In first-party property cases, it is common that an insured’s expert goes to a property after the loss to investigate. During the investigation, an expert may ask the insured questions that are necessary to formulate that expert’s opinions, such as the observable condition of the property before the insured’s loss, or which items have been visibly damaged. This is because, often, the expert has never been to the property and must formulate an opinion about the cause and/or extent of the damage following the loss.
Carriers sometimes argue:
- An expert cannot rely on such statements in formulating his or her opinion; or
- The insured’s statements are hearsay and inadmissible.
Section 90.801 of the Florida Statutes defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Under Florida Statute section 90.802, and subject to limited exceptions, hearsay evidence is generally inadmissible. However, courts, such as the Fifth District Court of Appeal that decided Vega v. State Farm Mutual Automobile,1 have held that experts can rely on hearsay in arriving at an opinion if the hearsay is of the type reasonably relied upon by experts in the field.
In first-party property cases, experts have generally never been to the property before the loss. It reasonably follows that an expert would need to ask about the observable pre-loss condition of the property from the accounts of individuals most familiar with it. Further, as conversations with an insured are but one of many factors experts may consider when formulating opinions, the carrier’s argument against those statements should fail. Second, if an insured can testify at a trial or hearing regarding the facts relied upon by, and communicated to, an expert, those statements are not hearsay. Thus, those statements should be admissible.
At first glance, out-of-court statements made to an expert by an insured may appear to be hearsay. However, Florida law offers experts the ability to rely on these statements under certain conditions and may also permit those statements to be introduced at a hearing or trial if the insured is available to testify.
1 Vega v. State Farm Mut. Auto., 45 So. 3d 43, 45 (Fla. 5th DCA 2010).