A full week of jury trials is underway with fascinating results!
First, congratulations to Universal Property & Casualty Ins. Co. on yet another defense verdict, this time in Andrews v. Universal Property & Cas. Ins. Co. before Hernando County Judge Scaglione. Snatching victory from the jaws of defeat, David Kelly and Annie Antos secured the win against Tampa lawyers Christina Potter Bayern and Michael Bayern.
Incredibly, before trial, the court granted plaintiff’s motion for summary judgment that there were no coverage defenses after the corporate representative’s deposition. Still, the jury answered the first question on the verdict form that plaintiffs “did not do substantially all of the essential things which the contract required them to do.”
The plaintiffs called thee expert witnesses: (1) general contractor Dennis James on damages; (2) engineer Byron Anderson on causation; and (3) a meteorologist. Universal did not call any expert.
The irony of plaintiffs calling experts to testify is that the defense gets to elicit testimony from these witnesses. Once you elicit testimony from the experts on policy exclusions or exceptions, those issues are back before the jury despite the earlier summary judgment that there are no coverage defenses. This body of law is called “trial by consent”.
This week’s second jury trial involved a plumbing loss in Polk County before Judge Ojeda, which delivered the biggest surprise. Attorney Jayson Serrano argued that the proper measure of damages is actual cash value and that plaintiff could not present any evidence of these damages because she only had a replacement cost estimate. The judge agreed with the defense.
The plaintiff then tried to introduce testimony from an expert witness. Mr. Serrano objected on the basis of foundation. Mr. Serrano did not stipulate to business records before trial, telling the court he is “not in the business of making plaintiff lawyers’ lives easier”. When the plaintiff lawyer was unable to introduce the expert testimony, the plaintiff lawyer moved to continue the trial – right during trial – because he “did not anticipate these issues.” The trial judge granted the motion to continue!
The lesson, we guess, is that if you are going to beat you opponent badly, don’t do it at the start of trial and wait for closing argument.