Mony Life Insurance Company V Bernard R Perez
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10770
____________________
MONY LIFE INSURANCE COMPANY,
Plaintiff-Appellee,
versus
BERNARD R. PEREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02031-WFJ-TGW
____________________
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2 Opinion of the Court 23-10770
Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir-
cuit Judges.
MARCUS, Circuit Judge:
This appeal requires us to answer two basic questions: first,
whether an insurer can bring a claim for unjust enrichment when
there is an express insurance contract covering the same subject
matter; and second, whether, under the peculiar circumstances of
this case, the failure of the district court to interpret an ambiguous
term in an insurance contract is sufficient reason to vacate a jury
verdict on a breach of contract claim. The lawsuit arises out of a
dispute concerning a disability insurance contract between MONY
Life Insurance Company and Bernard Perez, an ophthalmologist,
entered in 1988. Perez was diagnosed with throat cancer in 2011,
was determined to be unable to work, and thus began receiving
monthly disability benefits from MONY in August 2011. Sometime
thereafter, MONY determined that Perez may have been dishonest
in submitting basic information related to his disability and his fi-
nancial condition, and, in February 2018, it discontinued making
further payments to the insured.
MONY sued Perez for unjust enrichment in the Middle Dis-
trict of Florida and Perez counterclaimed for breach of contract.
After a nine-day trial, during which extensive evidence established
Perez’s deceitful conduct, a jury returned a verdict in favor of
MONY on its unjust enrichment claim, awarding it $388,000. The
jury also rejected Perez’s breach of contract counterclaim. Under
controlling Florida law, because there was an express insurance
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23-10770 Opinion of the Court 3
contract covering the same subject matter as the unjust enrichment
claim, we hold that the district court erred first in sending this claim
to the jury, and then in entering final judgment for MONY on its
unjust enrichment claim, and, therefore, we set aside the jury’s ver-
dict on that claim. As for Perez’s counterclaim for breach of con-
tract, however, the evidence is more than sufficient to establish
that Perez was untruthful in submitting his proofs of loss, and
therefore we affirm the jury’s verdict against Perez on his breach
of contract counterclaim. Finally, we can discern no abuse of dis-
cretion in a series of challenged evidentiary rulings, and in the dis-
trict court’s denial of an application for sanctions.
I.
A.
In 1987, ophthalmologist Bernard R. Perez formed a for-
profit medical practice in Tampa, Florida. Soon thereafter, in June
1988, Perez applied for, and, in September 1988, was issued a disa-
bility insurance policy by MONY Life Insurance Company. Perez
merged his ophthalmology practice with his brother Don Perez’s
practice in 1994, creating a successor business entity, Perez & Pe-
rez. Each of the brothers owned 50 percent of the business. After
the merger was consummated, Perez & Perez became responsible
for paying Bernard Perez’s disability insurance premiums to
MONY.
In 2011, Perez was diagnosed with squamous cell carcinoma
in the head and neck area. He underwent successful surgery in
June 2011, and was subsequently treated with proton beam
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4 Opinion of the Court 23-10770
radiation therapy in July and August 2011. Since his treatment, Pe-
rez has been cancer-free. Perez submitted a disability claim form
to MONY in July 2011 asserting that he was unable to work, and in
August 2011 he began receiving monthly disability benefits. Perez
and his physician Dr. Boothby claimed that Perez had sustained lin-
gering health issues since his cancer treatment that affected his abil-
ity to work.
MONY’s disability insurance policy provides income re-
placement benefits when an insured is unable to perform his occu-
pation (“Incapacity”), or unable to perform at the amount previ-
ously performed (“Residual Income Loss”) due to injury or sick-
ness. For each month of Incapacity, an insured will receive full,
basic monthly income. To receive benefits under the Residual In-
come Loss provision, an insured must establish “a Percent of Earn-
ings Loss of 20% or more due solely to the Injury or Sickness,” and
if an insured’s Earnings Loss from reduced workload is greater than
75%, he will receive full, basic monthly income. In August and
September 2011, MONY paid Perez his full, basic monthly income
under the Incapacity provision. For nearly every month from Oc-
tober 2011 to January 2018 (except for July and August 2015), Perez
claimed 100 percent Residual Income Loss under the policy, and,
accordingly, continued to receive full, basic monthly disability in-
come ($13,137 per month).
The policy also differentiates the calculation of earnings de-
pending on whether an insured is self-employed or not. For indi-
viduals “self-employed in an incorporated business,” compensation
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23-10770 Opinion of the Court 5
includes “salary, commissions, bonuses and Business Income.” For
those who are “not self-employed,” compensation includes “salary,
wages, fees, commission, and bonuses.” “Business Income” in-
cludes one’s “share of the profit from the business” that one owns.
In September 2011, Perez claimed to a MONY representa-
tive that he was an owner of Perez & Perez, and that he owned a
“little less than 50%” of the business. He made this representation
again when he filed a claim for disability benefits later that month.
MONY paid Perez disability benefits in reliance on Perez’s asser-
tion that he was “self-employed”; the calculation of his total com-
pensation included “Business Income” from his claimed ownership
interest in Perez & Perez. When he submitted his “Current Earn-
ings” to MONY, Perez subtracted business expenses, which low-
ered his reported total compensation, and in turn, increased his
Earnings Loss and the amount of his monthly disability payments.
In order to be eligible to receive monthly disability benefits,
the insurance company required Perez to submit “written proof of
loss.” The policy required that “[u]pon receipt of acceptable proof
of loss, [MONY would] pay all benefits due [Perez] at the end of
each month while the benefit period continue[d].” The policy did
not define the term “acceptable proof of loss,” and it contained no
provision allowing the insurer to claw back funds improvidently
paid to the insured.
Almost every month between October 2011 and January
2018, Perez submitted financial information establishing an “Earn-
ings Loss” of greater than 75%. Thus, for example, in October
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6 Opinion of the Court 23-10770
2011, he told MONY that he had only been working in the office
for the “past few weeks a few hours per day,” again on account of
the continuing effects of his illness. Perez also submitted evidence
from his physician, Dr. Boothby, that he had “chronic fatigue” that
prevented him from performing his job in the manner he had done
before his cancer diagnosis. The physician statements submitted
by Dr. Boothby did not show any improvement in Perez’s health
over the years, notably indicating in 2012, 2013, 2014, 2015, and
2017 that Perez’s condition was “[u]nchanged,” and that he could
only stand for 1 hour and walk 10 blocks.
In May 2012, however, MONY grew suspicious of Perez’s
claims and began to investigate. By the time of the trial, some ten
years later, MONY believed that Perez had substantially under-
stated the number of hours he worked and overstated the nature
and extent of his physical ailments after he had been treated. At
trial, MONY asserted that Perez had repeatedly lied in his proofs of
loss, thereby inflating the disability benefits he received.
Among other things, Perez failed to inform MONY that in
2010, “he had sold his 50 percent practice to his brother, Don, dur-
ing his divorce.” On direct examination, Perez’s accountant, John
Magliano, acknowledged that “in 2010 [he] swore under oath that
Dr. [Bernard] Perez had sold his interest in Perez & Perez.” More-
over, while Bernard Perez was listed as a director of Perez & Perez
in the 2008 and 2009 annual company reports, his name was re-
moved from the reports in 2010 and thereafter. Having sold his
interest in the medical practice, MONY’s calculation of Perez’s
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23-10770 Opinion of the Court 7
benefits under the “self-employed” provision was substantially in-
accurate because Perez & Perez’s “Business Income” (including its
business expenses) should not have been calculated as part of Pe-
rez’s total compensation.
MONY also discovered that in August 2011, Bernard Perez
had formed a new company Perez Eye Center, P.L. with his
brother Don Perez, and that both brothers continue to jointly own
the new company -- an entity Perez never told MONY about. This
information provided further evidence that Perez had sold his stake
in Perez & Perez, and also established that Perez likely had addi-
tional earnings that he never disclosed to MONY.
In any event, even if Perez had maintained some ownership
interest in Perez & Perez after 2010, at trial, MONY convincingly
demonstrated that many of the business expenses submitted by Pe-
rez were untruthful. For example, in 2010, Perez suddenly began
paying his sister, Maggie Whidden, a management fee in addition
to her W-2 wages. As the district court pointed out, her annual
salary of $135,000 as an office manager exceeded that of even the
ocular surgeons. The record also established that Perez’s automo-
bile expenses rose sharply from $5,000 in 2010 to $42,000 in 2012.
MONY began to investigate whether Perez’s purported business
expenses were in fact personal in nature, including, among others,
the legal fees he paid his divorce attorneys. Concerned about these
suspicious business expenses, MONY submitted various financial
questions to Perez about his medical practice in 2012; most of the
questions were left unanswered.
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Moreover, MONY established that Perez was deceptive in
reporting how many hours he worked. Thus, for example, in a
2016 report by MONY’s physician Dr. Brodner, Perez “admitted to
working 6–7 clinic hours per day and performing 3–5 hours of sur-
gery per week.” Contrary to Dr. Boothby’s claims that Perez’s
post-cancer health issues substantially limited his ability to work as
an ophthalmologist, Dr. Brodner concluded that “[r]easonable
functional limitations do not exist,” and that “Dr. Perez’s xerosto-
mia [dry mouth] does not restrict his activities as an Ophthalmolo-
gist.” MONY established that by underreporting the hours he
worked, Perez was able to inflate the benefits he received under
the Residual Income Loss calculation.
MONY also offered evidence that Perez was deceitful in de-
scribing the nature and extent of his residual illness. Dr. Boothby’s
assessments concluded that Perez could only stand 1 hour, walk 10
blocks, and lift 60 pounds. But, in sharp contrast, the testimony
from his ex-girlfriend described Perez’s physical abilities in a man-
ner completely at odds with Dr. Boothby’s assessment. From 2016
to 2020, she testified, that in the course of their relationship she
observed Perez unload 85 bags of mulch, garden almost every day,
and indeed walk some 10 miles a day during a trip to New York
City and walk 40 miles during a weeklong trip to Madrid. She fur-
ther explained that Perez participated in many physical activities,
including boating on most Sundays, taking lengthy stand-up pad-
dleboard trips sometimes exceeding three miles, and skiing on
three consecutive days in Aspen. Perez drove racecars and ATVs
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23-10770 Opinion of the Court 9
and rode horses from 2015 onwards as well. Perez also traveled
the world during their relationship, including trips to the Carib-
bean and Europe. This testimony undermined Dr. Boothby’s re-
peated assessments that Perez had a limited ability to stand and
walk, and that “chronic fatigue” disabled him. By vastly overstat-
ing the extent of his “Injury or Sickness,” and thereby his “Earnings
Loss,” MONY concluded that Perez received substantially inflated
disability benefits from the insurance policy.
In light of these discoveries, MONY first attempted to per-
form an independent forensic financial audit of Perez’s medical
practice in November 2016. In May 2017, MONY wrote to Perez
of its intention to conduct an on-site audit of his medical practice
using the outside accounting firm Nawrocki Smith. Perez did not
respond, and MONY threatened to discontinue paying future ben-
efits if he did not comply with a financial audit. In December 2017,
Perez’s counsel asked MONY to identify the provision of the insur-
ance policy that required compliance with an audit. MONY re-
sponded: “While the Policy does not specifically mention this
method of obtaining the acceptable Proof of Loss, logically, this ap-
pears to be the only means under which Dr. Perez will be able to
provide it.” Moreover, MONY’s monthly claims forms (though
not part of the insurance contract) expressly stated: “We may peri-
odically require verification of the Current Earnings you report.
Verification may be by an audit at our expense, or by requesting
copies of your tax returns from the Internal Revenue Service, or by
other similar means.” Perez nonetheless refused to comply with
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the audit and MONY finally stopped the payment of benefits begin-
ning in February 2018.
B.
Perez first sued MONY in Hillsborough County, Florida
state court seeking a declaratory judgment that MONY was not en-
titled to condition its disability benefits on Perez’s agreement to
submit to a financial audit. MONY removed the action to the fed-
eral district court in the Middle District of Florida, whereupon Pe-
rez voluntarily dismissed his lawsuit. Perez then filed a second
state court action in Pinellas County, Florida, this time alleging that
MONY had breached the insurance policy by withholding benefits
in the month of February 2018 because Perez had failed to comply
with the audit request. MONY answered the complaint, inter-
posed affirmative defenses, but filed no counterclaims. 1
In August 2019, MONY brought the instant lawsuit in the
Middle District of Florida, seeking declaratory relief that it was en-
titled to condition Perez’s benefits on his compliance with an audit.
MONY amended its complaint three times. In its third amended
(and operative) complaint, MONY asserted claims for declaratory
relief, unjust enrichment, and restitution. Perez’s answer included
the affirmative defenses of voluntary payment and waiver, as well
as counterclaims for breach of contract, statutory bad faith, fraud,
and a violation of the Employment Retirement Income Security
1 The Florida state court case in Pinellas County has been stayed by the parties’
agreement.
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Act (“ERISA”). MONY moved to amend its complaint to add a
claim for fraud, alleging that Perez had no ownership in the oph-
thalmology practice, contrary to his repeated representations, and
that he had thereby received inflated benefits. But the district court
denied the motion, observing that this “suit involves disability in-
surance and should not be expanded. The case is getting fairly old,
and has been the subject of several amendments and a number of
extensions. This matter must work towards resolution, not expan-
sion.”
MONY then moved for summary judgment on the first
three of Perez’s counterclaims. Perez in turn moved for summary
judgment on all three claims in MONY’s complaint and on his first
counterclaim for breach of contract. The district court denied each
of the parties’ motions for summary judgment. The court ruled
that any trial on Perez’s statutory bad faith counterclaim would oc-
cur, if at all, after a trial on unjust enrichment (which included res-
titution) and breach of contract. The court explained to Perez’s
counsel regarding the statutory bad faith counterclaim, “we’re not
getting into that until you prove breach of contract.” The district
court also determined that MONY’s insurance policy was not sub-
ject to ERISA and dismissed Perez’s ERISA counterclaim.
Before trial, Perez filed several motions in limine. First, Pe-
rez moved to exclude evidence and testimony concerning his own-
ership of the medical practice. Second, Perez moved under Federal
Rule of Civil Procedure 37 to exclude previously undisclosed evi-
dence, arguing that exhibits taken from his ex-girlfriend’s phone
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and MONY’s theory and calculation of damages violated Federal
Rule of Civil Procedure 26. Finally, Perez moved in limine to ex-
clude purportedly untimely expert opinions offered by Dr. Brodner
and MONY’s forensic accountant, John Hoffman.
The district court denied Perez’s first motion, finding
MONY’s evidence to be “relevant to Dr. Perez’s alleged underre-
porting of income and not unfairly prejudicial.” The court also de-
nied Perez’s second motion, noting that Perez had “personal
knowledge of the otherwise undisclosed deposition evidence and
the facts underlying MONY’s theory of damages,” thereby barring
exclusion under Rule 37(c)(1). But the court granted Perez’s mo-
tion to exclude untimely testimony proffered by Dr. Brodner and
John Hoffman from MONY’s case-in-chief, allowing them to “only
testify as rebuttal experts.” At trial, however, the district court re-
versed its decision to declare Dr. Brodner and John Hoffman as
only rebuttal experts and permitted them to testify in full.
During the course of the trial, the district court granted judg-
ment as a matter of law in favor of MONY on Perez’s fraud coun-
terclaim (but not the breach of contract counterclaim) under Fed-
eral Rule of Civil Procedure 50.
After a nine-day trial, the jury ultimately determined that
Perez had been unjustly enriched and that MONY did not breach
the insurance contract. Accordingly, the jury awarded MONY
$388,000 in damages accrued between August 2015 and January
2018. (The district court had determined that the claims between
October 2011 and August 2015 were time-barred). In its judgment
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affirming the jury’s verdict, the district court awarded MONY
$448,930.06 (including prejudgment interest) and found that
MONY’s declaratory judgment claim had become moot. In its final
judgment entered in favor of MONY, the court also dismissed with
prejudice Perez’s counterclaim “in its entirety,” which encom-
passed the statutory bad faith claim, noting that “Perez shall go
hence without day.”
Perez then moved for a renewed judgment as a matter of
law under Federal Rule of Civil Procedure 50(b), arguing that un-
der Florida law, an unjust enrichment claim cannot lie when there
is an express contract between the parties covering the same sub-
ject matter. Perez also sought a new trial under Federal Rule of
Civil Procedure 59, arguing that the district court had fatally erred
in failing to instruct the jury on the meaning of “acceptable proof
of loss” in the insurance policy. The district court denied both mo-
tions.
Perez timely filed this appeal.
II.
A.
“We review a district court’s ruling on a renewed motion
for judgment as a matter of law de novo, considering the evidence
and the reasonable inferences drawn from it in the light most fa-
vorable to the nonmoving party.” Redding v. Coloplast Corp., 104
F.4th 1302, 1308 (11th Cir. 2024) (citation and internal quotation
marks omitted). We also review a district court’s denial of a mo-
tion for a new trial for abuse of discretion. Lamonica v. Safe
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14 Opinion of the Court 23-10770
Hurricane Shutters, Inc., 711 F.3d 1299, 1312 (11th Cir. 2013). And
we review for abuse of discretion a district court’s refusal to give a
requested jury instruction. Id. at 1309.
We likewise review a district court’s refusal to grant sanc-
tions under Federal Rule of Civil Procedure 37 for abuse of discre-
tion. Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir.
1985). And we review for abuse of discretion a district court’s de-
cision to admit certain evidence or expert testimony. United States
v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).
“[A] federal court sitting in diversity borrows the forum
State’s choice-of-law rule.” Cassirer v. Thyssen-Bornemisza Collection
Found., 596 U.S. 107, 115 (2022). Under Florida’s choice-of-law
rule, the law of the jurisdiction where the contract was executed
generally governs. See Prime Ins. Syndicate, Inc. v. B.J. Handley Truck-
ing, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). Here Perez executed
the policy in Florida.
“Florida courts have held that a plaintiff cannot pursue a
quasi-contract claim for unjust enrichment if an express contract
exists concerning the same subject matter.” Diamond “S” Dev. Corp.
v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008); see also
Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA
2007) (holding that “a plaintiff cannot pursue an equitable theory,
such as unjust enrichment or quantum meruit, to prove entitle-
ment to relief if an express contract exists” that covers the same
topic); Kovtan v. Frederiksen, 449 So. 2d 1, 1 (Fla. 2d DCA 1984) (“It
is well settled that the law will not imply a contract where an
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23-10770 Opinion of the Court 15
express contract exists concerning the same subject matter.”); To-
bin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So. 2d 518, 520 (Fla. 3d
DCA 1975) (“[A]n action seeking to enforce an express contract and
also . . . accomplish the same purpose under quantum meruit is not
available.”); Hazen v. Cobb, 117 So. 853, 858 (Fla. 1928) (“The law
will not imply a contract where a valid express one exists.”); Glob.
Network Mgmt., LTD v. CenturyLink Latin Am. Sols., LLC, 67 F.4th
1312, 1317 (11th Cir. 2023) (“When a contract addresses a certain
topic, that topic cannot be the subject of a claim for a contract im-
plied in law.”).
MONY’s unjust enrichment claim must fail under Florida
law because it covers the same subject matter as the insurance con-
tract. In its operative complaint, MONY alleged that Perez was
“unjustly enriched by the receipt of money from MONY resulting
from his claims for Residual Income Loss benefits for periods in
which he was not entitled to those benefits under the terms of the
Policy.” MONY added that Perez “accepted and voluntarily re-
tained the disability benefit payments conferred by MONY under
circumstances in which it would be inequitable for him to retain
those benefits.” In so doing, MONY made it abundantly clear that
Perez inequitably retained disability benefits that were paid to him
after he submitted claims under the terms of the insurance contract.
The contract states that “[u]pon receipt of acceptable proof of loss,
[MONY] will pay all benefits due [to Perez] at the end of each
month while the benefit period continues.” The contract also pro-
vides that it constitutes the entire agreement between the parties.
MONY’s claim for unjust enrichment falls squarely within the
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16 Opinion of the Court 23-10770
ambit of the express contract and cannot lie under Florida law. See
Diamond “S” Dev. Corp, 989 So. 2d at 697; Ocean Commc’ns, Inc., 956
So. 2d at 1225; Kovtan, 449 So. 2d at 1; Zeskind, 315 So. 2d at 520;
Hazen, 117 So. at 858.
Notwithstanding the clarity of Florida’s case law on this
point, MONY says that “the Policy provided no method by which
MONY could recoup monies Perez received as a result of his im-
proper actions during his claim, including misrepresenting his med-
ical condition and improperly manipulating his financial infor-
mation.” Even Perez acknowledges that “[t]he Policy contained no
feature allowing the insurer to . . . ask for that payment back if and
when it changed it[s] mind.” But the fact that the insurance con-
tract, which, after all, was drafted by MONY, does not contain a
clawback provision allowing for the disgorgement of overpay-
ments made to Perez does not alter Florida’s law on this basic
point. The parties bargained about the subject matter contained in
this insurance contract. MONY agreed to make cash payments for
income lost on account of illness or injury upon receipt of accepta-
ble proof of loss. And the contract addresses misstatements by Pe-
rez in two places -- the “Misstatement of Age” provision and the
“Incontestable” provision -- without providing for a clawback of
benefits paid due to misstatements or misrepresentations.
MONY’s failure to include a clawback provision does not allow it
to contravene or unsettle what is clearly established law in Florida,
see, e.g., Glob. Network Mgmt., LTD, 67 F.4th at 1317–18 (collecting
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23-10770 Opinion of the Court 17
cases), and it does not allow the insurer to rewrite the terms of the
agreement. 2
Although MONY is left without an equitable cause of action
here, MONY could have done two things differently. First, it could
have included a clawback provision in its contract, which, as
MONY’s counsel acknowledged at oral argument, would not have
been forbidden by the Florida insurance code. Second, MONY
could have sued Perez in tort for fraud or misrepresentation. See,
e.g., HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238,
1240 (Fla. 1996) (holding that a “cause of action for fraud in the in-
ducement is an independent tort and is not barred by the economic
loss rule”); cf. Gallon v. Geico Gen. Ins. Co., 150 So. 3d 252, 255 (Fla.
2d DCA 2014) (“[T]he terms of an insurance policy do not preclude
an action against the insurer or its agent where the agent misrepre-
sents the coverage of the insurance contract and the insured rea-
sonably relies on the misrepresentation to his detriment.”) (quot-
ing Martin v. Principal Mut. Life Ins. Co., 557 So. 2d 128, 129 (Fla. 3d
DCA 1990)). While MONY attempted to amend its complaint (for
the fourth time) to assert a claim for fraud, very late in the day of
this protracted litigation, the district court exercised its considera-
ble discretion in denying the motion in the interests of timing and
2 We said in State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 739 F.3d
579 (11th Cir. 2013) (per curiam), that if a person “accepts and retains benefits
that [he] is not legally entitled to receive in the first place, Florida law provides
for a claim of unjust enrichment.” Id. at 584. But Silver Star does not control
here because in that case there was no contract (and no privity of contract)
between the insurer and the defendant. See id.
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efficiency. And, notably, MONY has not appealed the denial of its
motion to amend in this court.
We, therefore, conclude that the district court erred under
Florida law in allowing MONY’s unjust enrichment claim to move
forward. This claim should not have been sent to the jury. Accord-
ingly, we set aside the jury verdict in favor of MONY on its unjust
enrichment claim and, on remand, direct the district court to va-
cate its judgment awarding MONY $448,930.06.
B.
As for Perez’s counterclaim asserting that MONY breached
the contract, however, we are not persuaded by Perez’s argument
that because the district court erred in failing to interpret the term
“acceptable proof of loss” in the insurance contract, the jury’s ver-
dict for MONY must be reversed.
“It is well settled that the construction of an insurance policy
is a question of law for the court.” Jones v. Utica Mut. Ins. Co., 463
So. 2d 1153, 1157 (Fla. 1985). Florida law is crystal clear that its
courts must interpret ambiguous policy provisions found in insur-
ance contracts. See Wash. Nat. Ins. Corp. v. Ruderman, 117 So. 3d
943, 948 (Fla. 2013); Zautner v. Liberty Mut. Ins. Co., 382 So. 2d 106,
107 (Fla. 3d DCA 1980) (holding that because an insurance con-
tract’s provision was ambiguous, “[t]he trial court was therefore
required, as a matter of law, so to interpret the policy.”).
“Policy language is considered to be ambiguous if the lan-
guage is susceptible to more than one reasonable interpretation,
one providing coverage and the other limiting coverage.” State
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23-10770 Opinion of the Court 19
Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011)
(citation modified). The Florida Supreme Court has held that “an
insurer, as the writer of an insurance policy, is bound by the lan-
guage of the policy, which is to be construed liberally in favor of
the insured and strictly against the insurer.” Ruderman, 117 So. 3d
at 950; see also Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1306 (11th
Cir. 2008) (holding that policy language “[a]mbiguities are con-
strued against the insurer”). Here, the term “acceptable proof of
loss” is unclear at least in so far as to whether it requires an insured
to comply with an insurer’s audit demand. The insurance contract
offers no definition about the meaning of the term.
Perez asked the district court to interpret the term “accepta-
ble proof of loss” to exclude MONY’s demand that the insured was
required to comply with its audit request, so that his failure to com-
ply could not be a basis for MONY to stop paying the disability pay-
ments. Perez made this request many times, including at summary
judgment, again in proposed jury instructions, and then in motions
filed under Rules 50 and 59 after trial. And in opposing Perez’s pro-
posed jury instructions, even MONY suggested that “[c]ontract in-
terpretation is a question of law for the Court in the first instance,
not the jury.”
But each time, the court declined to interpret the term, in-
stead observing: “Since [MONY has] been unable to define for me
what acceptable proof of loss is and the statute does not define
what acceptable proof of loss is, I conclude that it is
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20 Opinion of the Court 23-10770
ambiguous. . . . It is an important term in this lawsuit. It’s unde-
fined.” 3 The court concluded: “It’s up to the jury, it’s ambiguous.
They’re going to decide, okay. And they are going to construe it
against [MONY] because [MONY] wrote it and [MONY] didn’t de-
fine it.” The court instructed the jury that an ambiguous insurance
policy provision is to be “construed in favor of the insured and
against the drafter.”
The district court erred in failing to interpret an ambiguous
term found in the insurance contract, leaving it to the jury to con-
strue what it meant. Under Florida law, it is neither the parties’
nor the jury’s role to interpret ambiguous contract provisions
found in an insurance policy, but rather the court’s. Jones, 463 So.
2d at 1157; Ruderman, 117 So. 3d at 948; Zautner, 382 So. 2d at 107.
Nevertheless, our inquiry does not end there. While the dis-
trict court erred, we find that this error is not reversible because it
was harmless to the outcome of Perez’s breach of contract coun-
terclaim. Federal Rule of Civil Procedure 61 provides that:
3 In refusing to define “acceptable proof of loss” when denying Perez’s motion
for summary judgment, the district court accurately observed that “[t]here is
no lucid, controlling Florida law on the precise contractual point.” The phrase
“acceptable proof of loss” does not appear in Florida case law, and the Elev-
enth Circuit opinion cited by Perez interprets a similar term only under Ala-
bama law. See Lee v. Prudential Ins. Co., 812 F.2d 1344, 1346 (11th Cir. 1987)
(holding that “due proof of loss” is “such a statement of facts, reasonably ver-
ified, as, if established in court, would prima facie require payment of the
claim”) (citation omitted). But the fact that Florida’s courts have not defined
the term did not obviate the district court’s obligation to interpret an admit-
tedly ambiguous contractual provision.
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23-10770 Opinion of the Court 21
Unless justice requires otherwise, no error . . . by the
court or a party . . . is ground for granting a new trial,
for setting aside a verdict, or for vacating, modifying,
or otherwise disturbing a judgment or order. At every
stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s sub-
stantial rights.
Fed. R. Civ. P. 61 (emphases added); see also 28 U.S.C. § 2111 (“On
the hearing of any appeal . . . in any case, the court shall give judg-
ment after an examination of the record without regard to errors
or defects which do not affect the substantial rights of the parties.”).
In deciding whether a party’s substantial rights are affected, we’ve
considered whether the purported errors “have a ‘substantial influ-
ence’ on the outcome of a case or leave ‘grave doubt’ as to whether
they affected the outcome of a case.” Frazier, 387 F.3d at 1266 n.20
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)); see also
Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1253–54 (11th Cir. 2020)
(noting that the central question in harmless error review is
whether the complaining party’s “substantial rights to obtain rever-
sal and a new trial” were affected by the error).
Based on the peculiar circumstances of this case, the district
court’s failure to interpret the term “acceptable proof of loss” did
not affect Perez’s substantial rights.
The jury was instructed that for Perez to prevail on his
breach of contract counterclaim, he had to prove -- among other
things -- that he “did all or substantially all of the essential things
which the contract required him to do or that he was excused from
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22 Opinion of the Court 23-10770
doing those things,” and “all conditions required by the contract
for MONY’s performance had occurred.” 4 And MONY’s counsel
agreed in part at closing that Perez was not truthful when he sub-
mitted his claims.
Regardless of whether the jury interpreted the term “ac-
ceptable proof of loss” to include a requirement to comply with an
audit, the evidence adduced at trial overwhelmingly established
that Perez repeatedly submitted false and misleading information
material to his proofs of loss. As a result, Perez could not prevail
on his breach of contract counterclaim under Florida law because
he did not establish that he “did all, or substantially all, of the es-
sential things which the contract required,” or that “all conditions
required by the contract for [MONY’s] performance had occurred,”
by failing to submit accurate proofs of loss. JF & LN, LLC v. Royal
Oldsmobile-GMC Trucks Co., 292 So. 3d 500, 508–09 (Fla. 2d DCA
2020) (quoting Fla. Std. Jury Instr. (Cont. & Bus.) 416.4).
Even if the district court had adopted Perez’s view of what
constitutes “acceptable proof of loss” in a disability claim, it is clear
4 The district court’s complete jury instruction on Perez’s breach of contract
counterclaim read this way: “To recover money from MONY for breach of
contract, Dr. Perez must prove all the following: One, Dr. Perez and MONY
entered into a contract. Two, Dr. Perez did all or substantially all of the es-
sential things which the contract required him to do or that he was excused
from doing those things. Three, all conditions required by the contract for
MONY’s performance had occurred. Four, MONY failed to do something es-
sential which the contract required it to do or MONY did something which
the contract prohibited it from doing and that prohibition was essential to the
contract. And, five, Dr. Perez was damaged by that failure.”
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23-10770 Opinion of the Court 23
that Perez’s proofs of loss could not have been “acceptable” be-
cause he repeatedly lied in the disability information he submitted.
The vast majority of the trial concerned Perez’s failure to be truth-
ful in his proofs of loss. Among other things -- the evidence estab-
lished that he was dishonest about his ownership in Perez & Perez
and its business expenses, he was deceitful about the number of
hours that he worked as an ophthalmologist, and he was dishonest
about the nature and extent of his physical injuries. The evidence
revealed that Perez’s submissions could not have constituted “ac-
ceptable proof of loss” by any definition, including the one put
forth by Perez.
The evidence of Perez’s dishonest conduct so pervaded the
trial that the jury could not readily have found for Perez on his
breach of contract counterclaim, while at the same time having
found for MONY on the unjust enrichment claim, regardless of
how the jury interpreted the term “acceptable proof of loss.” As
we see it, MONY’s unjust enrichment claim and Perez’s breach of
contract counterclaim are mirror images of one another -- since the
jury found that Perez was unjustly enriched, it could not have
found that MONY breached the insurance contract by halting pay-
ment for the same reason.
Thus, we will not disturb the jury verdict -- a verdict that is
“clothed with a presumption of regularity” -- on the breach of con-
tract counterclaim. Republic Servs. of Fla., L.P. v. Poucher, 851 So. 2d
866, 869 (Fla. 1st DCA 2003).
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24 Opinion of the Court 23-10770
C.
Finally, Perez argues that we “should find that the district
court abused [its] discretion in refusing to grant Rule 37 sanctions,
in refusing to grant a new trial based on MONY’s sanctionable con-
duct, and in allowing Dr. Brodner to testify at all.” We remain un-
persuaded.
Rule 26 requires a disclosing party, “without awaiting a dis-
covery request,” to provide to the other parties a copy of “all doc-
uments . . . [it] may use to support its claims or defenses” and “a
computation of each category of damages claimed.” Fed. R. Civ.
P. 26(a)(1)(A)(ii)–(iii). Under Rule 37, “[i]f a party fails to make a
disclosure required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions.” Fed. R. Civ.
P. 37(a)(3)(A). And if “a party fails to provide information or iden-
tify a witness as required by Rule 26(a) or (e), the party is not al-
lowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substan-
tially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Here, Perez
moved for Rule 37 sanctions against MONY for failing to comply
with Rule 26, but the district court found admission of the previ-
ously undisclosed evidence “harmless” and thus denied the mo-
tion.
We can discern no abuse of discretion in this determination.
While Perez suggests that MONY improperly delayed disclosure of
evidence concerning his ownership of the ophthalmology practice,
the record shows that MONY requested this information from
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23-10770 Opinion of the Court 25
Perez many times and to no avail, and did so well before the trial
began. In fact, Perez’s counsel suggested that MONY “go to the
public record” and “knock themselves out rummaging around”
this record. And that is exactly what MONY did -- it obtained pub-
lic records concerning Perez’s divorce proceedings and introduced
them as evidence to show that Perez underreported his income by
claiming ownership in the medical practice despite having sold his
stake. Perez even addressed these divorce records in a deposition
before trial, so he was aware that MONY had them. As a result,
any delay related to the disclosure of this information was caused
by Perez, and regardless, its use in trial was harmless since Perez
was well aware of what was contained in the public records that
MONY had uncovered.
We need not address Perez’s Rule 26 challenge to MONY’s
theory of damages on its unjust enrichment claim because we have
already set it aside for the reasons we have detailed in Section II.A.
We are also unpersuaded by Perez’s claim that MONY used
previously undisclosed photographs and messages from his ex-girl-
friend’s phone during his deposition, and that this evidence should
not have been introduced at trial. MONY first produced this evi-
dence one month before the discovery cutoff in supplemental
Rule 26 disclosures to Perez, which undermines his argument that
this information was previously undisclosed at his deposition. And
Perez did not object to the evidence on Rule 26 grounds until eight
months after the discovery cutoff. Thus, the record does not reflect
that MONY violated Rule 26’s mandate of timely disclosures in a
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26 Opinion of the Court 23-10770
manner that would warrant Rule 37 sanctions. Again, we can dis-
cern no abuse of discretion.
Finally, we find no merit in Perez’s objection to the admis-
sion of testimony by Dr. Brodner, which he says was produced too
late and was irrelevant. There was no abuse of discretion. We rec-
ognize that Dr. Brodner was disclosed as an expert by MONY on
June 2, 2021, one month after the deadline for expert reports had
passed. But MONY’s Rule 26 disclosure was made more than three
months before the October 18, 2021 discovery cutoff. Thus, for
Rule 37 purposes, MONY’s delay in disclosing Dr. Brodner’s report
was harmless since Perez had several months to conduct discovery,
and in fact, Perez’s counsel deposed Dr. Brodner on September 9,
2021. Finally, we observe that it should have come as no surprise
to Perez that Dr. Brodner would testify at trial, as the district court
aptly recognized in denying Perez’s motion to exclude Dr. Brod-
ner. As the trial court observed: “It wasn’t exactly like it was a big
surprise [MONY was] going to use these [experts].”
In short, the district court did not abuse its considerable dis-
cretion in refusing to grant Rule 37 sanctions against MONY, nor
did it abuse its discretion in admitting the disputed evidence and
testimony at trial.
***
Thus, we SET ASIDE the jury’s verdict on MONY’s unjust
enrichment claim and direct the district court to VACATE the final
judgment it entered for MONY on this claim. We AFFIRM the
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23-10770 Opinion of the Court 27
jury’s verdict and the district court’s judgment against Perez on his
breach of contract counterclaim, and AFFIRM the district court’s
evidentiary rulings.
AFFIRMED IN PART, VACATED IN PART, AND RE-
MANDED.