LOGUE, J.
Yosvani Gonzalez and Yenisleidy Perez (the "Homeowners') appeal from a final summary judgment entered in favor of Citizens Property Insurance Corporation ("Citizens"). While the affidavits filed by Citizens met its burden as the movant for summary judgment, the affidavits filed by the Homeowners did not satisfy their burden as the opponents. Accordingly, we affirm.
The Homeowners sued Citizens, their property insurance carrier, for water damage
Citizens moved for summary judgment asserting that the leak was caused by normal wear and tear of a roof beyond its useful life and no genuine issue of fact existed in this regard. Citizens grounded its motion on two affidavits based on two separate inspections of the damaged roof. One inspection was conducted two days after the loss occurred and the other nine months after the loss occurred. Both inspections took place before the roof was replaced. The claims adjuster and roofing contractor who conducted the inspections found no evidence of wind damage. Both attributed the roof leak to wear and tear due to age. The roofing contractor indicated that the roof was twenty-one years old and beyond its useful life. He described in detail cracks in the roof membrane and the loss of the seal on the roof which he attributed to normal age-related deterioration of the roof.
To oppose the summary judgment, the Homeowners filed two affidavits by Al Brizuela, a registered engineer. The first affidavit is entirely conclusory. In it, Mr. Brizuela does little more than announce "the roof leak was the result of a one-time wind event on or about 7/17/2013" and broadly disagree with the opinion of the roofing contractor: "[t]his opinion by [the roofing contractor] is not backed by any scientific evidence and there is no evidence to support the application of these allegations to the subject house or roof." Significantly, Mr. Brizuela had not inspected the property at the time he signed his first affidavit and he gives no basis for his opinion.
Mr. Brizuela then submitted a second affidavit based on an inspection. In it and the attached "Proof of Loss Evaluation and Assessment Report," Mr. Brizuela opined that "openings [in the roof] were created by strong wind and rain events that took place between June 29th and July 3rd, 2013." (Emphases omitted). His opinion in this regard was based first upon his "eye witness account" in which "[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge." He did not describe what the damage to the
Secondly, he finds that the roof was subject to "high winds between June 29th and July 3rd, 2013 when winds up to 60 mph were recorded near the property." In particular, he opined that the subject property experienced 60-mph winds because Miami-Opa Locka Airport, which is located more than three miles from the subject property, recorded wind "gusts" of 60 miles per hour of unknown duration on June 29, 2013. Significantly, the claimed date of loss was two weeks later on or about July 17, 2013. Moreover, Mr. Brizuela admitted "Predicting wind at other locations, wind speed from a particular direction at a particular time, with an acceptable degree of accuracy is currently highly inaccurate."
This Court reviews a trial court's ruling on a motion for summary judgment de novo.
A court considering summary judgment must avoid two extremes. On the one hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact."
We hold that the two affidavits submitted by Citizens were sufficient to meet its burden as movant for summary judgment. It therefore became the burden of the Homeowners, as the parties opposing the motion, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to subsection (f) of the rule; or (2) file "summary judgment evidence on which the adverse party relies," pursuant to subsection (c) of the summary judgment rule. Fla. R. Civ. P. 1.510.
In this regard, the Rule requires that "opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary judgment must identify "admissible evidence that creates a genuine issue of material fact."
The focus is on whether the affidavits show evidence of a nature that would be admissible at trial; if so, any questions regarding relative credibility or weight of that evidence compared to other evidence cannot be resolved on summary judgment but must be left for the trier of fact.
Similarly, an affidavit that summarily states a property was used for certain purposes without providing any supporting details and the basis for such knowledge does not "set forth such facts as would be admissible in evidence" and therefore cannot be used to defeat summary judgment.
Along the same lines, the principle that "no weight may be accorded [to] an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning,"
Here, the Homeowners' expert's opinion that the leak in the roof on July 17, 2013, was created "by strong wind and rain events that took place between June 29th and July 3rd, 2013" was based on his inspection of the subject roof. But he inspected the "damage"
Similarly, the Homeowners' expert admits that using the wind speed from one location to determine the wind speed at a different location "is currently highly inaccurate." Yet he proceeded to do precisely what he said could not be done accurately. He hypothesized that wind gusts recorded more than three miles from the subject property two weeks before the loss prove that sustained winds at the subject property were the cause of a loss
For these reasons, the trial court was correct. The Homeowners' affidavits opposing summary judgment did not create a genuine issue of material fact to defeat Citizens' summary judgment motion. Accordingly, summary judgment was properly granted.
MILLER, J., concurs.
SUAREZ, Senior Judge (dissenting).
I respectfully dissent.
The issue on appeal is one that trial courts face every day and have for years. The issue is whether competing expert affidavits create an issue of fact such that summary judgment cannot be entered. The trial court determined that the Homeowner's expert affidavit did not create a material issue of fact and granted summary judgment. To arrive at its decision, the trial court impermissibly entered the province of the jury by making findings of fact, weighing the competing evidence presented in the two affidavits and making determinations as to the credibility of the experts and the evidence presented. These are all issues for the finder of fact to determine at trial. They are not issues to be determined by the trial court at the summary judgment phase. I would, therefore, reverse the summary judgment and remand for further proceedings in the trial court.
It is undisputed that the Homeowners own property located in Hialeah, Florida and purchased a homeowners' insurance policy through Citizens, which was effective from June 3, 2013 through June 3, 2014.
On appeal, the Homeowners argue that the trial court erred in granting summary judgment in favor of Citizens. Specifically, the Homeowners assert that the evidence before the trial court showed that there was a genuine issue of material fact as to the cause of the loss, and that the trial court improperly weighed the evidence and assessed the credibility of the expert witnesses. I agree on both points.
"A trial court may enter a summary judgment when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter of law,"
Based upon my review of the record and affidavits filed in this case, I would find that there are genuine issues of material fact as to the cause of water damage to the Homeowners' property that preclude the entry of summary judgment. In its amended motion for summary judgment, Citizens argued that "the leakage and seepage [that entered the property] is due to the wear and tear, marring, and deterioration of the roof" rather than a covered peril. Citizens relied upon Brown's affidavit, in which he concluded that the "[t]he roof leak claimed in this matter ... is the direct result of normal wear and tear of the roof system and the leak is not through a wind storm intrusion." In their memorandum of law in opposition to Citizens' amended motion for summary judgment, homeowners relied upon Brizuela's second affidavit in support of their assertion that the roof leak was caused by a covered peril, i.e., exterior roof openings caused by "wind uplift." Specifically, homeowners relied upon Brizuela's statement in his affidavit that moisture entered the property through openings "created by strong wind and rain events that took place between June 29th and July 3rd, 2013. The strength of the winds during this period ranged from 34 up to 60 mph. These damages were observed inside the property when in a 2-day period more than 4 inches of rain fell on the property." The conflicting affidavits of Brown and Brizuela establish a genuine issue of material fact regarding the cause of loss. As a result, no summary judgment should have been entered.
The trial court impermissibly weighed the evidence and assessed the credibility of witnesses in granting Citizens' amended motion for summary judgment. In announcing its ruling, the trial court stated that it was "adopt[ing] and incorporate[ing] by reference" Citizens' argument that Brizuela's affidavit and report did not create a genuine issue of material fact as they were based upon an inspection conducted four years after the loss. Indeed, during the hearing, the trial court stated that "[m]y position is that why didn't [homeowners'] inspection take place sooner like [Citizens'] did, two days after the event and then nine months after." The trial court further stated that an opinion based upon an inspection conducted two days or nine months after the alleged damage "has a higher degree of accuracy, at least for this court," than one that occurs four years later. Any issues as to the credibility and accuracy of Brizuela's opinion due to the timing of his inspection, however, are for the trier of fact, not the trial court in a summary judgment proceeding.
In the opinion, the majority determines factual issues, weighs the conflicting evidence and determines credibility of the witnesses. Again, these are issues for the trier of fact and not for the summary judgment phase. In referring to the Homeowner's affidavit, the majority opinion states:
The majority then goes on to state:
These are the types of arguments an attorney would make to the finder of fact in the hope of convincing the finder of fact that in weighing the conflicting expert evidence (one expert opines the water damage is due to wear and tear and the other expert opines it is due to uplift caused by wind), the expert's opinion based on these facts is not as reliable as the opposing opinion based on the facts presented by the opposing expert. In other words, the majority, as did the trial court, is looking at these facts and is determining that these facts are not reliable and do not support the expert's opinion and, therefore, the expert is also not credible. Again, the weighing of conflicting evidence and the determination of the credibility of the witness are issues to be determined by the trier of fact and are not, as has been done here and by the trial court, issues to be
For these reasons I would reverse and remand for further proceedings.