FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Charlotte County; Lisa S. Porter,
E. Samis and Jonathan S. Tannen of Traub Lieberman Straus
& Shrewsberry LLP, St. Petersburg; Fredric S. Zinober and
Michelle S. Sabin of Zinober Diana, P.A., St. Petersburg, for
A. Nation and Paul W. Pritchard of The Nation Law Firm,
Longwood; Matthew R. Danahy and Howard W. Weber of Danahy
& Murray, P.A., Tampa, for Appellees.
Mr. Newlin's unexpected testimony at trial raises
legitimate concern, in considering the record, the arguments
made by the parties, and the applicable standard of review,
we conclude that the trial court did not abuse its discretion
in allowing Mr. Newlin's testimony or denying the
Appellants' motion for a new trial. See Cantore v. W.
Boca Med. Ctr., Inc., 254 So.3d 256, 260 (Fla. 2018)
("A trial court's admission of evidence is reviewed
for an abuse of discretion."); Campbell v.
Griffith, 971 So.2d 232, 235 (Fla. 2d DCA 2008)
("The appropriate standard of review applied to a trial
court's denial of a motion for a new trial is whether the
trial court abused its discretion."); Pena v.
Vectour of Fla., Inc., 30 So.3d 691, 692 (Fla. 1st DCA
2010) ("Trial court rulings on motions for new trial are
given great deference on appeal. The possibility of
reasonable disagreement does not constitute an abuse of
discretion." (citations omitted)).
SILBERMAN, J, Concurs
J., Concurs with separate opinion
ATKINSON, J., Concurs with separate opinion.
Judge, Concurring separately with opinion.
Peninsula Insurance Company (Florida Peninsula) has appealed
the denial of its motion for new trial following an adverse
verdict and judgment in a sinkhole coverage dispute. I agree
that the circuit court did not abuse its discretion in
denying Florida Peninsula's motion. Because my colleagues
and I are traveling slightly different paths to resolve this
appeal, and because the arguments on appeal touch upon an
important vein of the law in civil litigation, I write this
opinion to explain how I view these issues and why I feel an
affirmance is appropriate here.
2010, Catherine and Eric Newlin submitted a sinkhole claim to
their insurer, Florida Peninsula, when they discovered
cracking in the walls around the back of their home. After
receiving an engineer's report which concluded that the
cracking was not due to covered sinkhole activity under the
Newlins' policy, Florida Peninsula denied the
Newlins' claim. In 2014, the Newlins filed a lawsuit
against Florida Peninsula, alleging their insurer breached
their insurance contract by denying their claim. The
litigation proceeded in a fairly uneventful fashion.
Discovery was exchanged. Depositions were taken. Each side
retained experts. Reports were prepared.
point during discovery that is germane to the appeal before
us bears mentioning. Near the conclusion of Mr. Newlin's
deposition, Florida Peninsula's counsel asked Mr. Newlin
about the property he owned adjacent to the home. Mr. Newlin
testified he had owned the adjacent lot for "around ten
years," and then he answered the following questions,
which were the only questions he was asked concerning this
Q. Do you have any plans to develop on the lot?
A. It's already developed. We did it last year. We
cleared it. It's cleared and -
Q. Ready to be built?
A. We won't build a house on it.
Q. Was there already a house on the property?
Q. So when you say cleared it, were you just clearing it of
A. Cleared the vegetation and put a fence.
Q. Does the fence include - I mean, is it inclusive of the
home you're living now, so you're basically extending
. . . .
Q. Have you had the lot next door tested for sinkhole
A. Me personally, no. I don't know who did anything, but,
no, me personally, no.
long after Mr. Newlin's deposition, discovery concluded
and the case went to trial. Both sides agreed that the
factual dispute for the jury to resolve was a narrow one.
They have reiterated the same point in this appeal: the
Newlins' claim revolved entirely around whether there was
limestone "rock" underneath the Newlins' home.
If there was, then the cracking in their house walls could be
said to be the result of "sinkhole activity" as
defined by section 627.706(2)(i), Florida Statutes (2010). If
there were no such rocks, then there would be no coverage
under the applicable policy provision.
Newlins and Florida Peninsula called expert geologists and
engineers who, over the course of six days, endeavored to
persuade the jury about what lies beneath the Newlins'
home. We need not delve deep into the depths of the
experts' dispute over whether the crumpled pieces of
material their boring samples uncovered were truly limestone
"rocks" or simply "sediment with limestone