CASE LAW UPDATE
THIRD DCA HOLDS THAT TRIAL EXPERT’S AFFIDAVIT MUST
INCLUDE AN ANALYSIS THAT CREATES A GENUINE ISSUE OF MATERIAL FACT TO DEFEAT SUMMARY JUDGMENT
Cameron D. Diehl, Associate Attorney – St. Petersburg Office
In early May, the Third DCA issued an opinion in Osmany Estevez and Yenisbel Ramirez, v. Citizens Property Insurance Corporation, ruling that an expert’s affidavit filed in opposition to a motion for summary judgment filed by the Insurer must include that expert’s actual analysis to rise to the level of establishing a genuine issue of material fact. When arguing for summary judgment, the initial burden rests with the moving party to prove that there is no issue of material fact. The burden then shifts to the non-moving party to prove that a genuine issue of material fact does actually exist. However, the non-moving party cannot simply provide a conclusory statement that happens to contradict the facts alleged in the motion for summary judgment.
In Estevez, Citizens moved for summary judgment based on a policy exclusion for wear and tear. Citizens submitted affidavits and reports prepared by its trial experts, conclusively establishing that the alleged damages were caused by wear and tear, an excluded peril under the terms of the policy. Thereafter, the Plaintiffs submitted an affidavit prepared by their own trial expert. However, that affidavit was truncated and missing the pages that contained the expert’s actual analysis. The expert’s ultimate conclusion was present, but because “a discernable, factually-based chain of reasoning necessary for an expert opinion to be admissible in evidence” was missing, the Third DCA ruled that the affidavit did not establish the existence of a genuine issue of material fact, and that summary judgment was therefore proper. An arbitrary statement or conclusion by an expert is not enough to create an issue of material fact; there must be an analysis.
A best practice in arguing for summary judgment is to thoroughly review the documents provided by the Plaintiff in opposition to determine if they rise to the level of establishing a genuine issue of material fact. For example, in an expert’s report you may find that the discussion of how the damage is analyzed refers to tile roofing systems when the subject dwelling has a shingle roof. Or, as in Estevez, you may find that there is no analysis at all.