An insured’s failure to pay the mortgage may not be relevant in a homeowner’s dispute

Mar 30, 2018 | By

March 2018

I’m pleased to bring you Florida Insurance Matters, a monthly update on Florida insurance-related legal developments. Please contact me any time with questions or feedback. 
 
Amy L. Koltnow, Esq. | Shareholder, Colodny Fass 
akoltnow@colodnyfass.com | (954) 492-4010
 
 
 
 
 
 
 
 
 
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An insured’s failure to pay the mortgage may not be relevant in a homeowner’s dispute
 
The 2nd DCA reversed a jury verdict in favor of the insurer on a disputed sinkhole loss based on trial counsel’s comments throughout the trial regarding the insured’s failure to pay his mortgage. The appellate court held that references to the insured’s mortgage foreclosure deprived the insured of a fair trial where there were no defenses of fraud, misrepresentation or unclean hands.
 
The court rejected the insurer’s argument that an insured’s failure to pay his mortgage calls his “integrity” into question and evidences “motive” or “personal interest” and cited to a string of cases holding that a plaintiff’s motive in a civil suit is irrelevant and interjecting the issue of the insured’s failure to pay his debts was impermissible character evidence.  
 
 
  • Zealous advocacy can sometimes go too far astray from the legal issues in the case as framed by the pleadings.
  • If there are facts supporting fraud or misrepresentation, those issues must be asserted as affirmative defenses in the pleadings.

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Competing expert opinions on cause of roof damage preclude summary judgment
 
The 3d DCA reversed summary judgment entered in favor of an insurer on a roof leak claim. The insurer argued there was no evidence of any openings in the roof caused by a covered peril and the loss was excluded under the policy’s “wear and tear” exclusion and presented an affidavit from its expert engineer who examined the roof 3 months after the reported loss. The homeowner presented an opposing affidavit of an engineer who opined that hail or wind uplift damage could not be ruled out as a cause of the damage and the damages were not age-related or long term in nature. 
 
The trial court rejected the homeowner’s expert’s opinion since he examined the roof 3 years after the reported loss. The appellate court, however, held the trial court was not permitted to weigh the evidence where there were conflicting expert opinions and issues of credibility are for the jury. 
 
 
  • Where the insured presents an expert opinion contrary to the insurer’s expert, summary judgment is not proper.
  • Summary judgment may be appropriate on a roof leak claim when there are no disputed facts and no contrary expert’s opinion.
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Attorney Danielle Bullock Named Colodny Fass Partner
 
We’re proud to announce the promotion of attorney Danielle Bullock to partner at Colodny Fass. 

Danielle has achieved excellent results in her practice of insurance defense and other commercial matters.

Danielle was recently named to the National Black Lawyers Top 40 Under 40 list in Florida, in part due to peer review. She is also certified to practice in all Caribbean states. 

Danielle is a graduate of the University of Miami Law School

Congratulate Danielle at dbullock@colodnyfass.com or (954) 492-4010.
 
 
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For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.
 
About Amy L. Koltnow
 
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals.  She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums.  Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.
 
To view Ms. Koltnow’s complete professional biography, click here.