COMPETING EXPERT WITNESSES IN AN INSURANCE COVERAGE DISPUTE

shutterstock_363608708Oftentimes, insurance coverage disputes involve competing expert witnesses.  The experts render different expert opinions regarding a topic that goes to coverage and/or damages.  An example of competing expert witnesses can be found in the recent property insurance coverage dispute, Garcia v. First Community Ins. Co., 43 Fla.L.Weekly D671a (Fla. 3d DCA 2018). 

 

In this case, an insured submitted a claim under her homeowner’s policy for water damage due to a roof leak.  She claimed her damage was approximately $23,000.  The insurer denied coverage and an insurance coverage dispute ensued.

 

The insured’s policy, akin to many homeowner’s policies, contained exclusions for loss caused by:

 

h. Rain, snow, sleet, sand or dust 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.

 ***

i. (1) Wear and tear, marring, deterioration;

 

The insurer sent an engineer to inspect the insured’s property and the engineer (expert) opined that the water intrusion was not covered under the policy based on the aforementioned exclusions.  Her opinion was that the water intrusion through the roof was the result of deterioration from age, tree branch abrasions, and construction defects based on how nails were installed into the shingles.  Based on this opinion, the insurer was denying coverage based on the (i) wear and tear, marring and deterioration exclusion and (ii) rain intruded through the roof based on a peril (construction defect) that was not covered under the policy.

 

The insured, as expected, had a competing expert that opined that a hail impact or high wind uplift (covered peril) in the days leading up to the rain event caused water to intrude through the roof and cause interior damage.   Under this opinion, the insured was presenting an expert opinion for coverage and why the insurer’s exclusions were inapplicable.

 

In this case, surprisingly, the trial court granted summary judgment in favor of the insurer.  However, this was reversed on appeal because the competing opinions as to coverage and the cause of the insured’s loss created a genuine issue of material fact.  Summary judgment cannot be granted if there are genuine issues of material fact.  See Garcia, supra, (“Given this conflict in the material evidence as to the cause of the loss, the trial court erred in entering final judgment in favor of First Community [insurer].”).

 

Another argument the insurer raised was that its engineer inspected the property within months after the date of loss whereas the insured’s expert is basing an opinion on an inspection that occurred three years after the fact.   This fact, albeit true, does not create a genuine issue of material fact.  Rather, it goes to the credibility of the experts at trial.  Which expert is more credible regarding the cause of the loss:  the insurer’s expert that inspected the property a few months after the loss or the insured’s expert that inspected the property years after the loss.  Well, the issue of credibility and how a jury / trier of fact weighs this in consideration of other evidence is not appropriate in determining a motion for summary judgment. See Garcia, supra.

 

Experts are an important part of construction disputes including insurance coverage disputes and it is not uncommon for there to be competing expert opinions as to the cause of a loss, a defect, and, of course, damages.   

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

VIOLATION OF THE BUILDING CODE IS A QUESTION OF LAW

imagesIn construction defect disputes, oftentimes the owner (or developer or association, as may be applicable) will assert a claim against the general contractor, and perhaps, subcontractors for a violation of the building code.  Such a claim is authorized pursuant to Florida Statute s. 553.84 that provides:

 

Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.

 

A violation of the building code serves as evidence of negligence by the offending party.  See Russ v. Wollheim, 915 So.2d 1285, n.1 (Fla. 2d DCA 2005) (“A building code is designed to protect the general public rather than a particular class of individuals, and therefore, violation of a building code is merely evidence of negligence.” )

 

But who determines whether an asserted defect, error, or omission constitutes a violation of the building code?  Is this a question of law for the judge?  Or, is this a question of fact for the jury (in a jury trial)?  Remarkably, cases have held that a violation of a building code, a complicated and rather specialized issue, is a question of law for the judge to determine.

 

In Edward J. Seibert, A.I.A. Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass’n, Inc., 573 So.2d 889 (Fla. 2d DCA 1990), a condominium association filed suit against the architect among others.  The jury found that the architect was liable for violating the building code in the fire exit design even though the design had been approved by the building department upon the issuance of the building permit. To support this violation, the association had an expert testify regarding his interpretation regarding the building code. The architect testified that his design complied with the building code and had two supporting expert opinions.  The verdict form asked the jury if the fire exist design complied with the applicable code.  The Second District held that the interpretation of the code was a question of law that should not have been submitted to the jury.

 

They [the parties] instead presented conflicting opinions as to how the code should be interpreted. The jury was allowed to determine the meaning of the code and then whether Seibert [architect] violated the code by designing only one fire exit. This was error. An expert should not be allowed to testify concerning questions of law, and the interpretation of the building code presented a question of law.

 

 

It was the duty of the trial court to interpret the meaning of the code and instruct the jury concerning that meaning. Any conflicts in interpretation were for the court to resolve and their resolution was not a jury issue.

Edward J. Seibert, 573 So.2d at 891-9 (internal citations omitted).

 

Further, in Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So.2d 565 (Fla. 1st DCA 1994), a personal injury plaintiff sued an owner for slipping on a wet spot on stairs.  The plaintiff claimed that the stairs lacked handrails in violation of the building code.  The owners relied on testimony from a building department official opining that handrails were not required based on his interpretation of the code / ordinance at-issue.   The First District, however, found:

 

Expert testimony as to the meaning of an ordinance is not appropriate when the disputed language consists of “ordinary words susceptible to being given plain effect consistent with their ordinary meaning.” The legal effect of a building code presents a question of law for the court, not a question of fact for the jury. While expert testimony may be relevant and helpful to the court where a statute or ordinance contains words of art or scientific and technical terms, even then such testimony cannot dictate the court’s construction of the enactment.

Lindsey, 645 So.2d at 568 (internal citations omitted).

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.