Florida Fourth DCA Reverses Trial Court’s Decision and Remands for New Trial After Finding that a Non-Disclosed Witness’s Testimony Was a Surprise

By Kelly M. Vogt

In Heritage Property & Casualty Insurance Company vs. Brooks Killmeyer and Mary Margaret Killmeyer, the Florida Fourth District Court of Appeal reversed the trial court’s entry of final judgment in favor of the insureds and remanded for a new trial, agreeing with one of Heritage Property’s arguments and declining to address the other. 

After the insureds’ home was damaged by a bathroom water supply line which failed, the insureds filed a claim with the insurer. The insurer’s desk adjuster sent a letter to the insureds requesting a sworn proof of loss for the water supply line loss and a loss repair cost estimate, and the insurer later sent a second letter with the same request. 

The insureds contended that they signed a sworn proof of loss stating the net amount which they claimed was owed under the policy. They also contended that a paralegal under their attorneys emailed the proof of loss and a loss repair estimate to the insurer’s desk adjuster. However, the insurer did not respond to this email and contends it had no knowledge that it was received. 

Three years later, the insureds sued the insurer for breach of contract. In a request for admissions, the insurer asked the insureds to admit or deny that before filing the complaint, the insureds did not respond to correspondence requesting a sworn proof of loss and loss repair estimate. The insureds denied this request. 

The trial court issued an order setting jury trial and setting deadlines for the parties to file and serve lists identifying fact, expert and rebuttal witnesses. The insureds called the insurer’s corporate representative as a witness, who testified that if the insurer had received an email containing the proof of loss and loss repair estimate, it would have sent a letter acknowledging receipt.

The trial court initially denied the insureds’ subsequent request to call the paralegal who had emailed the proof of loss and loss repair estimate to the insurer, as the paralegal had not been listed as a witness, but was eventually persuaded. 

The paralegal then testified, and the jury returned a verdict in the insureds’ favor after finding that the insurer failed to prove the insureds did not provide a sworn proof of loss for the claim.

Heritage Property & Casualty Insurance Company appealed a final judgment in favor of the insureds, arguing that the trial court erred at trial by allowing: 1) a surprise fact witness to testify that a sworn proof of loss was sent to the insurer when neither the witness nor the proof of loss was disclosed as required by the order setting trial; and 2) the insureds’ expert witness to testify about an undisclosed opinion on damages. The Court agreed with the first argument and reversed for a new trial, but declined to address the second argument, stating that the issue was unlikely to reoccur on retrial.