A significant decision was recently issued by the Supreme Court of Florida regarding the burden of proof in sinkhole litigation. In Universal Insurance Company of North America v. Warfel, 2012 WL 224104, Universal argued successfully to the trial court that F.S. § 627.7073(1)(c) creates a rebuttable presumption with respect to the findings, opinions and recommendations of the engineer and geologist retained by an insurer during a sinkhole claim investigation. F.S. § 627.7073(1)(c) provides the following:

The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct.

F.S. § 627.7073(1)(c), Fla. Stat. (2005). The trial court agreed with Universal and instructed the jury as follows:

You must presume that the opinions, findings, and conclusions in the STII report as to the cause of damage and whether or not a sinkhole loss has occurred are correct. This presumption is rebuttable. The Plaintiff has the burden of proving by a preponderance of the evidence that the findings, opinions, and conclusions of the report are not correct.

The jury returned a verdict in favor of Universal. On appeal to the Second District Court of Appeal, the trial court was reversed upon a finding that the jury was improperly instructed regarding the burden of proof. However, the appellate court certified a question to the Supreme Court of Florida, asking whether the language of F.S. § 627.7073(1)(c) creates a presumption affecting the burden of proof at trial.

In an extensive opinion, the Supreme Court ruled that F.S. § 627.7073(1)(c) does not create a rebuttable presumption of correctness of the findings of an engineer or geologist at trial. Accordingly, the Supreme Court affirmed the decision of the Second District Court of Appeal, finding that the jury instruction given by the trial court was in error.

Under the Warfel decision, the burden at trial remains with the insured to prove his sinkhole loss. However, the Supreme Court has made it clear that the jury should not be instructed that the findings, opinions and recommendations of the insurer’s engineer and geologist are presumed correct.