In Citizens Property Ins. Corp. v. Zamanillo, 2024 WL 172611 (3d DCA No. 3D22-1564, Jan. 17, 2024), the Third District affirmed the trial court’s entry of summary judgment in favor of the policyholder, noting:

It surprises no one that a trial court can’t grant or deny summary judgment by weighing admissible evidence or making credibility determinations. But on appeal, that’s exactly what Citizens suggests the trial court should have done. Here, Citizens argues, despite any dispute in the summary judgment record, that the Zamanillos’ (or their expert’s) version of events isn’t believable, and for that reason the trial court should have denied summary judgment. We’ve moved beyond a scintilla of doubt sometimes being sufficient to defeat summary judgment in Florida by adopting the federal summary judgment standard. If there’s a genuine dispute, based on admissible summary judgment evidence, over a material issue of fact, a trial court can’t usurp the fact finder’s ultimate role. But absent contradictory or conflicting statements or evidence, an argument that a witness simply isn’t believable, or a jury possibly could find differently— without pointing to disputed facts in the record—isn’t enough to create an issue of material fact.

As the Third District noted, the case had a long and convoluted procedural history. The Zamanillos filed a breach of contract action in 2011 for a claim arising in 2010, based on home damages including an allegedly unusable bathroom. Theories of liability changed over time as to how the bathroom was damaged (from sinkholes to structural settling and sudden collapse), and the trial court conducted a Daubert hearing and entered a final summary judgment in favor of Citizens, only to be reversed by this court. 

Fast forward to 2022, and the trial court heard the Zamanillos’ final summary judgment motion. In support, the Zamanillos offer testimony that the toilet doesn’t flush, the shower leaks, and the bathroom door opens and closes only with significant force. The Zamanillos combined that evidence with their expert’s testimony that, based on testing and observations, this portion of the premises suffered a contractually-covered sudden collapse.  Without getting into details unnecessary for the legal principle at issue here, Citizens contended that the expert’s testimony is ripe for cross-examination, and further, that a jury could conclude that a bathroom with a slow or clogged toilet and a hopelessly leaky shower could still be occupied and used by, say, someone that needs to use the mirror or vanity or bathroom sink.

The Third District held that Citizens’ argument failed for two reasons. First, Citizens offered argument, but no evidence. It didn’t offer a contradictory expert report or any evidence to create an issue of fact regarding the Zamanillos’ contention, buttressed by their expert, that the toilet and shower didn’t work. While a jury may be free to weigh expert testimony—indeed, a jury may weigh any testimony—a jury must have some basis in the evidence presented to reject the testimony. See Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So. 2d 1092, 1093-94 (Fla. 1994) (holding that it was within jury’s province to reject uncontroverted medical testimony where the plaintiff gave conflicting testimony in a workers’ compensation hearing and gave confusing medical histories raising the possibility that their medical opinions were based on inaccurate predicates). Perhaps the expert’s testimony was lacking, ripe for a battle of the experts, or another Daubert hearing, but here, we have nothing in the record to create an issue of fact.

Second, Citizens argued that on the record, a jury could still conclude that the collapsed bathroom could “be occupied for its intended purpose” because someone could use the sink or the vanity. The less said about this argument the better, concluded the Third District, other than to note that this argument probably wouldn’t fly under the old scintilla standard, either. No reasonable fact finder, concluded the appellate court, could conclude that a bathroom that one can barely enter and can use only the vanity and mirror in but not the toilet or shower, would be considered fit for its intended purpose. See, e.g., In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 193 (Fla. 2020) (“If the evidence [presented by the nonmovant] is merely colorable, or is not significantly probative, summary judgment may be granted.”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Because there was triable issue of fact, the Third District affirmed the summary judgment in favor of the homeowners.