As sinkholes continue to affect Florida homeowners and insurance companies continue to deal with sinkhole claims, many sinkhole cases are going into litigation and disputes are arising over how to interpret the laws that control these cases. For example, Florida Statute section 627.7073(1)(c) (2010), provides that:
The respective findings, opinions, and recommendations of the professional engineer or professional geologist as to the cause of distress to the property and the findings, opinions, and recommendations of the professional engineer as to land and building stabilization and foundation repair shall be presumed correct.
This statute is particularly important because insurance companies are arguing to judges and juries in Florida that this statute means that the insurance company’s professional engineers and geologists are presumed to be correct. If true, then the insurance company and the homeowner do not start from the same starting point in trying to prove to a jury that a sinkhole exists on the property, because the insurance company’s findings and opinion are already presumed to be correct. The homeowner has to not only prove the existence of a sinkhole through their engineers but must also put on enough evidence to overcome the presumption that the insurance company is correct. This gives insurance companies an advantage before the trial even starts, in that the insurance company can basically say that they did an investigation and without any questioning to the contrary, that their report is presumed correct at trial and the homeowner’s expert witnesses are just not as good as theirs.
The Florida Supreme Court, in the case, Universal Ins. Co of NA v. Warfel, 82 So. 3d 47 (Fla. 2012) recently chipped away at the design of Florida Statute 627.7073(1)(c) and said that a presumption like the one in the sinkhole statute should render that statute unconstitutional. The Court relied on the fact that at a trial, both sides have to follow the rules of evidence which requires producing competent, relevant evidence and having the jury decide which engineering report they believe is correct without having to be bound by any presumption of correctness.
Call Robert Sparks Attorneys today if you believe you may have a sinkhole claim and don’t get caught up in the insurance company’s view of your case until you speak to an attorney.