Julia Grimké Young

In Florida and elsewhere, to prevail in a first-party breach of contract suit against a property insurer, an insured must prove: (1) the existence of a contract; (2) a material breach of the contract; and (3) damages.

In 2021, Wilson Elser, in a first-party breach of contract action, won summary judgment for the property insurer after obtaining an order striking the insureds’ causation expert pursuant to Daubert. Dias v. Geovera Specialty Ins. Co., 543 F. Supp. 3d 1282 (M.D. Fla.). The Court reasoned that, lacking expert evidence, the insureds were without any admissible evidence of a covered loss to their home during the policy period, because the insureds did not recall the date or details of the subject alleged storm, and the insureds’ testimony offered “only speculation and inadmissible hearsay” regarding the loss. The Dias Court noted, and distinguished, the Eleventh Circuit case of Greater Hall Temple Church of God v. Southern Mut. Church Ins. Co. which held that “expert testimony is not necessarily required to prove causation in the insurance-contract context.” 820 F. App’x 915, 922 (11th Cir. 2020).

On July 26, 2023, the Middle District of Florida (in a matter that was not argued by Wilson Elser) retreated from Dias, and denied a property insurer’s motion for summary judgment, acknowledging that it was a “close call.” Dover Shores Shell, Inc. v. Scottsdale Ins. Co. (Case No. 6:22-cv-167). The Dover Shores Court held that, “notwithstanding Plaintiff’s lack of expert witness testimony,” the plaintiff had, by way of “facts in the aggregate,” which included testimony of two lay witnesses, as well as conclusions of “Defendant’s own expert witness” about weather conditions, “presented a dispute of material fact that create[d] a triable issue before a jury.” The Court found that the facts of Dover Shores were more consistent with those of Greater Hall Temple Church of God (where plaintiff, though lacking expert evidence, possessed sufficient “circumstantial causation evidence,” in the form of testimony of multiple lay witnesses, to survive summary judgment) than of those of Dias.

Later, in September of 2023, Wilson Elser again won summary judgment in favor of a property insurer after obtaining an order that an insured’s expert could only serve as a rebuttal expert, and not as an expert for the insured’s case-in-chief. Pine Green, LLC v. Scottsdale Ins. Co. (Case No. 22-61172-CIV, S.D. Fla. Sept. 6, 2023). Lacking an expert to testify in its case-in-chief, the Pine Green Court concluded that Plaintiff “lack[ed] evidence from which a jury could reasonably find in its favor that the alleged damage to the Property (1) was caused by a loss covered by the Policy and (2) necessitated repairs that [would] exceed the Policy’s deductible.” In granting summary judgment, the Court cited to the Eleventh Circuit case of Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC, 71 F. 4th 894 (2023), and wrote that, “no lay witness testimony is admissible to prove the cause or scope of damage,” and, therefore, plaintiff would be unable at trial, in its case-in-chief, to prove a covered loss for which repair costs would exceed the deductible, and the insurer would move for judgment as a matter of law, and the Court “would have to grant the motion because a reasonable jury would not have a legally sufficient evidentiary basis to find for [plaintiff].” (It is noted that the crucial question in the Eleventh Circuit’s Ocean Reef Charters case was a hypothetical question.)

In June 2024 and again in February 2025, Florida’s Middle District followed that Court’s holding in Dover Shores, finding that, given the circumstantial lay witness testimony available to the plaintiffs in, respectively, Hacienda Carballo, LLC v. Colony Ins. Co. (Case No. 2:22-cv-118) and Marquez v. Clear Blue Specialty Ins. Co. (Case No. 6:23-cv-2025) (neither case a Wilson Elser case), plaintiffs were not, in fact, required to present expert causation testimony to survive summary judgment.

In January 2025, however, Wilson Elser secured an order striking an insured’s expert, and then won summary judgment in favor of the insurer. Kloster v. Clear Blue Ins. Co. (Case No. 6:23-cv-794, M.D. Fla. Jan. 28, 2025). The Kloster Court acknowledged that plaintiffs need not always have expert causation testimony in breach of contract suits arising from property damage, but concluded that the facts of Kloster were more like those of Dias than of Dover Shores, because Plaintiff Kloster lacked any “admissible evidence that her roof damage was caused by a covered event during the Policy period.” 

Kloster was followed by another Wilson Elser summary judgment win on August 26, 2025, in the case of Herring v. Scottsdale Ins. Co. (Case No. 2:23-cv-794, M.D. Fla.). The Herring Court concluded its opinion with the statement: “This is a prime example of a complex issue outside the scope of a layperson’s knowledge that requires testimony from an expert witness.” The Herring opinion offered useful guidance regarding under what circumstances a plaintiff requires expert causation evidence to defeat summary judgment: (1) the policy at issue in Herring was a named-perils policy (as opposed to an “all risks” policy), and so Herring was required to prove that wind, rather than an un-enumerated peril, was the cause of damage to her home (importantly, the Court stopped short of affirming that expert evidence is always necessary to prove the cause of loss where coverage under a named perils policy is disputed); (2) Herring’s insurer, Scottsdale, had an expert causation witness who concluded that damage to Herring’s property was the result of “age-related deterioration,” and was not the result of windstorm; (3) as determined by the Court, Herring, a layperson, “[did] not possess the requisite knowledge to testify whether a windstorm damaged the roof or whether the roof was already damaged from age-related deterioration”; and, (4) Herring was unable to rebut any testimony from Scottsdale’s causation expert.

The above cases support a trend in Florida courts toward greater allowance of layperson causation testimony to defeat summary judgment (or judgment as a matter of law) where the moving party has presented expert causation evidence. The cases suggest limits on circumstances in which layperson testimony may be sufficient to carry a party’s burden. As Florida law currently stands, layperson testimony may be sufficient, in a first-party coverage dispute, to establish a triable issue if the layperson testimony (i) does not concern a hypothetical question, (ii) does not concern a complex question (e.g., damage caused by wear-and-tear versus damage caused by wind) about which the layperson lacks knowledge, and (iii) does concern an issue about which the layperson has personal, first-hand knowledge. In contrast, Florida courts are less likely to allow the use of layperson testimony to establish causation and create a triable issue where (i) the subject policy is a named-perils policy, and (ii) the moving party has presented expert causation testimony.