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Florida Peninsula Insurance Co. v. Newlin

Florida Court of Appeals, Second District

June 12, 2019

FLORIDA PENINSULA INSURANCE COMPANY, Appellant,
v.
CATHERINE NEWLIN and ERIC NEWLIN, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Charlotte County; Lisa S. Porter, Judge.

          Scot 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 Appellant.

          Mark 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.

          PER CURIAM

         Although 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)).

         Affirmed.

          SILBERMAN, J, Concurs

          LUCAS, J., Concurs with separate opinion

          ATKINSON, J., Concurs with separate opinion.

          LUCAS, Judge, Concurring separately with opinion.

         Florida 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.

         I.

         In 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.

         One 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 property:

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?
A. No.
Q. So when you say cleared it, were you just clearing it of vegetation?
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 your yard?
A. Yes.
. . . .
Q. Have you had the lot next door tested for sinkhole activity?
A. Me personally, no. I don't know who did anything, but, no, me personally, no.

         Not 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.

         The 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 ...


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