Greenwich Insurance Company v. Fernandez et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-23909-CIV-ALTONAGA/Reid
GREENWICH INSURANCE
COMPANY,
Plaintiff,
v.
HUMBERTO FERNANDEZ,
et al.,
Defendants.
__________________________/
ORDER
THIS CAUSE came before the Court on Defendant/Counter-Plaintiff, the court-appointed
Receiver for Defendant, Mirador Master Association, Inc.’s (“Mirador Master[’s]”) Daubert
Motion . . . (“Receiver’s Mot.”) [ECF No. 122]; and Plaintiff, Greenwich Insurance Company’s
[Daubert] Motion . . . (“Pl.’s Mot.”) [ECF No. 127]. 	The Receiver and Plaintiff filed their
respective Responses [ECF Nos. 137, 140], followed by Replies [ECF Nos. 147, 150]. The Court
has reviewed the parties’ submissions, the record, and applicable law. For the following reasons,
each Motion is granted in part and denied in part.
I. BACKGROUND
Procedural Background. This case arises from an insurance dispute. The Court recites
only those facts relevant to resolving the present Motions.
Plaintiff is a Delaware-based insurance carrier that issued two excess coverage insurance
policies 	to 	Mirador 	Master 	Association, 	Inc. 	(“Mirador 	Master”), 	a 	Miami 	Beach-based
condominium association. (See Am. Compl. [ECF No. 5] ¶¶ 2, 13–14). The first excess policy
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was in effect between July 17, 2020, and January 4, 2021 (see id. ¶ 13), and the second covered
the period from February 2, 2021, to July 17, 2021 (see id. ¶ 14).
In November 2020, four months after the first excess policy took effect, a construction
company sued Mirador Master in Florida state court, later amending its complaint to add Mirador
Master’s sub-associations, Mirador 1000 Condominium Association, Inc. and Mirador 1200
Condominium Association, Inc. (“Mirador 1000 and 1200”) as defendants. (See id. ¶¶ 16, 25; see
also generally id., Ex. G, NCP Am. Compl. [ECF No. 5-7]). In July 2021, Mirador 1000 and 1200
filed crossclaims and a third-party complaint against Mirador Master and four of its officers and
directors — Bernardo Sandoval, Humberto Fernandez, Seth Frohlich, and Claudia Herman
(collectively, the “D&Os”) — alleging the D&Os mismanaged and misappropriated funds and
breached fiduciary duties owed to Mirador 1000 and 1200. (See generally Intervenor-Pls.’ Compl.
[ECF No. 67], Exs. C–D, NCP Lawsuit Crossclaims and Third-Party Compls. [ECF Nos. 67-3–
4]). Mirador 1000 and 1200 also moved for appointment of a receiver for Mirador Master; and
the state court granted the motion, appointing the Receiver in February 2023. 	(See generally
Notice of Filing [ECF No. 128], Ex. 10, Am. Order Appointing Receiver [ECF No. 128-10]).
After receiving notice of the state-court litigation in July 2023 (see Am. Compl. ¶¶ 24, 36,
62, 89), Plaintiff denied coverage for Mirador Master, the D&Os, and Mirador 1000 and 1200 (see
generally id., Ex. M, Apr. 1, 2024 Letter [ECF No. 5-13] 1 (letter from Plaintiff to the Receiver
denying coverage)).1 Thereafter, the Receiver, the D&Os, and Mirador 1000 and 1200 executed a
Coblentz agreement (the “Assignment Agreement” or “Agreement”) alongside several related
settlement agreements. (See Intervenor-Pls.’ Compl. ¶ 69; see also generally Receiver’s Ans. and
Counterclaim [ECF No. 37], Ex. 1, Assignment Agreement [ECF No. 37-1]). In the Assignment
1 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.
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Agreement, the parties to the state-court action agreed not to seek recovery from each other and to
assign their rights to assert claims against Plaintiff. (See Intervenor-Pls.’ Compl. ¶¶ 69–71).
Plaintiff filed this suit in October 2024 against Mirador Master, the Receiver, Fernandez,
Sandoval, Frohlich, and Herman, seeking declarations that it has no duty to defend or indemnify
Defendants. (See generally Compl. [ECF No. 1]; see also generally Am. Compl.). The Receiver
filed its Answer and Counterclaim, raising several affirmative defenses and counterclaims. (See
generally Ans. and Counterclaim).2
Mirador 1000 and 1200, as assignees of Mirador Master, filed their Intervenor-Plaintiffs’
Complaint on March 18, 2025, asserting a breach-of-contract claim against Plaintiff and seeking
declaratory relief, including that Mirador Master was entitled to execute the Assignment
Agreement because Plaintiff refused to defend Mirador Master in the state-court lawsuit. 	(See
Intervenor-Pls.’ Compl. 25; see also generally id.).3 Plaintiff filed an Answer to the Counterclaim
[ECF No. 46] and an Answer to the Intervenor-Plaintiffs’ Complaint [ECF No. 72], raising
affirmative defenses. (See generally Ans. to Counterclaim; Ans. to Intervenor-Pls.’ Compl.).
In October 2025, Plaintiff filed a Motion for Summary Judgment [ECF No. 130] on all
counts of its Amended Complaint, the Receiver’s Counterclaim, and the Intervenor-Plaintiffs’
Complaint. (See generally Pl.’s Mot. for Summ. J.). Plaintiff argued that (1) neither excess policy
was triggered; and (2) the Assignment Agreement is unenforceable because the underlying
insurance policy was not exhausted until after the agreement was executed, meaning Plaintiff’s
duty to defend was not triggered and could not have been breached, as required for a Coblentz
2 Fernandez filed an Answer [ECF No. 38] joining in the “answer and affirmative defenses” of the Receiver
(See Fernandez’s Ans. 1). Sandoval also filed an Answer [ECF No. 43], raising affirmative defenses. (See
Sandoval’s Ans. 14).
3 The Receiver likewise sought a declaration in the Answer and Counterclaim that the D&Os were entitled
to execute the Assignment Agreement. (See Ans. and Counterclaim 38).
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agreement to be enforceable. 	(See Pl.’s Mot. for Summ. J. 11–20). 	Subsequently, the Receiver
and Mirador 1000 and 1200 filed a Motion for Partial Summary Judgment [ECF No. 134]
requesting, in part, that the Court find Plaintiff wrongfully refused to provide a defense in the state-
court suit, and that Plaintiff owes coverage for the claims asserted in that lawsuit. (See generally
[Receiver and Mirador 1000 and 1200]’s Mot. for Partial Summ. J.).
On January 13, 2026, the Court entered an Order [ECF No. 175] granting in part and
denying in part each of the summary-judgment motions. (See generally Jan. 13, 2026 Order). The
Court found that factual disputes precluded summary judgment as to whether Plaintiff’s policies
were triggered. 	(See id. 17–22). 	The Court also concluded that the Assignment Agreement is
unenforceable against Plaintiff because the underlying insurance policy was not exhausted until
after the Assignment Agreement was executed. (See Jan. 13, 2026 Order 22–26).
The Experts and Motions. The Receiver, Mirador 1000 and 1200, and Plaintiff retained
experts who prepared reports addressing the enforceability of the Assignment Agreement,
including its reasonableness; the scope of any coverage owed by Plaintiff; and whether Plaintiff
received timely notice of the state-court litigation.
Receiver’s proposed expert is Ronald L. Kammer, an attorney with experience in insurance
coverage who would testify that the Assignment Agreement was reasonable and not tainted by
fraud or bad faith. (See generally Pl.’s Resp. to [Receiver’s Daubert] Mot. [ECF No. 140], Ex. 1,
Expert R. of Ronald L. Kammer (“Kammer’s R.”) [ECF No. 140-1]). Mirador 1000 and 1200’s
proposed expert is R. Hugh Lumpkin, an attorney specializing in insurance who opines that
Plaintiff received timely notice. (See generally Pl.’s Mot., Ex. 1, Expert R. of R. Hugh Lumpkin
(“Lumpkin’s R.”) [ECF No. 127-1]). Plaintiff’s proposed expert is Barry L. Davis, an attorney
focusing on insurance law who rebuts Kammer’s conclusion that the Agreement is reasonable and
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Lumpkin’s opinion that Plaintiff received timely notice. 	(See generally Receiver’s Mot., Ex. 1,
Rebuttal Expert R. [of Barry L. Davis] (“Davis’s R.”) [ECF No. 122-1]).
The Receiver challenges the admissibility of Davis’s testimony, while Plaintiff challenges
the admissibility of Lumpkin’s testimony.4 	(See generally Receiver’s Mot.; Pl.’s Mot.). 	The
Receiver argues that Davis offers impermissible legal conclusions regarding insurance-policy
interpretation and relies on a flawed methodology in assessing the reasonableness of the
Assignment Agreement. 	(See Receiver’s Mot. 6–10). 	Plaintiff asserts that Lumpkin offers
improper 	legal 	conclusions 	concerning 	timely 	notice 	under 	the 	excess 	policies 	and 	the
reasonableness of the Assignment Agreement (see Pl.’s Mot. 3–4), and Lumpkin’s reliance on
industry standards is irrelevant and unhelpful to the factfinder (see id. 5).
II. LEGAL STANDARD
The Federal Rules of Evidence govern the admissibility and proper scope of expert
testimony. Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if . . . :
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts[.]
Fed. R. Evid. 702 (alterations added).
An expert may rely on “facts or data in the case that the expert has been made aware of or
personally observed” — even if otherwise inadmissible — “[i]f experts in the particular field
4 Kammer’s anticipated testimony is not at issue. (See generally Dkt.).
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would reasonably rely on those kinds of facts or data[.]” Id. R. 703 (alterations added). In addition,
an expert’s opinion may “embrace[] an ultimate issue” of fact, but it may not offer legal
conclusions. Id. R. 704 (alteration added); see also Montgomery v. Aetna Cas. & Sur. Co., 898
F.2d 1537, 1541 (11th Cir. 1990) (“An expert may not, however, merely tell the jury what result
to reach.” (citation omitted)).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that
Rule 702 requires district courts to ensure “that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” 509 U.S. 579, 597 (1993). Courts must perform
this “‘gatekeeping’” function no matter how scientific, technical, or specialized the evidence.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. at
589 n.7, 597; citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)). 	“This
function inherently requires the trial court to conduct an exacting analysis of the foundations of
expert opinions to ensure they meet the standards for admissibility under Rule 702.” Id. (emphasis,
alteration, quotation marks, and citation omitted).
III. DISCUSSION
The Court begins by addressing the Receiver’s Motion and then considers Plaintiff’s
Motion.
The Receiver’s Motion. 	The Receiver argues that Davis should be precluded from
testifying because he offers legal conclusions regarding insurance coverage under the excess
policies that are disguised as expert opinions. (See Receiver’s Mot. 3, 6–8, 11). While an expert
may provide an opinion on an ultimate issue of fact, testimony regarding “the legal implications
of conduct” is impermissible; “the court must be the jury’s only source of law.” Montgomery, 898
F.2d at 1541 (citations omitted). To protect the Court’s “exclusive prerogative” to “charg[e] the
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jury regarding the applicable law[,]” the Court “must remain vigilant against the admission of legal
conclusions[.]” 	Commodores Entm’t Corp. v. McClary, 879 F.3d 1114, 1129 (11th Cir. 2018)
(alterations added; quotation marks and citation omitted).
The Receiver is correct that Davis’s proposed testimony includes legal conclusions. (See
generally Davis’s R.). Davis attempts to define the scope of coverage under the excess policies.
(See, e.g., id. 10 (asserting that no coverage exists under the excess policies for any funds
misappropriated by Fernandez)). Yet “[t]he question of the extent of coverage under an insurance
policy is a question of law to be decided by the court[.]” 	Fireman’s Fund Ins. Co. v. Tropical
Shipping & Constr. Co., Ltd., 254 F.3d 987, 1003 (11th Cir. 2001) (alterations added; citations
omitted); see also EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d 1099, 1105
(11th Cir. 2017) (“An insurance policy is a contract and therefore interpretation of the language in
such a policy constitutes a ruling on a question of law[.]” (alteration added; citation omitted)).
Certainly, Davis’s “legal analysis of the facts” is inadmissible. 	Aroma360 LLC v.
Scentiment, LLC, No. 24-25031-Civ, 2025 WL 3484735, at *4 (S.D. Fla. Dec. 4, 2025) (quotation
marks and citation omitted). 	The Receiver’s Motion is therefore granted to the extent Plaintiff
may seek to have Davis “state legal conclusions drawn by applying the law to the facts.” Motyl v.
Franklin Templeton Co., LLC, No. 13-60967-Civ, 2014 WL 1413434, at *3 n.3 (S.D. Fla. Apr. 11,
2014) (quotation marks and citation omitted); see also Conway v. Celebrity Cruises Inc., No. 19-
22470-Civ, 2021 WL 6274790, at *3 (S.D. Fla. Oct. 6, 2021) (citations omitted).
The Court does not address the Receiver’s argument that Davis relies on a flawed
methodology in assessing the reasonableness of the Assignment Agreement. 	(See generally
Receiver’s 	Mot.). 	Because 	expert 	testimony 	on 	reasonableness 	is 	directed 	only 	to 	the
enforceability of the Agreement (see generally Davis’s R.) — and enforceability has been resolved
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(see Jan. 13, 2026 Order 22–26) — the Court does not reach the Daubert challenge to that
testimony. The Receiver’s Motion is thus denied as moot with respect to testimony regarding the
Agreement’s reasonableness.
Plaintiff’s Motion. Plaintiff challenges Lumpkin’s proposed testimony on two grounds.
(See generally Pl.’s Mot.). First, Plaintiff objects to Lumpkin’s opinions on what is required by
the notice provisions of the excess policies and whether Plaintiff breached the policies by denying
coverage, contending these opinions amount to impermissible legal conclusions based on
interpretations of the insurance contracts. 	(See id. 3–4 (citing Lumpkin’s R. 6–7)). 	Second,
Plaintiff objects to Lumpkin’s opinions on “industry standards” as unhelpful. (See id. 5).5
As Plaintiff notes, Lumpkin’s proposed testimony includes legal analysis of the facts. (See,
e.g., Lumpkin’s R. 7 (concluding that, in light of undisputed facts, “for any notice given to
[Plaintiff] to be timely, the notice must relate back to a claim first made during its policy term”
(alteration added))). As explained, such testimony is inadmissible, see, e.g., EmbroidMe.com, Inc.,
845 F.3d at 1105 (citation omitted); Aroma360 LLC, 2025 WL 3484735, at *4 (citation omitted),
and Plaintiff’s Motion is granted to the extent the Receiver seeks to have Lumpkin opine on
insurance-policy interpretation or the legal consequences of the parties’ conduct.
Plaintiff’s arguments regarding Lumpkin’s “industry standards” opinions fail to persuade.
(See Pl.’s Mot. 5). Plaintiff contends these opinions are “not helpful to the trier of fact, as this is
an insurance coverage action, not a bad faith action.” 	(Id.). 	“Expert testimony as to standard
practices in an industry is admissible when it is relevant and the expert has demonstrated a basis
for the opinion.” Go Mobile Flooring, LLC v. Blue Banyan Sols., Inc., 663 F. Supp. 3d 1294, 1314
5 Plaintiff also argues that Lumpkin’s opinions regarding the elements required to enforce a Coblentz
agreement are impermissible legal conclusions. 	(Pl.’s Mot. 4). 	As with the Receiver’s enforceability-
related challenge, the Court denies that challenge as moot.
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(M.D. Fla. 2023) (quotation marks omitted; quoting Regions Bank v. Kaplan, No. 12-cv-1837,
2017 WL 1148309, at *2 (M.D. Fla. Mar. 24, 2017)).
Here, Lumpkin offers “industry standards” opinions that are relevant. 	(See Lumpkin’s
R. 7). For example, Lumpkin asserts that the industry standard for when an excess insurer should
receive notice is “as soon as practicable after it is believed by the policyholder that the claim
involved may exceed the limits of the primary insurance policy[.]” (Id. (alteration added)). Such
testimony could assist the trier of fact in deciding a genuine dispute of material fact: whether
Plaintiff received timely notice of a claim as required by the excess policies. (See Jan. 13, 2026
Order 17–22); see also Great Am. Ins. Co. v. Oracle Elevator Holdco, Inc., No. 22-cv-61997, 2025
WL 3541430, at *3 (S.D. Fla. Feb. 3, 2025) (permitting expert witnesses to opine about industry
standards in an insurance coverage action (citations omitted)).
While Plaintiff insists Lumpkin’s testimony is not relevant, Plaintiff neither provides
authority stating that industry standards are irrelevant to breach-of-contract actions, nor explains
why industry standards could not be relevant to the claims and defenses asserted in this case. (See
generally id.); see also Go Mobile Flooring, LLC., 663 F. Supp. 3d at 1315 (“Although there are
some breach of contract cases to which industry standards are not relevant, . . . [Plaintiff] has not
pointed to any authority . . . that industry standards are, as a matter of law, irrelevant to breach of
contract cases.” (alterations added; emphasis in original; citation omitted)). The Court therefore
declines to prohibit Lumpkin from offering “industry standards” testimony regarding timely
notice.
IV. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED that Defendant/Counter-Plaintiff, the court-appointed
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Receiver for Defendant, Mirador Master Association, Inc.’s Daubert Motion . . . [ECF No. 122]
is GRANTED in part and DENIED in part. 	Plaintiff, Greenwich Insurance Company’s
[Daubert] Motion . . . [ECF No. 127] is GRANTED in part and DENIED in part.
DONE AND ORDERED in Miami, Florida, this 17th day of January, 2026.
________________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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