FPCA Homeowners Division: For Review–Talking Points on Florida Supreme Court Insurers’ Sinkhole Experts Presumption of Correctness Opinion
Jan 27, 2012
Florida Property and Casualty Homeowners Division Members:
Below are talking points on the recent Florida Supreme Court opinion on the presumption of correctness of insurers’ expert reports in sinkhole claims.
Please review and provide comments and feedback to Katie Webb (kwebb@cftlaw.com) at Colodny Fass at your earliest convenience.
The Florida Supreme Court recently held in Warfel v. Universal Ins. Co. of North America, that the presumption of correctness of the insurer’s expert report in a sinkhole claim is not an evidentiary presumption.
This is inconsistent with the legislative changes we adopted in Senate Bill 408 during the 2011 Regular Session. Section 627.7073(1)(c), as adopted in SB 408, provides that: “[t]he respective findings, opinions, and recommendations of the insurer’s professional engineer or professional geologist as to the cause of distress to the property and the findings, opinions, and recommendations of the insurer’s professional engineer as to land and building stabilization and foundation repair set forth by s. 627.7072 shall be presumed correct.”
The question certified to the Supreme Court was whether the presumption created by Section 627.7073(1)(c), Fla. Stat. is a presumption affecting the burden of proof or merely the burden of producing evidence.
However, surprisingly, the court’s holding did not turn on whether the presumption affected the burden of proof or the burden of production. Instead the court held that the statute’s presumption was not intended to apply to the litigation context at all.
The court found that that the language of the statute did not indicate a clear intent to advance a particular public policy, and did not clearly state the type of presumption that was intended.
This amendment makes clear that the presumption of correctness is based upon public policy concerns regarding the affordability of sinkhole coverage.
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