Where an insured does not fulfill his or her contractual duty to provide prompt notice and an insurer claims it was prejudiced as a result, Florida courts apply a two-step analysis to determine the impact of the notice. Courts determine whether (1) the insured’s notice was late as a matter of law, and (2) the insured can rebut a resulting presumption of prejudice that is afforded to the insurer. While this framework is firmly established in the state’s jurisprudence, two District Courts of Appeal recently took diverging approaches to the second step of the analysis. Each relied on its own precedent, which in turn reflected the same difference of opinion.
The Fourth District Court of Appeal’s Shapiro v. First Protective Ins. Co., No. 4D22-1133 (Fla. 4th DCA Mar. 29, 2023) and the Third District Court of Appeal’s Perez v. Citizens Prop. Ins. Corp., 343 So. 3d 140 (Fla. Dist. Ct. App. 2022) both dealt with Hurricane Irma claims that were reported over two years after the Hurricane hit the state on September 10, 2017 (“DOL”), and only after several rounds of repairs.1 Under such facts, both claims were deemed to be late as a matter of law, and both courts afforded the insurers a presumption of prejudice.
To rebut the presumption, both the Shapiro and Perez insureds offered opinions from their engineers. Neither expert used evidence from or near the time of the date of loss.2 Instead, both experts formed their opinions using mainly their own inspections which were conducted long after the dates of loss, and after repairs had been performed.3 Both experts opined that the respective insurers were not prejudiced because Hurricane Irma “more likely than not,” or “probabl[y]” caused the claimed damages. It is at this point that the cases diverged.
In Shapiro, the Fourth District determined that the expert opinion could rebut the presumption of prejudice despite being based on an inspection conducted well over three years from the date of loss. Additionally, the court relied on precedent with similar facts to find that the intervening repairs did not affect the value of the inspection. The supporting case, Stark v. State Farm Fla. Ins. Co.,95 So. 3d 285 (Fla. Dist. Ct. App. 2012) also involved delayed notice (over three years from the storm), multiple repairs prior to notice, and an expert opinion based primarily on an inspection conducted nearly five years after the storm. Stark had also found the expert opinion under its consideration to be capable of rebutting a presumption of prejudice.
In Perez, on the other hand, the Third District determined that an expert opinion based on a delayed inspection could not rebut the presumption. Perez—where the expert inspection was done much earlier than in Shapiro—held that the expert’s opinion was “wholly conclusory and not adequately supported” because it was “based on an investigation conducted nearly three years after the claimed date of loss” which “render[ed] it impossible for [the insurer] to determine which, if any, of the current damage to the roof came as a result of the Hurricane, and which, if any, of the current damage was caused by some other event.” Perez held the expert “report, based on an investigation conducted nearly three years after the claimed date of loss, was insufficient as a matter of law to . . . overcome the prejudice caused to [the insurer].”
Like Shapiro, Perez used the district court’s own precedent with similar facts. The prior case of Hope v. Citizens Prop. Ins. Corp., 114 So. 3d 457 (Fla. Dist. Ct. App. 2013), in which the expert opinion was deemed conclusory, also involved delayed notice (four years from the storm) and multiple repairs before notice. In addition to taking issue with the extended time delay, Perez held that the intervening repairs independently rendered the insured’s expert opinion conclusory.4
Perez and Shapiro continue a trend of diverging opinions between the Fourth and Third District Courts of Appeal. One finds time-lapse and repairs to render an expert opinion conclusory while the other does not. It is unclear how the Florida Supreme Court might address these issues. Until that court is tasked with deciding the split, it is important to consider how different jurisdictions treat expert testimony offered to rebut a presumption of prejudice.
Moreover, while the split remains, expert opinions can still be evaluated for other, more fundamental deficiencies across jurisdictions. As stated in Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031 (Fla. Dist. Ct. App. 2019), [5] at a minimum, expert opinions must have a “discernible, factually-based chain of underlying reasoning.” This essentially means that experts are required to “show their work.” So, even if courts do not take issue with lapses in time or intervening repairs, experts still must show how they came to their conclusions. What specific evidence did they rely on? What tests or calculations did they perform? Without these basics, an expert opinion is inadmissible, regardless of whether the specific court follows Perez or Shapiro.
1The Shapiros reported their claim on September 8, 2020—only two days before the statutory reporting deadline—and Perez reported her claim on September 19, 2019.
2The face of the Perez opinion reveals this to be the case with the expert there. The Shapiros’ expert report, filed in their underlying lawsuit, as opposed to the face of the opinion, evidences this fact.
3Perez’s engineer inspected the property on July 24, 2020, see Perez, 343 So. 3d at 142, while the Shapiros’ engineer did so on January 4, 2021. See p. 88 of the Shapiros’ Response to Defendant’s Motion for Summary Judgment, Shapiro v. First Protective Ins. Co., Case No. 502021CA001384, Miami-Dade County.
4To emphasize its point, the Third District referenced a case where it believed the expert opinion was well-founded enough to constitute proper rebuttal evidence. In Vega v. Safepoint Ins. Co., 326 So. 3d 176 (Fla. Dist. Ct. App. 2021), the insured's expert relied on a report and photographs that had been compiled immediately after the claimed loss and “before any repairs had been conducted.” Through its reference, the Third District indicated the ideal standard for rebuttal evidence.
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