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Perez v. Safepoint Insurance Co.

Florida Court of Appeals, Third District

November 13, 2019

Irma Perez, Appellant,
v.
SafePoint Insurance Company, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 15-26022, Abby Cynamon, Judge.

          David B. Pakula (Pembroke Pines); Perry & Neblett, P.A., and David A. Neblett and James M. Mahaffey, III, for appellant.

          Bressler, Amery & Ross, P.C., and Hope C. Zelinger and Nicole S. Houman (Fort Lauderdale), for appellee.

          Before SALTER, LOGUE and SCALES, JJ.

          SALTER, J.

         Irma Perez ("Ms. Perez"), the insured under a homeowner's insurance policy issued by SafePoint Insurance Company ("SafePoint"), appeals a final order of dismissal of her circuit court lawsuit against SafePoint. The order of dismissal concluded that Ms. Perez had perpetrated a fraud on the court. We vacate the order and remand the case for further proceedings based on the particular features of this record and on the analysis which follows.

         Ms. Perez alleged that she sustained water damage from a roof leak caused by wind on February 7, 2015. She submitted an estimate of $23, 089.47 for the repairs. SafePoint investigated the claim and determined that the damages were not covered, as damages caused by rain are covered only if "a covered peril first damages the building causing an opening in a roof or wall and the rain . . . enters through this opening."[1]

         In November 2015, Ms. Perez filed the lawsuit against SafePoint for its failure to pay her claim. SafePoint took her deposition in July 2016 and moved for final summary judgment in January 2017. Ms. Perez's counsel in the trial court (the firm of Perry & Neblett, P.A.) filed a lengthy affidavit signed by Ms. Perez, in opposition to the motion, and a similar affidavit signed by Ms. Perez's daughter Emily. These extraordinary affidavits exude certainty regarding the fact, date, and cause of the loss, as well as commentary regarding SafePoint's engineering expert's report and deposition testimony.[2]

         Ms. Perez's affidavit also included statements reflecting reliance on her public adjuster's detailed inspection and report to her on causation of the water leaks, and a paragraph swearing under oath that "I believe that Perry & Neblett, P.A., David Avellar Neblett, and James M. Mahaffey III are some of the top attorneys in the field in the country regarding litigation of insurance matters and I understand that David Avellar Neblett is Board Certified."

         Ms. Perez testified in her initial deposition in 2016 that she had diabetes for years, and that she had many problems affecting her memory. Her doctor gave her "something for the memory," and she took that medication for more than a year, but then the doctor advised her to stop taking it.

         Shortly after the affidavits of Ms. Perez and her daughter were filed in opposition to SafePoint's motion for summary judgment, SafePoint moved to (1) strike the affidavits, and (2) dismiss Ms. Perez's lawsuit for fraud on the court. The trial court heard the latter motion in February 2018 and followed up with an evidentiary hearing the next month. Ms. Perez testified at the hearing. She did not know the wind speed on the claimed date of loss; she did not know "what the miles per hour threshold is for that it would take for wind to cause damage to a roof;" and she did not know what it means "to be board certified as an attorney." When it came to the date of loss, she answered "I thought it was 2014, but then afterwards it was 2015."[3]

         SafePoint's examination elicited Ms. Perez's testimony that she first discovered the loss by discovering a stain in the closet and wet clothing, with water running down the wall. She had been asked in her 2016 deposition if she had seen "any water actually dripping or coming into your home," and she said "no." She testified that she had never been up on her roof, and that she had no personal knowledge "with [her] own eyes as to the condition of [her] roof." But she also remembered that "somebody went on the roof and told me the roof was damaged." At the in-court hearing, Ms. Perez was 83 years old. She testified that she took "many" medications and had "many" memory issues.

         Following the hearing, the trial court granted SafePoint's motion to dismiss the case for fraud on the court and denied Ms. ...


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