23 Fla. L. Weekly Supp. 1012b

Online Reference: FLWSUPP 2310COUTInsurance — Homeowners — Motions for directed verdict or new trial following jury verdict in favor of insured who suffered damage to wood flooring due to broken water supply line under house are denied — Verdict form — No merit to argument that new trial is required because trial court used verdict form that did not refer to policy exclusion for loss due to constant or repeated seepage or leakage over 14 or more days where verdict form proposed by insurer that asked first if loss was due to sudden or accidental release of water and, if response to first question was yes, then asked if loss was due to constant and repeated seepage for more than 14 days would have been confusing and posed risk of inconsistent verdict — Moreover, there is no reasonable probability that claimed error in verdict form contributed to verdict where insurer failed to prove that damage, which was caused by burst water supply line, was caused by seepage or leakage within meaning of policy exclusion or that loss could only have occurred over period of 14 or more days — Evidence — Trial court asking insurer’s expert to clarify his opinion as to whether loss was sudden or occurred over extended period does not warrant new trial — Work product — No merit to argument that trial court erred in admitting damage estimate prepared by insurer’s adjuster into evidence where adjuster testified that estimate was prepared in ordinary course of business and not in anticipation of litigation, and admission of estimate did not prejudice insurer — No merit to argument that jury’s verdict is contrary to parties’ stipulation that due to broken supply line home was exposed to water for 14 or more days where policy exclusion does not apply simply because home was exposed to water for more than 14 days, it applies only if loss resulted from one of specified seepage or leakage conditions, which was not proven

ROSAMUND COUTTS, Plaintiff, vs. FLORIDA PENINSULA INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-9421 CA (22). March 4, 2016. Michael A. Hanzman, Judge. Counsel: Valerie Jackson and Jose Bosch, Quintairos, Prieto, Wood & Boyer, Miami. Jorge Borron, Santona Corner, Coral Gables. Michael A. Nuzzo, South Miami.

ORDER DENYING DEFENDANT’SPOST-TRIAL MOTIONS

I. Introduction

After consideration of the evidence presented during the trial of this first party insurance dispute, an attentive and fully engaged jury entered its verdict in favor of Plaintiff, Rosamund Coutts (“Ms. Coutts” or “Plaintiff”). The jury awarded Ms. Coutts the sum of Forty Five Thousand Dollars ($45,000.00) as compensation for a “loss” it found was “covered” under her homeowners insurance policy issued by Defendant Florida Peninsula Insurance Company (“FPIC” or “Defendant”). Defendant now moves for a directed verdict or, alternatively, a new trial. For the reasons discussed herein both motions are denied.

II. Facts

As far as litigation goes this case is relatively simple. Ms. Coutts brought a single claim for breach of contract, alleging that she suffered a covered “loss” when an underground water supply line broke, damaging portions of her home — and in particular her wood floors. Ms. Coutts claimed that she discovered this water damage on March 8, 2014 when she noticed dark spots and cupping. She then contacted FPIC which, in turn, sent an adjuster from Crawford & Company — Dominic Ingram — to inspect the residence.

During his inspection Mr. Ingram entered the crawl space of the home and observed water spraying from a supply line located directly beneath the dining room floor. He photographed the broken pipe and eventually prepared a repair estimate of the resulting damage. Ms. Coutts then retained a plumber to replace the broken supply line system.

Four days later FPIC sent Ms. Coutts a letter denying the claim, asserting that:

We have determined that the loss involves long-term exposure to water leakage/moisture and wear and tear and deterioration of the building materials including the leaking plumbing where rust was found. In accordance with the policy, there is no coverage for this loss.

See March 17, 2014 correspondence. Plaintiff then filed suit.

FDIC’s defense — both in its pleadings and at trial — was straightforward. It maintained that the policy provided coverage for only “sudden and accidental” direct loss, see Policy, Section 1, Coverage A, and that Plaintiff’s claim did not meet this criteria, and was in fact “excluded” from coverage, because her “loss” resulted from “constant or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor; which occurs over a period of 14 or more days, whether hidden or not.” See Policy Section I — Exclusions. See FPIC’s “Answer, Affirmative Defenses and Demand for Jury Trial.” So the only question tried was whether this “loss” was covered by the policy. The jury found that it was.

III. Defendant’s Motions

a. The Motion for new Trial

i. Verdict Form

FPIC first asserts that a new trial is required because the verdict form used by the court “contained no reference to [the] specific policy exclusion relied upon” and thus placed “undue emphasis” on what it now claims was an “undisputed” issue; namely, whether “a ‘peril insured’ occurred.” See FPIC’s Motion, p. 4. The Court finds this argument completely devoid of merit.

While FPIC now asserts that: (a) its “all risk” policy required Plaintiff to prove only that “a loss occurred to the property during the policy period,” See Motion, p. 2, citing Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d 671, 674 (Fla. 2d DCA 2014) [40 Fla. L. Weekly D64a]; and (b) that it was undisputed that a “peril insured” occurred, that is not the position it took throughout the litigation. Rather, FPIC consistently maintained that Ms. Coutts bore the burden of demonstrating that the “loss” was “sudden and accidental” — and never stipulated that the loss was caused by a “peril insured,” or that it had issued an “all risk” policy. And FPIC’s new claim that it issued an “all risk” policy is incorrect. This policy — under the heading “Perils Insured Against” — only covered “sudden and accidental direct loss. . . .” It is not a pure “all risk” policy. See Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1086 (Fla. 2005) [30 Fla. L. Weekly S203a] (an “all risk” policy “provides coverage for all fortuitous loss or damage other than that resulting from willful misconduct or fraudulent acts” unless “the policy expressly excludes the loss from coverage”). See also, Munoz, supra (“an insured seeking coverage under an ‘all risk’ policy must prove [only] that a loss occurred to the property during a policy period”).

Because its policy is not an “all risk” contract, FPIC rightfully insisted that Ms. Coutts bore the burden to prove not just that a “loss” occurred during the policy period, but that the loss resulted from a “sudden and accidental” occurrence. FPIC also claimed the exact opposite; insisting that the “loss” resulted from “constant or repeated seepage or leakage” occurring “over a period of 14 days or more” and was hence “excluded.” So the issue framed by the parties’ respective positions was simple. Was the “loss” covered because it resulted from a “sudden and accidental” release of water, or was it not covered (i.e. excluded) because it resulted from “constant or repeated seepage or leakage” of water occurring over time (i.e. over 14 days).¹

When it came time for the jury to answer this simple question, FPIC requested a verdict form which gave it “two bites” at the proverbial apple. It wanted the Court to first ask the jury whether Ms. Coutts proved that she “sustained damages caused by a sudden and accidental release of water.” If the jury answered “no,” FPIC would naturally prevail. But if jury answered that question “yes,” FPIC wanted yet another shot at “victory” — insisting that the jury then be asked whether the water damage was caused by “constant and repeated seepage or leakage of water or steam, or the presence or condensation and humidity, moisture or vapor; which occurs over a period of 14 or more days, whether hidden or not.” See FPIC proposed verdict form. If the jury answered the question “yes,” FPIC would again prevail. This proposed verdict form would therefore permit the jury to conclude that: (a) the loss was “covered” because it was caused by a “sudden and accidental release of water,” and (b) the “loss” was “excluded” because it resulted from constant and repeated seepage or leakage of water. . . .” Put simply, this proposed verdict form would allow the jury to conclude that the loss was both “covered” and “excluded.” Of course FPIC failed to explain to this Court how a “loss” could result from both a “sudden and accidental” discharge of water and from a “constant and repeated seepage or leakage of water. . . .”

Because FPIC’s proposed verdict form was confusing, posed a risk of an obviously inconsistent verdict, and was proposed only to give the Insurer two opportunities to prevail on the same issue (i.e., whether the loss was “covered” by the policy) the Court rejected it and instead asked the jury a simple question — posed in a neutral general verdict form:

Did Rosamond Coutts sustain loss or damage from a peril insured covered by [the] policy issued by Florida Peninsula Insurance Company.

_____Yes _____No

The jury answered the question yes — finding that the “loss” was “covered” by the policy.

FPIC’s claimed entitlement to its proposed “two question” verdict form is premised on the bewildering proposition that a singular “loss” can be both “covered” and “excluded” by an insurance policy; a non-sequitur unsupported by any of the authorities it relies upon. What these cases actually say is that an “all risk” policy provides coverage “for all fortuitous loss or damage other than that resulting from willful misconduct or fraudulent acts,” “unless the policy expressly excludes the loss from coverage. . .” Fayad, supra at 1086 (“[i]n the absence of a provision expressly excluding” the loss from coverage, the claimed loss is covered under the all-risk policy); Wallach v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988). No case stands for — or remotely supports — the proposition that the same “loss” can be both “covered” and “excluded.” Either an insurance policy provides “coverage” for a “loss” or does not. Fayad, supra. So the only question that needed to be answered by this jury was whether Plaintiff’s “loss” was covered by the policy.

This Court possesses broad discretion in deciding whether to include an interrogatory in a verdict form. See J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So. 2d 367 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1131a] (“[t]he form of the verdict to be used. . . lies within the sound discretion of the trial court”); Firmani v. Grant, 681 So. 2d 869 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D2243b] (“trial court possesses exceptionally broad discretion in deciding whether to include an interrogatory in the verdict form”). The Court concludes that it did not abuse that discretion here by refusing to ask the jury the same question twice — albeit phrased differently. And if the jury had been asked both questions, and had found that: (a) Plaintiff proved that the loss was “covered” because it was caused by a “sudden and accidental release of water”; and (b) also found that the “loss” was “excluded” because it resulted from “constant seepage or leakage occurring over 14 or more days,” one or both of the parties would be arguing that the verdict was inconsistent. To avoid this potential problem the Court exercised its discretion and decided to ask the jury the only relevant question presented: did the policy provide “coverage” for the “loss.” The jury dutifully answered that question, concluding that the policy provided “coverage” — a finding which, ipso facto, rejected FPIC’s claim that the “loss” was “excluded.”

In support of its argument that the “verdict form” used was improper, and that this “error” justifies a new trial, FPIC cites Warth v. State Farm Fire & Cas. Co., 695 So. 2d 906 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1547a]; Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986); Sanchez v. Tower Hill Signature Ins., 181 So. 3d 1211 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2748a]. None of these cases support FPIC’s position.

In Warth the verdict form was found to be “confusing and misleading” because it listed the “cracking of walls” as a policy exclusion even though that condition could have been caused by “insurable sinkhole activity.” Id. at p. 908. For that reason, the verdict form was contrary to the policy and jury instructions. The verdict form used sub judice suffered from no such defect and was consistent with both the policy and the jury instructions. The jury was instructed that Ms. Coutts had the burden of proving that the loss was “sudden and accidental,” and that FPIC bore the burden of proving that the “loss” was caused by an excluded condition. After receiving these instructions — which FPIC does not take issue with — the jury was asked — quite simply — whether the loss was “covered.” There was nothing confusing or misleading about either the jury instructions or verdict form.

In Pomeroy the appellate court took issue with an interrogatory verdict form which “made the Good Samaritan defense the first issue for the jury’s consideration” — a decision which in the court’s view gave “undue prominence” to that particular defense. Here no single issue was emphasized and no parties’ position was given any “prominence” at all. This jury was again asked one neutral question: Did the policy cover the loss? Further, the reversal in Pomeroy was not based solely upon the problematic verdict form. It resulted from a “series” of erroneous rulings.

Finally, Sanchez involved a situation where a specific interrogatory on the verdict form included a temporal condition (i.e. “at the time of the sinkhole loss”) found nowhere in the policy. In other words, the verdict form contained a “limitation” to liability that the policy did not. And Sanchez, like Pomeroy, also involved compounding error.

Although, these cases bear no factual resemblance to the matter at hand, each do recognize that the “content of a verdict form is within the trial court’s discretion,” see Warth, supra, and that a trial court’s decision to utilize a particular verdict form will not be reversed “unless the error complained of resulted in a miscarriage of justice or . . . was reasonably calculated to confuse or mislead the jury.” Sanchez, supra citing Morton Roofing, Inc. v. Prather, 864 So. 2d 64, 68 (Fla. 5th DCA 2003) [29 Fla. L. Weekly D37a]. The Court concludes that it committed no “error” — and certainly did not “abuse its discretion” — in rejecting FPIC’s proposed two question verdict form — a form which again: (a) could have resulted in an inconsistent verdict; (b) was misleading and confusing; and (c) was proffered solely for the purpose of giving FPIC two “chances” to prevail on the question of whether the loss was “covered” under the policy.

Furthermore, the Court finds that there is no reasonable possibility that this claimed “error” contributed to the verdict. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014) [39 Fla. L. Weekly S676a]; § 59.041, Fla. Stat. (2016). FPIC argued to the jury — from beginning to end — that the “loss” was not “covered” because it resulted from “constant or repeated seepage or leakage of water. . . which occurred over a period of 14 or more days.” It made this argument in opening — through witnesses — and at closing. It also repeatedly highlighted the policy language — language which was in evidence. Had the jury agreed with FPIC’s position it would have been required to — and would have — answered “no” to the question of whether the loss was “covered” by the policy. See Verdict Form. And the Court rejects FPIC’s contention that the outcome of this case might have been different had a special interrogatory highlighting the exclusion been placed on the verdict form. In fact, acceptance of FPIC’s proposed verdict form arguably would have placed “undue prominence” on the “exclusion” — violating the very cases FPIC relies upon. See Pomeroy, supra.

The Court also finds the alleged error here “harmless” for an additional reason: no competent evidence supported FPIC’s reliance upon its “exclusion.” The “exclusion” applies to a “loss” resulting from:

Constant or repeated seepage or leakage of water or steam, or the presence of condensation and humidity, moisture or vapor; which occurs over a period of 14 or more days.

The plain language of this “exclusion” — which must be strictly construed — see e.g., Demshar v. AAACon Auto Transp., Inc., 337 So. 2d 963 (Fla. 1976) — requires that the insurer prove two distinct elements. First, it must prove that the “loss” was caused by either: (a) “constant or repeated seepage or leakage of water or steam”; or (b) the “presence of condensation and humidity, moisture or vapor.” Assuming it clears that hurdle, the carrier must then also show that the “loss” occurred “over a period of 14 or more days, whether hidden or not.” FPIC failed to present competent substantial evidence on either prong.

As for the first “prong” of the exclusion, the policy does not define “seepage” or “leakage.” It is therefore appropriate to resort to dictionary definitions. See, e.g., Beans v. Chohonis, 740 So. 2d 65 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1592a] (when term is not defined Florida courts look “the dictionary for the plain and ordinary meaning of words”). “Seepage” is generally defined as “to leak, drip, or flow out slowly through small openings or pores”; to “ooze”; or to “percolate” Webster’s New Collegiate Dictionary, 1981 by G.C. Merriam Co. Similarly, “leak” generally means to “drip” or “trickle.” Webster’s New Collegiate Dictionary, 1981 by G.C. Merriam Co. No evidence in this case suggested that the water emanating from the broken supply line under Plaintiff’s home was either “seeping” or “leaking.” Nor did any evidence suggest that the loss here was caused by the “presence of condensation and humidity, moisture or vapor,” as those terms are commonly defined. The “loss” was caused by water spraying out of a broken pipe.

Even assuming the insurer had presented competent evidence from which a jury could conclude that the first prong of the exclusion had been met, it failed to establish, through competent evidence, that the “loss” could only have occurred over a period of 14 or more days (i.e. that it could not have been realized within 13 days or less). On this point, FPIC continues rely upon a stipulation entered into by the parties which provided that: “as a result of broken supply line, Plaintiff’s property was exposed to water or 14 or more days.” That is of course true, but irrelevant. The exclusion does not preclude coverage simply because the property was “exposed” to water for an extended period of time. Rather, the exclusion is triggered if the “loss” is caused by “constant or repeated seepage or leakage” or the “presence of condensation and humidity, moisture or vapor” which “occurs over a period of 14 days. . . .” In other words, the exclusion, as plainly written, is triggered if the “loss” did not occur “within” 14 days. See Fayad, supra (“our decision is governed by the language of the exclusionary provision and well-established principles of insurance contract interpretation”). Here, even FPIC’s own expert testified that he could not opine — with reasonable certainty — that the “loss” did not occur within the first 14 days of the home being exposed to water.

In any event, the Court submitted this issue to the jury which — through its verdict — rejected the Defendant’s claim that the “exclusion” applied. This finding is supported by substantial, competent evidence.

ii. The Court’s Inquiry of FPIC’s Expert

FPIC next claims a new trial is warranted because the Court asked its expert to clarify his opinion — if any — on whether the “loss” was “sudden” or occurred “over an extended period of time.” This limited inquiry — according to FPIC — violated Florida Statute § 90.106 which prohibits a judge from summing up the evidence or comment[ing] to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” Id. FPIC also claims that this Court asked improper hypothetical questions.

FPIC’s arguments are wide of the mark. First off, the Court is statutorily permitted to “interrogate witnesses” even when they are not called by a party. § 90.615(2). Fla. Stat. (1976). What it cannot do is engage in the “excessive questioning of witnesses” to the extent that it usurps “the functions of counsel” resulting in “injury to the rights” of a party. Gonzalez v. Mercy Hosp., Inc., 738 So. 2d 955, 957 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1447b]. This Court’s limited questioning of one witness did not come close to crossing that line. Nor did the Court “sum up” or “comment on” the evidence or the credibility of any witness.

The Court also did not use any improper hypotheticals. The “hypotheticals” posed (that a bolt of lightning was “sudden,” and a leaking window permits water intrusion over time) were merely intended to — and did — place the questions being posed in a proper context. The questions, however, were not hypotheticals designed to elicit an “opinion” based upon the expected or actual “evidence” in the case. See, e.g., Monsalvatge & Co. of Miami v. Ryder Leasing, Inc., 151 So. 2d 453 (Fla. 3d DCA 1963).

The bottom line is that the Court did nothing to suggest its “view of the facts to the jury,” nor did it pose any question that “caused serious, irremediable harm” to FPIC’s case. Gonzalez, supra. The Court simply asked one witness limited questions intended to clarify a discrete issue. Nothing more or less.

iii. The Alleged Evidentiary Errors

FPIC next takes issue with certain of the Court’s evidentiary rulings — particularly its decision to allow into evidence a damage estimate prepared by its public adjuster — a document FPIC claims was protected by “the work product privilege.” See Motion, p. 13, Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So. 2d 250 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D815a] (neither the insured, nor the injured third party is entitled to discovery of the claims file, because it is work product); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2116b].

As a preliminary matter, this Court continues to believe that there is no such thing as a “claim file” privilege, and that most documents “placed” in an insurer’s claim file are not “work product” at all. See Udelson v. Nationwide Insurance Company of Florida, 20 Fla. L. Weekly Supp. 1176a (11th Jud. Cir., April 15, 2013). As this Court said before:

It is clear, however, that every document generated as part of an insurance company’s ordinary business of adjusting a loss is not work product. Like every other litigant, an insurance company withholding evidence on a claim of work product privilege must show that the material was prepared “in contemplation of litigation.”

. . .

Put simply, an insurance company, like all other litigants, must show that the subject materials were prepared in anticipation of litigation, as opposed to a part of an investigation “conducted during the normal business of evaluating the claim” made by its insured. Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991). Insurance companies are in the business of issuing policies and adjusting claims, not the business of litigating them, and the vast majority of claims submitted by their insureds do not result in adversary proceedings. And while it is theoretically “possible” that any claim submitted by an insured will wind up in litigation, every document generated as part of an insurer’s adjustment activities is not immune from discovery.

The bottom line is that documents in an insurance carrier’s file — like documents in any litigant’s file — that are relevant or reasonably calculated to lead to the discovery of admissible evidence are discoverable unless, and only unless, privileged. See Fla. R. Civ. P. 1.280(b)(1). It makes no difference whether the document in the insurer’s file is an “activity log,” “claims manual,” “photograph” of the damaged property, or anything else. Nor does it matter how the material is labeled by the carrier, or where it is located within the insurer’s “file.” Such material is protected by the work product privilege if, and only if, it is prepared “in anticipation of litigation.” See Fla. R. Civ. P. 1.280(b)(3). The law, quite simply, does not recognize a “claims file” privilege.

Udelson, supra (initial citations omitted).

This point is illustrated here, as FPIC’s adjuster testified that his photographs, reports and damage estimates were prepared in the ordinary course of his business activities, and not in anticipation of any litigation. They are therefore not covered by the “work product” doctrine — a discovery (not evidentiary) — privilege.

Furthermore, during his direct examination the adjuster was asked — without objection — whether he prepared a damage estimate. The Court then allowed the estimate into evidence — an estimate that amounted to only $9,178.66. Under the circumstances the Court fails to see how the admission of this single piece of evidence prejudiced FPIC at all, and it rejects the claim that FPIC was “ambushed” because it did not anticipate the estimate coming into evidence. The custodian of the document was listed as a witness and called to the stand without objection. And his file was subpoenaed. So while FPIC may have “believed” that the estimate would not be admitted, it had no right to “rely” on being correct. But even assuming the admission of this single document was “error,” the Court finds there is no “reasonable possibility” that this error contributed to the verdict or that it caused FPIC any significant prejudice. See Special, supra at 1256, 1257.

As for the remainder of FPIC’s evidentiary challenges, the Court finds that they do not warrant discussion. It will suffice to say the Court did not abuse its discretion in determining the admissibility of any evidence. Helton v. Bank of Am., N.A., 41 Fla. L. Weekly D250a (Fla. 5th DCA Jan. 22, 2016) (“trial court has wide discretion in determining the admissibility of evidence”). Nor is it reasonably possible that any of these claimed evidentiary errors contributed to the verdict.

iv. The Claim that a New Trial is Required Because the Jury’s Finding was Contrary to the Manifest Weight of the Evidence.

Finally, FPIC insists that it should receive a directed verdict, or be afforded a new trial, because the jury’s finding was contrary to the manifest weight of the evidence. This claim rests exclusively upon the “stipulation” discussed earlier. FPIC says that by “virtue of this stipulation” it has conclusively proven that the property was “exposed to water and moisture for fourteen (14) or more days,” and that — as a result — it has “proven everything it needs to prove in order to establish the applicability of the exclusion.” See Motion for Directed Verdict, p. 3. FPIC is incorrect.

As the Court pointed out earlier, the “exclusion” does not apply simply because the property was “exposed” to water, moisture, or anything else for more than 14 days. It applies if — and only if — the “loss” resulted from one of the specified conditions (i.e. seepage, leakage, condensation, humidity, moisture or vapor) and if it occurred over a period of 14 or more days. Put simply, even if one of these conditions “caused” the loss, the exclusion applies only if the loss could not have been (or was not) realized in the first 14 days. In other words, if the “loss” was realized between days 1 and 13 it is not excluded, even though the “condition” may have remained on the property for 14 days or longer. Thus, the stipulation that the home was exposed to water for 14 or more days proved just that — and nothing more.

IV. Conclusion

A jury entered a verdict finding — as a matter of fact — that the “loss” claimed was “covered” by FPIC’s insurance policy; an issue it was charged with deciding. See Price v. Castle Key Indem. Co., 152 So. 3d 2 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1864e] (question of whether “loss” caused by water was “sudden” or excluded because it resulted from “seepage” or “leakage” was for a jury to decide); Hoey v. State Farm Florida Ins. Co., 988 So. 2d 99 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1789a] (affirming factual finding that “loss” resulted from “continuous leakage” from a toilet pipe). Contrary to FPIC’s contention, this Court finds that the jury’s decision did not result from any “error” that occurred during trial. The Defendant had every opportunity to — and did — advocate its view of the case — a “view” the jury rejected. This Court will not disrupt the jury’s decision either by granting a directed verdict or ordering a new trial, as it finds that: (a) no “error” occurred in this case; and (b) the alleged “errors” complained of were harmless when the case — and the verdict — is viewed as a whole through an objective lens. See Special, supra at 1255 (a harmless error analysis must “include an examination of the entire record”).

A litigant, even in the criminal context, is “entitled to a fair, not a perfect, trial.” United States v. Phelps, 733 F.2d 1464, 1473 (11th Cir. 1984). Because FPIC — in this Court’s view — clearly received a fair trial, and because the jury’s verdict is supported by substantial, competent evidence, Defendants “Post Trial Motion for Directed Verdict,” and its “Post Trial Motion for New Trial” are DENIED.

__________________

¹The question of whether this policy is an “all risk” policy is in any event irrelevant to the issues presented here, as the jury was instructed that Ms. Coutts bore the burden of proving that the loss resulted from a “sudden and accidental” release of water — the “burden” FPIC claimed she bore. It was not instructed that Ms. Coutts only had to prove that a “loss” occurred during the policy period — an instruction that would have been proper if this case involved a true “all risk” policy. See Munoz, supra.