Insureds’ Triad Estimate Creates Defense Verdict at Trial!
Congratulations to Universal Property & Casualty Insurance Company on another trial victory! This morning, Judge Polk out of Pasco County granted three directed verdicts in favor of Universal at the close of Plaintiffs’ evidence. Jayson Serrano and Nestor Marante tried the case for Universal while Matt Mullinax and Barbara Hernando represented Clifton and Valona Weston.
This trial was particularly rewarding because the arguments focused on so many of the details we reinforce within our organization. For example, we do not always need an expert to win. We do not always need an expert to counter their expert. We do not always need a competing estimate. We do not always need to peer review our estimates. Instead, we focus on the Plaintiffs’ burden. What do the Plaintiffs have to prove? How do we exclude their damages from evidence?
We use the policy of insurance. The Loss Settlement provision regularly obligates the insurance company to pay the lesser of the replacement cost, actual cash value, or the amount actually spent. This is an essential element of the Plaintiffs’ case and they must prove their damages or they lose.
In Weston v. Universal, the Plaintiffs did not make repairs. This enabled Universal to establish that replacement cost damages were unavailable. At trial, the Plaintiffs introduced a Triad estimate from Dennis James, which included matching costs. Further, as we have long known, the Triad estimates include undamaged property in the actual cash value figures! Since matching costs are not allowed for actual cash value damages, the Plaintiffs’ estimate was irrelevant, misleading, and prejudicial because it was not an actual cash value estimate.
Judge Polk found that Vazquez controlled and that Plaintiffs’ expert’s estimate was not an actual cash value estimate because it included matching costs, even though it accounted for depreciation. Judge Polk found that Plaintiffs had not yet expended any funds over and above Universal’s actual cash value payment and therefore were not entitled to replacement cost damages. On that basis, she ruled as a matter of law that Plaintiffs did not meet their burden of proof to establish that a breach occurred.
Judge Polk also granted Universal’s directed verdict on Plaintiffs’ failure to prove the amount due and owing under the Loss Settlement provision. The amount is to be determined by the lesser of three numbers. Among them is the amount actually spent on repairs. Since they did not introduce evidence of the amount spent to complete the repairs, they did not meet their burden to establish that amount.
Judge Polk also granted Universal’s directed verdict on Goldberg, finding that Defendant adjusted the loss and paid on the only estimate it received prior to suit. Judge Polk ruled this was all that could be expected of Universal.
Too often defense lawyers focus on the weaknesses in their own case instead of focusing on their adversary’s burden. Avoiding trials because someone “opened up coverage” rather than analyzing a plaintiff’s estimate costs insurance companies money. The truth is that estimating software programs do not account for the differences in law among the fifty states. Florida law has changed but the estimating software programs have not.
Virtually every plaintiff estimate contains line items to detach and reset property, which are not depreciated. For example, an undamaged toilet may have to be detached and reset to replace flooring. The cost to detach and reset exists in the RCV column and the ACV column. The damage expert routinely testifies there is nothing to depreciate. The reason the expert testifies in this manner is because they are using the outdated definition of “actual cash value equals replacement cost less depreciation.” Instead, Florida law instructs us to look at the property that suffered a direct physical loss and determine the actual cash value of those items. In this example, the toilet has not suffered a direct physical loss so the cost to detach and reset should only be in the RCV column. The same logic applies to drop cloths for painting. Drop cloths are not in the dwelling at the time of loss and do not suffer a direct physical loss. The cost of the drop cloths should only be in the RCV column. Instead, the cost of the drop cloths exists in both the ACV and RCV columns in these plaintiff expert estimates. This is inconsistent with Florida law.
The plaintiff bar may use estimates that are entitled “actual cash value” but they are not. This is how Groelle & Salmon uses a plaintiff’s damage estimate to prevail at trial.