Recently, Florida’s Third District Court of Appeal found that a trial court abused its discretion by allowing the trial testimony of an insured homeowner’s expert when he expanded on his opinions during trial. The case is Citizens Property Insurance Corporation v. Vazquez.1
The loss dealt with an explosion inside a marijuana grow house located across the street from the insured homeowners’ residence. The explosion at the grow house occurred on September 22, 2012. Just after the explosion, the homeowners reported their claim to Citizens. After Citizens’ experts inspected they found the cause of damage to be wear and tear, excluded causes under Citizens policy and not due to the explosion. As such, Citizens denied the claim.
The homeowners then sued Citizens for breach of contract based on the denial. Although the trial was originally set in June of 2014, it was continued four times allegedly at the request of the homeowners and their counsel and the case did not actually go to trial until August 17, 2015. To support their position, the homeowners hired Dr. Calvin Konya, a blaster from Ohio to testify on their behalf. Mr. Konya was finally produced for his deposition on the eve of trial, despite several attempts by Citizens to depose him prior to that, according to the record. Mr. Konya’s deposition testimony was that the explosion at the house across the street could have caused damage to the home. He also admitted that he had never been to the insured property and could not testify regarding specific damages. According to the record, Dr. Konya arrived in Florida on day two of the trial (August 18, 2015) and went to the homeowners’ property that evening to finally inspect. The homeowners’ counsel did not disclose Konya’s visit to Citizens. On August 21, 2015—three days after Dr. Konya’s inspection, the homeowners’ counsel called him to testify. There Citizens learned for the first time he had been out to the property. Having now observed the property, Dr. Konya was able to expand on his previously given opinions and found that with certainty the explosion had caused specific damages. (A significant step beyond could have caused the damage).
During Citizens’ lawyer’s cross examination, Dr. Konya also admitted that without the inspection, he could not have given an opinion on specific damages. Citizens moved to suppress the witness’ testimony, but the trial court denied the motion. Then once Konya’s testimony came out, and the “beans were spilled” Citizens moved for new trial and that was also denied. After the jury awarded the homeowners $100,000.00, Citizens appealed.
Ultimately the appellate court agreed with Citizens, finding that the trial court had abused its discretion in allowing Dr. Konya’s testimony as it not only resulted in “unfair surprise” to Citizens but it was also “prejudicial” and required reversal. The appellate decision was based on the notion that parties have the right to rely on discovery deadlines and that expert opinions will not change after those deadlines. The mid-trial inspection of the homeowners’ expert that ultimately caused him to expand on his opinions given at deposition violated the discovery deadline and caused unfair surprise to Citizens. This was exhibited by the fact that Citizens’ trial counsel relied on the testimony during opening statement, particularly during a part where he stated that the jury should be listening to the homeowners’ experts who could not prove causation with certainty. In addition to causing unfair surprise to Citizens and their counsel, the appellate court found the allowance of Dr. Konya’s trial testimony to be prejudicial as the previously undeveloped and never disclosed opinion of Dr. Konya became the foundation of the homeowners’ case. The court also found that the timing of the testimony did not permit Citizens to challenge Dr. Konya’s qualifications or rebut this critical testimony.
Ultimately the appellate court summed up its holding:
Accordingly, we conclude that the trial court abused its discretion when it allowed Konya to testify because Konya’s opinion was based on information obtained post-discovery and mid-trial. Because Konya’s trial testimony both surprised and prejudiced Citizens during trial, we reverse the final judgment and remand for a new trial.
While writing about a loss for insured policyholders is not my favorite task, I feel like I need to make my fellow policyholder advocates aware of “what not to do” when issues like this cause both parties to expend the time and resources to start over with a trial. However, I am unaware of the facts and circumstances surrounding why the trial was continued so many times and why the expert couldn’t appear sooner. It may have concerned an illness or events that occurred outside of everyone’s control. (I am giving homeowners’ counsel the benefit of the doubt here).
Here are some tips to avoid what happened in this case:
- Obtain your experts early and picture your case going before a jury from the onset; ironically it may help your case settle early if the insurance company knows you are coming in well prepared;
- Conversations regarding your expert’s obligations should always include the chance that the claim might have to get tried. You never know when an insurance carrier is going to dig their heels in or when your client is going to just get so fed up that they want to go to trial on principal. However, your expert should expect to be visiting the property and needs to know that he will have to sit for deposition at some time prior to the discovery deadline. In an ideal world, their initial opinions should be thorough enough to support your case in chief on the off-chance that their deposition is not taken prior to trial.
- If you are a trial lawyer, some work on the weekends is inevitable as preparing a Civil Case for trial is a massive undertaking. As such, be willing to produce your expert on a weekend prior to the discovery cutoff in an absolute pinch as its better than violating the Court’s discovery deadline.
- If some emergency happens requiring a during trial inspection, the homeowners’ counsel here MIGHT have been able to salvage this one if they’d simply disclosed to Citizens that he’d been out there and let Citizens lawyer depose him the night before he testified.
With all that said, I would also like to remind my friends, colleagues, and fellow lawyers out there representing Citizens that this is a very narrow holding based on these very particular facts and should not be applied too sweepingly.
1 Citizens Prop. Ins. Corp. v. Vazquez, Case No. 3D15-2864 (Fla. 3d DCA November 21, 2018).