In AM Grand Court Lakes LLC v. Rockhill Ins. Co., 68 F.4th 1354 (11th Cir. 2023), the Eleventh Circuit considered a motion for new trial after a jury found $9,280,000.00 in damages in a commercial first-party property insurance case arising out of Hurricane Irma, involving a group of buildings that were operated as an assisted living facility. The insurance company denied the claim because it determined that the hurricane caused only minor damage to the property and the cost of any repairs was less than the insurance policy’s deductible.

AM Grand sued Rockhill for breach of the policy. The case went to trial, where a jury found that Rockhill had breached the terms of the insurance policy and that AM Grand’s covered losses amounted to $9,280,000. Based on the jury’s findings, the district court entered judgment in AM Grand’s favor. After the district court entered judgment, Rockhill filed a motion for a new trial arguing that the jury’s damages award was excessive. The district court denied the motion.

Rockhill argued on appeal that the district court had erred in denying its motion for a new trial because there was no evidence in the record to support the jury’s finding that AM Grand sustained a loss of $9,280,000. The Eleventh Circuit affirmed, finding that the evidence was sufficient to sustain the verdict.

The Eleventh Circuit described the facts as follows:

AM Grand owned property in Miami Gardens, Florida, which it operated as an assisted living facility. The facility comprised five buildings, each of which was five stories tall. The buildings were connected by a series of catwalks. There were about 200 residential units at the facility. The facility also included a dining room, an activity center, and nursing stations. All together, the facility totaled approximately 165,000 square feet.

AM Grand insured the property against certain losses, including losses due to hurricanes. Under the insurance policy’s terms, Rockhill was required to “pay for direct physical loss of or damage to” the property. Doc. 203-2 at 30. The maximum coverage under the policy was $15,112,500. For claims arising out of damage caused by a hurricane, the policy had a deductible of $330,250, which represented two percent of the total insured value.

On September 10, 2017, Hurricane Irma made landfall. In the area near the facility, the storm produced heavy rain and wind gusts of over 100 miles per hour. According to Jonathan Kirschner, who was responsible for overseeing the property for AM Grand, the five buildings were in good condition before the hurricane. Although parts of some of the buildings previously had sustained water damage, Kirschner reported that AM Grand had repaired this damage before the hurricane.

After the storm, Kirschner visited the property and saw that it had suffered substantial damage. He observed that portions of the roofs on two of the buildings (Buildings B and D) “had been pulled up” in the storm and were missing. Doc. 270-3 at 25-26. To keep additional water from permeating these buildings due to the roof damage, AM Grand hired a contractor who performed temporary repairs to the roof of Building D and potentially also Building B.

AM Grand notified Rockhill that the property had sustained damage in Hurricane Irma and submitted a claim for the damage. AM Grand hired a public insurance adjuster, Five Star Claims Adjusting, to assist with its claim. After inspecting the property, Five Star concluded that the roofs of all five buildings had been damaged in the hurricane and needed to be replaced. It estimated a cost of approximately $1,200,000 to replace all the roofs. Because AM Grand could not afford to replace the roofs, it waited for Rockhill to approve its claim.

Rockhill hired an independent adjusting firm, Engle Martin, to review AM Grand’s claim. Colby Chavers, an Engle Martin employee, was assigned the claim. Chavers’s role was to determine the extent of the damage caused by the hurricane and estimate how much it would cost to repair the damage. Shortly after the storm, he visited the property and conducted a physical inspection. From his inspection, Chavers determined that the only damage from the storm was to a portion of the roof of Building D. When he inspected the buildings, Chavers saw some evidence of water damage inside the buildings. But he concluded that this water damage had occurred over time before Hurricane Irma.

In addition, Rockhill hired third-party experts to evaluate the scope of the damage caused by the hurricane. Engle Martin engaged Timothy Philmon from Donan Engineering and Mason Mitchell from the Tines Group. About three months after the hurricane, Philmon and Mitchell inspected the property, including the roofs and some interior areas of the buildings.

After this physical inspection, Philmon determined that the damage from Hurricane Irma was confined to Building D and that only a portion of Building D’s roof needed to be repaired. Philmon found “no interior or structural damage” to Building D from the hurricane. Philmon admitted that he saw “severe deterioration” of parts of Building B’s roof, id. at 180, but he concluded that this deterioration was the result of regular “wear and tear” that occurred before Hurricane Irma.

Mitchell prepared an estimate of the cost of these repairs. He estimated that it would cost approximately $149,000 to repair the portions of Building D’s roof that Philmon determined had been damaged in the hurricane.

Based on this estimate and the cost of the temporary repairs that AM Grand had already completed for Building D, Rockhill determined that AM Grand sustained a loss of $235,556.80 due to the hurricane. Because this amount was less than the policy’s hurricane deductible, Rockhill concluded that it owed nothing under the policy. In May 2018, approximately eight months after the hurricane, Rockhill notified AM Grand of its decision.

AM Grand maintains that while it was awaiting Rockhill’s decision, the condition of the buildings deteriorated. According to Kirschner, moisture damage began to appear inside the buildings. AM Grand’s maintenance department tried to make repairs. But the moisture damage kept recurring, requiring additional repairs. As a result, the maintenance department had to repair some of the buildings’ interior walls multiple times.

After Rockhill denied the claim, with the buildings’ conditions worsening, AM Grand hired Sergio Arce, an independent insurance adjuster, to assess the scope of damage the property sustained from the hurricane. In July 2018, approximately 10 months after the hurricane, Arce inspected the property and performed diagnostic testing on the roofs and interior walls of each building. Based on his inspection, Arce determined that the roofs of all five buildings suffered “catastrophic failure due to Hurricane Irma” and needed to be replaced.

Arce also determined that water had permeated the walls of the buildings due to the roof damage. He took readings of the moisture levels on the floors, ceilings, and walls and found high moisture levels throughout the buildings. He saw “a lot of water staining, spalling, [and] blistering of walls particularly around the columns in the hallways of all the buildings.”

Al Brizuela, a structural engineer and building contractor, worked alongside Arce. Brizuela agreed with Arce’s opinions that the roofs of all the buildings were damaged and that the moisture permeated the interior walls of the buildings. Brizuela concluded that this damage resulted from Hurricane Irma.

Brizuela explained how the damage to the buildings’ roofs caused the moisture problems in the walls. He said that the roof of each building was saturated with water. The water then migrated down the walls of each building. He explained that the concrete walls were constructed with hollow core planks. Water was trapped and accumulated in these hollow areas. The water then corroded the rebar in the walls, which led to expansion and cracking of the concrete walls in every building.

Brizuela assessed what was needed to repair this damage to the buildings’ interiors:

To repair the damage to the concrete walls, he opined, contractors would have to open up the damaged areas and remove the water from the hollow areas. They would then have to chip away the damaged concrete, brush the rebar to remove the rust, and cover the rebar with rust inhibitor. Lastly, they would need to apply concrete patches. According to Brizuela, it would be less expensive to knock down and rebuild the buildings than to try to repair the concrete because the labor costs associated with the repairs would be “astronomical.” Id. at 99.

AM Grand also relied on Alain Gonzalez, a construction manager with experience constructing assisted living facilities, to estimate the cost of rebuilding. According to Gonzalez, it would generally cost between $315 and $400 per square foot to build an assisted living facility. But Gonzalez had never seen a successful bid of less than $200 per square foot. Given Gonzalez’s estimates of the cost per square foot to rebuild and that the existing buildings covered approximately 165,000 square feet, it would cost AM Grand between $33,000,000 and $66,000,000 to rebuild all the buildings.

After Rockhill failed to pay the claim, AM Grand sued the insurer in Florida state court for breach of contract. Rockhill removed the action to federal district court and filed a counterclaim seeking a declaratory judgment that it owed AM Grand nothing under the policy.

The district court held a jury trial, which lasted five days. At trial, the jury heard testimony from witnesses including Kirschner, Chavers, Philmon, Mitchell, Arce, Brizuela, and Gonzalez.

The primary dispute at trial was the extent to which the property sustained damage from Hurricane Irma. AM Grand contended that the storm damaged the roofs and interiors of each of the five buildings. Based on Brizuela’s opinion that it would be less expensive to rebuild rather than repair the buildings and Gonzalez’s opinion about the cost of rebuilding, AM Grand asked the jury to award $15,112,500, an amount equal to the policy limits. If the jury concluded that only the roofs were damaged by the storm, however, AM Grand asked alternatively for the jury to find that it sustained a loss of approximately $1,200,000, representing the cost to replace all the roofs based on the estimate from Five Star, its public adjuster.

In contrast, Rockhill took the position that the property sustained minimal damage from Hurricane Irma. It maintained that only a portion of the roof of one building, Building D, was damaged by the hurricane. It presented evidence showing that the loss AM Grand sustained for this damage was $235,556.80, which was less than the policy’s deductible. Rockhill offered no evidence about the cost to repair or rebuild if the hurricane damaged the interior of any of the buildings.

The jury found that Rockhill breached the insurance policy. It determined that AM Grand’s “covered damages resulting from Hurricane Irma” were $9,280,000. After subtracting for the policy’s deductible and making other adjustments, the district court entered a judgment in AM Grand’s favor in the amount of $8,753,594.61 plus pre-judgment and post-judgment interest.

Rockhill filed a motion for a new trial. It argued that the jury’s finding that AM Grand sustained damages in the amount of $9,280,000 was “excessive.” Because there was “no reasonable relation” between the “amount of damages sought” and the amount of the jury’s award, Rockhill argued, the jury’s award must have been based on “speculation and conjecture.” 

The district court denied the motion. Addressing Rockhill’s argument that the damages award was excessive, the court explained that the relevant question was whether the jury’s award was “so inordinately large” that it “obviously . . . exceed[ed] the maximum limit of a reasonable range.” The court concluded that Rockhill failed to show the verdict was excessive. The court observed that at trial each party made a strategic decision to take an all-or-nothing approach to the case. First “all”: AM Grand sought the policy limits of $15,112,500, maintaining that Hurricane Irma had damaged the roofs and interior of all five buildings and the buildings needed to be rebuilt rather than repaired. Then “nothing”: Rockhill urged that AM Grand could recover nothing because the hurricane had damaged only a portion of one building’s roof, and it would cost less than the policy’s deductible to repair this damage. The court concluded that the jury “rejected both sides’ ultimate positions” when it found that AM Grand suffered damage from the hurricane in an amount above the deductible but below the policy limits. Because the jury’s verdict was “within the range shown by the evidence at trial,” the court ruled that the verdict was not excessive. 

The insurance company appealed.

The Eleventh Circuit framed the issue on appeal as whether the district court abused its discretion when it denied Rockhill’s motion for a new trial. Rockhill argued that the district court should have ordered a new trial because the damages the jury awarded were excessive.

The federal court described Florida law on “excessive damages” awarded by a jury:

Under Florida law, it is the responsibility of “the court, upon proper motion, to review the amount of” a damages award to determine whether the amount is “excessive. . . in light of the facts and circumstances which were presented to the trier of fact.” Fla. Stat. § 768.74(1). To determine whether an award is excessive, the court must consider the following criteria:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and

(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Id. § 768.74(5).

When reviewing a jury’s damages award under § 768.74, the Eleventh Circuit noted, “we must bear in mind that ‘assessing the amount of damages is within the province of the jury.’” Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268, 277 (Fla. 2018). Further: “[A] court should never declare a verdict excessive  merely because it is above the amount which the court itself considers the jury should have allowed.” Id. 

In addition,

… when a trial court refuses to grant a new trial or reduce a damages award, “the correctness of a jury’s verdict is strengthened.” Id. (internal quotation marks omitted). Absent unusual circumstances, the trial court judge who denied the motion for a new trial had “the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record.” Id. (emphasis omitted) (internal quotation marks omitted). Given the deference afforded a trial court’s decision, an appellate court generally “should not disturb” a verdict as excessive “unless the verdict is inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Id. (quoting Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla. 1976)). Under this standard, our review of the district court’s order denying Rockhill’s motion for new trial is “very restricted.” Lassitter, 349 So. 2d at 627.

Rockhill argued that the jury’s damages award was excessive because it “bore no relationship to the evidence of damages adduced at trial.” According to Rockhill, the evidence allowed the jury only three options with respect to the amount of AM Grand’s damages:

(1) to find that all the buildings were damaged in the hurricane, on the interior and the exterior, and needed to be rebuilt, at a cost between $51,000,000 and $66,000,000, and thus AM Grand could recover the policy limits of $15,112,500;

(2) to find that all the buildings’ roofs were damaged in the hurricane and needed to be replaced at a cost of approximately $1,200,000, and thus AM Grand could recover $869,750 after subtracting the policy’s deductible; or

(3) to find that only a portion of Building D’s roof was damaged in the hurricane and needed to be repaired, leaving AM Grand with a loss of $235,556, which was below the policy’s deductible, and thus AM Grand could recover nothing.

Because the jury’s verdict fell outside these three options, Rockhill argued, the verdict was excessive.

The Eleventh Circuit held that while Rockhill was correct that the amount of damages depended on the extent to which AM Grand’s buildings were damaged in Hurricane Irma, the Court we disagreed that the jury’s options were as limited as Rockhill described. Instead, the court concluded — based on the evidence presented at trial — “that the verdict was within the range of damages that a jury reasonably could have awarded.”

In other words, contrary to what defense lawyers try to argue at trial, a jury is permitted to “split the baby” and award an amount that is in between what the defendant asked for and what the plaintiff asked for, if the amount awarded by the jury is within a reasonable range as shown by the evidence presented at trial. The jury’s award of $9,280,000.00 could not have been clearly excessive such that no reasonable jury could have found as it did (essentially this is the standard for a judge to set aside the jury’s verdict), based on the evidence adduced at trial, when the plaintiff had presented competent evidence that the damages were much higher. The jury was not forced to choose either zero or $66 million.

What is illustrated here, for potential clients, is that you need an experienced trial lawyer on your side–one who knows how to make a closing argument that stands up to the insurance company’s lawyer. During closing argument, insurance company lawyers try to intimidate juries by telling them that if they find in favor of the insured, they have to award the full amount claimed by the insured’s damages expert. Most of the time, the plaintiff’s experts will advocate for the maximum possible recovery. To be frank, they often advocate for a damages award that might seem a bit excessive. In AM Grand, one of the insured’s experts testified that the damages were between $51 million and $66 million! This testimony was presented to the jury even while other experts opined that the damages were only $1.2 million or even as low as $235,556.00. A wide variation in opinions.

What the insurance company’s lawyer will argue during his closing argument in such a case is that the jury has to either pick the gigantic number or zero, with the hope that the jury will pick zero as opposed to awarding the gigantic number that many might think is simply unreasonable because it is being advocated by an interested plaintiff’s expert. When the defense lawyer tells the jury that it has to be either/or (“all or nothing”) in this manner, that is a misstatement of the law. A jury is permitted to “pick and choose” from a damages expert’s estimate and award an amount that the jury thinks is reasonable, if there is any competent evidence in the record supporting the jury’s decision. You need an aggressive and fearless trial lawyer who is willing to stand up to the insurance company’s lawyer and make the jury understand that the jury does not have to do or believe everything the insurance company’s lawyer tells them they must do or believe.

Returning to Am Grand, the Eleventh Circuit reasoned:

At trial, the parties presented conflicting evidence on the extent of the damage AM Grand sustained due to Hurricane Irma. The jury could have found that the damage fell somewhere between damage to a part of the roof of Building D (as Rockhill claimed) and damage to the roofs and interiors of every building (as AM Grand claimed). For example, the jury could have found that the hurricane damaged both the roof and interior of Building B, damaged part of the roof of Building D, and caused no damage to the other three buildings. If the jury so found, then based on AM Grand’s damages model presented at trial, the jury could have concluded that AM Grand’s total loss from the hurricane was $9,200,000. Let us explain how the jury could have gotten there.

For Building B, the jury could have found, based largely on the testimony from AM Grand’s witnesses, that the hurricane caused substantial damage to both the roof and interior of the building. The jury heard from Kirschner that he saw damage to the roof of Building B after the hurricane. He observed, among other things, that Styrofoam was missing from portions of Building B’s roof. Indeed, witnesses from both sides, Philmon and Arce, confirmed that there was damage to Building B’s roof. Philmon testified that he saw “severe deterioration” of Building B’s roof, Doc. 270-3 at 180, and Arce testified that the integrity of Building B’s roof was “gone.” Doc. 270-2 at 26.

It is true, noted the court, that the jury heard conflicting evidence about the cause of the damage to Building B’s roof. Philmon opined that the roof’s severe deterioration occurred before the storm. But the jury could have disbelieved his testimony and instead credited Brizuela’s testimony that Hurricane Irma damaged the roof of Building B. Further:

The jury also heard evidence that the hurricane damaged not only Building B’s roof, but also its interior walls. Arce described to the jury how his inspection and testing showed high moisture levels in Building B’s walls. And Brizuela opined that this water damage was a result of the storm and the roof’s failure, rather than any other cause.

After finding that Hurricane Irma damaged Building B’s roof and its interior walls, the jury also could have found based on Brizuela’s testimony that it would be more cost effective to tear down and rebuild Building B than to engage in the more labor-intensive and expensive process of trying to repair the water damage inside the walls. It then could have used Gonzalez’s damages model indicating that it would cost between $200 and $400 per square foot to rebuild the building. Because the evidence at trial showed that Building B was approximately 39,000 square feet, the jury could have found that it would cost between $7,800,000 and $15,600,000 to rebuild Building B.

The Court continued:

For Building D, the jury could have found that the building sustained limited damage to its roof from Hurricane Irma and awarded AM Grand the cost to repair the roof only. There was ample evidence before the jury that Building D’s roof sustained damage in the hurricane. Kirschner testified to seeing damage to the roof after the hurricane. Rockhill’s witnesses admitted that Building D’s roof sustained some damage from the hurricane and needed at least some repairs: Chavers testified that he saw “physical damage” to the roof of Building D and Philmon agreed that he saw that “the roof over Building D was damaged by wind.” Doc. 270-3 at 129, 162.

The evidence also supported a finding that the limited damage to Building D’s roof could be repaired without replacing the entire roof. The jury could have reached this conclusion based on Philmon’s testimony that the damage to Building D was limited “to the roof covering, downspouts[,] and gutters” and there was “no interior or structural damage” to the building. Id. at 162, 170. And based on Rockhill’s estimate, the jury could have found that it would cost $235,556 to repair this damage.

Finally, as to the three remaining buildings, reasoned the court:

… the jury could have found that AM Grand failed to prove that they sustained any damage from Hurricane Irma. Although Arce and Brizuela opined that these buildings’ roofs and interiors were damaged in the storm, there was evidence going the other way. The jury heard Chavers’s and Philmon’s opinions that these buildings sustained no damage from Hurricane Irma and that the water damage inside them occurred before the storm. Even Kirschner, AM Grand’s corporate representative, did not report seeing any damage to the roofs of these buildings after the storm. As a result, the jury reasonably could have awarded AM Grand no damages for the three remaining buildings.

If the jury made the findings described above about the extent of the damage to each building, concluded the court, then based on the evidence about the cost of rebuilding Building B and repairing Building D’s roof, the jury could have calculated AM Grand’s loss from the hurricane to be between $8,035,556 and $15,835,556. The jury’s finding that AM Grand’s loss was $9,280,000, therefore, was well within this range.  The court cited United States v. Sullivan, 1 F.3d 1191, 1196 (11th Cir. 1993) (explaining that a “jury enjoys substantial discretion in awarding damages within the range shown by the evidence” and is entitled to “reject the figures offered by the parties”).

In arguing that the jury’s verdict was excessive, Rockhill said that because AM Grand tried the case as a total-loss case, maintaining that all the buildings sustained both roof and interior damage from the hurricane, the jury had no basis for finding that some, but not all, of the buildings needed to be rebuilt.  But the Eleventh Circuit rejected this argument:

Not so. Given the conflicting evidence at trial about the extent of the damage to each building individually and whether Hurricane Irma was the cause of the damage, the jury, as factfinder, was free to find that some, but not all, of the buildings sustained damage from the hurricane and to determine the extent of the damage to each building.

The court acknowledged that in arriving at a loss amount of $9,280,000, the jury likely had to have credited some parts of a witness’s testimony while rejecting other parts of that same witness’s testimony. For example, the jury may have credited Brizuela’s opinion that it would be more cost effective to rebuild than replace buildings with interior water damage but not credited his opinion that all the buildings sustained damage in the hurricane. But it was well within the jury’s role of fact finder, said the court, to make such credibility determinations. See Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 576, 71 S.Ct. 428, 95 L.Ed. 547 (1951) (recognizing that a jury may “credit or discredit all or part of” a witness’s testimony); Seymour v. Oceanic Navigating Co., 453 F.2d 1185, 1190 (5th Cir. 1972) (recognizing that a factfinder “may, of course, choose to reject certain portions of a witness’s testimony while accepting other portions”).

What is more, concluded the court:

… there are other ways that the jury reasonably could have arrived at its $9,280,000 damages verdict. As AM Grand’s counsel explained at oral argument, the jury could have found that Building A1, which covered approximately 27,000 square feet, suffered both roof and interior damage from the hurricane and that AM Grand would need to rebuild this building. Using Gonzalez’s damages model, the jury could have found that it would cost between $5,400,000 and $10,800,000 to rebuild. Or the jury could have found that Buildings A1 and A2, which together totaled approximately 44,000 square feet, both needed to be rebuilt due to roof and interior damage from the storm. Applying Gonzalez’s damages model to this scenario, the jury could have found that it would cost between $8,800,000 and $17,600,000 to rebuild Buildings A1 and A2. Under either of these additional scenarios, the trial evidence would have supported the jury’s $9,280,000 verdict.

The court summed up its holding:

The jury’s damages award in this case was not “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Odom, 254 So. 3d at 277 (internal quotation marks omitted). We reach this conclusion after considering the evidence in the record as well as the “deference properly given to the jury’s determination of such matters of fact as the weight of the evidence and the quantum of damages” and the deference due the district court, which denied Rockhill’s motion for a new trial after “observ[ing] the witnesses” and “consider[ing] the evidence in the context of a living trial rather than upon a cold record.” Id. (emphasis omitted) (internal quotation marks omitted).^[16]

The judgment approving the jury’s verdict was affirmed.

*** Jeff Donner’s editorial comments: The Eleventh Circuit and its clerks did a very impressive job of working very hard on this opinion, reviewing the record and explaining in detail various mathematical explanations that could have supported the jury’s verdict based on the evidence presented at trial. The jury’s verdict was obviously within the range of the evidence presented at trial and nowhere near clearly excessive, given the competent evidence that was received at trial. In my opinion, the Eleventh Circuit did not need to work so hard. It is fairly well settled that a jury can, indeed, “split the baby.” A court does not need to “do the math” and try to speculate about the jury’s “mind” when a verdict comes back at $9 million after the experts permitted to give opinion testimony at trial opined that the damages were between $235,000 and $66 million. The only way, on this record, that either the trial judge or the appellate court would have had any authority to disapprove this jury’s verdict would be if it had exceeded $66 million. The jury’s verdict on this record was clearly within a reasonable range such that there is no way a judge could conclude that it was not supported by any evidence such that no reasonable jury could have so found. I don’t think the Eleventh Circuit needed to go to the trouble of explaining in detail the various ways the jury could have gotten to the $9,280,000 verdict.

The lesson, again, is that the plaintiff’s lawyer must make the jury understand, during his closing argument, that the defense lawyer is simply not correct when he tries to tell the jury that if they find in favor of the plaintiff, they have to award the highest number–that from the plaintiff’s damages expert–they heard during the trial. Quite simply, the law is well settled that a jury can pick and choose portions of witness’s testimony that the jury thinks is reasonable and the decision on damages is not “all or nothing.”

I faced this issue–on a smaller scale–in my most recent jury trial. The defendant, Citizens, had denied the claim. Citizens argued that the jury should find there was no breach of contract and award my client nothing. My client’s public adjuster had originally created an estimate of the damages advocating for about $173,000.00 in damages. Although under the law I was unable to tell the jury anything about settlement negotiations, the truth is that my client had offered to settle the case for a very small fraction of the public adjuster’s estimate–in fact, nearly nothing. Even though I was not permitted to inform the jury about the actual facts concerning settlement negotiations that had occurred, the defense lawyer was permitted to paint a false picture of the settlement negotiations, essentially telling the jury that it was my client’s fault they were all there having to miss work to serve on a jury because my client had demanded $173,000.00 to repair his $18,000.00 shingle roof.

The truth is, again, my client had offered to settle the case for a number much smaller than even $18,000.00. The defense lawyer then told the jury that if they found for my client, they had to award $173,000.00, because that is what my client’s damages expert had opined. That assertion by defense counsel to the jury was simply wrong as a matter of law, and it was my job as the plaintiff’s lawyer to ensure the jury understood that what the defense lawyer was trying to do was intimidate them. He tried to tell them that if they were not willing to award $173,000.00–the full amount of the public adjuster’s estimate–they had to award zero. There was no in between. The truth is that the jury was free to award a reasonable amount by picking which portions of the public adjuster’s estimate were reasonable. The jury was free to award $5,000.00; $10,000.00; $20,000.00; $30,000.00; etc. While the plaintiff is entitled to present the opinion of a public adjuster as an expert on damages, the plaintiff is not inexorably tied to the public adjuster’s opinion. It is not “all or nothing,” and you need a lawyer who will help the jury understand this important point. A jury that would be very hesitant to award a homeowner $173,000.00 when the home has a 1900-square-feet shingle roof might be much more willing to award $20,000.00, which is a reasonable number. The insured should not be punished for the opinions of his public adjuster, and it often takes a very good lawyer to ensure that does not happen.