United States: First-Party Property Newsletter: May 2023 Edition

Compliance with section 627.7152, Florida Statutes

MVP PLUMBING, INC. etc., v. CITIZENS PROPERTY INS. CORP., No. 3d22-1219 (April 26, 2023)

KK TAKEAWAY:

A single line item meets the standard for a written itemized, per-unit cost estimate.

KK TAKEAWAY:

The key is whether there were more services contemplated or if it was actually the only service (e.g., pipe inspection).

BACKGROUND:

The trial court dismissed MVP's Complaint seeking benefits for $750 for a single service, pipe inspection as an assignee of benefits under section 627.7152, Florida Statutes. The Third District Court of Appeals reversed and remanded the trial court dismissal holding that the single item listing on the assignment of benefits was compliant as it was the only service provided. Of note, the Third District Court of Appeal made note that the deficiency was not not part of the challenge raised in the Motion to Dismiss although the trial court's basis for dismissal.

Judgment Notwithstanding the Verdict

CITIZENS PROPERTY INS. CORP., v. LLUNAILY HERNANDEZ, 4d21- 2469 (April 12, 2023)

KK TAKEAWAY:

For a judgment notwithstanding a verdict, there must be no evidence or inferences which support the opposing party's position

KK TAKEAWAY:

Findings of prejudice or bias are questions to be raised through a motion for a new trial, not judgment, notwithstanding a verdict.

BACKGROUND:

This is a Hurricane Irma claim in which coverage was denied. At trial, the public adjuster testified to Hurricane damage to the tile roof allowing for water entry. The Insured also had an engineer testify who opined that, to a reasonable scientific certainty, the interior water damage resulted from water entry through the damaged roof.

Citizens relied on two engineers, one who conducted a site inspection and one who only formed opinions based on the information provided. The inspecting engineer denied that ceiling spotting was water damage. The reviewing engineer ("causation expert") reviewed 173 photographs and concluded that there was no evidence to support wind damage. He opined that the cracked tiles were from foot traffic and pointed out the prior repairs.

As to the interior, he did not believe the ceiling spots were water damage. His position was that if the roof leaked, there would have been more damage to the ceiling. Citizens also had an adjuster testify who did not observe any damage to the attic ceiling or any missing tiles from the roof.

At the close of the case, Insured moved for a directed verdict arguing that Citizens failed to meet its burden of proof to establish that interior damages were excluded by failing to show that there was no roof opening. The trial court reserved ruling.

After deliberations, the jury returned a verdict in favor of Citizens. The Insured's counsel renewed the motion for a directed verdict based on a lack of evidence and the failure to meet the burden of establishing an excluded loss. The trial court noted that this was either a motion for a new trial or a motion for judgment notwithstanding the verdict.

The trial court then questioned Citizen's counsel regarding the cross-examination of the Insured. There was a pre-trial ruling that Citizens could not bring up a prior insurance claim. Citizen's counsel advised that the Insured opened the door. The trial court then raised concern that the causation engineer referred to his opinions as "our" opinions when the inspecting engineer was not a testifying expert. The causation engineer did clarify during testimony that since the work came out of the same firm, they standard call it "our." The trial court found this to be improper bolstering and a violation of the pre-trial order. The trial court also took issue with the fact that the causation expert testified to seeing water damage but did not see roof damage. Citizen's counsel argued that this was a credibility analysis to be determined by the jury.

The trial court granted Insured's motion for judgment, notwithstanding the verdict, due to concern of violation of court orders. The trial court expressly found that the verdict was reached based on prejudicial evidence and caused bias. The trial court also found that the underlying facts did not support the expert's testimony.

In review, the Third District Court of Appeals clarifies that the policy language placed the initial burden upon the Insured to establish that a wind-created opening allowed rain to enter the building, causing interior damage. The trial court concerned itself with the fact that the causation expert did not consider the Insured's testimony to establish that tiles were missing. However, the causation expert opined that prior repairs were pre-dating the loss. The Third District Court of Appeals held this was sufficient to establish a jury issue precluding judgment notwithstanding a verdict.

The trial court's order was not a judgment notwithstanding the verdict but a sanction for pre-trial order violations. However, the trial court did not enter an order for sanctions, and it is not the reviewing court's role to interpret something other than what it states. The issues the trial court raised were improper for a judgment notwithstanding a verdict. The prejudice and bias should have been addressed via a motion for a new trial. The Third District Court of Appeals overturned the order and remanded for entry of judgment in favor of Citizens.

Application of Exclusions

FLORIDA FARM BUREAU GEN. INS. CO. v. JOHN WORRELL and JOYCE WORRELL, No. 5D21-3196, (April 28, 2023)

KK TAKEAWAY:

Policy exclusions must expressly exclude coverage otherwise, all interpretations will be rendered in favor of the insured.

KK TAKEAWAY:

Bodily fluids are not pollutants

BACKGROUND:

Insureds filed a claim for cleaning services for their property. An intoxicated and injured person broke into their shed, leaving behind blood and feces. The intoxicated individual was later found dead outside of a neighboring home.

The Insureds contacted a restoration company to clean the shed. Florida Farm denied coverage as it was the result of a pollution exclusion. The trial court granted summary judgment finding that the pollutant exclusion did not apply, thus, the Insureds were entitled to judgment as a matter of law.

The Fifth District Court of Appeals upheld the trial court finding solely on the issue of the blood as it was not a pollutant, nor did it equate to waste. Given that the blood was not a pollutant, the District Court did not consider the feces other than the fact that the policy had no anti-concurrent causation exclusion for the pollutant exclusion, thus, coverage for the blood triggered a covered loss.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.