Senior Partner Derrick M Kelly, Esq., and Associate Madeline Dixon, Esq., obtained a favorable result in a general liability negligence matter that prevented their client from incurring significant damages, including attorney’s fees. Plaintiff Susan Rae Bolton, as trustee of the Betty J. Whitlock Trust, filed a property damage lawsuit against DP Development, LLC, alleging that its asphalt paving crew negligently applied hot asphalt near a wooden garage structure during a private parking lot paving project, that caused a fire that completely consumed the attached garage structure used for storage, and caused extensive smoke and soot damage to the main structure, estimated as high as $895,000 to repair. In addition, the fire resulted in a business tenant vacating the premises, as it was no longer inhabitable for business operation.
The case was contested on both liability and damages, and consisted of 17 depositions, including multiple depositions of experts, a corporate representative for FPL, and numerous fact witnesses. Plaintiff served a PFS in October 2023, when at that time, only four depositions had been taken. The disputed issues of liability involved contested evidence regarding whether the fire started inside or outside the garage based on fire patterns, consumption rate of wood and beams, and other information. Damages was contested based on the proper measure of damages, as well as what metric for the measure of damages to use. Defendant filed a Motion in Limine requesting that the Court determined that the proper measure of damages for the real property was limited to the diminution in value, as opposed to repair and replacement costs.
The Court, the Honorable George Paulk, agreed. The only issue remaining was the proper measure of the diminution in value. Plaintiff argued that the proper measure of diminution in value was $425,000, after consideration of retroactive valuation of property preceding fire, and post-fire valuation. Defendant argued that the proper measure of diminution in value was $192,000, as estimated by the Brevard County Property Appraiser’s Office. At trial, Defense counsel got Plaintiff’s diminution in value expert to agree that the valuation of the Brevard County Property Appraiser’s Office was a legitimate metric, even if he disagreed. In addition, at trial, Defendant filed a Motion for Directed Verdict on Plaintiff’s claim of future loss business rent for failure to produce adequate document Terry evidence to support as payment of rent.
Liability was contested to the very end, with the jury asking questions of witnesses that went to the heart of liability. Plaintiff requested $495,000 from the jury. Defendant strategically conceded certain hard cost and miscellaneous damages, while challenging the diminution in value and claims of lost future rent. Ultimately, the jury returned a verdict of $369,000. This led Plaintiff’s lead counsel to request the Court poll the jury to ensure that it was everyone’s verdict.
