Kelley Kronenberg Secures Complete Defense Verdict in $1.2M Declaratory Judgment Trial
Kelley Kronenberg Partner Michael Colgan and Partner Adekemi Akinwole, with the support of Legal Assistant Naomi Sanchez, secured a complete defense verdict for our insurance company client following a five-day jury trial in Seminole County Circuit Court, eliminating approximately $1.2 million in exposure from a contentious declaratory judgment action.
The case involved a home purchased by the insureds in February 2021. In July 2022—over fifteen months later—they reported window leaks in all windows and mentioned that other homeowners in the neighborhood had similar problems. They indicated they were considering a claim against the homebuilder’s warranty. Our client’s field adjuster inspected the property and found most of the exposed wooden framing below the exterior windows was deteriorated and rotten. The claim was denied based on rot, deterioration, and policy period exclusions.
The insureds hired an engineer who confirmed the likely cause of the window leaking was a construction defect present for years before they bought the home. This report was submitted to the insurer days after the insureds filed their complaint. The engineer’s report also mentioned a later-discovered roof leak from a hail storm—a completely separate issue from the window claim.
Mid-litigation, the insureds amended their complaint over our client’s objections to change the claimed loss to roof damage from an April 11, 2021 hailstorm. By the time the carrier could schedule a roof inspection, the insureds had already replaced the roof, eliminating any opportunity to investigate the alleged hail damage. The pretrial proceedings became mired in complex disputes about whether the roof was part of the original window claim and whether it “related back” to avoid late notice defenses.
The litigation proved extraordinarily contentious. Opposing counsel filed approximately twenty motions for summary judgment—one for nearly every affirmative defense in the answer and amended answer. They threatened at least six Rule 57.105 sanctions with no substantive basis. They successfully moved to strike the insurer’s proposal for settlement. They named more than a dozen witnesses. The case exemplified aggressive litigation tactics designed to overwhelm and exhaust the defense.
Our team prepared meticulously for trial, developing strategies to challenge both causation and the policy period requirements while navigating the procedural morass created by opposing counsel’s tactics. Their preparation paid immediate dividends when disaster struck on the first day of trial.
During opening statements, one of the opposing attorneys audibly made offensive and disparaging remarks about defense counsel in front of the jury. The outburst was so egregious that the judge declared a mistrial. The parties had to pick an entirely new jury on day two and start over. Rather than derailing the defense, this incident demonstrated the unprofessional nature of opposing counsel’s approach and steeled the team’s resolve.
The team also capitalized on the insureds’ failure to comply with the pretrial order. Because opposing counsel failed to properly exchange exhibits with the defense, Michael and Adekemi moved to exclude virtually all of the insureds’ exhibits. The judge granted the motion, leaving the insureds with only the insurance policy itself to present at trial—devastating their ability to prove damages or causation.
During the five-day trial, Michael methodically dismantled the insureds’ case through cross-examination and legal argument. For the window portion of the claim, he secured a directed verdict based on the insureds’ own expert’s testimony. Under cross-examination, the expert admitted he could not pinpoint the window leaks to the policy period. Since the insureds offered only one policy period into evidence (February 24, 2021 to February 24, 2022), and their own expert couldn’t establish when the window damage occurred, no rational jury could find coverage. The judgegranted the directed verdict, eliminating the window claim entirely.
Michael then secured a second directed verdict on the notice issue. The insureds never reported the alleged April 11, 2021 hailstorm damage until they amended their complaint mid-litigation—over a year after the purported loss and long after the roof had been replaced. Under Florida law, this constituted late notice as a matter of law, triggering a presumption of prejudice to the insurer. The judge agreed and granted a second directed verdict on late notice.
With both directed verdicts secured, only three narrow issues went to the jury: whether the insureds proved a loss to the roof within the policy period, whether they rebutted the presumption of prejudice for late notice, and whether any policy exclusions applied to the roof claim.
After deliberating for approximately one hour, the jury returned a verdict for our client. The jury found the insureds had not proven a covered loss occurred during the policy period—the most fundamental element of any insurance claim. The verdict represented complete vindication of the carrier’s denial and the team’s trial strategy.
This comprehensive victory required navigating extraordinary procedural challenges, including a mistrial, extreme over-litigation by opposing counsel, mid-case amendment of the complaint to change the date and cause of loss, destruction of evidence through premature roof replacement, and the insureds’ own expert testimony undermining their theories. Through meticulous preparation, aggressive motion practice, strategic cross-examination, and clear presentation of policy language and legal requirements, the team secured directed verdicts on major issues and positioned the remaining claims for jury rejection.
For insurance carriers, this case demonstrates that even when insureds attempt to change their story mid-litigation, replace damaged property before inspection, and engage in scorched-earth litigation tactics, skilled trial counsel can secure complete defense verdicts through directed verdict motions and clear presentation of policy requirements to juries. The case reinforces that Florida law requires insureds to prove losses occurred during the policy period and that late notice triggers consequences even when insureds later attempt to cure deficiencies through amended pleadings.
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