Vega v. Safepoint Ins. Co., 2021 Fla. App. LEXIS 12109 (Fla. 3d DCA, Aug. 18, 2021).
Summary of Facts: On July 3, 2015, Vega’s home allegedly experienced a windstorm and a large tree fell in the front of the property. Vega also reported interior leaks in several rooms. Vega called a remediation company that came out to the property, cleaned up, dried out the water, and placed a tarp on the roof. He also contacted a public adjusting company, Contender Claims (“Vega’s Public Adjuster”). Safepoint inspected the property and denied coverage based on its determination that there was no opening in the roof caused by a covered peril and the damage was the result of long-term repeated seepage due to wear and tear and deferred maintenance. Litigation ensued.
Safepoint filed an MSJ for No Peril Created Opening and Neil A. Greenspoon, P.E., of Rimkus Consulting Group prepared a supporting affidavit. Vega opposed the motion, contending there was a genuine issue of material fact as to whether the loss to Vega’s property was caused by a onetime windstorm event resulting in an opening in the roof or was the result of a long-term, age-related exposure to moisture. Vega’s Expert, Rafael Leyva, executed an affidavit in opposition to Safepoint’s MSJ. Mr. Leyva is a licensed general, roofing, and plumbing contractor, as well as an independent insurance adjuster. Based on his review of those items and his twenty-six years of experience at the time, Vega’s Expert opined “that the damages [were] a result of [a] one-time event which permitted water to compromise the roofing material and damage the interior of the home.”
Holding/Reasoning: There remained a genuine issue of material fact as to what damaged the insured’s roof and whether an opening in the roof was created by a covered peril—a windstorm. The Court reviewed the competing expert affidavits, their respective reports, and Vega’s sworn testimony, and concluded that there remained a genuine issue of material fact as to what damaged Vega’s roof and whether the covered peril of a windstorm created an opening in the roof. Vega’s Expert’s conclusions based on his experience and review of the record in combination with Vega’s deposition testimony regarding the date of loss were sufficient to create a genuine issue of material fact. Thus, summary judgment was inappropriate.
This case distinguishes Vega’s Expert’s affidavit and report from Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1038 (Fla. 1st DCA 2019). In Gonzalez, this Court affirmed the trial court’s grant of summary judgment based on its conclusion that the homeowner’s expert’s affidavit failed to create a genuine issue of material fact. The homeowner’s expert in that case stated only that his opinion was based on his own inspection of the property, which took place a year after the damaged roof had been replaced. Based on that inspection alone, he averred that he observed the areas of the roof that had been damaged by the wind event. In contrast, in this case, Vega’s Expert’s opinion “was not based solely on his inspection after the roof’s replacement.” Rather, it was predicated upon his review of photographs taken during Safepoint’s inspection of the roof as well as Safepoint’s Expert’s report and other relevant documentation. The Court went on to state a photo from Safepoint’s Expert showed a roof tile that was detached and cracked, and this photo was sufficient evidence to rebut Safepoint’s assertion that there was no opening in Vega’s roof.
Importance of this case: It is important to lay the appropriate predicate when preparing and reviewing supporting affidavits. This includes ensuring that the expert has reviewed all supporting documentation when preparing expert opinion.