Professional Liability

In a recent opinion from the Fourth District Court of Appeals, the court found that it is not the function of a trial judge or the appellate court to reweigh evidence on a motion for judgment notwithstanding the verdict, reversing the trial court’s final judgment. 

The homeowners brought a declaratory judgment action against their insurer in the Seventeenth Judicial Circuit after the insurer denied coverage for roof and interior damage to their house, allegedly caused by a hurricane. After this trial, the jury found that the hurricane created an opening in the homeowners’ roof that allowed rainwater to enter their residence and that their insurer failed to prove the damage was the result of wear and tear. 

The trial court granted the insurer’s motion for judgment notwithstanding the verdict and set aside the jury’s verdict, concluding that neither the homeowners nor their expert specifically identified a specific peril-created opening and that the photographs of the roof showed no storm-related damage. The homeowners appealed.

Before the trial, the insurer attempted summary judgment, arguing that the homeowners had failed to present evidence to prove a hurricane created an opening in their roof that allowed rainwater to enter their home. The motion for summary judgment was denied, and the trial court found that a genuine issue of material fact existed for the factfinder to resolve regarding whether the roof opening was caused by a hurricane or by wear and tear. Thus, at the summary judgment stage, the trial court found that causation was a genuinely disputed issue of fact. 

During the trial, the insurer relied on its field adjuster as their expert, who provided evidence of a lack of a storm-created opening and evidence to support deterioration of the grout and/or tile roof material. Further, he denied that the roof damage was caused from a hurricane. 

The homeowners’ expert testified that he had relied on data from the National Weather Service but did not know the collection method for same. He further testified to the location of the opening on the roof based on the photographs and two physical inspections, attributing the visible damage of a wind-created opening in the roof membrane from hurricane winds.

In reversing the trial court’s judgment, the Fourt District Court relied, in part, on Hancock v. Schorr, 941 So. 2d 409, 412 (Fla. 4th DCA 2006), which found that it remained the jury's province—viewing all evidence and inferences in the homeowners’ favor—to weigh conflicting testimony. Further, courts may grant motions for judgment notwithstanding the verdict only when there is no evidence or inferences which may support the opposing party's position. The District Court concluded the verdict was supported by competent, substantial evidence and that the trial court improperly reweighed conflicting testimony and substituted its own evaluation of the significance of photographic evidence for that of the jury. Because the homeowners presented competent, substantial evidence through expert testimony, from which a reasonable jury could find that hurricane winds created a peril-created opening in the roof, the trial court erred in granting judgment notwithstanding the verdict. 

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_{Legal Update for Florida Coverage & Property Litigation – December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}