IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
TOWER HILL SIGNATURE INSURANCE, ETC.,
Appellant,
v. Case No. 5D15-1719
LARRY J. SPECK, JR. AND KEREN E. SPECK,
Appellees.
________________________________/
Opinion filed August 12, 2016
Appeal from the Circuit Court
for Orange County,
Patricia A. Doherty, Judge.
David R. Terry, Jr., of The Rock Law Group,
P.A., Maitland, for Appellant.
Raymond T. Elligett, Jr. and Amy S. Farrior,
of Buell & Elligett, P.A., Tampa, and Ty
Tyler and Clark Hamilton, of Tyler &
Hamilton, P.A., Jacksonville, for Appellees.
COHEN, J.
Tower Hill Signature Insurance Co. (“Tower Hill”) appeals the final judgment,
following a jury trial, ordering it to pay up to $164,080 for subsurface repair and
stabilization to the home of Larry and Keren Speck (“the Specks”) due to the Specks’
claim for sinkhole damage. We find that the trial court abused its discretion in not admitting
evidence of the amount the Specks received to repair the home from a prior insurance
company after a previous sinkhole claim on the same property.
The Specks made this claim against their Tower Hill policy in January of 2010.
Following an initial investigation, Tower Hill refused to pay the claim and rescinded the
Specks’ policy alleging that the home had unrepaired damage at the time the policy was
issued. 1 The Specks then sued Tower Hill for breach of the insurance contract. Tower Hill
alleged, as an affirmative defense, that the contract was void because the Specks failed
to disclose unrepaired damage.
In 2001, the Specks made a claim with their previous insurer for sinkhole damage
to the same house. The Specks claimed their home was a total loss and sought damages
up to their policy limit of $330,000. An engineer for the insurer recommended $166,000
in below ground repairs. The Specks’ lawyer claimed, in a later affidavit, the need for an
additional $64,000 for above ground repairs. The claim was settled for $260,000. 2 Of the
$260,000, the Specks spent only $15,000 on repairs. The rest was used to pay off two
mortgages—totaling $217,000—and the public appraiser. The Specks commissioned a
contractor to make those initial repairs, and Larry Speck testified that he commissioned
the company to repair the home completely, after which the cracks in the home closed up
and were patched. Those repairs were completed by 2004.
At trial, Tower Hill sought to establish that the initial sinkhole damage had not been
fully repaired. The company presented the testimony of a tenant who rented the home
following the repairs contradicting Larry Speck’s testimony. Tower Hill also proffered
testimony from Larry Speck to establish that in 2001, the Specks received $260,000 to
1 The policy specifically stated that homes with unrepaired damage were not
eligible for coverage.
2The record is unclear as to the basis for the additional $30,000. Attorney’s fees
were awarded separately.
2
have already completely compensated the plaintiff. See Joerg v. State Farm Mut. Auto.
Ins. Co., 176 So. 3d 1247, 1249-50 (Fla. 2015).
This argument is unpersuasive because the amount of the previous settlement is
directly relevant to the issue of whether the Specks misrepresented to Tower Hill that
there was no unrepaired damage to their property prior to signing their insurance contract.
Because this issue is central to the final disposition of the case—and Tower Hill’s
affirmative defense—we do not believe there was a significant risk of confusing the jury
about the issues. In fact, the jury asked about the amount of the 2001 settlement during
its deliberations. Further, there was little risk of prejudice because, unlike evidence of
collateral source payments, which can lead to a windfall for the tortfeasor, the evidence
of the amount of the Specks’ previous settlement goes directly to Tower Hill’s liability
under the contract.
We find the trial court’s decision to exclude the amount of the Specks’ previous
settlement was an abuse of discretion. Accordingly, we vacate the final judgment,
including the award of attorney’s fees, and remand for a new trial.
REVERSED and REMANDED FOR NEW TRIAL.
LAMBERT, J., and LEMONIDIS, R., Associate Judge, concur.
5
claimed damages pre-existed the event allegedly giving rise to liability. See State Farm
Fire & Cas. Co. v. Pettigrew, 884 So. 2d 191, 196-97 (Fla. 2d DCA 2004).
Here, there is no question that the existence of unrepaired damage was a material
issue at trial. We believe the disparity between the amount of the settlement the Specks
received to repair the home in 2001 and the amount actually spent on repairs tends to
make more probable Tower Hill’s allegation that there was prior unrepaired damage to
the home when the Specks signed the insurance contract. The disparity also makes less
probable the Specks’ argument that their home was completely repaired for $15,000. We
find, therefore, that the evidence was relevant and should have been presented to the
jury.
The Specks argue that the evidence was nonetheless properly excluded as
duplicative of other admitted evidence. 4 Although the Specks are correct that
interrogatories and other reports documenting the unrepaired damage came into
evidence, this evidence was not as powerful as the amount of the settlement itself. The
sheer size of the disparity between the two figures tends to prove that the Specks did not
repair all of the original damage. Thus, we find that the amount of the settlement was not
duplicative of the evidence already entered at trial.
The Specks also argue that the amount of the settlement was properly excluded
because the evidence was confusing and prejudicial. They analogize the amount of the
previous payment to evidence of a collateral source payment, which is generally
inadmissible because of the risk of leading the jury to believe that previous payments
4 While we need not reach the merits of the Specks’ remaining arguments since
the trial court ruled that the evidence was irrelevant under sections 90.401-402, we do so
to provide direction to the trial court on remand.
4
have already completely compensated the plaintiff. See Joerg v. State Farm Mut. Auto.
Ins. Co., 176 So. 3d 1247, 1249-50 (Fla. 2015).
This argument is unpersuasive because the amount of the previous settlement is
directly relevant to the issue of whether the Specks misrepresented to Tower Hill that
there was no unrepaired damage to their property prior to signing their insurance contract.
Because this issue is central to the final disposition of the case—and Tower Hill’s
affirmative defense—we do not believe there was a significant risk of confusing the jury
about the issues. In fact, the jury asked about the amount of the 2001 settlement during
its deliberations. Further, there was little risk of prejudice because, unlike evidence of
collateral source payments, which can lead to a windfall for the tortfeasor, the evidence
of the amount of the Specks’ previous settlement goes directly to Tower Hill’s liability
under the contract.
We find the trial court’s decision to exclude the amount of the Specks’ previous
settlement was an abuse of discretion. Accordingly, we vacate the final judgment,
including the award of attorney’s fees, and remand for a new trial.
REVERSED and REMANDED FOR NEW TRIAL.
LAMBERT, J., and LEMONIDIS, R., Associate Judge, concur.
5