Citizens Prop. Ins. Corp. v. Hernandez

Decision Date12 April 2023
Docket Number4D21-2469
CourtFlorida District Court of Appeals

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit Broward County; Carlos A. Rodriguez, Judge; L.T. Case No CACE18-29112(14).

Daniel J. Santaniello, Edgardo Ferreyra, Jr., and Lauren J. Smith of Luks, Santaniello, Petrillo, Cohen &Peterfriend, Stuart for appellant.

Melissa A. Giasi and Erin M. Berger of Giasi Law, P.A., Tampa, for appellee.


Citizens Property Insurance Corporation timely appeals a final judgment in favor of its insured homeowner entered after the trial court granted a judgment notwithstanding the verdict ("JNOV"). Because the evidence taken in the light most favorable to Citizens supported the verdict, the court erred in granting the JNOV. We reverse.

The homeowner insured her Coral Springs home with Citizens. On September 10, 2017, Hurricane Irma blew across the homeowner's home. While at first the homeowner did not think her home had been damaged, months later she noticed leaks. She filed a claim with Citizens, asserting that her home was damaged by the strong winds and heavy rains. When Citizens denied the claim, the homeowner filed the underlying breach of contract case against Citizens and the case proceeded to trial.

At trial, the homeowner's public adjuster testified to damage which Hurricane Irma had inflicted on the homeowner's roof, including cracked tiles on the roof and damage to the roof membrane, and damage to the home's interior from water leaks. The damage was consistent with a wind event. The adjuster estimated that the cost to repair the damage to the roof and other parts of the house was $73,281.53.

A professional engineer also testified for the homeowner. He conducted a thorough inspection of the home, both inside and out. He observed areas in the home where water leaks had occurred. On the roof, he found broken tiles and damage to roof membrane. He testified that within a reasonable degree of engineering probability "there's a very high probability that much of the damage to the roof, including the openings that were created in the roof tile underlayment, and then subsequently the water that got through those openings and showed itself up as leaking either around the perimeter of the roof or in the attic or in the house was attributable to Hurricane Irma."

The homeowner and her partner both testified regarding her claim. After the hurricane, they did not notice any damage besides some damage to the screen enclosure and a few broken tile pieces. Months later, they noticed spots in the master bedroom closet which they did not at first attribute to hurricane damage. They also noticed a spot in the dining room. Later, the homeowner hired her public adjuster to examine the property, and he discovered the damage to the roof and interior.

Citizens relied on the testimony of two engineers from the same firm, one having inspected the property and one having formed opinions as to the cause of the damage. The inspector saw some small spots on the ceilings in a few rooms. He testified that he could not say if these spots were water damage, but later testified that it "[was]n't water damage." On the exterior of the homeowner's property, the inspector observed damage to the overhangs, including rotted wood, soffit, and fascia. On the roof, the inspector observed a few cracked tiles, some of which had been patched, and a few tiles that were loose but still in place. Solar panels on the roof, a tiki hut, and a screened enclosure were all undamaged.

The second engineer, who had twenty-five years of experience inspecting thousands of tile roofs, offered opinions regarding the cause of the damage. After reviewing the 173 photographs from his co-employee's inspection, the second engineer opined that he saw no evidence of wind damage to the roof from Hurricane Irma, noting that solar panels on the roof were undamaged even though those panels catch the wind first. Many tiles were loose, but the wind had not lifted and damaged them. He explained to the jury that the inspector's photos did not show the type of damage which would occur from a hurricane. He opined that the cracks in the tile were caused by foot traffic. He was also able to point out older repairs to the roof based on the paint color and the mortar used.

As to the interior, he also concluded that the spots on the ceiling did not look like water damage. If the roof had been leaking, he would have expected to see more damage during the year between the hurricane and the inspection in 2018.

In addition, Citizens' own adjuster testified that he inspected the property and did not observe any damage to the interior other than a ceiling stain in the dining room. He did not observe any damage in the attic or any missing tiles on the roof. He took 125 photos which were placed into evidence.

At the close of the case, the homeowner moved for a directed verdict. The homeowner claimed that Citizens failed to meet its burden that the damages were excluded by failing to show an opening in the roof causing interior water damage did not occur. The homeowner maintained that Citizens' expert did not have an answer as to what caused the tile damage, breakage, cracks, except for "foot traffic." The court reserved ruling on the motion.

After closing arguments, the jury deliberated and reached a verdict for Citizens. Once the jury was excused, the homeowner's counsel renewed her motion for directed verdict "based upon lack of evidence and burden." The court noted that the post-trial motion for directed verdict was "actually a Motion for a New Trial . . . or a Judgment Notwithstanding the Verdict."

The court questioned Citizens' counsel with respect to counsel's cross-examination of the homeowner regarding a prior insurance claim for kitchen damage, which was the subject of a motion in limine. Defense counsel had referenced the claim in cross-examining the homeowner, believing that her testimony had opened the door to raising it. The court also raised concerns that Citizens' engineer who gave the opinions on causation referred to them as "our" opinions, when the court had allowed only one engineer to testify for each party. The opinion engineer had corrected himself to explain that because the inspector engineer and he worked in the same firm, it was his usual practice to use "we" to refer to the firm's work. Despite the explanation, the court considered this a violation of the court's order and constituted bolstering. Finally, the court was concerned that Citizens' expert's opinions lacked a sufficient factual basis. The court added it was concerned that Citizens' expert stated he had seen no evidence of wind damage, but then "did say there was a leak."

Citizens' counsel argued that the court was making a credibility determination.

Concerned that the court orders were violated, and that evidence came in which should not have been published to the jury, the court granted the JNOV. In its order, the court stated that the verdict was "based on prejudice and bias caused by defense questions and argument implying fraud on the part of the [homeowner]." The court objected to Citizens' questioning of the homeowner's expert as well as the violation of its order in limine and on restriction of the number of engineers whom Citizens could use to testify concluding that both Citizens' engineers offered opinions. Finally, the court found that the underlying facts did not support the engineers' testimony and did not exclude the hurricane as a possible source of damage to the roof. The court then...

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