Insured’s Conclusory Expert Affidavit Insufficient to Defeat Summary Judgment
May 31, 2020
MAY 2020
Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.
ABOUT THE AUTHOR
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.
For more information about Ms. Koltnow, click here.
Insured’s Conclusory Expert Affidavit Insufficient to Defeat Summary Judgment
The insureds sued their homeowner’s insurance company following the denial of their claim for water damage from a roof leak. The insurer filed a motion for summary judgment based on the policy exclusion for wear and tear, supported by affidavits of the field adjuster and engineer who inspected the roof. In opposition to the motion, the insured filed an affidavit of its expert, who concluded the damages were the result of a one-time event which created an opening in the roof that allowed water to enter the home and damage the property. The lower court did not consider the insureds’ expert’s affidavit, which was missing a page, and was conclusory. The appellate court agreed and held the affidavit failed to provide a discernible, factually-based chain of reasoning necessary for an expert opinion to be admissible in evidence. Estevez v. Citizens Prop. Ins. Corp., 3d DCA (May 6, 2020).
TIPS & LESSONS
- This case reinforces well-settled law that affidavits based entirely on speculation, surmise and conjecture are legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.
Appellate Court Clarifies Appropriate Considerations to Apply Contingency Fee Multiplier
The insureds sued their homeowner’s insurance company for breach of the insurance policy following a fire loss. The insurer confessed judgment and stipulated to a (lodestar) fee award. The trial court held an evidentiary hearing to determine whether a contingency fee multiplier applied. The trial court considered the requisite 3-prong factors and held the insureds were not entitled to a fee multiplier. The appellate court, however, reversed and remanded the case back to the trial court for further consideration. The appellate court held the trial court did not properly consider the factors. For example, the trial court considered whether the insureds had actual difficulty in locating an attorney. In Joyce v. Federated National Ins. Co., the Florida Supreme Court held the insured’s actual experience in the market is not the proper focus, rather the focus is on the relevant market itself. Additionally, in considering whether the attorney was able to mitigate the risk of non-payment, the trial court considered that the insureds could have prevailed on other coverages. The proper focus should have been the insureds’ ability to pay a retainer or hourly fees. Wesson v. Florida Peninsula Ins. Co., 1st DCA (May 20, 2020).
TIPS & LESSONS
- The appellate court seemed to agree a multiplier was not appropriate here, but nevertheless remanded the case back to trial court to reconsider the evidence.
- This case is a solemn reminder of the high risk insurers face with contingency fee multipliers.
Appellate Court Upholds Summary Judgment in Blasting Case Based on Policy’s Anti-Concurrent Cause Language
The insured sued his homeowner’s insurance company following the denial of his claim for property damage caused by off-site rock blasting. The insurer denied the claim based on the earth-movement/settlement exclusion in the policy. The trial court granted summary judgment in favor of the insurer, concluding the policy did not cover indirect damage resulting from earth movement that may have been triggered by off-site fire or explosion. The appellate court agreed and held the anti-concurrent cause language preceding the earth movement exclusion provision, expanded the scope of the exclusion to exclude coverage for any loss resulting from earth movement regarding of the cause of the earth movement. This “lead-in” provision clearly and unambiguously excluded damage caused by earth movement from an indirect, off-site explosion. Hernandez v. Citizens Prop. Ins. Corp., 3d DCA (May 20, 2020).
TIPS & LESSONS
- Earlier this month, the 3d DCA interpreted a policy’s anti-concurrent cause language preceding the water damage exclusion to preclude coverage. Click here for our firm’s article regarding Security First Ins. Co. v. Czelusniak, 3d DCA (May 13, 2020).
- Review your policies to ensure you include properly drafted anti-concurrent cause language to better manage the risk of loss.