Insurance Expert Witness Testimony Admitted Despite Trial Court’s Decision to Exclude

Zach Barreto

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— Updated on July 21, 2021

Insurance Expert Witness Testimony Admitted Despite Trial Court’s Decision to Exclude

Court: Court of Appeals of Texas, Fourth District, San Antonio
Jurisdiction: Federal
Case Name: In re Ebin
Citation: 2019 Tex. App. LEXIS 9856

After damages from a hail storm, the insurance carrier (defendant) had an independent assessor appraise the home of the realtors (plaintiffs). The public adjuster hired by the realtors had a higher repair estimate than the insurance carrier. As a result, the insurance carrier denied the public adjuster’s number, leading to a lawsuit filed by the realtors. The realtors hired an insurance expert witness. 

The trial court granted the defendant’s motion to exclude the expert’s testimony. However, the plaintiffs filed a petition for the writ of mandamus. The court granted the petition and vacated the trial court’s order.

Facts

Following a hail storm, the realtors’ insurance carrier sent an independent assessor to inspect the home of the realtors. The inspector calculated the damage to the home. The hail storm damaged 12 roof tiles and caused additional harm to the interior and exterior. The total repair estimate was slightly more than $10,000. Realtors hired a public adjuster to examine the home, who then submitted an estimate of $128,248.98. The insurance carrier refused the public adjuster’s number. Eventually, the realtors sued the insurance carrier. The realtors argued the defendant failed to pay for the roof racket repair and other items destroyed by the storm. They retained an expert on causation who was the focus of this motion. The insurance carrier filed a motion to strike his testimony, which the trial court granted. The realtors filed a petition for the writ of mandamus.

The Plaintiffs’ Insurance Expert Witness

The defendant made two primary objections in its motion to exclude the plaintiffs’ insurance expert. First, the company claimed the expert’s report, cost estimation, and testimony did not use any methodology to evaluate damages, and thus, were not reliable. Second, the expert’s report, estimation, and testimony were not relevant to the reasonableness of his own evaluation and coverage judgment.

The insurance carrier argued the insurance expert witness’s opinion was unreliable. The defendant asserted the expert based his estimate on the estimate of the public adjuster. Unknown individuals made the estimate of the public adjuster and its accuracy was also unknown. Furthermore, the defendants argued that the insurance expert failed to independently verify the calculations of the latter.

In his deposition, the expert claimed he met the adjuster when he arrived at the house. The adjuster gave images from his cell phone that reported skylight cracks, water intrusion, and other destruction. The insurance expert witness didn’t take notes from his discussion with the adjuster. However, the expert testified his photographs taken from the scene verified his findings. The expert said he had not adopted the calculation of the adjuster. Rather, the expert used the assessment as the basis for his own analysis. He clarified that he used the adjuster’s calculation as a benchmark. After that, the insurance expert checked each of the calculations by quantity on site. On the day he went to the home of the realtors, the expert and his assistant took their own photos and measurements. They used the photos and measurements to validate the public adjuster’s field observations, numbers, counts, material, and other findings.

Discussion

The court concluded the insurance carrier’s grievances surrounding the expert’s opinion were considerations for the jury in deciding the weight of the expert’s opinion, not the admissibility. The court’s conclusion was found on the grounds of the judgment in Ford Motor Co. v. Ledesma. Therefore, the court found that the trial court had erred in excluding the expert’s opinion.

Citing In re Garza, the court noted appeal as a remedy is considered inadequate only if “a party’s ability to present a viable claim or defense at trial is either completely vitiated or severely compromised.” The realtors claimed they couldn’t support their claims for damages or the expenses of restoring such damages without the expert. Therefore, according to the realtors, the trial would be a waste of judicial energy in absence of his testimony. The insurance carrier argued the appeal was an appropriate remedy. They claimed the realtors could preserve any error by means of a bill of exceptions. The court disagreed, noting that the exclusion of their sole claims expert resulted in foreseeable harm. This was because it hampered their ability to try their case. The court concluded they did not have adequate remedy in law.

Ruling

The petition for writ of mandamus was granted and the trial court order vacated.

Key Takeaways for Experts

This case demonstrates the importance of accurate expert witness methodology. When assessing damages to property, an expert witness should verify the facts of the case and estimate the cost of the damages themselves. By doing this, the expert witness gathers all of the essential information and research to provide strong testimony.

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