Schneer v. Allstate Indem. Co.

• Decision Date: 17 May 2000
• Docket Number: No. 3D98-2541.,3D98-2541.
• Citation: 767 So.2d 485
• Parties: Rodolfo Z. SCHNEER and Diane Schneer, Appellants, v. ALLSTATE INDEMNITY COMPANY, Appellee.
• Court: Florida District Court of Appeals

767 So.2d 485

Rodolfo Z. SCHNEER and Diane Schneer, Appellants, v. ALLSTATE INDEMNITY COMPANY, Appellee.

No. 3D98-2541.

District Court of Appeal of Florida, Third District.

May 17, 2000.

Opinion on Joint Motion For Dismissal October 18, 2000.

Law Offices of Karen A. Curran and Karen A. Curran, Coral Gables; Hersch & Talisman, P.A. and Patrice A. Talisman, Miami, for appellant.

Angones, Hunter, McClure, Lynch & Williams, P.A. and Christopher J. Lynch, Miami, for appellee.

Before SCHWARTZ, C.J., GREEN and FLETCHER, JJ.

GREEN, J.

The insureds, Rodolfo and Diane Schneer, appeal from a final judgment entered pursuant to an adverse jury verdict on their contractual claim against their homeowners insurer, Allstate Indemnity Co. ("Allstate"). We affirm with directions.

The Schneers were the owners of a home located in Coral Gables when Hurricane Andrew struck south Dade County in August 1992. The Schneers' home as well as its contents were insured under a policy issued by Allstate. This policy valued the home at $347,500 and its contents at $260,625. The policy provided for replacement cost coverage for both the dwelling and personal property contents. The policy also contained the following concealment or fraud provision:

This policy is void if it was obtained by misrepresentation, fraud or concealment of material facts or if you intentionally conceal or misrepresent any material fact or circumstance, before or after loss. We do not cover any other insured person who has concealed or misrepresented any material fact or circumstance, before or after a loss. If it is determined that this policy is void, all premiums paid will be returned to you since there has been no coverage under this policy. (Emphasis in the original).

As a result of the hurricane, the Schneers claimed both dwelling and personal property damages. In May 1993, they submitted a sworn proof of loss to Allstate seeking approximately $116,000 in damages to the house. They also filed a separate sworn proof of loss seeking approximately $67,000 for personal property losses. According to the Schneers, after inspections by some experts, who apparently informed the Schneers that their carpet and furniture could be cleaned or repaired rather than replaced and that an original oil painting would not be considered damaged by water unless stains showed in the backing, the Schneers amended their proof of loss claim for contents damages to $18,000. Allstate initially advanced $3,500 to the Schneers following Hurricane Andrew.

In May 1994, however, Allstate denied both of the Schneers' claims for damages to their home and its contents on the ground that the Schneers had intentionally misrepresented or inflated the amount of loss in their contents proof of loss. The Schneers filed this breach of contract action against Allstate. Allstate answered and counterclaimed for recission and breach of contract based upon the concealment and fraud provision of the policy.

This case proceeded to a jury trial where the parties presented conflicting evidence as to the damage done to the Schneers' home and personal contents by the storm and as to whether the Schneers had intentionally concealed or misrepresented any material fact to Allstate. During the trial, the Schneers unsuccessfully sought to call a William Porter to testify as their expert witness. Mr. Porter had formerly been employed by the Florida Department of Insurance Division of Insurance Fraud, as a special investigator and later as assistant division director/division counsel. In such roles, he investigated and prosecuted criminal insurance fraud schemes and testified in court proceedings, including as an expert.

The Schneers proffered that Mr. Porter would testify as to the general practice of adjusting in the insurance industry; the parameters or guidelines that an insurance fraud adjuster uses in order to make a determination of whether insurance fraud has been committed; and that, in his opinion, this case involved nothing more than an adjusting dispute rather than fraud.¹ The trial court found this testimony to be irrelevant and excluded the same.

The parties stipulated that the jury should first be asked to determine whether the Schneers had intentionally misrepresented any material fact or circumstances in making their contents claim.² Over the Schneer's objection, however, the trial court ruled that if the jury answered yes to this question, the Schneers would not be entitled to recover any sums from Allstate for the damage to either their contents or their dwelling.

The jury returned its verdict finding that the Schneers had intentionally misrepresented a material fact or circumstance in submitting their contents claim. Pursuant to its earlier ruling, the trial court entered final judgment in favor of Allstate on the Schneers' claims and found over their objection, that the policy was void and that Allstate was entitled to rescission. The Schneers timely perfected this appeal.

The appellants first assert that the lower court reversibly erred in excluding the proposed testimony of their expert witness. They maintain that Mr. Porter's expert testimony was admissible pursuant to section 90.702, Florida Statutes (1993),³ where it would have been patently helpful to the jury. Allstate counters that Mr. Porter's proposed testimony was impermissible where it was calculated only to instruct the jury how to decide the ultimate issue in this case (i.e. whether there was fraud) rather than to provide them with evidence for their independent determination. Initially, we note that the admission and scope of such expert testimony rests within the broad discretion of the trial court. See Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla.1984)

; Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485 (Fla. 3d DCA 1997).

Under section 90.703 of Florida's Evidence Code, a witness is permitted to testify to an ultimate fact in a case. This statute specifically provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact." § 90.703, Fla. Stat. (1993). However, this rule does not render admissible all opinions on the ultimate issues. "Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred."⁴ See, e.g., Town of Palm Beach, 460 So.2d at 882

(trial court abused its discretion in permitting petitioner's expert on municipal taxation to repeatedly opine that the challenged services did not provide the requisite real and substantial benefit); Gurganus v. State, 451 So.2d 817, 823 (Fla.1984) (proper for expert to give testimony regarding the effect of a given quantity of alcohol on defendant's ability to form specific intent; improper for expert to testify whether defendant's actions were premeditated); 3-M Corp.—McGhan Medical Reports Div. v. Brown, 475 So.2d 994, 997 (Fla. 1st DCA 1985) (error to permit expert in products liability case to testify that product was defective); Libby v. State, 540 So.2d 171, 172 (Fla. 2d DCA 1989) (no error in excluding psychiatrist's opinion "as to whether the defendant committed the lewd acts."); Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978) (expert may not testify that the defendant was untruthful and liable to make a mistake or misjudgment in his driving ability).

As previously stated, the initial issue before the jury in this case was whether the Schneers perpetrated a fraud in submitting their contents claim to Allstate. We think that under the aforementioned authority, the trial court correctly excluded Mr. Porter's testimony that no fraud had been committed where it had the effect of advising the jury how to decide this case, rather than assisting it in determining what had occurred. Further, we cannot find that the exclusion of Mr. Porter's remaining proffered testimony regarding the insurance industry's general standards for adjusting claims or guidelines used to determine whether a fraud has been committed was an abuse of discretion. This testimony was of limited probative value on the issue of whether the Schneers had perpetuated a fraud in this case. That is, while such evidence may have been of tangential interest to the jury in this case, it was not necessary for their resolution of the ultimate issue of whether the Schneers had intentionally misrepresented or over-inflated their contents claim. Compare, e.g., Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So.2d 1160 (Fla. 1st DCA 1981)

(Exclusion of expert's testimony regarding insurance adjusting, policy provisions, and trade custom in the insurance industry error where the case essentially turned on an interpretation of the parties' rights and obligations under the "Loss of Earnings Endorsements.").

Finally, the Schneers assert that the lower court erred in concluding that their misrepresentations as to their contents claim voided their homeowner's policy in its entirety. They argue that notwithstanding the specific concealment and fraud provision contained in the policy, their structural or dwelling coverage must be deemed severable or divisible from their contents coverage such that a misrepresentation on a claim for coverage under one does not effect the validity of the other. Thus, in the absence of allegations and/or proof of fraud in connection with their claim for dwelling damages, the Schneers maintain that the policy must be deemed valid and enforceable for such damages, since the forfeiture of insurance policies are generally disfavored. See LeMaster v. USAA Life Ins. Co., 922 F.Supp. 581, 585 (M.D.Fla.1996)

; Boca Raton Community Hosp., Inc. v. Brucker, 695 So.2d 911, 912 (Fla. 4th DCA 1997).

Courts in various jurisdictions have varied greatly on the issue of the divisibility of an insurance policy which covers...