The standard of review on a Motion for Summary Judgment is clear in Florida: “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”[1] In a summary judgment hearing, the court can only look at the record evidence and determine if the evidence shows any material dispute. The judge cannot weigh the evidence in making this determination. In practice, this has meant that simply filing an affidavit in opposition to summary judgment, even if demonstrably false, has been sufficient to defeat a summary judgment by pleading the existence of “a general issue of material fact.” However, a recent appellate opinion out of Florida’s Third District Court of Appeal has raised the bar.
In Gonzalez v. Citizens Prop. Ins. Corp.[2] , the insurer moved for summary judgment on the basis that the insureds’ claimed damages were the result of wear and tear, a specifically excluded cause of loss under the policy. The homeowners opposed the insurer’s motion by offering an affidavit from their retained engineer, who opined that the roof at their property was actually damaged by a one-time wind event, which would be a covered loss under the policy.
The insureds’ engineer stated that, based upon his inspection, the roof at the property required replacement in full. However, it was clear from the record that this expert had not inspected the roof until one year after the roof had already been replaced. Furthermore, the affidavit was executed at a time prior to his inspection of the property, and there was no reasonable supporting basis for his opinion, although he did acknowledge in a deposition that the very data upon which he relied upon “is currently highly inaccurate.”
Ordinarily, this affidavit would still be sufficient to create a “genuine issue of material fact” and defeat summary judgment, even if it was riddled with questionable findings. But for the Gonzalez court...
