Date: 08-20-2024

Case Style:

Glenn Brosnan v. State Farm Insurance Company

Case Number: 2019-10751-CIDL

Judge: Kathryn D. Weston

Court: Circuit Court, Volusia County, Florida

Plaintiff's Attorney:

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Defendant's Attorney: Bretton C. Albrecht

Description:

Deland, Florida bad faith breach of insurance contract law lawyer represented the Plaintiff.

This case arises from a homeowners' insurance claim that Appellant Glenn Brosnan and his mother, Lucille Brosnan, submitted to State Farm in February 2019 after their toilet overflowed. The applicable policy period ran from July 2, 2018, to July 2, 2019. In their claim, the Brosnans asserted that their loss occurred on November 22, 2018. The same toilet was the subject of a cancelled 2016 claim. In addition, the Brosnans previously had submitted-and State Farm previously had paid-water loss claims in 2009 and 2011. Those two prior claims concerned a washing machine overflow and a kitchen waste line leak.

Following its adjuster's inspection, State Farm partially paid the new claim, contending in its partial denial letter that certain policy exclusions applied to the claimed loss. At this time, the Brosnans had not informed State Farm's adjuster that the cancelled 2016 claim concerned the same toilet. After receiving the partial denial, the Brosnans brought a breach of contract suit, seeking additional payment for their claim.

Mr. Brosnan testified during his deposition that on the day the water loss occurred, he was at work when he received a call from his visiting sister informing him that the toilet was leaking. When he arrived home, Mr. Brosnan saw towels on the floor, and he used a shop vacuum to dry the floors. Mr. Brosnan also testified that November 22, 2018, was the first date on which someone in the home noticed something wrong with the toilet. Ms. Brosnan testified in her deposition that she usually reported her household's claims to State Farm and that she and Mr. Brosnan's sister put down newspapers and towels to clean up the water after the 2018 leak. Mr. Brosnan's sister, a New York resident, testified in her deposition that she knew there was a flood in the bathroom while she was visiting the Brosnan home for Thanksgiving in November 2018 because she remembered putting towels down and calling Mr. Brosnan. All three depositions repeatedly referenced the claimed loss date of November 22, 2018.

The case proceeded to a jury trial. At some point during the trial, it was discovered that November 22, 2018, could not be the actual date of the loss because that day was Thanksgiving, Mr. Brosnan did not work on Thanksgiving, and Mr. Brosnan had testified that he learned of the leak while at work. While on the stand, Mr. Brosnan, for the first time, testified that the date of the loss was not November 22, 2018. In a sidebar discussion, the parties conferred about how to treat the deposition testimony of Mr. Brosnan's sister, given that her testimony repeatedly referenced the inaccurate November 22 date. The sidebar established that the discrepancy would go to credibility, and State Farm stated that it would read the deposition as part of its case. Afterward, the Brosnans elected not to introduce the sister's deposition testimony during their case. State Farm did likewise. Accordingly, the sister's testimony was never introduced at trial.

Before closing arguments, the Brosnans orally moved in limine to prevent State Farm from asking the jury to make any adverse inference from their failure to call the sister as a witness at trial. Indeed, the court had afforded similar relief to State Farm by granting its pre-trial motion in limine and prohibiting the Brosnans from making arguments about State Farm's failure to call certain witnesses or failure to bring deposed witnesses to the trial. Nonetheless, the court allowed State Farm to highlight the absence of testimony from other witnesses, so long as it confined its argument to the proposition "that there were other people there the date when this happened and they weren't here to testify."

State Farm availed itself of the court's allowance and argued credibility at closing. It asked the jury to consider when the loss happened, whether it happened during the policy period or instead owed to the 2016 toilet problem, and whether it even happened at all. After reciting Mr. Brosnan's repeated assertions of a November 22 loss date, his insistence that he'd learned of the leak while at work during a phone call from his sister, and his testimony that others were present at his house on that date, State Farm's counsel argued:

You remember, there were people at his house that date. Why? For Thanksgiving. Now, the easiest thing in the world right now if Mr. Brosnan wants to, to fix that date, because now he said, well, maybe it was the Thursday before Thanksgiving, the easiest thing in the world right now would be to bring people in to corroborate that story. That would be the easiest thing in the world to do.

State Farm's counsel urged the jury to conclude that the Brosnans failed to prove that any loss happened during the policy period, "because you're not even sure if there was an event. You know it wasn't on Thanksgiving. Was it the week before? No one came in to corroborate it. That would have been easy to do."

Ultimately, the jury sided with State Farm and concluded that the Brosnans failed to prove a policy-period loss. It therefore rendered a verdict for State Farm. The trial court denied the Brosnans' motion for new trial and entered final judgment for State Farm. Mr. Brosnan then timely appealed.
Brosnan v. State Farm Ins. Co., 5D2022-3062 (Fla. App. Aug 20, 2024)

Outcome: Affirmed.

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