The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JONATHON DIAS and
ELISABETH DIAS,
Plaintiffs,
v. Case No. 3:19-cv-1303-TJC-JRK
GEOVERA SPECIALTY
INSURANCE COMPANY,
Defendant.
ORDER
This insurance coverage dispute is before the Court on Defendant
GeoVera Specialty Insurance Company’s Motion to Exclude Any and All
Evidence and Expert, or Other, Opinion Testimony of Todd Romazko (Doc. 33)
and GeoVera’s Motion for Final Summary Judgment (Doc. 35). Plaintiffs
Jonathon Dias and Elisabeth Dias filed responses in opposition to the motions
(Docs. 37, 38, 50), and GeoVera filed a Reply (Doc. 41) in support of its Motion
for Final Summary Judgment. The Court held a hearing on the motions on May
24, 2021, the record of which is incorporated by reference.
I. BACKGROUND
A. Procedural Posture
In a Complaint (Doc. 1-4) filed in Florida state court on September 27,
2019, the Diases alleged that GeoVera improperly failed to pay a claim under
their homeowner’s insurance policy.1 After removing2 the case to federal court
(Doc. 1), GeoVera filed an Answer, Affirmative Defenses, and Demand for Jury
Trial (Doc. 4), 3 in addition to a Motion for Partial Summary Judgment
regarding the issues of interior damage, roof damage, removal and replacement
of window screens, and re-screening of the pool enclosure (Doc. 29). The Diases
filed a belated response conceding all issues except roof damage. (Doc. 31). The
Court had yet to rule on the remaining roof damage issue when GeoVera filed
a Motion for Final Summary Judgment (Doc. 35). GeoVera also filed Daubert
motions to exclude the testimony of the Diases’ experts, Todd Romazko, a public
1 Previously, American Hero Construction, LLC was also a Plaintiff in
this case. The Diases alleged that they assigned a portion of their benefits under
the policy to American Hero. (Doc. 3 ¶ 9). On February 26, 2020, the Court
issued an Endorsed Order granting Defendants’ motion to dismiss the claim of
American Hero and directing that American Hero be terminated as a party.
(Doc. 22). Thus, American Hero is no longer a party to this lawsuit.
2 Counsel for the Diases sent a letter to GeoVera with a $119,600.47
estimate for damages, including $92,001.41 for the roof alone. (Doc. 1-2 at 5–7).
3 The Diases filed a document titled Denial of Affirmative Defenses as a
blanket denial of all affirmative defenses (Doc. 7), which was later stricken by
Magistrate Judge James R. Klindt for failure to comply with Federal Rule of
Civil Procedure 7(a). (Doc. 9).
adjuster, and John Sparks, a former employee of American Hero Construction.
(Docs. 33, 34).4 The Diases filed belated responses to all three motions (Docs.
37, 38, 39) and withdrew Sparks (Doc. 39). Thus, the Daubert motion regarding
Sparks (Doc. 34) is now moot. The Diases also filed a Notice of Supplemental
Response to Daubert Motion.5 (Doc. 50).
GeoVera advised the Court that its Motion for Partial Summary (Doc. 29)
was subsumed within its Motion for Final Summary Judgment (Doc. 35), so the
Motion for Partial Summary Judgment (Doc. 29) has been terminated. (Doc.
45). GeoVera’s Motion for Final Summary Judgment (Doc. 35) and GeoVera’s
Motion to Exclude Any and All Evidence and Expert, or Other, Opinion
Testimony of Todd Romazko (Doc. 33) remain and are ripe for consideration.
B. Facts
The Diases obtained a homeowner’s insurance policy (“the Policy”) from
GeoVera under Policy Number GC70029151, effective May 16, 2018 through
May 16, 2019. (Doc. 3-1 at 2). The Diases allege that a storm on December 20,
4 At the hearing, Plaintiffs’ counsel informed the Court that Sparks
worked essentially as a salesperson for American Hero Construction, selling
roofs.
5 GeoVera’s motion to exclude Romazko’s testimony was filed on October
30, 2020, and the Diases’ response was therefore due on November 13, 2020.
The Notice of Supplemental Response to Daubert Motion was not filed until
April 22, 2021, and the notice simply informs the Court that Romazko was
accepted as an expert witness in two unrelated state court cases. (Doc. 50).
2018 caused damage to the insured property, including to the roof. (Doc. 3 ¶ 4).
At the May 24, 2021 hearing, counsel for the Diases acknowledged that Sparks
of American Hero told the Diases their roof damage may have been due to the
December storm, and then the Diases made their insurance claim on that basis.
Mr. Dias reported the damage to GeoVera on May 11, 2019.6 (Docs. 35-4 at
21:9–20; 35-5 at 7:19–8:9). GeoVera commenced an investigation under Claim
Number 1824200533. (Doc. 35-1).
During the investigation, GeoVera retained Independent Adjuster Travis
Stevens to inspect the property. (See id.). Stevens inspected the property on
May 15, 2019 and observed that “[t]he tile roof is original to the dwelling (1995)
6 GeoVera does not raise the issue of notice, but the Policy includes notice
requirements for claims in a section titled “Duties After Loss:”
In case of a loss to a covered property, we have no duty to provide
coverage under this policy if the failure to comply with the following
duties is prejudicial to us. These duties must be performed either
by you, an “insured” seeking coverage . . . Give prompt notice to us
or our agent of a claim . . . The term “prompt notice” means within
72 hours after the date you knew or reasonably should have known
about the loss or damage . . . . With respect to windstorm, hurricane
or catastrophic ground cover collapse claims, the claim is barred
unless re-ported promptly and; [] For a windstorm or hurricane
claim, in accordance with the terms of this policy and within three
years after the hurricane first made landfall or the wind-storm
caused the covered damage.
(Doc. 3-1 at 48–49). Mr. Dias claims that his reasons for delay were being busy
at work and that the claims process is lengthy. (Doc. 33-3 at 36:24–37:4).
and has minor cracks in a few locations. This does not appear to be wind related
but wear and tear over time.” Id. at 77–78. He concluded: “I do not believe the
wind caused the minor roof damages. Water intrusion caused the interior
ceiling damages.” Id. at 77. Thus, GeoVera denied coverage for the roof based
on Policy exclusions but agreed to extend coverage for water damage to the
house’s interior. Id. at 85. As the basis for denying roof coverage, GeoVera points
to Policy language that excludes coverage for issues like “wear and tear,”
“marring,” “latent defects,” “inherent vice or any quality in property that causes
it to damage or destroy itself,” “settling, shrinking, bulging or expansion,” or
faulty “design, specifications, workmanship, repair, construction, renovation,
remodeling, grading, [or] compaction.” (Doc. 35 at 5–6).
GeoVera later also retained Anthony Oliver, P.E., to re-inspect the
property for purposes of this litigation and disclosed him as an expert on August
28, 2020. (Doc. 35-1 at 3 ¶ 8). Oliver determined that roof damage was not due
to wind on December 20, 2018 or other storms. Id. ¶ 9. As a result of Oliver’s
assessment, GeoVera maintained its denial of coverage for roof damage. Id.
GeoVera claims that its investigation:
[R]evealed that the roof of the insured property is original to the
1995 construction of the property, revealed no storm-related
damage to the roof of the insured property, and revealed minor
cracks in a few locations on the roof, indicative of, and consistent
with, age, wear, tear, deterioration, neglect, and/or inadequate
maintenance.
(Doc. 35 at 5).
The Diases identified their own expert, Public Adjuster Todd Romazko,
in their responses to interrogatories served on May 5, 2020. (Doc. 35-2 at 12).
The Diases did not timely provide an expert report from Romazko, as required
under Federal Rule of Civil Procedure 26.7 Still, GeoVera took Romazko’s
deposition on June 30, 2020. (See Doc. 35-3). Romazko concluded that the roof
damage was due to wind on December 20, 2018, though he had not consulted
weather data for that date. Id. at 14:5–16. He instead determined the date of
loss “[p]er the named insured and the insurance company.” Id.
GeoVera now moves to exclude Romazko’s testimony under Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), under Federal Rule of Evidence
702, and for failure to comply with Federal Rule of Civil Procedure 26 (Doc. 33).
Additionally, GeoVera requests that the Court grant final summary judgment
in its favor and find “that [GeoVera] is not liable to Plaintiffs for any damages
allegedly sustained to the exterior, including roof, of their property.” (Doc. 35 at
3).
7 At the hearing, the Court was informed that Romazko’s expert report
was belatedly served upon GeoVera around January 2021.
II. DISCUSSION
A. Motion to Strike Expert Testimony
The parties’ mandatory initial disclosures under Federal Rule of Civil
Procedure 26 were due on December 23, 2019, and expert reports were due on
July 31, 2020. (Doc. 12). The Diases disclosed Romazko as an expert by way of
answers to interrogatories. (Doc. 33-1 at 12). GeoVera argues that Romazko
should be excluded based on the failure to timely provide a Rule 26 expert report
alone, as “[t]he automatic sanction for a violation of Rule 26(a) is preclusion.”
Whitmer v. Target Corp., No. 3:09-cv-962, 2011 WL 13143133, at *2 (M.D. Fla.
Jan. 14, 2011) (quoting Giladi v. Strauch, No. 94 Civ. 3976, 2001 U.S. Dist.
LEXIS 4645, at *8 (S.D.N.Y. Apr. 16, 2001)). “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).8 The Diases failed to properly disclose
8 Sanctions under Federal Rule of Civil Procedure 37 are meant to
“prevent unfair prejudice to the litigants and insure the integrity of the
discovery process.” Bettis v. Toys “R” Us—Delaware, Inc., 273 F. App’x 814, 818
n.5 (11th Cir. 2008) (citing Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480,
482 (11th Cir. 1982)). Plaintiffs’ counsel should have complied with Federal
Rule of Civil Procedure 26. At the hearing, however, counsel for GeoVera
admitted that GeoVera was not ultimately prejudiced by Plaintiffs’ counsel’s
failure to timely serve an expert report. GeoVera was informed that Romazko
was an expert, was able to take Romazko’s deposition in a timely manner, and
did not file motions to compel expert disclosures or reports at any point during
experts and failed to provide expert reports, but even if they had complied with
Rule 26, Romazko’s testimony does not pass muster under Daubert.
Federal Rule of Evidence 702 governs the admissibility of expert
testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. Judges act as gatekeepers to ensure that expert testimony is
“not only relevant, but reliable.” Daubert, 509 U.S. at 589; see also Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999). The facts and circumstances of a
particular case determine the reliability of an expert’s testimony. See Hughes
v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014).
To determine whether expert testimony is admissible, trial courts
consider: (1) whether the expert is “qualified to testify competently regarding
the matter he or she intends to address,” (2) whether the methodology through
which the expert reaches his or her conclusions is “reliable as determined by a
this litigation. Still, “[t]he burden of establishing that a failure to disclose was
substantially justified or harmless rests on the nondisclosing party.” Greater
Hall Temple Church of God v. Southern Mut. Church Ins. Co., 820 F. App’x 915,
920 (11th Cir. 2020) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.
Ga. 2006)). Plaintiffs’ counsel made no such showing.
Daubert inquiry,” and (3) whether the testimony “assist[s] the trier of fact
through the application of expertise to understand the evidence or determine a
fact in issue.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010). To
assess whether testimony is reliable, trial courts may look to various factors,
including: “(1) whether the expert's theory can be and has been tested; (2)
whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique; and (4)
whether the technique is generally accepted in the scientific community.” Id.
(citing Daubert, 509 U.S. at 593–94). “Courts are cautioned not to admit
speculation, conjecture, or inference that cannot be supported by sound
scientific principles.” Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1202 (11th
Cir. 2002).
The party that offers the testimony bears the “substantial” burden of
demonstrating admissibility by a preponderance of the evidence. Cook ex rel.
Est. of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1107 (11th Cir.
2005). “[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.” Williams v. Mosaic Fertilizer, LLC, 889 F.3d
1239, 1249 (11th Cir. 2018) (quoting General Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997)).
Romazko testified that his opinion about the cause of roof damage was
based on conversations with Mr. Dias and a visual inspection of the roof. (Doc.
35-3 at 14:5–16). When asked what he had determined to be the cause of the
alleged damage, he responded, “wind.” (Doc. 33-2 at 14:5-8). When asked how
he determined the December 20, 2018 date of loss, he answered, “[p]er the
named insured and the insurance company.” Id. at 14-16. Later, when asked
why he believed the damages observed were from a single storm event, he
replied “[b]ased on what the insured told me,” and clarified that he asked Mr.
Dias whether the roof ever had prior damage, and when Mr. Dias said no,
Romazko concluded that the damage was all from the alleged date of loss. Id. at
26:13-25. Romazko did not know how Mr. Dias identified that date. Id. at 27:1-
3. When asked to distinguish wind damage from foot traffic, Romazko observed
that foot traffic usually cracks roof tiles in the middle, and wind damage
typically chips the edges or corners of the tiles. Id. at 27:8-12.
The Diases filed a two-page response in opposition to GeoVera’s motion
to strike Romazko’s testimony. (Doc. 38). The response emphasizes that
“Romazko [is] [sic] eminently qualified to assess cause of loss, scope of loss and
amount of damage in a storm and roof claim” because of twelve years of
experience, training, and having conducted over 6,000 roof inspections. Id. at 1.
The response also states that Romazko’s methodology is standard in the
industry and consisted of interviewing the insured, inspecting and
photographing the suspected loss, and using his knowledge and experience to
reach a conclusion about cause and scope of loss. Id. at 2. The response fails,
however, to provide any methodology underlying Romazko’s conclusion, to
explain why Romazko did not consult weather data for December 20, 2018, or
to address GeoVera’s other concerns about Romazko’s testimony. The Diases
also submitted a two-page affidavit from Romazko (Doc. 37-1) as an attachment
to their Response to GeoVera’s Motion for Final Summary Judgment in which
Romazko asserts that during his inspection, he “found lifted, broken, missing
shingles that require replacement of the roof” and determined that the damage
was due to “wind and hail” during the December 20, 2018 storm. (Doc. 37-1 at
1–2). But again, he fails to explain the methodology used to arrive at that
conclusion, or how he was able to rule out other causes. See id.
Greater Hall Temple Church of God v. Southern Mut. Church Ins. Co.,
820 F. App’x 915 (11th Cir. 2020) is instructive. In similar circumstances, the
Eleventh Circuit affirmed the district court’s exclusion of the expert testimony
of Shawn Brown regarding roof damage to a church. Id. at 918–19. Brown’s
process mirrored that of Romazko and, as found by the assigned United States
Magistrate Judge and adopted by the district court, failed to meet the standards
of Daubert:
Brown’s methodology in examining the church was limited to a
physical examination . . . . Brown had no measurements of the wind
speeds during Hurricane Matthew and had no independent
knowledge of the condition of the church or its roof prior to
Hurricane Matthew. Moreover, Brown’s visual examination of the
building, without any knowledge of the buildings prior condition or
knowledge of the wind speeds the building was subjected to, is not
a sufficiently reliable methodology to allow Brown to provide an
expert opinion as to the cause of the roof damage. Compare
[Coconut Key Homeowners Ass’n, Inc. v. Lexington Ins. Co., 649 F.
Supp. 2d 1363, 1371 (S.D. Fla. 2009)] (expert's methodology in
forming an opinion concerning the cause of roof damage was not
reliable where expert did not know wind speed in the area during
the storm in question, had not ruled out alternative causes of roof
damage, and had no background in engineering) with [Clena
Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 664 (S.D.
Fla. 2012)] (expert's methodology in forming an opinion concerning
the cause of roof damage was reliable where a trained engineer
reasoned that the damage had been caused by the second of two
hurricanes because if it had been preexisting, the roof would have
been ripped off during the second storm). Without a reliable
methodology, a witness's testimony should not be cloaked in the
imprimatur of expert testimony.
Greater Hall Temple Church of God v. Southern Mut. Church Ins. Co., No. 2:17-
cv-111, 2019 WL 4147589, at *11 (S.D. Ga. Aug. 30, 2019), objections
overruled, No. 2:17-CV-111, 2020 WL 1809747 (S.D. Ga. Jan. 13, 2020), aff’d in
part, rev’d in part on other grounds, 820 F. App'x 915 (11th Cir. 2020).
Like expert Brown in Greater Hall Temple Church, Romazko is not an
appropriate expert in this case. Romazko inspected the roof only once. He did
not review other records or documents, and he based critical determinations on
mere conjecture. Romazko offered no methodology to support his opinion about
the timing and type of roof damage. His opinion of the date of loss was based
solely on information from the Diases, who got it from Sparks, who is now
nowhere to be found to establish how he arrived at the December 20, 2018 date.
GeoVera’s Motion to Exclude Any and All Evidence and Expert, or Other,
Opinion Testimony of Todd Romazko (Doc. 33) is due to be granted. Romazko’s
testimony will be stricken.
B. Motion for Final Summary Judgment
A motion for summary judgment should be granted only when the
evidence in the record—including pleadings, depositions, answers to
interrogatories, admissions, and affidavits—shows that there is no genuine
issue as to any material fact, and the moving party is entitled to judgment as a
matter of law. Fed R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “Some degree of factual dispute is expected, but to successfully counter
a motion for summary judgment the factual dispute must ‘affect the outcome of
the suit’ and must be ‘such that a reasonable jury could return a verdict for the
nonmoving party.’” Williams v. Central Processing Corp., No. 5:12-cv-380-Oc-
10PRL, 2014 WL 982764, at *5 (M.D. Fla. Mar. 12, 2014) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The moving party bears the initial burden of establishing the
nonexistence of a triable issue of fact. Celotex, 477 U.S. at 323. If the movant is
successful, the burden shifts to the nonmovant to show sufficient evidence of a
dispute regarding an issue for which it will bear the burden of proof at trial. Id.
322–323; see also Founders Ins. Co. v. Tome, No. 6:10-cv-973-Orl-36GJK, 2012
WL 13102264, at *2 (M.D. Fla. Mar. 2, 2012) (“When the moving party has
discharged its burden, the nonmoving party must then designate specific facts
showing that there is a genuine issue of material fact.”). “[M]ere conclusions
and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005); see also Berend v. Bloomin’ Brands, Inc., No. 8:16-cv-1177-T-30AAS,
2017 WL 3087907, at *4 (M.D. Fla. July 20, 2017) (“[T]here must exist a conflict
in substantial evidence to pose a jury question.”).
Without Romazko’s testimony, the Diases are the only remaining
witnesses who could testify in support of their case. While lay testimony alone
may suffice in some cases, cf. Greater Hall Temple Church, 820 F. App’x at 922
(interpreting Georgia law to “indicate[] that expert testimony is not necessarily
required to prove causation in the insurance-contract context”), this is not such
a case. Neither Mr. Dias nor Mrs. Dias has direct recollection of witnessing the
December 20, 2018 storm; instead, according to their counsel, they were told by
Sparks (who is nowhere to be found) that the storm may have caused damage
to their roof. Mr. Dias testified that he does not remember whether the storm
was a hailstorm or a wind storm, does not recall the exact date of the storm,
and does not remember whether there was power loss from the storm. (Doc. 33-
3 at 25:1–26:7). Mrs. Dias testified that she believes the date of loss “was around
Christmas of 2018” having “read the legal documents that the date is December
20th of 2018.” (Doc. 33-4 at 7:19–8:3). She stated that the date was determined
when the Diases “noticed the leak in the garage around Christmas of 2018 and
when we kind of went through, it just made sense that it was a storm that had
passed right before then.” Id. at 7:25–8:4. Their testimony offers only
speculation and inadmissible hearsay from Sparks that the damage to the then
twenty-three-year-old roof occurred from a December 2018 storm, or any
weather event within the policy period. The Diases’ conjecture is not evidence
of causation in this case, particularly where the insureds waited five months to
file an insurance claim and did so at the suggestion of Sparks. See Anderson,
477 U.S. at 249–50 (“[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for the jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”) (citations omitted).
The Diases are without admissible evidence that their roof damage was
caused by a covered event during the Policy period. Therefore, there is no
remaining genuine dispute as to any material fact in this case.
Accordingly, it is hereby
ORDERED:
1. Defendant GeoVera Specialty Insurance Company’s Motion to
Exclude Any and All Evidence and Expert, or Other, Opinion Testimony of Todd
Romazko (Doc. 33) is GRANTED.
2. Defendant’s Motion for Final Summary Judgment (Doc. 35) is
GRANTED.
3. The Clerk will enter final judgment in favor of GeoVera Specialty
Insurance Company and against Jonathon and Elisabeth Dias. The Clerk
should then close the file.
DONE AND ORDERED in Jacksonville, Florida this 14th day of June,
2021.9
Oa > Cimotheg Corrig oN
(YS) TIMOTHY J. CORRIGAN
<=es" —*United States District Judge
thm
Copies:
Counsel of record
9 On April 22, 2021, the Diases’ counsel filed a Notice of Conflict,
purporting to give the Court notice of a conflict with the trial of this case in
May. (Doc. 51). On April 18, 2021, however, the Court had issued an Order
vacating the May 38, 2021 trial term setting. (Doc. 49). Thus, counsel was
mistaken regarding the trial term. In a prior Order, the Court noted concern
about counsel’s repeated failure to meet deadlines, which resulted in three
Orders to Show Cause (Docs. 26, 30, 36) in this case that were ultimately
discharged. (Doc. 44 at 2 n.1). Then, there was the failure to timely serve the
expert report. Plaintiffs’ counsel’s level of practice in this case has been
unacceptable. At the May 24, 2021 hearing, Plaintiffs’ counsel assured the
Court that these issues will not recur. The Court will have no choice but to take
action if counsel neglects case management responsibilities in the future.
16