Wildfire cases are unique and have many evidentiary issues. Public adjusters have been making claims for damage by fire, heat, and especially smoke. State Farm and its able trial counsel successfully appear to be fighting back in Falcon v State Farm Lloyds.1

Continue Reading Wildfire and Smoke Claims – A Case Burning With Issues That Public Adjusters Should Study

In Colorado, insurance companies often deny claims based on exclusions for “wear and tear,” “repeated seepage and leakage,” or “failure to maintain.” Often insurance companies will hire experts to examine the property months or years after a loss, hoping the expert is willing to perform an outcome oriented examination—aimed at substantiating the insurance company’s denial based on “wear and tear” or the like. Insurers then attempt to designate these experts to give an opinion at trial—even if the expert never examined photos of the property before the loss, and failed to view the property relatively soon after the loss. These experts’ opinions may be based on speculation, and may be thrown out by the court based on a Shreck motion, described below.

Continue Reading Prevent Insurance Defense Counsel From Presenting Junk Science To The Jury

Claims between policyholders and their insurance companies can seem simple. I often hear, “My roof didn’t leak prior to the storm and now it does. How can the insurance company say it wasn’t a result of the storm?” Generally, when this is the case, the insurance company has hired an expert to opine about what actually caused the leak. More often than not, that expert, who is being paid by the insurance company not only on this case but on many others, determines that the leak was caused by wear and tear instead of the storm. Interesting, but how do we know that the expert is qualified to render such an opinion?

Continue Reading Not all Experts are Created Equal

Expert witnesses are crucial to support disputed insurance claims, especially when the claims involve extensive damage, as is often the case in hurricane claims. While the standards for expert witness testimony may differ between state and federal courts, all federal courts are bound by Federal Rule of Evidence 702 and the United States Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Recently, in Palm Bay Yacht Club Condo. Ass’n, Inc. v. QBE Ins. Corp., 10-23685-CIV, 2012 WL 1345317 (S.D. Fla. Apr. 18, 2012), an insurance company challenged a condominium association’s expert witness and sought to have him excluded from testifying at trial about Hurricane Wilma damage.

Continue Reading Expert Witnesses Must Remember Three Steps: (1) Qualifications (2) Reliability, and (3) Helpfulness

The Florida Legislature is currently in session and we are all anxiously waiting to see what changes are made to Florida’s insurance laws. But there is another important issue currently being considered that many non-lawyers are not aware of. This issue involves replacing Florida’s Frye test for the admissibility of expert witness testimony with the federal Daubert test.

Continue Reading The Florida Legislature trying to replace Frye with Daubert

In a recent case before the U.S. District Court in Ft. Lauderdale, the Court had to decide whether a policyholder’s expert should be allowed to testify on certain issues in the trial of the case involving Hurricane Wilma damages. Clena Investments, Inc. v. XL Specialty Ins. Co., 2012 WL 266422 (S.D. Fla. January 30, 2012). Often in litigation, parties challenge the validity of the opposing side’s expert testimony, and the courts must resolve these disputes. In essence, courts acts as a gatekeepers in deciding whether to admit expert testimony.

Continue Reading In Federal Court, Judges Act As Gatekeepers In Deciding Whether To Admit Expert Testimony

Property insurance claims litigation often requires hiring several experts. Policyholders may need to retain a construction cost expert and engineer to give opinions on property damage, a bad faith expert regarding claims handling practices, and an accountant regarding business income losses. Depending on the case, the list can quickly grow to include an architect, a hygienist, and many more.

Continue Reading Experts: Can You Survive A Daubert Challenge?

In litigation, insurers often try to exclude or limit policyholders’ experts’ testimony. This can be an aggressive tactic aimed to take the wind out of the policyholders’ sails, since it is difficult to refute insurers’ expert conclusions without your own.

Continue Reading It’s Not A Battle Of The Experts If You Can Keep The Experts Out Of Court

Hiring qualified experts to assist policyholders in the presentation of a business interruption claim is a sine qua non condition for success. An expert’s inexperience or poor work product could cause irreversible damage and destroy any viability of what would have been an otherwise valid claim.

Continue Reading Hiring the Wrong Expert is a Costly Mistake – Understanding Business Interruption Claims, Part 92