Category: Success Stories

  • Constructive Total Loss Requires Proof the House Has to Be Demolished

    Constructive Total Loss Requires Proof the House Has to Be Demolished

    Congratulations to TypTap Insurance Company for obtaining a full defense verdict at trial in Lee County. The case is Norris v. TypTap, which involved a covered claim for damage following Hurricane Ian. Plaintiffs claimed that as a result of the covered damage, their house was a constructive total loss. Firm shareholder Andrew Labbe and Partner Kevin Vorhis were trial counsel for TypTap.

    Pre-suit, TypTap paid approximately $35,000 for covered wind damage. Plaintiffs also made a claim with their flood carrier, which found $118,000 in covered flood damage. During litigation Plaintiffs took the position that their house was a total constructive loss due solely to the wind damage, because the property appraiser’s value for the home was only $7,800 and the City of Coral Gables made a substantial damage determination because the damage exceeded 50% of this market value. Plaintiffs took the position that because of this determination, their house had to be demolished and was a constructive total loss.

    At trial, there were three main defenses: (1) because the loss was caused by a combination of wind and flood, it was excluded pursuant to the policy’s anti-concurrent cause language; (2) the appraised value was not an accurate market value for the home; and (3) the Plaintiffs failed to prove the house has to be demolished, a requirement for constructive total loss. The trial court declined to give an instruction on the flood exclusion, and ultimately granted directed verdict on this issue in favor of Plaintiffs. This left only market value and whether the house actually had to be demolished.

    For market value, Mr. Labbe presented testimony from a property appraiser who had appraised the property 8 months prior to the storm, when Plaintiffs purchased the property. The market value was, of course, significantly higher than $7,800. Plaintiffs argued that the appraisal did not meet the requirements of the City Code, which allowed the property appraiser’s value for substantial damage determinations. After Mr. Labbe successfully had their untimely disclosed repair estimates stricken, Plaintiffs relied on TypTap’s estimate to argue the 50% Rule was triggered.

    As to constructive total loss, the definition required Plaintiffs to prove that the home “has to” be demolished. The City’s substantial damage determination did not require demolition, and that was the only evidence presented by Plaintiffs to support their claim. The first thing Plaintiffs’ counsel told the jury in opening and closing was that the house had to be demolished. In response, Mr. Labbe showed the City’s testimony that the substantial damage finding did not necessarily require demolition, and it was only a preliminary determination.

    Ultimately, the jury found that Plaintiffs failed to meet their burden to prove the house was a constructive total loss, resulting in a full defense verdict. Congratulations to TypTap!

    Verdict Form: Constructive Total Loss Requires Proof the House Has to Be DemolishedDownload
  • Directed Verdict Victory for Windward Risk Managers!

    Directed Verdict Victory for Windward Risk Managers!

    After years of litigation, a multi-day jury trial, and extensive post-trial motion practice, Jayson Serrano and Annie Antos secured a complete defense victory for Florida Peninsula Casualty Insurance Company in The Wright Way Emergency Water Removal LLC a/a/o Christopher Conley v. Florida Peninsula Casualty Insurance Company, pending in Manatee County, Florida.

    Following a three-day trial in June 2025, the jury initially returned a verdict in favor of Plaintiff. However, the defense pursued post-trial relief, arguing that Plaintiff failed to satisfy its burden of proof under the policy’s loss settlement provisions and failed to establish the amount actually owed under the insurance contract. 

    In a detailed post-trial order entered on May 7, 2026, the Court agreed and granted Defendant’s Motion for Reconsideration of its Motion for Judgment Notwithstanding the Verdict, ultimately entering judgment in favor of Defendant and converting the matter into a complete defense verdict. 

    Central to the Court’s ruling was Plaintiff’s failure to introduce evidence of the “full replacement cost of the building immediately before the loss,” which the Court determined was an essential component of calculating damages under the policy’s loss settlement provision. The Court specifically found that Plaintiff failed to provide the jury with the evidence necessary to determine which policy calculation method applied and failed to establish the amount owed
    under the contract. 

    The Court further recognized that this was not merely a sufficiency issue, but rather a complete failure of proof on a required policy component:

    “This was a failure to present any evidence of the ‘replacement cost of the building immediately before the loss,’ an essential component of their burden of proof.” 

    This result highlights the importance of preserving policy-based damages arguments through trial and post-trial motions, particularly in cases where plaintiffs fail to satisfy the specific proof requirements imposed by the insurance contract.

    order granting dv 050726Download
  • Evidence Not Conclusions: Florida Courts Rejecting Deficient Expert Affidavits at Summary Judgment

    Evidence Not Conclusions: Florida Courts Rejecting Deficient Expert Affidavits at Summary Judgment

    A Florida Circuit Court has granted summary judgment in favor of Citizens Property Insurance Corporation, holding that the insured failed to produce admissible evidence that a covered peril created an opening in the roof. Without that proof, the policy’s exception to the rainwater exclusion did not apply, and the claim failed as a matter of law. This ruling is significant not because it breaks new doctrinal ground but because it reflects a disciplined application of Florida’s updated summary judgment standard. The decision shows how Courts are now willing to dispose of First-Party Property cases where the insured’s proof rests on conclusory expert opinions rather than admissible, case-specific evidence. 

    In this matter the policy language is familiar. Interior rain damage is excluded, unless a covered peril first creates an opening in the building envelope. This Exception is not a minor detail, it is the insured’s burden. Florida law places the burden squarely on the insured to prove that an exception to an exclusion restores coverage. Thus the dispositive issue become narrow: Did a Covered Peril Create an opening that allowed water intrusion? If the insured cannot prove that element with admissible evidence, the claim fails. 

    In this matter, the Court applied Florida Rule of Civil Procedure 1.510 as amended in 2021, which adopts the federal summary judgment framework. Under this standard, a defendant may prevail by showing an absence of evidence on an essential element. Additionally, the burden then shifts to the Plaintiff to produce admissible evidence creating a genuine issue. Here, Citizens satisfied its burden by: (1) Presenting inspection evidence showing no storm created opening; (2) Pointing out the absence of proof that any opening existed at the time of loss. Once that showing was made, the burden shifted. The case then turned entirely on the sufficiency of Plaintiff’s expert evidence. 

    Plaintiffs relied primarily on an engineering affidavit submitted in opposition to summary judgment. The affidavit attempted to establish: 

    • Wind-related damage to roofing components
    • General mechanisms by which wind can compromise shingles
    • The presence of conditions consistent with wind damage

    Using these premises, the Expert concluded that wind created an opening that allowed water intrusion into the property. 

    The Court having heard arguments are reviewed the filings for this summary judgment argument, rejected the expert affidavit as legally insufficient to create a genuine issue of material fact. The reasoning is critical for Practitioners. The following are the reasons the Court ruled against Plaintiffs and their experts affidavit:

    1. The expert inspected the property years after the alleged loss. The affidavit did not establish that the observed conditions existed at the time of loss or when the alleged damage occurred. Without a temporal link, the opinion could not support the causation.
    2. The expert affidavit discussed: (1) creased shingles; (2) displaced roofing materials; (3) general wind damage indicators. What the expert affidavit did not do is identify: (1) a specific opening; (2) the location of that opening; (3) how that opening allowed water intrusion. Based on this the Court treated this omission as fatal. The policy requires proof of an opening not generalized roof distress.
    1. There was no causal connection between the alleged wind damage and interior damage.
      1. The expert failed to connect three required steps/factors:
        1. A covered peril caused damage to the property
        2. That covered peril created an opening in the exterior/roof of the property
        3. That opening allowed water intrusion into the interior of the property.
      2. The expert relied on inference:
        1. Wind can damage roofs
        2. Damage was observed
        3. Therefore, wind created an opening
    2. The experts affidavit relied on general principles rather than case specific facts. The affidavit provided industry literature, hypothetical mechanisms of damage. The Court held that general principles do not substitute for case-specific, fact based analysis tied to the property and the loss event. 
    3. The Court reiterated that Conclusory Opinions are not Evidence. The Emphasized that: A conclusory opinion even from a qualified expert cannot create a genuine issue of material fact. The Affidavit’s ultimate conclusions were unsupported by: (1) Measured data; (2) Verified historical conditions; (3) Admissible corroborating evidence.
    4. The Court also ruled that there were admissibility deficiencies under Rule 1.510 such as: (1) Materials relied upon were not shown to be admissible; (2) Opinions lacked a reliable factual foundation. Under the updated rule, evidence must be capable of admission at trial. Unsupported assumption and hearsay do not quality. 

    The Court Concluded the following and ruled in favor of Defendant:

    1. Plaintiff failed to present admissible evidence of a peril created opening.
    2. No reasonable jury could find coverage based on the record.
    3. Summary Judgment was appropriate as a matter of law. 

    Highlights for Defense arguments in Florida:

    1. Defendants can win by identifying and bringing evidentiary gaps to the Courts view and forcing Plaintiffs to produce admissible proof. This backs the notion that Courts are no longer required to send weak cases to the jury. 
    2. Expert opinions must be precise and grounded: The Expert must tie their findings to the Date of Loss. The Expert must Identify a specific opening. The Expert must explain how water entered through that opening. As the Court ruled here, anything less by an expert is insufficient.
    3. This Ruling further bolsters that Later Inspection are a vulnerability for both Plaintiffs and Defendants. Opinions formed years after the Date of loss must bridge the temporal gap with reliable evidence. Without that connection/bridge, these opinions will/should fail. 
    4. Another issue bolstered by this decision is, Inference stacking will not survive summary judgment. Courts will not allow a Plaintiff or their expert to state wind occurred on a certain date, damage was observed at the property, interior was issues/staining observed therefore opening in the exterior/roof is assumed and coverage under the policy is triggered. Each step requires independent evidentiary support. 

    CONCLUSION

    The Court’s decision reinforces a simple rule: no admissible evidence of a peril-created opening means no coverage. Florida’s updated summary judgment standard ensures that cases lacking proof do not reach a Jury. For Practitioners on both sides, the lesson is unmistakable. The Battle is won or lost at the evidentiary level. 

    Thank you for your time, and please inform us if you have any questions. We will keep you promptly informed of all developments. 

    Sincerely,

    SALMON, SALMON, LABBE & DEHNE, P.A.

    Vincent Cano, Esq.

    exe ord as to d’s msj 04.09.26Download
  • Fraud Exposed, Case Closed: A Summary Judgment Victory

    Fraud Exposed, Case Closed: A Summary Judgment Victory

    Vincent K. Cano

    After nearly five years of litigation arising from a 2017 loss and a lawsuit filed in 2021, the Hernando County Court entered final summary judgment in favor of Citizens Property Insurance Corporation, bringing a hard fought case to a close. The Court’s ruling did not turn on technicalities or procedural maneuvering, it rested on a comprehensive factual record, extensive discovery, and a methodical evidentiary presentation that left no genuine dispute for trial.

    The case involved an assignee of the named insured as Plaintiff seeking payment for alleged water mitigation services under an assignment of benefits. From the beginning, this claim required close scrutiny. What appeared on paper to be a routine mitigation dispute evolved into a document intensive fraud and misrepresentation case spanning years of investigation, correspondence, sworn testimony, and litigation strategy. The defense approached the matter with a long view strategy: build the record, test every factual assertion, and preserve credibility challenges through admissible evidence rather than argument. This approach proved decisive.

    Over the course of discovery, the defense conducted more than eight depositions, including fact witnesses, the assignee’s corporate representative, field personnel, and third-party inspectors involved in the original claim investigation. Each deposition was taken with the focus to lock down dates, scope, methodology and foundation, and to test whether the Plaintiff’s version of events could withstand objective scrutiny. The result was a record marked not by conflicting recollections, but by documentary inconsistencies that could not be reconciled.

    Central to the Court’s ruling was the contrast between the Plaintiff’s invoices and dry-out logs (which claimed days of active mitigation, equipment placement and monitoring) and an site inspection performed during the alleged mitigation window. The site inspection, conducted by an independent vendor, revealed no equipment present, and no environmental conditions consistent with active drying. Crucially, the inspector authenticated both his report and photographs under oath, eliminating the possibility that the evidence could be dismissed as speculative or incomplete.

    The Court carefully applied Florida rule of Civil Procedure 1.510 and the post-2021 summary judgment standard, emphasizing that once the moving party establishes the absence of a genuine dispute, the burden shifts to the non-moving party to produce admissible evidence, not just conjecture or credibility attacks. Here, the Plaintiff was unable to do so. Despite years of litigation, extensive discovery, and multiple opportunities to amend or correct its documentation, the Plaintiff continued to rely on the same invoices and logs that were directly contradicted by authenticate inspection evidence.

    The Court’s order found that the Plaintiff’s representations concerning the presence, operation, and duration of mitigation equipment were false, that those representations were material to the insurer’s investigation and payment decision, and that the Plaintiff’s continued reliance on those documents after the contradiction became apparent established a knowing and intentional conduct not a mistake. The Court further rejected Plaintiff’s argument that credibility determinations precluded summary judgment, noting that this case involved documentary misrepresentations disproven by sworn and objective evidence.

    Equally important was the Defense’s ability to frame the legal issues understandably. The motion for summary judgment did not ask the Court to weigh evidence improperly or resolve factual disputes reserved for a jury. Instead, it demonstrated, step by step, that no reasonable jury could find in the Plaintiff’s favor once falsity, intent, and materiality were established through undisputed record evidence. The Plaintiff’s response, however, was largely grounded in argument and attacks on the inspection process and failed to supply admissible evidence sufficient to create a triable issue.

    This outcome reflects more than a successful motion, it reflects years of disciplined lawyering. From early claim investigation through depositions, motion practice, and final hearing, the defense strategy remained consistent: prepare the case as if it will be tried, assume every factual assertion will be tested, and build a record strong enough that trial becomes unnecessary. For Citizens, the ruling reinforces the principle that fraud and material misrepresentation defenses, when supported by objective evidence and pursued deliberately, remain a viable and appropriate avenue to obtain summary judgment. For the Firm, the decision stands as a clear example of how sustained preparation, attention to evidentiary detail, and strategic patience can convert a complex, long running dispute into a decisive legal victory.

    Final Judgment was entered in favor of Citizens on February 3, 2026, closing a case that began nearly a decade earlier with a 2017 claim and confirming that no reasonable jury could conclude otherwise.

  • Kapson v Homeowners Choice

    Kapson v Homeowners Choice

    JURY IN WINDSTORM TRIAL IS ALLOWED TO HEAR ABOUT INSUREDS’ SEPARATE FLOOD CLAIM

    In Kapson v. Homeowners Choice, the Third DCA affirmed the final judgment in favor of Homeowners Choice following a full defense verdict at trial. Firm shareholder Andrew Labbe attended trial as appellate counsel and handled the post-trial motions and appeal.

    The case involved a total loss to the insured’s Florida Keys’ property due to Hurricane Irma. Kapson made claims with their flood carrier and Homeowners Choice, who had issued a wind-only policy for the property. The flood carrier paid $228,000 for flood damage to the property. Homeowners Choice issued payment for the roof, but denied the remainder of the claim as the damage resulted from flood or a combination of flood and wind, which is excluded under the
    policy’s flood exclusion, which includes anti-concurrent cause language.

    At trial, Kapson argued that the home was blown away by wind before the flood/storm surge arrived, and that the resulting total loss was covered under the policy. Homeowners Choice presented expert testimony demonstrating that the storm surge arrived prior to the wind, and the home was completely destroyed by the force of the surge. Ultimately, the jury found that Plaintiff failed to meet their burden that wind alone caused the loss, and found in favor of Homeowners Choice.

    Kapson asserted numerous arguments on appeal. They argued that the verdict form was improper and Homeowners Choice could not rely on the policy’s anti-concurrent cause language, because it was not pled as an affirmative defense. However, the flood/storm exclusion was pled, and that exclusion has anti-concurrent cause language, it is not a separate defense that needs to be pled.

    They also argued that counsel made improper statements during closing arguments, stating that the insured was “triple dipping.” However, these statements were not objected to at trial, meaning that appellant was required to establish that the statements were “improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” The court did not find the statements met this high standard.

    Finally, Kapson argued that the trial court erred in allowing Homeowners Choice to introduce evidence that Kapson made a flood claim and that the flood carrier made a payment; the court did not allow evidence of the amount paid or rooms affected. The 3 rd DCA disagreed, finding the evidence was properly admitted as evidence of causation in a named peril policy. The Court also found that the flood carrier’s payment was not a settlement, nor was it barred by the collateral
    source rule as the evidence was relevant to liability. This decision reaffirms that where causation is at issue, evidence of an insured’s flood claim is admissible, particularly in a named peril policy.

    Congratulations to Homeowners Choice!

  • Order Granting Defendant’s Motion for Final Summary Judgment

    Order Granting Defendant’s Motion for Final Summary Judgment

    2025.11.20 Orange Order Granting MSJDownload
  • Edison Ins. Co. Win

    Edison Ins. Co. Win

    d3c9b92e-13b5-4fd4-a5f8-ed0c0449b681_Proposed_ConformedDownload
  • Cast Iron Pipe Summary Judgment

    Cast Iron Pipe Summary Judgment

    exec order granting ds mfsj 101325Download
  • Seven Wins (And An Assist) For Windward Risk Managers!

    Seven Wins (And An Assist) For Windward Risk Managers!

    $63,102.25 and More to Come!
     

    Fantastic results have been pouring in for Windward Risk Managers over an incredible run these last few weeks!  We have also recovered fees totaling $63,102.25 on these cases.  This figure will grow because of a counterclaim and a proposal for settlement.
     
    Kimberly Salmon remains on a hot streak as she prevailed on three straight motions for summary judgment on cast iron pipe cases.  In Pantina v. Florida Peninsula Insurance Company before Judge Amy Williams in Pinellas County, Florida Peninsula defeated David Barnhill’s Motion for Summary Judgment that coverage existed for a water back-up.  In that case, the court agreed the water back-up exclusion applies.  The order is here.  The insured purchased back the coverage for water back up but only up to the $5,000.00 limitation.  Florida Peninsula paid more than the $5,000.00 limitation when it handled the claim.   Florida Peninsula’s Motion for Summary Judgment on the counterclaim Kimberly Salmon filed to recover the overpayment is set later this month.
     
    In Benchmark Consulting, Inc. d/b/a Castle Roofing and Construction A/A/O Edgar Mustafaraj v. Edison, the Plaintiff agreed to pay Florida Peninsula Insurance Company Sixty-Thousand Dollars ($60,000.00) after losing a Motion for Summary Judgment Kimberly Salmon handled.  
     
    In Benchmark Consulting, Inc. d/b/a Castle Roofing & Construction, Inc., a/a/o Brett Bunge v Florida Peninsula, the Plaintiff dismissed the case after being sanctioned for discovery violations.  Benchmark d/b/a Castle Roofing was ordered to pay $1,255.00 in discovery sanctions.  That order is here.  Rather than comply with the discovery order and produce the documents, the Plaintiff dismissed the lawsuit.
     
    After those two experiences, Benchmark d/b/a Castle Roofing filed a voluntary dismissal in another case for a different client of the firm.  We credit Florida Peninsula with an assist on that dismissal.  
     
    Meanwhile, this afternoon Joe Matera and David Salmon obtained a summary judgment on a Hurricane Irma loss before Judge Helene Daniel in Hillsborough County in Cintron v. Florida Peninsula Insurance Company.  Florida Peninsula originally assigned a 2019 date of loss to the claim based on the insured’s first notice of loss and a recorded statement the following day.  The public adjuster, however, insisted the roof leak was from Hurricane Irma in 2017.  When the insureds filed their lawsuit, the plaintiff lawyer specifically alleged the loss occurred on September 10, 2017.  In deposition, Mrs. Cintron testified the loss occurred in 2019.  Mr. Cintron did not know when the loss happened and deferred to his wife.  Armed with three separate statements from Mrs. Cintron that the loss occurred in 2019, we moved for summary judgment the loss did not occur in 2017 as alleged in the complaint. There will no longer be a November trial.  A proposal for settlement is on file.
     
    In another cast iron pipe case, Carper v. Florida Peninsula Ins. Co., Pinellas County Judge Andrews granted Kimberly Salmon’s Motion for Rehearing on a Motion for Summary Judgment and then granted her actual Motion for Summary Judgment on the eve of trial.  The Order is being submitted to the court today and ends a claim where the court went back and forth on its rulings.  Originally, Judge Ramsberger granted Florida Peninsula’s Motion for Summary Judgment on the water back up exclusion but left the bench before signing the order.  Judge Andrews signed the order granting summary judgment on behalf of Judge Ramsberger.  When the parties submitted competing final judgments, Judge Andrews was unable to sign either final judgment because he could not identify the necessary findings of fact and conclusions of law because he was not at the original hearing.  He ordered another hearing and found there were issues of fact and denied the motion without prejudice.  Kimberly Salmon then filed a Motion for Rehearing because both lawyers stated on the record that were no issues of fact.  The judge heard the Motion for Summary Judgment a third time and granted Florida Peninsula Insurance Company’s Motion for Summary Judgment.  Kimberly Salmon’s third bite at the apple resulted in the win!  
     
    Florida Peninsula was also defending two lawsuits in Hillsborough County filed by Edison Gonzalez and Gabriela Valentin.  One claim is for windstorm and the other claim is for a plumbing leak.  During his first deposition, Mr. Gonzalez testified that he was told not to bring any documents to his deposition despite the notice including a document request.  He was then asked not to disclose any attorney-client communications when responding to the question, “Besides your lawyer, did anyone instruct you not to produce records.”  He replied, “No.”  The deposition was suspended and we moved for sanctions, resulting in two orders totaling $832.25.  One order is here and the other order is here. When we re-noticed his deposition in one of the cases, he failed to appear.  We moved for sanctions, resulting in a payment of $1,015.00.  That order is here.  When the Plaintiff failed to appear for his next deposition in the windstorm case, the case was dismissed.  That order is here.  Mr. Gonzalez just failed to appear for his deposition in the plumbing leak case. You can expect another dismissal as the plaintiff lawyers are withdrawing.
     
    Congratulations to Windward Risk Managers on a great string of victories!  “WINDWARD WINS!”

  • Court Issues Final Warning and Sanctions Against Plaintiffs – Feliciano Gonzalez v. Florida Peninsula

    Court Issues Final Warning and Sanctions Against Plaintiffs – Feliciano Gonzalez v. Florida Peninsula

    2nd did not appear $1kDownload