Florida Southern District Grants Summary Judgment to Insurer After Court Excludes Expert Testimony

By Kelly M. Vogt

In 4539 Pinetree LLC v. Certain Underwriters at Lloyd’s London, 2024 U.S. Dist. LEXIS 130140, Case Number: 22-22901-CIV-MARTINEZ (S.D. Fla. July 18, 2024), Plaintiff sought coverage from Defendant for damages caused by Hurricane Irma under an “all risk” policy. The policy included a $100,000 windstorm deductible and required the insured to provide records and submit to an examination under oath (EUO) following a loss. After Hurricane Irma, the Plaintiff filed a claim which the Defendant determined the covered damages fell below the applicable deductible​.

Subsequently, Plaintiff submitted a supplemental claim for $618,405.54. The Defendant requested additional documentation and EUOs on three occasions which Plaintiff allegedly did not provide. As a result, the Defendant assumed Plaintiff was not pursuing the claim. Plaintiff later filed a breach of contract lawsuit. The Defendant moved for summary judgment, arguing the Plaintiff failed to comply with policy requirements, could not prove the damages occurred during the policy period, and lacked evidence of recoverable damages​​.

In ruling on the summary judgment motion, the court first considered the Defendant’s motion to strike the Plaintiff’s expert witnesses. The first witness was an expert as to causation and damages who inspected the property 16 months after the date of loss with no evidence of the condition of the property before the storm. The court found that the expert’s methodology was unreliable providing nothing more than speculation and conclusory assumptions and accordingly excluded his testimony and granted the motion to strike. The second expert – an expert as to damages and repairs – was stricken by default due to the Plaintiff’s failure to oppose the motion to strike. The third expert was stricken due to the Plaintiff’s failure to properly and timely disclose the expert and the Plaintiff’s failure to show an adequate justification for the failure to timely disclose or a lack of harm to the Defendant.

Ultimately, the court granted Defendant’s summary judgment motion because, without experts, the Plaintiff failed to establish that a covered loss caused damage to the insured property and that such damage exceeds the deductible.