Third DCA
Mesa v. Citizens Property Insurance Corp.
3d DCA, Judge Scales
3/1/23 Topics: Corporate Representative; Hearsay; Business Records
This is a first-party property insurance case arguing whether roof damage to a home was covered under a homeowner's policy. The merits of the case are not summarized. The case is important for any civil practitioner who sues corporate defendants, however, because it held that testimony about the claim offered by the corporate rep was hearsay.
The adjuster did not testify at trial. Instead, the insurance company called Alicia Wright, the corporate representative for Citizens, to testify as the “voice of Citizens” regarding “what happened throughout the claim.” Plaintiff objected that Corporate Rep Wright should be barred from testifying because she had no personal knowledge about the case. The trial court overruled the objection and allowed Corporate Rep Wright to testify about the contents of the field adjuster’s report, which included facts about the adjuster’s inspection of the property in question and the adjuster’s conclusion that the roof was damaged by non-covered wear and tear, not wind damage, which would have been covered. Pictures from the adjuster’s inspection were admitted, too.
Citizens prevailed at trial on the issue of coverage, and the Plaintiff appealed. The DCA agreed with Plaintiff/Appellant that Corporate Rep Wright’s testimony was inadmissible hearsay. Rule 1.310(b)(6), Fla. R. Civ. P. (2022), permits a corporate rep to appear at a deposition to testify about matters known or reasonably available to the organization, but this discovery rule is not a trial hearsay exception. Allowing a witness to testify about a business record when the business record itself is not entered into evidence constitutes reversible error, as does allow a witness to testify without personal knowledge.
Admission of the hearsay testimony was not harmless. The Plaintiff submitted sufficient evidence to demonstrate coverage. Because the adjuster’s claims notes and inspection concluded that coverage did not exist, Citizens could not demonstrate that the jury did not accept that evidence over that of Plaintiff’s experts and that the evidence did not contribute to the verdict of lack of coverage. Reversed and remanded for a new trial. https://supremecourt.flcourts.gov/content/download/861245/opinion/220398_DC13_03012023_ 102636_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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