Generally, in Florida, when there is a difference of opinions between each party’s expert, the jury gets to decide who’s right, not the judge. But there has been a trend by insurance companies in the first-party property context of taking their expert’s report before the judge and arguing, in essence, “our expert’s right, the insured’s is wrong, so find in favor of the insurance company as a matter of law.”

These insurance companies and their experts have even convinced a few trial courts into believing this is the case. Fortunately for policyholders, Florida’s Second District Court of Appeal reminded those trial courts that battles of experts are to be hashed out before a jury.1

The Third District Court of Appeal recently followed the Second District in Garcia v. First Community Insurance Company,2 finding it was a fact question as to whose expert was correct.

On March 29, 2014, Rita Garcia (“Garcia”) noticed water damage to her home in Miami insured by a homeowner policy with First Community Insurance Company, (“First Community”). She reported her claim and it was ultimately investigated by an engineer, Ivette Acosta, (“Acosta”). First Community denied coverage based on Acosta’s engineering conclusions.

After being unable to resolve her claim on her own, Garcia hired attorneys and filed suit. In the complaint, Garcia claimed that on March 29, 2014, she and her husband discovered water damage at their home as a result of a roof leak, that the policy provided coverage for any direct physical loss that resulted from the roof leak, and that prior to suit they had provided First Community with an estimate for $22,986.66.

In response to the complaint, First Community filed an answer and affirmative defenses, where they claimed that the damages were caused by the “age and wear and tear of the roof.”

First Community filed a motion for summary judgment, arguing that the claimed damages were not covered under Garcia’s policy. To support its argument, First Community cited to the finding’s in Acosta’s expert report. It was Acosta’s opinion that the water intrusion through the roof resulted from “a combination of age-related deterioration, tree branch abrasions, and construction defects” and that “face nails observed on the shingles create a direct path for water to penetrate the structure…” which was also considered a construction defect.

Meanwhile, Garcia hired her own expert, Alfredo Brizuela (“Brizeula”) who inspected the home March 28, 2017, and reviewed Acosta’s engineering report, prepared on behalf of First Community. In response to First Community’s summary judgment motion, Garcia filed the affidavit and report of Brizuela who found, contrary to Acosta, that there was “insufficient evidence to rule out that the damages were caused by hail impact or wind uplift damage caused by a one-time occurrence.” He also found that ‘“no evidence to support any contention that the damages reported by the insured in this claim are age-related or long term in nature.” Brizuela further opined in his engineering report:

[T]he damages observed are systematic of high rain and/or wind events that occurred in the days leading up to and on the [date of loss]. The dynamic force of the winds caused an opening in the roofing system by uplifting and debonding the shingles (causing damage to the underlayment) through which rain water was able to enter, causing water damage to the interior of the building.

Despite the stark differences in Acosta and Bruzuela’s opinions, the trial court granted First Community’s motion for summary judgment. Garcia timely appealed.

In analyzing the evidence, the Third District Court of Appeal (“Third DCA”) recognized that under Florida law, the appellate court may not take the role of judging the credibility of witnesses or weighing the evidence. Apparently one of the key points that the trial court had relied upon in granting summary judgment against Garcia was that while First Community’s expert had inspected the property just months after the date of loss, Garcia’s expert did not observe the damage until three years later.

Ultimately, the Third DCA reversed the trial court’s finding and found:

The conclusions reached by the opposing engineers are clearly at odds. Given this conflict in the material evidence as to the cause of loss, the trial court erred in entering final judgment in favor of First Community…The consideration of the timing of Brizuela’s inspection [three years after the date of loss] in relation to that of First Community’s engineer…goes to the credibility and weight of Brizuela’s opinion regarding the cause of loss. It is well-established that issues of credibility and weight of the evidence are not appropriate in a summary judgment determination. Indeed, a “trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding. Juno Indus., Inc. v. Heery Int’l, 646 So.2d 818, 822 (Fla. 5th DCA 1994).

Because a genuine issue of material fact exists as to the cause of the loss to the property, entry of final summary judgment in favor of First Community was improper. Accordingly, we reverse the final summary judgment entered in favor of First Community and remand the cause to the trial court for further proceedings.

This case is important because it helps keep policyholders on equal footing with their insurance companies. First Community’s expert may not be right—a jury in Miami will eventually let us know. This case also emphasizes the importance of proving up your case if you represent policyholders as either an attorney or public adjuster. It is very important to make sure that you have retained the appropriate professionals to evaluate the insurance company’s findings and render reports and affidavits, especially in the face of a summary judgment motion.
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1 See Roker v. Tower Hill Preferred Ins. Co., 164 So.3d 690 (Fla. 2d DCA 2015)(Jury question as to which expert was correct regarding sinkhole repair method); see also, Sanchez v. Royal Palm Ins. Co., 166 So.3d 212 (Fla. 2d DCA 2015)(same), Estrada v. Tower Hill Select Ins. Co., 179 So.3d 348 (Fla. 2d DCA 2015)(same); Case v. Tower Hill Prime Ins. Co., 191 So. 3d 526, 527 (Fla. 2d DCA 2016)(same).
2 Garcia v. First Cmty. Ins. Co., No. 3D17-968, 2018 WL 1513153 (Fla. 3d DCA Mar. 28, 2018).