Ins. Co. of the W. v. Island Dream Homes, Inc., 11–10571.

• Decision Date: 08 May 2012
• Docket Number: No. 11–10571.,11–10571.
• Citation: 679 F.3d 1295,23 Fla. L. Weekly Fed. C 1014
• Parties: INSURANCE COMPANY OF THE WEST, a California corporation, Plaintiff–Appellant, v. ISLAND DREAM HOMES, INC., a Florida corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

679 F.3d 1295

23 Fla. L. Weekly Fed. C 1014

INSURANCE COMPANY OF THE WEST, a California corporation, Plaintiff–Appellant,

v.ISLAND DREAM HOMES, INC., a Florida corporation, Defendant–Appellee.

No. 11–10571.

United States Court of Appeals, Eleventh Circuit.

May 8, 2012.

Michael R. Morris, Morris & Morris, PA, West Palm Beach, FL, for Plaintiff–Appellant.

Sharon C. Degnan, Kubicki Draper, Fort Lauderdale, FL, David S. Oliver, Yvette M. Pace, Kubicki Draper, Orlando, FL, Harold Adam Saul, Kubicki Draper, PA, Tampa, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, MARCUS, and SILER,^* Circuit Judges.

SILER, Circuit Judge:

Insurance Company of the West (“ICW”) appeals the district court's judgment as a matter of law in favor of Island Dream Homes (“IDH”). Hawaiian Inn Beach Resort (“Hawaiian”), a Florida condominium, contracted with IDH for roof repair. While IDH was conducting the repairs, a large stone veneer wall fell, causing damage to the condominium. Hawaiian's insurer, ICW, sued IDH for negligence. IDH alleges the wall fell because it was structurally unsound. During trial, at the close of ICW's case, the district court granted IDH's motion for judgment as a matter of law, holding that no reasonable jury could find that IDH was negligent because ICW failed to present any evidence on the standard of care in the roofing industry. For the reasons stated below, we affirm.

I.

In 2007, Hawaiian's roof began to leak on the south side of the reception area. This area contained an elevator shaft that was covered in a large stone veneer. Hawaiian contacted IDH to fix the leak. Rick Tauscher, the general manager of IDH, believed the water was coming in from behind the stone veneer so he advised Hawaiian that fixing the roof would require installation of proper “flashing.”

The purpose of flashing is to redirect water off the roof into a gutter or onto the ground. To properly flash a roof, it is necessary to reach the structural wall. Tauscher and Bret Jones, an IDH roofer, testified that roofing guidelines and the Florida Building Code required that the exterior veneer be cut all the way through in order to reach the foundational wall. There was no evidence presented to the contrary, and ICW does not allege that the work being performed (the flashing) was not in a roofer's purview. The roofers conducted a visual inspection of the veneer and surrounding walls and testified later that nothing appeared out of the ordinary.

Although IDH submitted a proposal for the job to Hawaiian that called for flashing, the proposal did not specifically state that this would involve cutting the stone veneer, and IDH admits it did not notify Hawaiian that it planned on cutting into the veneer. As the condominium was built in 1965, the veneer was several decades old and approximately four to six inches thick. One of the roofers testified that, upon cutting into the veneer, he realized it was thicker than the modern stone veneers he was familiar with, which are about two inches thick. Prior to beginning work, the roofers did not test the thickness of the veneer, perform tests on the structural integrity of the wall, review the building's original plans, or consult with an engineer. ICW's position is that IDH was negligent in failing to take these steps and in failing to inform Hawaiian about its plans to cut into the veneer. ICW did not, however, present any evidence that these steps are customary or standard in the roofing industry.

Upon cutting into the veneer, it became apparent that the veneer was thicker than normal, but Tauscher did not believe this thicker veneer would cause a problem. When the roofers continued to cut into the veneer, the veneer collapsed. The collapse caused $231,467.41 in damage to the property, and ICW paid Hawaiian this amount. As the subrogee, ICW filed suit against IDH, alleging one count of negligence. IDH raised a number of affirmative defenses, including an allegation that faulty construction of the wall, and not the cut to the veneer, caused the collapse.

The case went to trial in 2011. At the close of ICW's case, IDH moved for judgment as a matter of law, and the district court granted the motion, holding that ICW failed to present evidence that IDH breached the standard of care “that a roofer would exercise under the circumstances.”

The district court explained:

There's nothing more here than a pure inference from the fact that the roofer was up there doing its work and, in the process, the veneer wall collapsed.... The standard for negligence ... is the exercise of reasonable care, that is, that degree of care that a reasonably careful person would use under like circumstances. “Under like circumstances” brings into play what a roofer would do. What is the custom in the trade? What is the ordinary standard of care for a roofer under these circumstances? There's absolutely no evidence, none, to suggest that this defendant acted in a manner inconsistent with what a reasonable roofer would do under like circumstances.

II.

We review a district court's granting of a motion for judgment as a matter of law de novo and consider the evidence in the light most favorable to the nonmoving party. Circa Ltd. v. City of Miami, 79 F.3d 1057, 1063 (11th Cir.1996). Judgment as a matter of law is appropriate where no legally sufficient evidentiary basis exists for a jury to return a verdict in favor of the party on that issue. Fed.R.Civ.P. 50(a); Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir.2004).

III.

ICW contends the district court erred by applying a “professional” standard of care in this case. Specifically, it argues that roofers are not “professionals” under Florida law, and, thus, the roofing company should be held only to the standard of an ordinary person, rather than to the standard of a professional. ICW argues that the jury should have been able to determine if the roofers acted as a reasonably prudent person would have acted under similar circumstances. The problem with this argument is that the roofers were not ordinary people who happened to be working on a roof. They were trained roofers, and therefore, the question is what a reasonably prudent roofer would do under similar circumstances. Without reaching the issue of whether roofers are “professionals” under Florida law, we hold that ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.

A.

In Moransais v. Heathman, 744 So.2d 973 (Fla.1999), homeowners sued engineers for failing to detect certain defects when inspecting their home. The Florida Supreme Court noted, “[W]here the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the community under similar circumstances.... That Florida recognizes an action for professional malpractice is ... evidenced by the statutory scheme for limitations of actions.” Id. at 975–76. This “statutory scheme for limitations of actions” is Florida Statute § 95.11, which states that an action for professional malpractice must be brought within two years. The Florida Supreme Court has previously held that a profession within the meaning of § 95.11 is “any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida.” Garden v. Frier, 602 So.2d 1273, 1275 (Fla.1992).

ICW interprets Moransais to stand for the proposition that only persons engaging in vocations that require a four-year college degree may be held to a “standard of care used by similar professionals in the community under similar circumstances.” Moransais, 744 So.2d at 975–76. The Florida Supreme Court has, however, expressly limited this college-degree definition of “professional” to application of Florida Statute § 95.11, a statute of limitations not at issue in this case:

We limit the definition of “professional” set forth above to the context of the professional malpractice statute. It is not our intent that this definition be applied to any other reference to “professionals” or “professions” elsewhere in the Florida statutes, regulations, or rules, or in court cases that deal with issues other than the statute of limitations at issue here. We recognize that there may be occasions when courts ... may use the terms “profession” and “professional” more broadly or more narrowly than we do here today.

Garden, 602 So.2d at 1277.

Thus, it seems that the professional standard of care discussed in Moransais ( i.e., the “standard of care used by similar professionals in the community under similar circumstances”) is not limited to cases brought against individuals whose vocations require a four-year college degree. See Merrett v. Liberty Mut. Ins. Co., No. 3:10–cv–1195, 2012 WL 37231, at *5 (M.D.Fla.2012); see also Rocks v. McLaughlin Engineering Co., 49 So.3d 823 (Fla. 4th Dist.Ct.App.2010) (holding that the Garden definition of “professional” does not apply to the economic loss rule).

Regardless of whether roofers are considered “professionals” in Florida, however, ICW was required to present evidence on the standard of care in the roofing industry—either by expert testimony or by presenting testimony of roofing custom. Expert testimony is required to define the standard of care when the subject matter is beyond the understanding of the average juror. AMH Appraisal Consultants, Inc. v. Argov Gavish P'ship, 919 So.2d 580, 581–82 (Fla. 4th Dist.Ct.App.2006) (holding that the standard of care for a property appraiser was “too esoteric to be understood by the average layperson”).

The fact that the veneer fell while the roofers were working on it is not enough to establish negligence on its own. “Outside the relatively rare circumstances implicating the principle of res ipsa loquitor, it is well-settled that the mere occurrence of a mishap does not prove...