Sunday, November 15, 2009

Southern District: When A Wind Expert Is Not Actually An Expert, The Cooperation Clause, And Various Other Insurance Issues

I received an interesting decision by e-mail a month or two ago that covers a broad array of insurance issues.  In Coconut Key Homeowners Ass'n, Inc. v. Lexington Ins. Co., 642 F. Supp.2d 1363 (S.D. Fla. 2009), Judge Seitz resolved a number of motions relating to hurricane damage including (1) breach of the cooperation clause; (2) precluding testimony about causation by an alleged expert with no experience in that area; (3) striking a proposal for settlement; (4) amending affirmative defenses; (5) motion to preclude evidence at trial; (6) motions to exclude various affirmative defenses. 


With regard to the cooperation clause, the insurer "would first need to show as a matter of law that Coconut Key has materially breached the inspection provision" and then "establish substantial prejudice resulting from the breach...A 'total failure' to comply with a post-loss condition may preclude recovery as a matter of law.  Haiman v. Federal Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). 'If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.' Starling v. Allstate Floridian Ins. Co., 956 So.2d 511 (Fla. 5th DCA 2007). See also Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So.2d 1037 (Fla. 4th DCA 2003)."  The court denied the motion because the insuer had not presented evidence to show prejudice, which it could still do at trial. 


The insuer challenged the testimony of the insured's expert and sought to preclude the expert from presenting testimony regarding:
(1) wind speed and forces in the subject area during Hurricane Wilma, because he is not trained in metereology and has done no scientific determinations about wind pressures; (2) causation of damage, because he has no engineering or meterological background and relied on a TSSA report that did not provide an opinion on the causation of the damages it identified; and (3) damage to any units he has not personally inspected, because it was improper for him to extrapolate based on the findings of his own personal inspection of 8 of the 200 units and the TSSA report.
The court found the witness:
lacks both the expertise and reliable underlying data needed to provide expert testimony about either wind speeds at Coconut Key during Hurricane Wilma or the cause of the damages he has observed there. He admitted at his deposition that he has no scientific background in pressure damage, did not know the wind speed at Coconut Key during Hurricane Wilma and has made no scientific determinations about cyclic loading or wind pressure at Coconut Key during Hurricane Wilma. While he claimed that the damage he observed was consistent with hurricane damage, he also admitted other causes were possible, that he did not undertake any scientific tests to eliminate alternative causes, that he had no background in engineering and that he would defer to an engineer's opinion about the causes of damage at Coconut Key.

On the other hand, Mr. Girard does possess the requisite expertise and data to provide opinion testimony about the condition of windows and doors at Coconut Key and the cost of installing windows and doors that would allow Coconut Key's windows and doors to comply with applicable building codes. He has managed a business specializing in window replacement for over four years. The Court does not find his reliance on the TSSA report to be improper since Defendant has not come forward with any evidence to suggest the methodology underlying the TSSA report was unreliable (even though it has presented evidence that the billing of the work underlying the report is suspect). Finally, Mr. Girard's extrapolation from his own inspections and the TSSA report, which together constitute well over 50% of the damaged units, is not so improper that he cannot provide testimony on his opinions at trial.

As a result, Mr. Girard can provide testimony as to the condition of the windows and doors at Coconut Key and cost of replacing windows and doors at Coconut Key so that they comport with the Florida Building Code and the Miami Dade County Building Code. However, Mr. Girard cannot testify about prevailing wind speeds and forces at Coconut Key during Hurricane Wilma or about the cause of the condition of the windows and doors at Coconut Key.
Therefore, the witness was permitted to testify about the condition of the windows that he saw, however, he was not permitted to testify as to the cause of any damage he saw or the conditions that existed during the hurricane. 


The court also allowed the insurer leave to amend its affirmative defenses to add a defense stating the insured had intentionally misrepresented the facts and fraudulently inflated its claim, thereby voiding the entire policy.  This defense was added based upon the newly discovered evidence.


The court next denied the insured's motion to exclude reference to business dealings between its expert and law firm; exclude one of its own expert reports; and exclude reference to the fact that the insured signed the responses to interrogatories before the total amount claimed was inserted into the responses.  These motions were all denied because they are relevant to the insuers fraud defense. 

It seems the issues the insured did not want put before the jury relate in one way or another to the disputes at issue in the following documents [click to view]: 

Kunkel v. Garfinkel [this link is currently not active];
Deitz v. Garfinkel [this link is currently not active];

The documents above are somewhat interesting and appear to be somewhat related.  There may be more related cases, however, those documents are all that I have been forwarded at this time.

The entire opinion is below:
Coconut Key Homeowners Ass'n, Inc. v. Lexington Ins. Co., 642 F. Supp.2d 1363 (S.D. Fla. 2009)


Unknown said...

TSSA Storm Safe, Inc. is a Structural Glazing Damage Assessment and Engineering Service. We have and continue to work for many of the nation’s finest first party litigation firms performing glazing inspections all around the coastal United States. Also, we perform continuing education seminars to national organizations in the field of glazing technologies and damage assessment.

TSSA Storm Safe, Inc. was contracted solely to inspect and assess the actual physical damage profile of the Window and Door systems in the Coconut Key Community. Our report expressly notated the physical damages that were present in the glazed systems post loss, and we were never asked to "provide an opinion on the causation of the damages it identified" (as written in the above blog). It is the responsibility of the Engineer of record on the project to make any declarative statement regarding causation.

With regard to Mr. Girard the "Window Expert". Although I am sure he is more than qualified, TSSA never met with Mr. Girard to discuss our data collection protocols, instruct him to interpret our findings, or give permission to any other entity to utilize our work product.

TSSA physically inspected and documented 150 units out of 200 units in the community, while Mr. Girard only inspected 8 units out of 200 units and relied on our findings for the rest of the data. As stated in the above Blog, “The Court does not find his reliance on the TSSA report to be improper since Defendant has not come forward with any evidence to suggest the methodology underlying the TSSA report was unreliable”

(Referring to the MOTION TO EXCLUDE TESTIMONY AT TRIAL section in the above blog) The Attorney team for the HOA tried to get our work product and deposition removed from the case as we have been forced to file a lawsuit against the firm to collect the numerous past due unpaid fees for services rendered. Perhaps they thought this would be a conflict in this case. Although, we did get paid for the work product on the Coconut Key project.

We thank Attorney Jeff Kuntz for this excellent format and the opportunity to reply to this blog entry.

Steven Browner
Vice President
TSSA Storm Safe, Inc.

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