The Third DCA reversed the trial court’s summary judgment order in favor of Citizens finding that material facts were in dispute regarding whether a covered peril caused an opening in the roof. The insured made a claim for interior water damage caused by a roof leak. The policy contained the language excluding coverage for rainwater unless a covered peril first damaged the building causing an opening in the roof. Citizens denied the claim based on its determination that a covered peril did not cause an opening in the roof; rather, the roof leak occurred due to wear & tear, defect, improper maintenance and repairs—which were excluded under the policy. The insured filed suit and Citizens moved for summary judgment on the lack of evidence establishing a covered peril caused an opening in the roof. In response to the motion, the insured submitted the deposition testimony of her son that a tree fell through the roof, and the affidavit of an engineer attesting that the roof was damaged by a windstorm. The appellate court held that this was sufficient evidence to create a material fact in dispute. Ortega v. Citizens Prop. Ins. Corp. (3d DCA, Oct. 31, 2018).

• When the policy contains a rainwater exclusion unless a covered-peril opening first damages the exterior, the burden of proof is on the insured to show the damage was caused by a covered peril; however, once there is some evidence to support a covered-peril opening, the issue is for the jury.
• An anti-concurrent cause provision may still come into play, so concurrent causes should be explored when deposing the insured’s expert.

Last-minute Opinions by Expert Prejudiced Insurer Requiring New Trial

The Third DCA reversed a jury verdict against Citizens based on the insureds’ mid-trial discovery violations. The case involved a homeowner’s insurance claim where the insureds argued the property was damaged from an explosion. The insureds produced their expert, a licensed blaster, for deposition on the last business day before the trial. The expert testified at deposition that an air blast could have caused the damage, but he had not inspected the property and did not plan to inspect the property. At trial, it was revealed the insureds’ expert had inspected the property two days before his anticipated trial testimony. Citizens sought to suppress the expert’s testimony, but the trial court allowed the expert to testify provided his opinion had not changed since his deposition. The expert testified at trial with certainty that the air blast caused the damage and his opinion was based on his inspection of the property. The jury entered a verdict in favor of the insureds. The appellate court reversed the jury’s verdict and held that the surprise testimony prejudiced Citizens and should not have been permitted. Citizens Prop. Ins. Corp. v. Vazquez (3d DCA, Nov. 21, 2018)

TIPS & LESSONS

• The appellate court reinforced the importance of discovery deadlines and held that trial courts should not admit evidence obtained after the discovery deadline.
• At trial, all parties should be held accountable to the previously disclosed, pretrial evidence and testimony.