“GENUINE” ISSUE OF “MATERIAL” FACT AND SUMMARY JUDGMENTS

Posted on December 3, 2022December 3, 2022 by Edward Garber

This is short article on summary judgments. A motion for summary judgment, as you may already know, is a procedural vehicle to try to dispose of issues or claims in a lawsuit, either partially or fully. The objective is that the moving party claims that there is no genuine issue of material fact and that they are entitled to a judgment (partially or finally) as a matter of law. See Florida Rule of Civil Procedure 1.510. In May of 2021, Florida adopted the federal summary judgment standard which theoretically means trial courts should grant more summary judgments, not less, based on the more rigorous standard.

There have been many articles that discuss Florida’s new summary judgment standard including how the standard used to be versus how it is supposed to be now that it is modeled after the federal standard. That isn’t the point of this posting. (Here is an article published in the Florida Bar Journal that provides a primer on summary judgments in case you are interested.)

The point of this posting is to understand the words “genuine” and “material” as underlined above when moving for or defending against a summary judgment. These words have important meaning in the context of motions for summary judgment. In other words, what is a genuine issue of material fact? This is a question that should not be overlooked because these are the facts you want to focus on and frame your arguments on when moving for or defending against a summary judgment. Notably, these are also the facts you want to introduce and emphasize at trial.

An issue of fact is “genuine” for summary judgment purposes if it could allow a jury to return a verdict in favor of the non-moving party, and an issue of fact is “material” if it could have any bearing on the outcome of the case under the applicable law. “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.”

Del Rio v. Russell Engineering, Inc., 47 Fla.L.Weekly D2411a (Fla. 3d DCA 2022) (internal citations omitted).

For example, Del Rio involved a negligence action dealing with a road construction project. The genuine issue of material fact involved the location of a manhole cover. The plaintiff struck a manhole cover and, on the date the accident occurred, the defendant was performing roadwork in that area. The plaintiff testified in a deposition that the manhole cover he struck was on West Flagler Street in Miami while he was traveling westbound between 16^th and 17^th avenue. He produced photographs of a manhole cover he believed he struck but the photographs were taken on a later date after the accident occurred. During a deposition, the defendant introduced a google earth photo of where the accident occurred that included a different manhole cover. The plaintiff testified he believed this was the manhole cover he struck (which was not in a westbound lane). The defendant then moved for summary judgment arguing the manhole cover plaintiff struck was not located in a westbound lane based on his testimony regarding the google earth photograph. The trial court granted summary judgment for the defendant finding that the plaintiff “failed to put forth sufficient evidence that the manhole cover he struck was located on West Flagler Street between 16^th and 17^th avenue.” Del Rio, supra. The appellate court reversed because although the plaintiff may have been confused (or fooled) or identified an incorrect manhole cover in an after-the-fact google earth photograph, he testified unequivocally as to the location of the manhole cover he struck during his deposition. The appellate court noted, particularly as it pertained to after-the-fact photographs that were not of the manhole cover on the date of the accident:

“[A] reasonable jury could conclude that [plaintiff’s] subsequent identification of the sewer manhole cover in the right lane as opposed to the water main manhole cover in the left lane during his second deposition was a mistake…given that [plaintiff] testified during his first deposition that he could not recall which of the two westbound lanes he was traveling in when he struck the manhole cover. Finally, [plaintiff] testified that he took the close-up photographs he produced sometime after the accident, but he could not recall exactly when, and the Google Earth photographs produced by the defense are dated one month after the accident. Therefore, neither party’s photograph conclusively establishes how (or where for that matter) the manhole appeared on the date of the accident. Accordingly, the photographic evidence does not “blatantly contradict[ ]” [plaintiff’s] testimony that the manhole was located on West Flagler Street between 16th and 17th Avenue.

Del Rio, supra, (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.

DIFFICULTY IN DEFENDING RENTAL SUPPLIER’S CLAIM UNDER CREDIT APPLICATION

Posted on September 19, 2021September 19, 2021 by Edward Garber

In construction, one of the easiest claims to prove from a burden of proof standpoint is that of a supplier, particularly a rental equipment supplier. Oftentimes, these claims are more in the realm of a collection claim because a rental supplier will generally be able to establish that a party opened an account with them, signed a credit application and personal guaranty, and equipment was rented and even delivered to a specific jobsite during set dates. Defending these claims is not so easy. And even if there is a defense as it relates to some amounts, there needs to be an upside challenging those amounts when factoring in the attorney’s fees, costs, and interest on the other amounts and on continuing the dispute.

An example of the difficulty in defending these claims from rental suppliers can be found in the recent case of Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806 (Fla. 2d DCA 2021). Here, a contractor rented equipment (e.g, forklifts) from a supplier. The equipment was rented on an open account and the contractor signed a personal guaranty. The supplier sued the contractor for about $81,000 that remained unpaid. The supplier appeared to waste no time and moved for summary judgment with an affidavit from its credit manager. The credit manager affirmed that the contractor executed a credit application for purposes of renting equipment on an open account, the application contained a personal guaranty, and the credit application formed the basis of a contract. The credit manager authenticated the credit application and affirmed that the contractor owed it about $81,000 in unpaid amounts for rental equipment that was furnished under the credit application.

The contractor opposed the credit manager’s affidavit with an affidavit from the contractor’s customer, which was the owner. The dispute concerned three invoices (which were relatively small considering the balance) where overages were claimed. With the first two invoices, the argument was the invoices included a two-week rental period when the rental period should have been only one week. With the third invoice, the dispute concerned that the invoice included amounts which did not accurately reflect the amount of time the equipment was on the jobsite. Nevertheless, the trial court granted summary judgment in favor of the supplier.

On appeal, the contractor argued that its affidavit from the owner in response created a genuine issue of material fact. The appellate court disagreed.

The supplier’s affidavit included the credit application and invoices of rental equipment (forklifts) furnished on an open account and the $81,000 amount owed. The affidavit the contractor furnished was from its customer–the owner. However, the customer was NOT a party to the credit application and did not enter into any agreement with the supplier. The owner “did not have personal knowledge of any agreements between [the supplier] and the [contractor and its personal guarantor], and any information he could offer regarding those agreements—including how long the rental periods were ‘supposed to be’—would necessarily have to be inadmissible hearsay.” Custom Design Expo, supra, at *3 (explaining hearsay cannot create genuine issue of material fact to preclude the entry of summary judgment). Furthermore, the court noted that the owner’s affidavit really only created a question of fact as to whether the contractor used the equipment during the rental period, but it did NOT create a question of fact as to when the equipment was received and when it was returned to the supplier. In other words, the affidavit would have created a question of fact on a non-issue or a non-material fact! As the appellate court maintained:

To preclude summary judgment, “the ‘issue’ must be one of material fact. Issues of nonmaterial facts are irrelevant to the summary judgment determination.” “A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case.” Here, although the question of where the equipment was used may be a material fact as to the construction lien count against [the owner], it is not a material fact in the determination of whether [the contractor and personal guarantor] took possession of [the supplier’s] rental equipment pursuant to their contract with [the supplier] and failed to pay the cost of the rental in accordance with their contractual obligation.

Custom Design Expo, supra, at *4 (internal citations omitted).

COMPETING EXPERT WITNESSES IN AN INSURANCE COVERAGE DISPUTE

Posted on April 2, 2018April 2, 2018 by Edward Garber

Oftentimes, 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.