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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

TALKING WALLS INC,

Plaintiff,

v. CASE NO. 1:02-cv-00041-MP-AK

HARTFORD CASUALTY INSURANCE COMPANY,

Defendant.

___________________________/

O R D E R 

This matter is before the Court on Doc. 244, Defendant's Motion in Limine for Exclusion

of Expert Testimony of William Wagner. Also pending before the Court are the parties opposing

trial briefs, Docs. 249 and 252, on the proper interest rate on prejudgment interest. The Court

has held a hearing on both of these matters. For the reasons below, the Court grants the Motion

in Limine and finds in favor of Defendant on the issue of prejudgment interest. 

BACKGROUND

This case concerns a fire at a warehouse leased by the Plaintiff, Talking Walls, Inc. The

Plaintiff filed a claim with their insurer, the Defendant, for the loss. The Defendant did not pay

the claim, alleging arson and misrepresentation on behalf of the Plaintiff and its agents. This suit

ensued. The Plaintiff brought two counts against the Defendant, one for breach of contract and

one for bad faith denial of an insurance claim. This Court previously abated the bad faith count

until after the breach of contract claim was heard. The case is currently pending trial on the

breach of contract count. 

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Case No: 1:02-cv-00041-MP-AK

A. Motion in Limine

Defendant has filed a Motion in Limine For Exclusion of Expert Testimony of William

Wagner, Doc. 244, to which Plaintiff has filed a Response, Doc. 256. Specifically, Defendant

seeks to exclude Wagner's testimony as to the cause and origin of the warehouse fire. Defendant

claims Wagner's testimony should be excluded for two reasons. First, Defendant claims Wagner

lacks the qualifications to give expert testimony. Second, Defendant claims Wagner's

methodology utilized in reaching his conclusion lacks sufficient reliability. This Court finds that

Wagner lacks sufficient qualifications to make a determination of the cause and origin of a fire

and therefore does not reach the issue of whether he utilized adequate methodology and data. 

The admissibility of expert testimony is governed by Federal Rule of Evidence 702. 

Under that rule, a court may permit testimony of a witness properly qualified as an expert. FRE

702. This requires a "rigorous three part inquiry." United States v. Frazier, 387 F.3d 1244, 1260

(11th Cir. 2004). The Court must determine whether 

(1) the expert is qualified to testify competently regarding matters he intends to

address; (2) the methodology by which the expert reaches his conclusions is

sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and

(3) the testimony assists the trier of fact, through the application of scientific,

technical, or specialized expertise, to understand the evidence or to determine a

fact in issue.

Id. Because the Court finds that Wagner is not qualified under the first prong, the Court does not

need to reach the second two inquiries. 

Wagner's credential's are not disputed by either party. Wagner has not received a college

degree, yet he has taken several years of college courses. He received certification as a fire

fighter in 1979, a fire inspector in 1988 and as a fire instructor in 1993. Notably, none of these

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Case No: 1:02-cv-00041-MP-AK

certification titles signifies an ability to determine the cause and origin of fires. That

certification, which Wagner does not possess, is for a fire investigator. Wagner has worked as

the Deputy Fire Marshall for Monroe County, Florida, from 1988 to 1998. He has been the Fire

Chief for the Village of Islamorada in the Florida Keys from 1998 to the present time. Wagner is

a member of multiple fire chief, arson investigation, and other professional associations. 

In his role as Fire Chief, Wagner gained some field experience with cause and origin fire

investigation. He was involved in the investigation process for approximately one year in 1998. 

Additionally, Wagner was involved in some fire investigation as the Deputy Fire Marshall for

Monroe County. If any fire investigation was suspicious, however, as it is in the instant case,

Wagner would call for the assistance of the State Fire Marshall in investigating the cause and

origin of the fire. Wagner's only formal education in fire investigation was a 40 hours course he

took in 1988. Since 1998 Wagner has had no direct experience with fire investigation. His

primary responsibilities as they relate to fire investigation now includes observing, managing and

supervising the fire investigators.

The proponent of the expert bears the burden of proving that the witness is properly

qualified as an "expert" witness. Id. While both parties agree that the test for an expert's

qualifications should be liberally construed, it is also clear that a witness is not an expert merely

because he claims to be. See Pride v. Bic Corp., 218 F.3d 566, 577 (6th Cir. 2000); see also,

Duabert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993). The Committee Note

to the 2000 Amendment of Rule 702 states that when an expert witness is relying primarily on

experience, as Wagner is, since he does not have extensive formal training or certification in fire

cause and origin investigation, "then the witness must explain how that experience leads to the

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1

Plaintiff has filed a copy of Wagner's deposition, Doc. 283.

Case No: 1:02-cv-00041-MP-AK

conclusion reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts." FRE 702 advisory committee's notes (2000 amends.);

see also, Frazier, 387 F.3d at 1261. The Court held a hearing on this matter, at which time each

party was free to present witnesses and evidence in support of their arguments. Plaintiff did not

present Wagner nor any other evidence at that hearing to bolster its argument. Each party

reiterated their arguments, but rested on the evidence presented in their pleadings.1 Upon hearing

the arguments of Plaintiff and Defendant, and reviewing the pleadings, the Court finds Plaintiff

has not satisfied its burden of showing that Wagner has the qualifications to states his opinion as

an expert witness on the cause and origin of the fire at issue. 

The Court has no doubt that Wagner would qualify as an expert in the proper

administration of a fire department or on some other fire related topics, but he does not have the

requisite training nor experience to qualify as an expert in the investigation of fire cause and

origin. See Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999)(expert fire investigator

was not an electrical expert and therefore was not qualified to opine that fire started from a faulty

heater); American Family Ins. Group v. JVC Americas Corp., 2001 WL 1618454 (electrical

engineer was qualified to testify as to electrical fire origins, but not the cause and origin of fires

in general, despite testimony that he had "attended fire investigation seminars and received 'onthe-job training' during his investigation of 600-plus fires"); see also, Smelser v. Norfolk

Southern Ry. Co., 105 F.3d 299, 305 (6th Cir. 1997) (abrogation recognized on a different

issue)(witness qualified as a biomechanics expert was not qualified to give medical opinions on

the cause of a specific injury). Wagner's reliance on other fire investigators during previous

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investigations when they became suspicious is also indicative of his lack of expertise. If Wagner

would not rely on his own opinion as an expert investigator, this Court will not either.

Plaintiff has raised the possibility of Wagner testifying as to the amount of smoke a nonincendiary fire can create and the improper handling of evidence by Defendant's expert witnesses. 

Defendant has not specifically raised any objection to those lines of questions. The Court

withholds judgment on the admissibility of Wagner's testimony on those issues. Plaintiff is

directed to proffer any testimony it intends to offer from Wagner.

B. Prejudgment Interest Rate

Several issues were raised by the parties in a pre-trial stipulation, Doc. 240, one of which

remains outstanding. This concerns the prejudgment interest rate. Specifically, the parties

stipulated that, if successful, the Plaintiff will be entitled to prejudgment interest on its recovery. 

The parties have agreed on interest rates for particular years that may be applied to Plaintiff’s

damages should Plaintiff prevail at trial. The parties also stipulated that the respective rates of

interest since the year of the fire (2001) were 11% for 2001, 9% for 2002, 6% for 2003, and 7%

for 2004 with 2005 to be determined. The parties dispute, however, whether the rate stays

constant at the rate in effect at the time it commences to run, or whether it changes from year to

year. The Plaintiff contends that the prejudgment interest assessed on any damages awarded in

the instant case be frozen at 11% for the entire time period, because that was the interest rate in

effect on the “loss payable date.” The Defendant contends that the interest rate should be

computed separately for each year utilizing the applicable statutory rate in effect.

The issue of prejudgment interest is addressed in the Florida Statutes. See Fla. Stat. §

687.01. In the past, this statute provided for a fixed interest rate to be applied to prejudgment

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interest obligations that did not have a contractual rate. However, in 1994, the legislature

amended this prejudgment interest statute so that “[i]n all cases where interest shall accrue

without a special contract for the rate thereof the rate is the rate provided for in s. 55.03.” Fla.

Stat. § 687.01. During that same legislative session, the legislature revised section 55.03. 

Section 55.03 had established the interest rates for post-judgment interest. The legislature

revised this statute by providing a method by which the Comptroller (now known as the Chief

Financial Officer) sets the interest rate each year payable on judgments or decrees entered on or

after the following January 1st. From that point on, the rate was subject to fluctuation from year

to year according to “market conditions.” Accordingly, after the above revisions to sections

687.01 and 55.03, the same fluctuating interest rate applied to the determination of both

prejudgement interest and postjudgment interest. See Acadia Partners v. Tompkins, 759 So.2d

732 (Fla. 5th DCA 2000); Keanie v. Goldy, 698 So.2d 1264 (Fla. 5th DCA 1997); Beverly

Enterprises v. Spilman, 689 So.2d 1230 (Fla. 5th DCA 1997). 

The problems for court clerks inherent in administering this flexible interest rate as to

postjudgment interest led to the amendment of Section 55.03 in 1997 by the Florida Legislature.

The legislature added the following provision: “(3) The interest rate established at the time a

judgment is obtained shall remain the same until the judgment is paid." Fla. Stat. § 55.03(3). 

However, there was no mention of any problems relating to the calculation and imposition of

prejudgment interest when the law was amended.

Plaintiff makes two key arguments that are ultimately without merit. First, Plaintiff cites

Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985) for the proposition

that the judiciary does not have discretion in the application of differing rates of interest. The

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2

 There is no intent to apply arbitrary interest rates, nor is the Defendant advocating this. The Defendant is

simply asking the court to apply the rate prescribe by the legislature during the applicable years.

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Plaintiff’s reliance on Argonaut is misplaced. In Argonaut, the court found that the trial judge

had improperly “awarded interest on an arbitrary and apparently punitive escalating scale–6 %

for the first 965 days, 8 % for the next 1,095 days, 10 % for 365 days and 12 % for seventy-seven

days. Id. at 215. The court noted that “there is no discretion in the rate of interest.” Id. Not only

are the facts in Argonaut distinguishable from those of the instant case,2 but it must be noted that

Argonaut was decided in 1985, during which time the statute provided for a fixed interest rate to

be applied to prejudgment interest obligations that did not have a contractual rate. 

Plaintiff further argues that the addition of subsection (3) to Section 55.03 changed the

method in which prejudgment interest was calculated. Well before the 1994 amendments, the

Florida Supreme Court pronounced that prejudgment interest fluctuates depending on the

statutory rate in effect during the periods that prejudgment interest is charged. See Trend Coin

Co. v. Honeywell, Inc., 487 So.2d 1029 (Fla. 1986). In Trend, the Court recognized that due to

changing economic and market conditions, the Florida legislature had seen fit to increase the

interest rate on judgments from 6% to 12% effective July 1, 1982. In order to carry out that

legislative intent, the Court held that since the date of loss in that case was March 9, 1980, and

the damages verdict occurred after the 1982 amendment, prejudgment interest would be

computed at 6% from the date of loss until July 1, 1982, and at 12% thereafter. Id. at 1030. 

Plaintiff argues that Trend applies to “old statutes,” or, cases in which the time periods for which

prejudgment interest would be computed occurred prior to the 1994 and 1998 revisions. 

However, Trend has never been overruled or receded from.

Defendant directs the Court to Zunde v. International Paper Company, 2000 WL 1763843

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(M.D. Fla. 2000). In Zunde, the court was called upon to compute prejudgment interest under

Florida law from January 1, 1998, when the plaintiff was wrongfully denied severance pay

benefits through the date the trial court entered its judgment in plaintiff’s favor, January 11,

2000. Pursuant to Florida Statutes §§ 55.03 and 687.01, the court held that the proper method of

calculation was the principal amount of the judgment multiplied by 10 % per annum, noting that

the annual interest rate during that period remained unchanged. Id. at 2 n.1. This suggests that

the court would have adjusted the rate had it changed over that time period. 

This Court finds that the interest rate should be computed separately for each year

utilizing the applicable statutory rate in effect, specifically 11% for 2001, 9% for 2002, 6% for

2003, and 7% for 2004, with 2005 to be determined or agreed upon by the parties.

ORDERED AND ADJUDGED:

1. Defendant's Motion in Limine, Doc. 244, is GRANTED. Plaintiff's proposed

expert witness William Wagner will not be permitted to testify as to the cause and

origin of the warehouse fire. Any other proposed testimony of Wagner shall be

first proffered to the Court and Defendant will be given an opportunity to raise

any objections.

2. The Court finds in favor of Defendant on the issue of prejudgment interest. The

interest rate shall be computed separately for each year utilizing the applicable

statutory rate in effect, specifically 11% for 2001, 9% for 2002, 6% for 2003, and

7% for 2004, with 2005 to be determined or agreed upon by the parties. 

DONE AND ORDERED this 5th day of July, 2005.

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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