Partner/Shareholder Andrew Labbe represented Homeowners Choice at trial.
In Johnson v. Homeowners Choice, plaintiff brought suit for breach of contract based on a covered claim for damage due to Hurricane Sally. After not timely disclosing an expert, and failing to respond to expert discovery, the court held that plaintiff was precluded from calling an expert at trial.
Immediately after the jury was sworn in, Mr. Labbe moved for a directed verdict, arguing that without an expert plaintiff could never meet her burden as a matter of law. Numerous cases have held that expert testimony is necessary to establish causation and damages, both of which were disputed. The policy also provided named peril coverage, so the burden was entirely on plaintiff to establish covered damages.
Plaintiff argued she could meet her burden simply because Homeowners Choice opened coverage for the claim; however, the judge seemed inclined to agree that plaintiff could not use the coverage determination to establish covered damage in excess of what was paid, so still would not be able to establish a breach. The judge gave plaintiff the night to file a response, and the next morning they chose to voluntarily dismiss the case, rather than face a directed verdict.
This is the second case this year where Mr. Labbe had a plaintiff voluntarily dismiss mid-trial to avoid a directed verdict. Even at that late stage in litigation, plaintiffs still have a “get out of jail free” card, which isn’t available to the defendant. While a DV is preferable, all we can do is make the argument and see where the chips fall, and dismissal is still a great outcome.
Congrats to Homeowners Choice!