Universal Property & Casualty Insurance Company v. Luis Nacimiento, Fla. 3rd DCA, 3D23-0301, Apr. 3, 2024

Appellate court affirms ruling a sworn proof of loss and estimate related to later claim was inadmissible as hearsay and irrelevant.

The insured reported a claim to Universal Casualty & Property Insurance Company in February 2016 for water damage from a roof leak, allegedly occurring in January 2016. After Universal paid less than the amount claimed, the insured filed suit. In 2021, the insured submitted an estimate prepared by his expert, Rafael Leyva. Prior to Leyva preparing his estimate, the insured had a bathroom leak (the bathroom claim) and, in support of that claim, submitted a sworn proof of loss and estimate. Upon receipt of those documents, Universal added a concealment or fraud affirmative defense, alleging the insured had sought damages for the bathroom claim already claimed for the roof leak.

At trial, Leyva testified he was unaware of the bathroom claim when he prepared his estimate and that the damages to the bathroom were likely caused by the bathroom claim and should be subtracted from his estimate. During direct examination of its corporate representative, Universal attempted to admit into evidence the sworn proof of loss and estimate for the bathroom claim. The insured’s counsel objected based on hearsay and relevance. Universal argued the documents fell under the hearsay exception for business records and were admissible as an admission by a party opponent. The trial court found the documents were not business records of Universal and were not admissions in this case, but in the bathroom claim case. 

The Third District Court of Appeal found the trial court correctly concluded the documents did not fall under the business record hearsay exception because no employee of Universal prepared the documents. The court acknowledged it was not necessary to call the person who actually prepared the documents in order to lay the foundation for the business record exception. The court found Universal never articulated how its corporate representative had the requisite knowledge of the documents, which it did not create, to lay the proper foundation. Ultimately, the court found that, because the documents were not prepared by anyone at Universal as part of its regularly conducted business activities, they did not fall under the business records exception. 

With regard to the exception for an admission against a party opponent, the court noted it was improper for Universal to lay the foundation of these documents through its corporate representative. However, the court found that, even if a proper foundation was laid, the documents were not relevant in this case. The court found the documents could not be used to show fraud or concealment in this case because they were not submitted for this claim. The only possible misrepresentation for this claim was Leyva’s estimate. There was no reversible error because Universal was permitted to cross-examine Leyva about the overlap in his estimate and because the question of whether that overlap constituted a misrepresentation and found there was not.  


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