MONY Life Insurance Company v. Bernard R. Perez

[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 W ILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir- cuit Judges.

M ARCUS, 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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8 Opinion of the Court 23-10770 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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10 Opinion of the Court 23-10770 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

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23-10770 Opinion of the Court 11 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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12 Opinion of the Court 23-10770 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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23-10770 Opinion of the Court 13 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

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18 Opinion of the Court 23-10770 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."³The 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:

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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."⁴And 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

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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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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.

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