Prove A Hurricane Hit?......How?

As you all know we've been involved in a four year old lawsuit that came from the '04 hurricanes that came through central Florida. We had the four day trial last week and lost. The jury awarded the HOA a $25K judgement (reduced from the $61K they asked for) but we still don't know the legal fee hit we're going to take (from the other side). Our appeal is in the works so it's no big deal other than we'll go prolly two more years and more money to win this thing. One of the biggest things that came up was establishing the fact that hurricanes actually hit this building. It was located 5 miles from the Sanford airport and there were hurricane sustained winds recorded there. The judge wouldn't allow these facts saying "this building wasn't at the Sanford airport".....what a goofball. So........we weren't even allowed to SAY the word hurricane, let alone use it as a major defense as to the roof's life span potential. Mind you, this roof was started when Charley hit, then finished. Five days later Frances hit, it was repaired, 20 days after that Jeanne hit and we repaired it again. A month later it passed code inspection and mfg. inspection for warranty. We even brought the supervisor of the code dept. in the verify what all takes place during an inspection but it didn't seem to matter. He also testified that the new HVAC units didn't pass final inspection for over three years! They were installed without our prior knowledge as was verbally agreed to (so we could flash the curbs properly)so we had to flash around them. We were on this roof over two years later (with the lawyers) and it was pristine, exactly as we left it. The HOA sued us a year after the install, no warning or notice given, saying they "didn't like the patches" and that we breached our contract. My insurance carrier told me we weren't covered for "Acts of God" so we've been paying all the legal costs......to date over $80K.

I've recently employed a former (he's retired now) video storm chaser from Vero Beach to put together an exact presentation that hurricanes hit this building. He had already done this for me prior to trial (in an email) but it couldn't be admitted without his direct testimony. This guy used to work for the NHC and has a 40 year background in severe storm documentation. His films have been on every major media show and his resume would blow your mind. I wanted to have him come into the trial as an expert witness but my attorney told me the judge probably wouldn't allow it at the late date I found out about him. I knew this hurricane issue would come up because when we deposed the officers of the HOA they all denied that hurricanes even hit the building. I'm wondering if insurance companies keep such records as the storms play huge role in their coverage decisions. Just an FYI for you guys, make sure your contract language is absolutely air tight. Had we had the words, "gale force winds" included in the hurricane disclaimer language we probably would have won. I highly doubt it though. The jury consisted of 5 middle aged, divorced women and one male school teacher who thought he was a handyman. Jury got case at 2pm on Friday afternoon so you know what these women had on their mind.....going home. As my attorney said, they decided to "split the baby" to make it look like both sides won. Well, we didn't "win" squat. I'll keep 'ya posted.......

JET

No, nothing we did was found to be "improper" or the job would not have passed both the city and mfg. warranty inspection, believe me. What we were up against was a biased judge and a stupid jury, plain and simple. Also I believe my attorney was not up to the task, it was his FIRST jury trial. He went for the soft, "please like me" approach instead of cold hard facts that even a stupid jury could understand and make an informed decision. "Splitting the baby" is very common in these types of cases or so I'm told. The jury wants to make both sides as happy as possible but in this case it was black and white. When this last attorney insisted on our hiring an "expert" to present our side of the case I strongly objected to the tactic. I felt the facts were so strong on our side that all we needed was to present them and take our chances that the jury would be smart enough to figure it out. Now I know how it's done and we'll go back in (provided we win on appeal) with an attorney who only does construction litigation. My Dad was a judge and I have a law enforcement degree. After sitting through countless trials, mostly criminal cases, I found one important thing always prevailed........the attorney who presented the facts the best and wasn't afraid to take some heat from the judge to get his way. This trial was WAY too "touchy-feely" IMO. A lawsuit is like a prize fight and I've never seen a "nice" fighter win. I have a hurricane expert ready to go should we prevail on appeal so that base is covered. We'll also run the next trial completely different from the first one, believe me. I know now how this game is played and won't get fooled again into trusting people to represent me.

JET

Jet,

I had a similar situation on a litigation case many years ago (I was the roof expert) where a portion of a new roof blew off from a microburst. Now this roof just happened to be at an private airport with limited wind speed gauges. This case turned on how the wind was measured. Sustained wind speed verses a gust. The airport only measured average wind speeds. The microburst was so large is was fully measured at a county airport across the fence line a few hundred yards away but the judge would not allow that information (not project specific). The actual claim was not only for the roof but for other building damage. The builder lost the case (like you) because of the legal point, not because of the good ole facts in front of him. Ironically, the builder and roofer appealed using information from an insurance company about other damage at the airport consistent with microbursts and won. Judges seem to be more worried about a legislative blooper than dealing with the facts in an appeal process.

Now I would think that having a video survey performed showing the "path" of the hurricane is a lot easier to present that a microburst. Hell, it had to be all over the news so maybe a little sleuthing work may find supporting footage nearby. At this point you appear in for the long haul so maybe it is worth looking into. Was their anything in the work that you did found to be improper? Otherwise I don't see how you can be liable for anything.

Jet I thought of your case .Copied and paste , for those keeping score . It explains what happened to your case .......... To examine the underlying psychological principles and implications of juror skepticism toward expert testimony, Claims’ Christina Bramlet enlisted the expertise of Steven M. Gursten ( michiganautolaw. com ), who is recognized as one of the nation’s top experts in serious auto accident injury cases and auto insurance no-fault litigation. Gursten spoke candidly about how claim adjusters and lawyers can prevent juror misconceptions from sabotaging viable cases. Why are juries leery of experts on the stand? The problem goes well beyond skepticism. How claim adjusters and lawyers look at experts versus how jurors look at them is completely different. Jurors do not wait until the close of all of the evidence to start deciding which side in a case should win. Our brain doesn’t work this way. The brain begins processing information and starts to address the side of the story that seems more likely almost immediately after a trial begins. Of course, this contradicts the expectation judges have for jurors to listen to all evidence before deciding which side is correct. We have to understand that experts don’t matter to jurors in the way that we think they do. This is not to diminish the importance of experts, who are absolutely essential in helping lawyers meet legal and evidentiary burdens of proof. Omitting an expert on a crucial matter of proof can result in dismissal of a cause of action, a directed verdict, or the dismissal of an affirmative defense. So both sides need experts. Specifically, what challenges do claim adjusters and lawyers face? Many lawyers and adjusters are surprised that most jurors have a real distaste for expert testimony and experts in general. As lawyers, we are trained to believe that to persuade and win a case, we must rely on experts to establish arguments. In reality, jurors rarely view experts as credible. Adjusters must understand the basic social science behind persuasion. Once a juror has decided which side’s story is more likely, “revelations” from an expert witness aren’t going to change that juror’s mind. Jurors believe — and many of us who work in the legal field must agree — that an expert can be found to say almost anything. The irony here is that even if the expert convincingly refutes what a juror believes to be true, that expert will still be rejected. When an expert’s opinions are in conflict with what a juror believes, no matter how uninformed or baseless that opinion is, a juror will likely feel justified in dismissing that expert. This means that ideas that are counterintuitive to a juror’s belief system can result in making it very difficult for the proponent of the idea to win a case, even in the presence of supporting evidence. This conflicts with everything that lawyers are taught in law school. Because this juror decision-making process is in direct violation of the way jurors are required under our system of justice to view evidence, lawyers and adjusters are shocked when our “brilliant” experts are disregarded by jurors.

I like JSC's idea, I really do. The road comes to a fork. At the fork there are two main routes and an overgrown deer trail. Oh, good, let's take the deer trail. It will take longer and get sketchy. Sketchy is really good. There's a lot of money to be made in sketchy.

I guess the main question I have is "when is a contract over". I was always under the impression that once a job was finished, inspected and passed, etc. and the final payment was received (even though it was 30 days late) that the contract was over. The warranty might still apply (mfg. and labor) but the contract is over. In my mind if you, the customer, have an issue with a contractor's work you withold payments, file complaints with the building dept. in charge, etc. None of this was ever done so how can a contract be "breached" a year after the fact? I dunno guys, you gotta wonder what the deal is here.

JET

I'm not one bit surprised, as I've had more experiences of this kind than not with the legal system, by a landslide.

Doesn't take too many of these results to make one bitter and disenchanted with the whole "justice" fairy tale.

I'd have a lot more faith in a ten guage enema.

The system was designed by lawyers, for lawyers to profit from. Nothing more.

Jet With those credentials this is a rhetorical question . You already know the answer . I'll stop looking for one . This falls under " venting " Justice is blind . Nice body though . The very few cases I was involved in I know this well . Common sense is not relevant sometimes .

CIAK Said: How in the world did they get away with no coverage ???? That raises more questions than answers . Are these properties paid for ??? Im still researching the question from the inside Jet . Ill reply when I get it . Odd it would even be a question . This is very interesting .

It came out during our examination of the HOA board minutes. The same guy who signed our contract also was in charge of securing coverage for the common buildings. He KNEW there would be a serious coverge problem if they ever filed a claim of any kind and yes, the entire community is paid for and they have over a million dollars in reserve funds. I told their atty. during my deposition that I felt this whole matter was a case of "insurance fraud by proxy". He didn't disagree with me. The minutes also revealed the agencies they had been with over the years. Each year they "shopped" for better rates/coverage but in the past few years have had a hard time getting any carrier to insure them. The three month lapse of coverage was in the board minutes so it's factual. When we deposed the HOA members who were involved in this "larceny" they all laughed when one said "we were going to take the money we got from you and fix up our whole building. Too bad this wasn't on the record but they were too smart for that. Everyone heard it though, including my attorney, the steno girl and my wife and son.

JET

Oh yea, if you want to check out my hurricane expert his web address is: www.canebeard.com

Vaa Fakaosifolau Said: We cant use Gale Force Winds as we get them about once a week. :silly:

I put in the words Cyclone Category 2, 125kmph+ thats equal to Hurricane Category 1 119mph+

quote]

Actually 77 mph, but that's still a pretty stiff breeze

How in the world did they get away with no coverage ???? That raises more questions than answers . Are these properties paid for ??? I'm still researching the question from the inside Jet . I'll reply when I get it . Odd it would even be a question . This is very interesting .

tinner666 Said: After some thought: Did you take pics at the time of the est.? Any paperwork detailing what was found? Anything written or signed by the HOA rep at the time? Detailed written report of damage by your estimator? Anything?

Took TONS of pics and did the estimate personally along with my coating guy (who also testified at trial) so everything was documented down to the ceiling stains around the HVAC units, old skylights (that they wouldn't replace), and various electrical points of entry (that they also wouldn't replace). I gotta tell 'ya, everyone was floored, including the other side, when the jury ruled in their "favor". As far as insurance claims filed they "claimed" they never filed any which we thought was very strange because that's usually the first thing you do after a severe storm, just in case you need them down the line. The board meeting minutes we received in the discovery process showed why no claims were filed. They've had trouble every year trying to insure these old buildings and even went without ANY coverage for three months at one point. Their current carriers include Lloyd's of London and you all know these guys. The HOA president that I dealt with was a retired insurance company "trainer" for property and casualty agents. When he signed the contract he warned me of this fact and told me he "knew all about contractor insurance policies and how they work". Guess that should have been my first clue something was rotten in this deal. Anyway, lesson of the day is "no good deed goes unpunished". I certainly learned a lesson........trust no one.

JET

I lost an arbitration hearing one time when the H/O was dead wrong. She got her an "expert" witness. (a.k.a. some idiot who wasn't even a roofer) to testify that something was wrong with our work when it wasn't. It sucks! I feel ya man!

That's what I was just thinking Ciak. Do YOU have any record of claims there? That would also be helpful.

. One of the biggest things that came up was establishing the fact that hurricanes actually hit this building. The insurance company's have special hurricane deductibles . Check with home and or business owners in the immediate area if they paid the increased deductible . Do a survey . I'm sure if it didn't hit it would be in their best interest to receive a rebate if in fact it was paid . Did the HOA file an insurance claim ? That's a start to determine the facts.

After some thought: Did you take pics at the time of the est.? Any paperwork detailing what was found? Anything written or signed by the HOA rep at the time? Detailed written report of damage by your estimator? Anything?