The Importance of Retaining an Expert

A recent case out of Florida Third District Court of Appeal highlights the importance of every homeowner retaining an expert to evaluate property damages and issue a report explaining the damages and the possible causes of those damages.

Generally, when a homeowner files an insurance claim, the insurance company will send someone out to inspect the property and may also engage an engineer or other expert to put together a report setting forth the expert’s observations and what he or she believed caused the damages the homeowner is claiming. The issue is that this expert was hired by and works for the insurance company. Ultimately, it is this expert’s responsibility to determine whether the damages were caused by an event that would be excluded under the policy.

Many times, the insurance company will later rely on this report during any litigation that follows between the insurance company and the homeowner. Most importantly, the insurance company may try to file a motion for summary judgment based on this report. If this motion is granted, the court will enter a decision in favor of the insurance company and the homeowner will not have the opportunity to take his case to trial.

However, the only way the insurance company can win on a motion for summary judgment is to show that none of the facts surrounding the claim or the homeowner’s damages are in dispute. A great way for the insurance company to establish this requirement is to explain to the court that the only opinion on the cause of the loss is the opinion issued by its own expert. If the homeowner has not retained its own expert and obtained its own report, the homeowner will have no way to rebut the insurance company’s position. If the homeowner has its own report which conflicts with the insurance company’s position, it becomes much more difficult for the insurance company to obtain summary judgment and avoid a trial.

This is precisely what occurred in Garcia v. First Community Insurance Company. In Garcia, the insurance company filed a motion for summary judgment arguing that its expert determined the cause of the homeowners’ damages was excluded under the insurance policy. The homeowners responded to the motion with their own expert’s report which stated that the cause of the damages was an event which was covered under the insurance policy. Essentially, the experts had issued competing and conflicting opinions regarding the cause of the loss.

The Third District ruled that the trial court erred in “picking sides” and agreeing with the insurance company. The Court explained that when there are conflicting expert reports, the underlying facts are in dispute and the insurance company’s motion for summary judgment should not be granted. The Court was not concerned that the homeowners’ expert examined the property more than three years after the claim was filed while the insurance company’s expert visited the property less than three months after the claim was made. This was not an issue for the Court at the summary judgment phase because the Third District reasoned that the timeframe when the expert visited the property would merely go to the weight and credibility that should be given to the expert’s opinion, a determination that can only be made at trial and not on a motion for summary judgment.

The Garcia case is important because it serves to prevent an insurance company from obtaining summary judgment when the homeowner has hired his
own expert who determines what the cause of the homeowner’s damages may be. Based on this case, so long as the experts’ opinions are conflicting, the insurance company cannot circumvent a trial on the case by filing a motion for summary judgment. Under these circumstances, the homeowner will have the opportunity to have his day in court and a trial on his insurance claim.

 

The decision in Garcia should be strongly considered in determining whether a homeowner is going to retain his own expert to inspect the property and issue a report explaining the cause of the homeowner’s loss. It will be important in future litigation against the insurance company to have someone who has analyzed the facts and will be advocating for the homeowner.