On May 01, 2024 (Order entered May 10, 2024), Karma Hall, Miami Partner, obtained a final summary judgment in a first-party matter entitled Carleen Carthy v. Defendant Insurance Company. Plaintiff sued Defendant for breach of contract based on a denial of claim letter issued by Defendant Insurance Company citing the Policy’s exclusion for constant or repeated seepage or leakage of water provision.
Defendant argued that it presented evidence of excluded damage caused by constant or repeated seepage or leakage of water, over the course of months, with resultant damage in a non-hidden area of the Property. Defendant further argued that Plaintiff’s Response in Opposition lacked any admissible evidence opposition evidence creating a material fact as Plaintiff’s sworn deposition testimony makes clear she never witnessed any overflow or leaking of water on or about the date of loss, and relies entirely on what others have told her. Defendant argued one Affidavit submitted in opposition was inadmissible as the witness was previously stricken and that any deposition testimony made by Plaintiff regarding what she was told by other persons is inadmissible hearsay.
The Court agreed. Although Plaintiff argued Defendant failed to present evidence of excluded damage caused by constant or repeated seepage or leakage of water and that Defendant’s Corporate Representative’s Affidavit was inadmissible due to lack of personal knowledge, the Court found that the Field Adjuster’s Report was properly introduced as a business records via Defendant’s Corporate Representative’s Affidavit, as permitted by Florida Rule of Evidence 90.803(6), and that Florida’s 3d DCA, in Mesa v. Citizens, 358 So.3d 452 (Fla. 3d DCA 2023), expressly contemplated that a field adjuster’s report can be admissible as a business record. The Court held no admissible evidence was introduced by Plaintiff to dispute Defendant’s position that the damage is the result of constant or repeated seepage or leakage of water. Moreover, to the extent that Plaintiff’s deposition testimony is a recitation of Plaintiff’s understanding of events as told to her by others, such statements are inadmissible hearsay. Defendant’s Motion for Summary Judgment was granted. Post trial motions are pending. The defense is seeking fees pursuant to a PFS as well prevailing party costs. Read More.
