28 Fla. L. Weekly Supp. 60a
Online Reference: FLWSUPP 2801MERA
Insurance — Homeowners — Coverage — Summary judgment — Affidavit of insureds’ public adjuster is insufficient to preclude entry of summary judgment in favor of insurer that disputes that damage to insureds’ home was due to wind damage from hurricane where affidavit contains inconsistences as to address of property and dates of loss and inspection and is bereft of any discernable factually-based chain of underlying reasoning to support conclusory opinion that loss was caused by hurricane
ALTAGRACIA MERA, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. CACE18020878, Division 13. February 20, 2020. Michael Robinson, Judge. Counsel: Roshini Cheeran, Pazos Law Group, Coral Gables, for Plaintiff. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard before the Court on Defendant’s Motion for 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, located at 6480 Kimberly Boulevard, North Lauderdale, FL 33068, incurred damages from Hurricane Irma.
2. After conducting an investigation through an independent adjuster, the Defendant denied the Plaintiffs’ claim in full, via a letter dated July 16, 2018. The Defendant denied this claim because:
Citizens found no wind damage to your roof but we did notice wear, tear and deterioration. Citizens is unable to provide coverage for wear tear and deterioration. . . Based on the findings of our investigation, Citizens is unable to provide coverage for your loss, as your policy does not provide coverage to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.
3. The Plaintiffs subsequently filed the instant lawsuit alleging breach of contract.
4. On June 28, 2019, the Defendant filed its Motion for Summary Judgment, a hearing on which was set before the Court for February 18, 2020.
5. On February 11, 2020, the Plaintiffs filed their Response in Opposition to Defendant’s Motion for Summary Judgment. Notably, the only evidence offered in opposition by the Plaintiffs was an estimate from the Plaintiffs’ Public Adjuster and an Affidavit from that same Public Adjuster.
6. The Plaintiffs’ Public Adjuster, Luciano Assuncao, offered his Affidavit to support the Plaintiffs’ claim, which attests in full as follows:
1. Affiant, the licensed public adjuster from Five Star Claims Adjusting, in the above-entitled action, has personal knowledge of the matters testified to herein.
2. On or about June 5, 2018, a claim for property damage was filed with Defendant on behalf of Plaintiffs, which identified Plaintiffs’ date of loss as September 8, 2017 and the cause of loss as “Wind/Hurricane.”
3. On or about June 29, 2018, Affiant assessed and evaluated the damage to the Plaintiff’s home located at 8028 NW 41 Street, Sunrise, Florida 33351.
4. Affiant believes, in his professional experience, that the type of loss to Plaintiff’s home to be caused by a hurricane, specifically Hurricane Irma.
5. Further, after Affiant’s inspection, Affiant advised in his estimate dated June 28, 2019 that the type of loss was caused by hurricane. A true and correct copy of said estimate, is attached to this affidavit.
7. No estimate, or any supporting documentation of any kind, was attached to Mr. Assuncao’s affidavit, although the estimate was included as an earlier exhibit to the Plaintiffs’ Response in Opposition to Defendant’s Motion for Summary Judgment.
8. At the February 18, 2020 hearing on Defendant’s Motion for Summary Judgment, the Defendant raised facial, technical, and legal deficiencies which the Defendant argues preclude this Court from considering the Affidavit of the Plaintiff’s Public Adjuster at the summary judgment stage. In response, the Plaintiffs raised issues with arguments not raised orally by the Defendant as to late notice, prejudice, and failure to protect the property from further damage, without addressing the purported deficiencies in their Public Adjuster’s Affidavit. The Plaintiffs further argued that the Defendant’s Affidavit, from its Corporate Representative, similarly only stated an adjuster’s belief, and therefore there is a disputed issue of fact as to the cause of the Plaintiffs’ loss which should preclude summary judgment.
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 Summary Judgment, was sufficient to meet the Defendant’s prima facie burden of proof. The Defendant’s Affidavit was made by a Corporate Representative, who properly attested to personal knowledge of the file, and who properly referred to the Policy, photographic findings of the independent adjuster, and the ultimate denial letter issued to the Plaintiff, all of which were properly attached as exhibits to the Affidavit.
It therefore became the burden of the Plaintiffs, as the Party opposing the Defendant’s Motion for 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 upon which the adverse party relies,” pursuant to Florida Rule of Civil Procedure 1.510(c). In filing the Affidavit of Luciano Assuncao, 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).
Under Florida Rule of Civil Procedure 1.510(e), “[s]upporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions to interrogatories, or by further affidavits.” The Defendant argues that the failure for the Affidavit to incorporate Mr. Assuncao’s estimate as an exhibit to same is fatal to the Affidavit. The Court does not agree. Under the plain language of Rule 1.510(e), such evidence may be “served therewith,” and therefore does not necessarily have to be attached to the Affidavit itself. The Plaintiffs meets this standard through the inclusion as an earlier exhibit to their Response in Opposition to Defendant’s Motion for Summary Judgment.
The Defendant further argues that Mr. Assuncao is not an expert witness, and therefore he cannot offer opinion testimony. While this point does have some merit, and would likely receive a more thorough evaluation during a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), “the decision of whether or not to allow lay witness opinion testimony is within the discretion of the trial court.” See Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1994) [19 Fla. L. Weekly D1741a] (citing Huges v. Canal Ins. Co., 308 So. 2d 552 (Fla. 3d DCA 1975)). Mr. Assuncao is a licensed public adjuster, with at least some knowledge as to the cause and extent of damages to a residential property. Therefore, at this stage in litigation the Court does not elect to strike Mr. Assuncao’s Affidavit on the basis that he is not properly qualified to provide opinion testimony in opposition to summary judgment.
With that being said, the Defendant’s primary arguments as to deficiencies in Mr. Assuncao’s affidavit carry far more weight. First and foremost, Mr. Assuncao’s Affidavit refers to the wrong property address (8028 NW 41 Street, Sunrise, Florida 33351 as opposed to the correct property address at issue here, 6480 Kimberly Boulevard, North Lauderdale, FL 33068), as well as an impossible Hurricane Irma date of loss of September 8, 2017. It is a matter of common knowledge that Hurricane Irma did not strike Florida until September 10, 2017, when it made landfall in Cudjoe Key. See, e.g. https://weather.gov/mfl/hurricaneirma (last accessed February 18, 2020). Mr. Assuncao’s Affidavit further refers to an estimate dated June 28, 2018 based upon the results of his June 29, 2018 inspection. On its face, Mr. Assuncao’s Affidavit claims to have inspected the wrong property, based upon an impossible date of loss, in order to create an estimate generated one day before his inspection of the subject property. The Court is troubled by the myriad inconsistencies in Mr. Assuncao’s Affidavit, the sole evidence offered by the Plaintiffs in opposition to the Defendant’s Motion for Summary Judgment.
The Defendant, in further support of its Motion for Summary Judgment, refers the Court to Yosvani Gonzalez and Yeinsleidy 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, upon which the Plaintiffs seek to rely here, that “[if] 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) (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 to 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)). Additionally, in analyzing the requirements of Florida Rule of Civil Procedure 1.510(e), the appellate court noted that “affidavits opposing summary judgment must identify admissible evidence that creates a genuine issue of material fact. . . . The purpose of this requirement is to ensure that there is an admissible evidentiary basis for the case rather than mere supposition of belief.” Id. at 1036 (internal citations and quotations omitted).
The record is clear that Mr. Assuncao’s Affidavit is simply bereft of any “discernible, factually-based chain of underlying reasoning.” His Affidavit merely states that he inspected the property (which is identified incorrectly), and based upon that inspection he “believes, in his professional experience, that the type of loss to Plaintiff’s home to be caused by a hurricane, specifically Hurricane Irma” (which did not make landfall in Florida until two days after the date stated in Mr. Assuncao’s Affidavit). As the Gonzalez court made clear, evidence in opposition to summary judgment must be go beyond “mere supposition or belief.” The plain language of Mr. Assuncao’s Affidavit clearly demonstrates on its face that it fails to meet this standard. His “belief” is not a sufficient evidentiary basis for denying summary judgment. The defects in Mr. Assuncao’s Affidavit are further magnified by lack of any analysis, testing, or stated evaluation processes at the subject property, from which Mr. Assuncao may have been able to reasonably come to an opinion that goes beyond “mere supposition or belief.”
The question now becomes whether or not these myriad deficiencies in Mr. Assuncao’s Affidavit are so significant that the Affidavit fails to create a genuine issue of material fact. This Court is bound to follow the law, and “in the absence of an interdistrict conflict, district court decisions bind all Florida trial courts.” See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). Therefore, with respect to an analysis of the admissibility of Mr. Assuncao’s Affidavit as evidence in opposition to the Defendant’s Motion for Summary Judgment, this Court is bound by the majority in Gonzalez.
The Plaintiffs rely entirely in opposition to the Defendant’s Motion for Summary Judgment on Mr. Assuncao’s Affidavit, which simply lacks the discernible, factually-based chain of underlying reasoning to overcome what is entirely speculative and conclusory opinion testimony which fails to even properly identify the location of the subject property or the date of loss. The Court therefore finds that Mr. Assuncao’s Affidavit fails to reasonably meet the admissibility requirements outlined in Gonzalez. In the absence of any other evidence filed by the Plaintiffs in opposition to the Defendant’s Motion for Summary Judgment, no genuine issue of material fact remains in this matter. Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Summary Judgment is hereby GRANTED.
2. Final Summary Judgment is hereby entered in favor of the Defendant, Citizens Property Insurance Corporation, and against the Plaintiffs, Altagracia Mera and Elizabeth Mejia f/k/a Elizabeth Ledesma. 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.
