offices of Paul Morris, P.A. Rosenblatt Law Firm
9350 S. Dixie Hwy. 7696 S.W. 104th Street
Suite 1450 Second Floor
Miami, FL 33156 Pinecrest, Florida 33156
Tel: (305) 670-1441 Tel: (305) 536-3300
Fax: (305) 670-2202 Fax: (305) 667-2252
Florida Bar No. 193769 Florida Bar No. 153239
paulappeal@aol.com rosenblattlaw@hotmail.com
paulappeal@gmail.com rosenblatt_service@yahoo.com

Counsel for Petitioner

 TABLE OF CONTENTS

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

I.THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND

DIRECT CONFLICT WITH HENDRICKS v. DAILEY, 208 So. 2d 101 (Fla.
1968), JONES v. RIVES, 680 So. 2d 450 (Fla. 1st DCA 1996), WESTERMAN
v. SHELLS CITY, INC., 265 So. 2d 43 (Fla. 1972), DELGADO v. STRONG,
360 So. 2d 73 (Fla. 1978), AND TIBBS v. STATE, 397 So. 2d 1120 (Fla. 1981)
ON THE SAME QUESTIONS OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . -6-

II. THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND

DIRECT CONFLICT WITH DEVANEY v. RUMSCH, 228 So. 2d 904 (Fla.
1969) ON THE SAME QUESTION OF LAW . . . . . . . . . . . . . . . . . . . . -9-

III. THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND

DIRECT CONFLICT WITH BERGES v. INFINITY INS. CO., 896 So. 2d 665
(Fla. 2005) ON THE SAME QUESTION OF LAW . . . . . . . . . . . . . . . . -9-

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (App. 1 - 16)

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 TABLE OF CITATIONS
Cases

Berges v. Inifinity Ins. Co.,

896 So. 2d 665 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -9-, -10-

Delgado v. Strong,
360 So. 2d 73 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -6-

Devaney v. Rumsch,
228 So. 2d 904 (Fla. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -9-

Floyd v. Video Barn, Inc.,

538 So. 2d 1322 (Fla. 1st DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Great Lakes Reinsurance (U.K.) PLC v. Branam,

2013 WL 811677 (Fla. 3d DCA 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

Hendricks v. Dailey,
208 So. 2d 101 (Fla. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -6-

Jones v. Rives,
680 So. 2d 450 (Fla. 1st DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -6-

McCain v. Florida Power Corp.,

593 So. 2d 500 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Tibbs v. State,
397 So. 2d 1120 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -6-, -7-

Westerman v. Shells City, Inc.

265 So. 2d 43 (Fla. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-, -6-, -7-

Other Authorities

Fla. Const. Art. V, 3(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-, -8-

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 STATEMENT OF THE CASE AND FACTS

The petitioner, Joe Harry Branam, seeks review of the decision of the District

Court of Appeal of Florida, Third District, in Great Lakes Reinsurance (U.K.) PLC

v. Branam, 2013 WL 811677 (Fla. 3d DCA 2013). (App. 1-16). The petitioner was

the plaintiff in the trial court, appellee in the Third District, and referred to in the

decision below as JHB. The respondent is Great Lakes Reinsurance (U.K.) PLC,

the appellant in the Third District and defendant in the trial court. The following facts

are from the decision of the Third District.

The respondent insured a charter fishing boat named the Joe Cool and owned

by Deep Sea Miami, Inc. (Deep Sea Miami). (App. 2). The two named insureds

were Jake Branam (Jake) and Deep Sea Miami and Jake was Deep Sea Miamis

sole officer, director, and shareholder. (App. 4). On September 22, 2007, the boat was

hijacked. The hijackers murdered all four members of the boats crew, including Jake.

(App. 2). The boat was recovered by the Coast Guard. According to the petitioners

expert, the hijackers had caused extensive damage to its engines and the Coast Guard

caused additional damage by towing the boat from the coast of Cuba to Miami

without securing the boats props. (App. 2-3). The Coast Guard released the boat to

Jakes uncle, Jeff Branam (Jeff). (App. 3).

On November 1, 2007, the petitioner filed an action naming Jake, Deep Sea

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Miami, and others to establish and foreclose an equitable lien on the boat. Jeff

thereafter intervened as an additional lien claimant. (App. 4). On October 8, 2008,

the trial court entered the following order:

[I]n light of the death of the principals of Deep Sea Miami, Inc., there
appears to be no one presently authorized to file an insurance claim on
behalf of the owner which was insured at the time of the loss.
Accordingly, it is hereby ordered and adjudged that Plaintiff [petitioner]
and Intervenor Jeffery Branam (jointly, through their respective
counsel), as lien claimants against the vessel, are hereby authorized to
file a claim for damage to the vessel under aforesaid policy. . . .

(App. 4). On the same day, the petitioners counsel, Inger Garcia, issued a policy

limits demand of $250,000 to the agent of the respondent. After Garcia was advised

that the claim was not received by the respondent, she issued a second $250,000

policy limits demand on May 17, 2009, this time directly to the respondent. However,

the respondent refused to adjust the claim, stating it required proof that the petitioner

was authorized to act on behalf of the insureds, noting that the petitioner had not been

appointed the receiver for Deep Sea Miami and was not the personal representative

of Jakes estate. (App. 5).

On June 4, 2010, Jeff assigned his lien claim interest in the boat to the

petitioner. On August 9, 2010, the petitioner, through his new counsel, Jerome

Pivnik, issued a third demand for the policy limits of $250,000. The respondent again

required proof that the petitioner was authorized to act on behalf of the insureds. In

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the meantime, Genny Van Laar was appointed personal representative of Jake

Branams estate. On October 5, 2010, the boat was sold for its salvage value of

$60,000. (App. 5-6).

Van Laar, in her capacity as personal representative, assigned to the petitioner

the rights to the boat and the insurance policy. The petitioner notified the respondent

of the assignment on March 4, 2011 upon impleading the respondent into the lawsuit,

and claiming breach of contract based upon the respondents continuing refusals to

adjust the claims. After learning of the assignment to the petitioner, the respondent

offered the petitioner $30,000 to settle his claim on April 14, 2011, and again on May

17, 2011. The petitioner rejected the first offer to settle and did not respond to the

second offer. (App. 6).

A two day bench trial commenced. At the close of the petitioners case, the

respondent moved for a directed verdict, arguing in pertinent part that the petitioner

lacked the authority to file the insurance claims. The trial court denied the motion for

directed verdict, finding that the claims were properly filed under the authority of the

trial courts own order of October 8, 2008, and therefore triggered the respondents

contractual responsibilities even before the personal representative assigned to the

petitioner the rights to the boat and insurance policy. (App. 6-7). After the respondent

presented its case, the trial court found for the petitioner, determining that the

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respondent breached the insurance contract and that the boat was a total loss.

Damages were calculated at $162,000. (App. 7). The respondent appealed to the

Third District.

The Third District reversed the trial courts denial of the respondents motion

for a directed verdict and remanded for entry of judgment in favor of the respondent.

(App. 16). The Third District stated that the reasoning of the trial court (in its

interpretation of its own order of October 8, 2008, as well as its application of the

facts to that order as the trier of fact) was . . . misguided because no joint claim was

ever filed, as required by the October 8, 2008, order. (App 10). In support of this

conclusion, the Third District quoted trial testimony from Garcia that she only

represented the petitioner in filing the claims and did not have the permission of Jeff.

(App. 10-11). But in quoting Garcias testimony, the Third District also included the

following exchange wherein Garcia explained that when she filed the claim, she was

working with Jeffs attorney and that they filed the claim not on behalf of Jeff,

because he was not an insured, but on behalf of Deep Sea Miami as an insured under

the policy:

Q. Ms. Garcia, isn't it true that Jeffrey Branam or his attorney, David Friedman,
never gave you authority to act on their behalf in filing any insurance claim?
Isn't that true, ma'am?
....

A. I was working with his lawyer so Im not sure how to answer that except to

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 say we were working together to file the claim.

Q. Did he give you permission to file a claim on his behalf?

A. We filed it on behalf of Deep Sea. So, no, I didn't file on behalf of Jeffrey
because he wasnt the assured (sic). . . .

(App. 10-11) (emphasis supplied).

SUMMARY OF ARGUMENTS

I: The decision of the Third District is in express and direct conflict with

Hendricks v. Dailey, 208 So. 2d 101 (Fla. 1968), Jones v. Rives, 680 So. 2d 450 (Fla.

1st DCA 1996), Westerman v. Shells City, Inc. 265 So. 2d 43 (Fla. 1972), Delgado

v. Strong, 360 So. 2d 73 (Fla. 1978), and Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)

on the same questions of law concerning an appellate courts standards for reviewing

a trial courts ruling upon a motion for directed verdict, and the prohibition against

an appellate court reweighing or reevaluating evidence.

II: The decision of the Third District is in express and direct conflict with

Devaney v. Rumsch, 228 So. 2d 904 (Fla. 1969) which holds that a trial courts

interpretation of its own order is highly persuasive.

III: The decision of the Third District is in express and direct conflict with

Berges v. Inifinity Ins. Co., 896 So. 2d 665 (Fla. 2005).

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 ARGUMENTS

I.THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND DIRECT

CONFLICT WITH HENDRICKS v. DAILEY, 208 So. 2d 101 (Fla. 1968), JONES
v. RIVES, 680 So. 2d 450 (Fla. 1st DCA 1996), WESTERMAN v. SHELLS CITY,
INC., 265 So. 2d 43 (Fla. 1972), DELGADO v. STRONG, 360 So. 2d 73 (Fla.
1978), AND TIBBS v. STATE, 397 So. 2d 1120 (Fla. 1981) ON THE SAME
QUESTIONS OF LAW.

In Hendricks v. Dailey, 208 So. 2d 101, 103 (Fla. 1968), this Court held: A

verdict should not be directed where there is a conflict in the evidence or the

reasonable inferences to be drawn therefrom. * * * The trial judge is authorized to

grant such a motion only if there is no evidence or reasonable inferences to support

the opposing position. Consistent therewith, the First District held as follows in

Jones v. Rives, 680 So. 2d 450, 451 (Fla. 1st DCA 1996):

In review of the denial of a motion for judgment in accordance with the

motion for directed verdict, an appellate court must view the evidence
in the light most favorable to the non-moving party, Floyd v. Video
Barn, Inc., 538 So. 2d 1322, 1325 (Fla. 1st DCA 1989), and must take
into account all the facts adduced both before and after the initial
motion. McCain v. Florida Power Corp., 593 So. 2d 500, 502 (Fla.
1992).

In Westerman v. Shells City, Inc., 265 So.2d 43 (Fla.1972), this Court set forth

the rule that an appellate court may not substitute its judgment for that of a trial court

by reevaluating the evidence. Where a district court engages in such a reevaluation

of the evidence, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3),

Florida Constitution. For example, in Delgado v. Strong, 360 So.2d 73 (Fla. 1978),
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this Court granted review upon the following ground: An obvious reevaluation of

the evidence in a de novo consideration thereof, contrary to the rule of Westerman v.

Shells City, Inc., supra, is apparent in the district courts holding. . . . Similarly in

Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), this Court stated:

As a general proposition, an appellate court should not retry a case or

reweigh conflicting evidence submitted to a jury or other trier of fact.
Rather, the concern on appeal must be whether, after all conflicts in the
evidence and all reasonable inferences therefrom have been resolved in
favor of the verdict on appeal, there is substantial, competent evidence
to support the verdict and judgment. Legal sufficiency alone, as opposed
to evidentiary weight, is the appropriate concern of an appellate tribunal.

Id. at 1123 (Fla.1981) (footnotes omitted). The decision of the Third District is in

express and direct conflict with these decisions.

Here, the trial judge entered a written order finding that due to the death of the

principals of Deep Sea Miami, there was no one authorized to file an insurance claim

for the damage to the boat. Accordingly, the judge authorized the petitioner and Jeff,

jointly, through their respective counsel, to file a claim for damage to the boat under

the policy. The petitioners counsel, Garcia, testified that when she filed such

claims, she was working with Jeffs attorney and that they filed not on behalf of Jeff,

because he was not an insured, but on behalf of Deep Sea Miami as an insured under

the policy. Nevertheless, the respondent moved for a directed verdict, arguing that

Garcia was not authorized to file the claim. The trial judge, sitting as both the trier of

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fact and interpreter of its own order, denied the motion for directed verdict, finding

that the claims were properly filed under the authority of the trial courts order, and

therefore triggered the respondents contractual responsibilities even before the

petitioner was assigned the policy rights. At the close of all the evidence, the trial

court found for the petitioner.

On appeal by the respondent, the Third District failed to acknowledge, much

less apply, any of the required standards for reviewing a trial courts ruling upon a

motion for directed verdict. Instead, the Third District viewed the evidence in the

light most favorable to the moving party, the respondent, and ignored the testimony

of Garcia that she filed the claims along with Jeffs attorney and on behalf of Deep

Sea Miami which supported the trial courts denial of the respondents motion for

directed verdict. The Third District also reweighed and reevaluated Garcias

testimony that she only represented the petitioner. The Third District inferred

therefrom that Garcias claims were invalid as not authorized by Jeff. But the trial

court, as the trier of fact, obviously did not take Garcias testimony to mean that she

did not act jointly with Jeffs counsel in submitting the claim to the respondent. As

a result, the decision of the Third District is in express and direct conflict with the

above-cited decisions. Therefore, this Court has jurisdiction. See article V, 3(b)(3),

Fla. Const.

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II. THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND
DIRECT CONFLICT WITH DEVANEY v. RUMSCH, 228 So. 2d 904 (Fla. 1969)
ON THE SAME QUESTION OF LAW.

In DeVaney v. Rumsch, 228 So.2d 904, 907 (Fla. 1969), this Court held: While

not decisive, the trial judge's interpretation of his own order is highly persuasive.

The Third District, in express and direct conflict therewith, afforded the trial judges

interpretation of his own order no deference whatsoever.

III. THE DECISION OF THE THIRD DISTRICT IS IN EXPRESS AND

DIRECT CONFLICT WITH BERGES v. INFINITY INS. CO., 896 So. 2d 665
(Fla. 2005) ON THE SAME QUESTION OF LAW.

In Berges v. Inifinity Ins. Co., 896 So. 2d 665 (Fla. 2005), Berges was the

defendant in a wrongful death action. After receiving an adverse jury verdict that

substantially exceeded his policy limits, Berges sued his insurance company claiming

it acted in bad faith by failing to settle or to advise him of a settlement offer made by

the decedents husband. The jury agreed with Berges, finding that the insurance

company acted in bad faith, and the trial court entered judgment in favor of Berges.

On appeal by the insurance company, the Second District reversed, finding that,

because the decedents husband had not been appointed as personal representative

when he offered to settle the case, he was without the authority to make a valid

settlement offer. The Second District found that the insurance company, therefore,

could not have acted in bad faith in failing to advise Berges of the offer. This Court

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granted review and reversed the Second District, rejecting its conclusion that a

settlement offer for a wrongful death claim is not valid if the person who made the

offer has not yet been appointed as a personal representative. Id. at 675. This Court

explained that:

[T]he statutory scheme governing estates . . . anticipates valid

negotiations prior to court involvement. Specifically, the legal acts of a
personal representative relate back after court appointment, thereby
validating the previous acts of the personal representative on behalf of
the estate. Thus, the statutory scheme[ ] governing ... estate claims
contemplate[s] the completion of settlement negotiations prior to court
approval. This scheme is consistent with the purposes of settlement,
which are to simplify and shorten litigation, save costs to parties, and
ease the burden on the courts by obviating the necessity of trial.

Id. at 674-75 (citations omitted). Accordingly, this Court concluded that the Second

District erred in determining that the decedent's husband did not make a valid offer

to settle the case. Id. at 675. Thus, the relation back doctrine applies to settlement

offers made by individuals prior to their appointments as personal representatives.

Similarly here, the petitioner, through his counsel, made claims under the

insurance policy to the respondent prior to the assignment to him by the personal

representative of the rights to the boat and insurance policy. In direct and express

conflict with Berges, the Third District held that the petitioners offers were not valid

and did not relate back prior to the assignment.

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 CONCLUSION

Based upon the foregoing, the petitioner respectfully requests that this Court

grant review of the decision of the Third District.

Respectfully submitted,

PAUL MORRIS ROBERT A. ROSENBLATT

Law Offices of Paul Morris, P.A. Rosenblatt Law Firm
9350 S. Dixie Highway 7696 S.W. 104th Street
Suite 1450 Second Floor
Miami, Florida 33156 Pinecrest, Florida 33156
Tel. 305-670-1441 Tel. 305-536-3300
Fax 305-670-2202 Fax 305-667-2252
Florida Bar No. 193769 Florida Bar No. 153239
paulappeal@aol.com (primary) rosenblattlaw@hotmail.com (primary)
paulappeal@gmail.com (second) rosenblatt_service@yahoo.com (second)
Counsel for Petitioner Counsel for Petitioner

/s/PAUL MORRIS

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing brief of petitioner on

jurisdiction was emailed and mailed to Richard J. McAlpin,

rmcalpin@mcalpinconroy.com, and Craig P. Liszt, cliszt@mcalpinconroy.com,

Counsel for Respondent, Brickell BayView Centre, 80 S.W. 8th Street, Suite 2805,

Miami, FL 33130, this13th day of June , 2013.

/s/PAUL MORRIS

CERTIFICATE OF COMPLIANCE

This brief complies with the font requirements of Fla. R. App. P. 9.210.

/s/PAUL MORRIS

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