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 lawSee 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 16th and 17th 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 16th and 17th 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.



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.