27 Fla. L. Weekly Supp. 1018a
Online Reference: FLWSUPP 2712BASCInsurance — Homeowners — Coverage — Affidavit and report of insured’s expert is insufficient to preclude entry of summary judgment in favor of insurer that denied coverage for alleged windstorm damage to roof where affidavit and report, which are conclusory and lack any supporting evidence or tests performed to support conclusions, fail to meet admissibility standards outlined in Gonzalez v. Citizens Property Insurance Corporation
JOZSEF BASCO, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2017-001602-CA-01, Section CA15. January 16, 2020. Jose Rodriguez, Judge. Counsel: Jesus Goatache, Mario Serralta & Associates, Miami Lakes, for Plaintiff. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard before the Court on Defendant’s Motion for Final Summary Judgment, and the Court having considered the record, having heard counsel and being otherwise advised in the Premises, finds as follows:
I. STATEMENT OF UNDISPUTED FACTS
1. This lawsuit is premised upon a claim for homeowner’s insurance benefits allegedly due and owing to the Plaintiffs after their property incurred damages from a roof leak occurring on or about December 1, 2015.
2. The Plaintiffs reported the claim to the Defendant on February 1, 2016, two months after the claimed date of loss.
3. During the investigation of the Plaintiffs’ claim, the Defendant’s field adjuster inspected the subject property on February 8, 2016, at which point the field adjuster stated that there was no evidence of any peril-created opening for which coverage would apply. The Defendant subsequently denied the Plaintiffs’ claim in full in a letter dated April 21, 2016. The instant lawsuit ensued, with the Plaintiffs alleging breach of contract.
4. The Defendant took the deposition of the Plaintiff, Joszef Basco, on August 9, 2017. At that time, the record reflects that Mr. Basco testified that he did not know why the roof was damaged, and that he did not observe any holes in the roof.
5. The Plaintiffs offered, in support of their claim, photographs and an estimate from a public adjuster. However, there are no photographs of the roof from the public adjuster, and Mr. Basco acknowledged during his deposition that he does not know if the public adjuster ever even went onto the roof. The Plaintiffs have offered no testimony or evidence to suggest otherwise.
6. The Defendant subsequently filed its Motion for Final Summary Judgment on February 23, 2018, arguing that the Plaintiffs failed to carry their burden to demonstrate the existence of a peril-created opening, and set the same for a hearing to occur on June 8, 2018. Attached as an exhibit to the Defendant’s Motion for Final Summary Judgment was an affidavit from its corporate representative attesting to the facts and documents relevant to the initial denial of the Plaintiffs’ claim, including that the co-Plaintiff, Mrs. Perez, similarly failed, in a recorded statement given during the claims investigation process, to offer any evidence or testimony as to the existence of a storm-created opening in the roof at the subject property for which coverage would apply.
7. On May 30, 2018, as the hearing on Defendant’s Motion for Final Summary Judgment was approaching, the Plaintiffs filed their Response to Defendant’s Motion for Final Summary Judgment, arguing that the affidavit and report of their retained expert, Grant Renne, P.E., which had not been previously produced, created a genuine issue of material fact which should preclude summary judgment.
8. Mr. Renne’s affidavit stated, in pertinent part, as follows:
6. I reviewed the roof covering and interior finish damage at 4360 NW 205th Street, Miami Gardens, FL 33055.
7. Based on my observations, I conclude that the circular granular loss on the shingles roof covering documented during the site study were due to air-borne debris impacts (indirect wind damage)
8. Furthermore, the seam failures on the low slope roof covering were due to pressure differential caused by high wind loading (direct wind damage).
9. Statements made by the insured and a review of historic NOAA weather data support the opinion that the severe storm event that occurred on/about December 1, 2015 was the probable storm event that caused the initial roof damage resulting in the internal moisture damage.
10. Lastly, it is my professional opinion that the interior moisture finish damage was due to multiple upgradient moisture penetrations in the roof covering caused by wind-borne debris impacts and uplift pressures (storm induced openings) associated with the weather event on the reported date of loss.
9. While Mr. Renne’s affidavit references NOAA weather data and statements made by the Insured, no such documents related to such data or statements are included as exhibits to Mr. Renne’s affidavit, nor are they included or specifically referenced in any form in Mr. Renne’s formal report, which was also included as an exhibit to the Plaintiffs’ Response to Defendant’s Motion for Final Summary Judgment.
10. Rather, Mr. Renne’s report spends its first three and a half pages reciting general engineering and building code concepts that are not at all specific to the subject property or the loss at issue, and then immediately proceeds onto six bullet-pointed conclusions, with no documents, evidence, tests, or discussion to support such conclusions.
11.Upon receipt of the Plaintiffs’ Response to Defendant’s Motion for Final Summary Judgment, the Defendant cancelled the pending hearing on its upcoming Motion for Final Summary Judgment to investigate Mr. Renne’s newly-disclosed claims.
12. On June 27, 2019, the Defendant propounded its Second Expert Witness Interrogatories, asking the Plaintiff to state, in pertinent part and with respect to each and every “expert” witness that the Plaintiffs had retained for any purpose, 1) “the dates of each and every in-person inspection performed at the subject property relative to this loss” and 2) “the specific tests performed by each ‘expert’ in coming to his conclusions.” The Plaintiffs filed their Answers to the Defendant’s Second Expert Witness Interrogatories on July 30, 2019.
13. With respect to the Defendant’s first Expert Witness Interrogatory stated in paragraph 12, supra, the Plaintiffs responded as follows: No inspection has been done at this time.
14. With respect to the Defendant’s second Expert Witness Interrogatory stated in paragraph twelve, supra, the Plaintiffs responded as follows: Please refer to the attached report of Grant W. Renne, P.E.’s findings and testing.
15. The attached report referenced in the Plaintiffs’ Answers to Defendant’s Second Expert Witness Interrogatories was the same report previously provided by the Plaintiffs as an exhibit to their Response to Defendant’s Motion for Final Summary Judgment. No such tests were disclosed or referenced in that report.
16. The Defendant subsequently re-set its Motion for Final Summary Judgment for hearing, which took place before this Court on October 30, 2019.
17. On October 22, 2019, in the final days before the hearing on Defendant’s Motion for Final Summary Judgment, the Plaintiffs submitted an “Amended” Affidavit from Mr. Renne. This Amended Affidavit made superficial changes, such as stating that his conclusions are “within a reasonable degree of engineering certainty.” There were no exhibits or attachments to Mr. Renne’s Amended Affidavit, such as any report, data upon which he relied, or notes related to any statements from the Insured. There were no substantive changes to Mr. Renne’s opinions. The Plaintiffs did not file any amended Response to the Defendant’s Motion for Final Summary Judgment prior to the October 30, 2019 hearing.
II. ANALYSIS
As a threshold matter, this Court holds that the affidavit of the Defendant’s corporate representative, filed as an exhibit to the Defendant’s Motion for Final Summary Judgment, was sufficient to meet the Defendant’s prima facie burden of proof It therefore became the burden of the Plaintiffs, as the Party opposing the Defendant’s Motion for Final Summary Judgment, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to Florida Rule of Civil Procedure 1.510(f); or (2) file “summary judgment evidence on which the adverse party relies,” pursuant to Florida Rule of Civil Procedure 1.510(c). In filing the affidavits of Grant Renne, P.E., the Plaintiffs chose the second option. In this situation, the law of Florida shifts the burden to present evidence from the movant to the party opposing summary judgment. See Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-83 (Fla. 1965). It is not enough for the non-moving party to merely assert that an issue does exist. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979).
The record evidence demonstrates that Mr. Renne came to his conclusions without ever performing an in-person inspection of the subject property. He simply refers, in his affidavit and report, to NOAA weather data which is not attached or in any way specifically referenced, as well as unspecified “statements made by the insured” which are similarly not attached or in any way specifically referenced.
In support of its Motion for Final Summary Judgment, the Defendant relies on Yosvani Gonzalez and Yenisleidy Perez v. Citizens Property Insurance Corporation, 273 So. 3d 1031 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D686a]. In that matter, the majority created an exception to the general rule that “[i]f there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact.” Id. at 1035 (quoting Perez-Gurri Corp. v. McLeod, 230 So. 3d 347, 350 (Fla. 3d DCA 2016) [42 Fla. L. Weekly D2487c] (internal citations omitted)). Rather, the Gonzalez court stated that “affidavits opposing summary judgment must identify admissible evidence that creates a genuine issue of material fact,” and “[t]he focus is on whether the affidavits show evidence of a nature that would be admissible at trial.” Gonzalez at 1036. In creating this exception, the appellate court cited to the principle that “no weight may be accorded [to] an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.” Id. at 1037 (quoting Div. of Admin. v. Samter, 393 So. 2d 1142, 1145 (Fla. 3d DCA 1981)).
The record is clear that Mr. Renne’s report and affidavit are simply bereft of any “discernible, factually-based chain of underlying reasoning.” Mr. Renne’s report and affidavit are conclusory and lack any supporting evidence or tests performed in order to come to his conclusions. This is magnified by the Plaintiffs’ own admission that Mr. Renne never even personally inspected the property before coming to his conclusions. It is evident that, based upon the record before the Court at the summary judgment stage, that Mr. Renne’s affidavit and report, the Plaintiffs’ sole evidence in opposition to the Defendant’s Motion for Final Summary Judgment, simply fails to meet the standard of admissibility for expert evidence as laid out in Gonzalez. See, e.g., Panzera v. O’Neal, 198 So. 3d 663, 665 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D2661a] (purely speculative opinion testimony is not admissible evidence and cannot be relied on to create a material issue of fact to defeat summary judgment).
The question now becomes whether or not these deficiencies in Mr. Renne’s affidavit and report are so significant that it fails to create a genuine issue of fact to defeat summary judgment. It is this Court’s opinion that summary judgment is not the time to weigh the admissibility of expert witness testimony. In that regard, this Court prefers to subscribe to the dissent by Judge Suarez in Gonzalez, which states that he would have left the issues of the expert testimony’s admissibility for the finder of fact to determine at trial. Id. at 1039. Given the choice, this Court would similarly prefer to leave the issues before it as it pertains to the admissibility of Mr. Renne’s testimony for trial, or at least for a formal pre-trial Daubert hearing. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
However, this Court’s opinions do not override the law, and the law which binds the Court is the opinion held by the majority in Gonzalez. To the extent that this Court remains bound by the majority in Gonzalez, the Court does find the instant case to be analogous. The Plaintiffs rely entirely in opposition to summary judgment on Mr. Renne’s report and affidavits, which simply lack the discernible, factually-based chain of underlying reasoning to overcome what is otherwise entirely speculative and conclusory opinion testimony. The Court therefore finds that Mr. Renne’s report and affidavits fail to reasonably meet the admissibility requirements outlined in Gonzalez. While the Court may have its own personal disagreement with the reasoning underlying the Third District Court of Appeal’s majority holding, it is obligated to follow the law and established appellate precedent. Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
2. Final Judgment is hereby entered in favor of the Defendant, Citizens Property Insurance Corporation, and against the Plaintiffs, Joszef Basco and Dayami Perez. The Plaintiffs shall take nothing by this action and the Defendant shall go hence without day.
3. The Court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees, as well as any other timely motion for entitlement to attorney’s fees and costs as is just and proper.
