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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JAMES MCPHERSON and

VICKI MCPHERSON,

Plaintiffs,

v. CASE NO.: 5:20-cv-00318-TKW-MJF

LEXINGTON INSURANCE

COMPANY,

Defendant.

___________________________________/

PLAINTIFFS’ AMENDED RESPONSE TO LEXINGTON INSURANCE 

COMPANY’S MOTION FOR FINAL SUMMARY JUDGMENT1

COMES NOW The Plaintiffs, JAMES MCPHERSON and VICKI 

MCPHERSON, by and through their undersigned counsel, and pursuant to Rule 26 

& 56, Federal Rules of Civil Procedure, and Local Rules 56.1, hereby respond to 

Defendant’s Motion for Final Summary Judgment, and in support thereof state as 

follows:

BACKGROUND AND SUMMARY OF ARGUMENT

1. This lawsuit arises from Plaintiffs’ insurance claim with Defendant for 

damages to the Insured Property, located at 1815 Weakfish Way, Panama City 

Beach, FL 32408, resulting from Hurricane Michael. 

 

1 Amended to correctly reference exhibits as the notice of filing came in as various documents.

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2. Respectfully, this Court should deny the summary judgment in favor of 

Defendant on the following issues, for the following reasons: 

A. Plaintiffs do not need their expert witness evidence to establish that 

Hurricane Michael damaged their windows and doors. 

B. Plaintiffs can establish the damages that Hurricane Michael caused 

to their windows and doors. 

C. The subject policy is ambiguous as to whether Plaintiffs needed to 

formally request ACV coverage, but assuming Plaintiffs needed to, 

Defendant was put on notice that Plaintiffs made an ACV claim, and 

by failing to make payment on Plaintiffs’ ACV claim, Defendant 

breached the insurance contract.

3. Plaintiffs concede that Florida’s Matching Statute is inapplicable in this 

case. 

4. Plaintiffs concede on the issue of Ordinance and Law, as they are not 

making a claim for Ordinance and Law. 

STATEMENT OF DISPUTED FACTS AND ARGUMENTS

A. Plaintiffs do not need their expert witness evidence to establish that 

Hurricane Michael damaged their windows and doors. 

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5. Plaintiffs, in three separate occasions, served Rule 26(a)(2) expert 

disclosures on Defendant. See Plaintiffs’ Expert Witness Disclosures [Doc. 65-1, 2, 

and 3]. 

6. On February 25, 2022, this Court struck Plaintiffs’ Second Amended 

Rule 26(a)(2) expert disclosures. [Doc. 54].

7. Despite Plaintiffs not being able to use their experts’ evidence that their 

windows and doors were damaged by Hurricane Michael, Plaintiffs have ample 

evidence to support their claim. 

8. First, Plaintiffs can prove that their windows and doors were damaged 

by Hurricane Michael through Defendant’s Field Adjuster, Farris Jackson’s, 

admission that during his inspection he found that the windows were damaged by 

Hurricane Michael. 

9. On November 5, 2018, Mr. Jackson prepared a Loss Report where he 

stated that the dwelling suffered interior water damages from wind driven rain under 

the windows and doors, and that several windows of the property showed their seals 

broken due to the wind force of Hurricane Michael. See the highlighted portions of 

Farris Jackson’s November 5, 2018, Loss Report [Doc. 65-5].

10. Second, Plaintiffs can prove that their windows and doors were 

damaged by Hurricane Michael through Defendant’s Payment for Hurricane 

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Michael damaged windows and doors. Defendant’s Corporate Representative, 

Kathy Spinella specifically testified: 

Q: All right. I can show you the windows and doors that you all 

agreed to pay for. Do you see this, ma'am? We don't want to go 

too fast. Bottom of Page 4, Exhibit No. 7, bottom of Page 4, it 

shows windows and doors. Go to the bottom of this -- go to the 

next page, please. Showing again windows and doors, 

$25,690.87. I'm glad we did this. The numbers are different.

A: Okay.

Q: Ma'am, so the Replacement Cost Value --

A: I see what it is.

Q: Okay. The Replacement Cost Value is $39,251.74. You all took 

$13,568.87 for depreciation, and paid $25,690.87 for the eight 

windows and doors that you guys acknowledge were damaged 

by the hurricane; is that true?

A: That is what it says.

Q: Did you pay that amount to my clients for eight windows and 

doors?

A: Well, again, that is why if you could go to the last-last page, I 

can see, based on what we actually wrote.

Q: Yes, ma'am. Thank you. I think that was it. Go up a little bit. 

There we go. All right. $496,444.17.

A: I don't see any indication that we did not allow that full amount 

for the window, so I would say, yes, $25,000.

See Deposition of Kathy Spinella [Doc. 65-6] at 133:14 – 134:16, and the highlighted 

portions of Young & Associates October 1, 2020, Repair Estimate (referenced in the 

excerpt above for Defendant’s payment to Plaintiffs for Hurricane Michael damaged 

windows and doors) [Doc. 65-7]. 

11. Defendant’s two admissions of Hurricane Michael damage to 

Plaintiffs’ windows and doors starkly contrast Defendant’s Experts’ determination 

that Plaintiffs’ “windows and doors at the McPherson property do not require 

replacement due to any damage from Hurricane Michael.” See Scott Sanders 

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Affidavit with Report [Doc. 63-4] at p.2, ⁋8.a. See also Robert Beaird report [Doc. 

63-5]; Andy Householder Report [Doc. 63-6].

12. In other words, Defendant and its own experts’ opinions contradict each 

other and they create an issue of material fact in regard to whether Plaintiffs suffered 

damage to their windows and doors from Hurricane Michael. 

13. Third, Plaintiffs can prove that their windows and doors were damaged 

by Hurricane Michael through their own testimony. 

14. In their affidavits, Plaintiffs explain that before Hurricane Michael, 

they had no damages to their windows and doors and that they had no issues with 

water intrusion through their windows and doors. When they arrived at the subject 

property on October 11, 2018, just one day after Hurricane Michael, they found 

significant damage to their windows and doors, which led to water intrusion in their 

home. See James McPherson & Vicki McPherson’s Affidavits in Support of 

Plaintiffs’ Response to Defendant’s Motion for Final Summary Judgment [Doc. 65-

8 and 9].

15. In addition, Mrs. McPherson testified in her deposition as follows: 

Q: And why do you believe the majority of these windows and doors 

are damaged from Hurricane Michael?

A: Because my windows and doors did not look like they look 

today. My windows and doors, the paint was fresh and not 

chipped. the seams, or the joints weren't -- they're separating. 

There was no mold or mildew between the glass. There's 

moisture under them now that there weren't before. Had no issues 

with my windows and doors prior to Hurricane Michael.

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See Deposition of Plaintiff Vicki McPherson [Doc. 63-1] at 66:22 – 67:05.

Q: So aside from your personal observation that lead you to believe 

that the majority of windows were damaged from Hurricane 

Michael, is there any other basis for that statement?

A: I'm not a window expert, but I know what my windows looked 

like before Hurricane Michael, and I know what they look like 

now. Not only the windows are damaged, but up under the 

windows are damaged. The paint's peeling off the walls. There's 

water stains in different places. My house did not look like that 

before Hurricane Michael.

[Doc. 63-1] at 67:12 – 67:23.

Q: For how many windows -- or were any windows -- following did 

Hurricane Michael break the glass of any windows at the 

property?

A: I know the window over the kitchen sink was broken. I don't 

recall that any of the other windows were actually broken.

[Doc. 63-1] at 82:19 – 82:24.

Q: Do you know if all exterior doors were damaged as a result of 

Hurricane Michael?

A: I know that all exterior doors have mildew and debris and things 

between the glasses. Some of them you have to be very, very 

careful because they have been, I guess, damaged to the point 

that they don't shut good. So, yes, I think the windows -- the 

doors have been damaged by Hurricane Michael, as well.

[Doc. 63-1] at 141:23 – 142:05.

16. Fourth, Plaintiffs’ testimonies that their windows and doors were 

damaged by Hurricane Michael are further supported by testimony from Zebulon 

Taft, of Mad Craftsman Group, LLC.

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17. In his deposition, Mr. Taft explains that prior to the Plaintiffs 

purchasing the subject property in 2016, he repaired three windows that were 

reported as damaged in the pre-sale property inspection report. Mr. Taft also explains 

that after the Plaintiffs purchased the subject property, he continued to do regular 

maintenance at the property, up until August of 2018, which was just two months 

before Hurricane Michael. Most importantly, Mr. Taft explains that from the 

moment the Plaintiffs purchased the subject property and up until August of 2018, 

the Plaintiffs never complained of window or door damages at the property, that Mr. 

Taft never saw window or door damages at the property, and that Mr. Taft did not 

need to perform any window or door repairs at the property.

18. Mr. Taft testified in his deposition as follows: 

Q: Okay. Is this the repairs that was performed on the house prior to 

closing? I can show you your invoice if you want.

A: Yes. I mean, I have a copy of it. But, yes, these were repairs prior 

to -- from my recollection, everything was repaired on the 

windows prior to the sale of the house.

See Deposition of Zebulon Taft [Doc. 66-1] at 10:13 – 10:19, and Mad Craftsman 

Group, LLC.’s Invoice (referenced in the excerpt above for window repairs prior to 

Plaintiffs purchasing the subject property) [Doc. 66-2].

Q: I've got a few questions for you. You mentioned doing 

maintenance after the McPhersons bought the property. When 

did you start doing maintenance work for the McPhersons?

A: The first invoice that I have that I can pull back up was February 

of 2017. And I did some -- let's see, wiring, install ice machine, 

did some coax wiring, drywall repairs, painted some cabinets, 

things that the homeowner wanted done.

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Q: I didn't want specifics just yet. I just wanted to try to get a 

timeline. You mentioned regular maintenance. After that first 

one in February of 2017, when did you stop doing regular 

maintenance for the McPhersons?

A: It was right around the hurricane time. That got a little bit crazy 

for everyone. It was --let me see, my last invoice to the 

McPhersons was in August of ‘18. And it was October of ‘18 

when Hurricane Michael hit.

See Deposition of Zebulon Taft [Doc. 66-1] at 21:05 – 21:23.

Q: Now, sir, you said that after you had performed this work in 

2016, that the McPhersons kept you on to do regular maintenance 

at the home?

A: Yes sir.

Q: Do you recall at any time prior to Hurricane Michael the 

McPhersons ever complaining about problems with leaky 

windows?

A: Not to my knowledge at this point. It's been a while, but not to 

my knowledge, sir.

See Deposition of Zebulon Taft [Doc. 66-1] at 18:10 – 18:18. 

19. In sum, Plaintiffs respectfully argue that the foregoing evidence of 

Hurricane Michael damages to Plaintiffs’ windows and doors should be sufficient to 

get Plaintiffs past Defendant’s Motion for Summary Judgment, on this issue. 

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B. Plaintiffs can establish the damages that Hurricane Michael caused to 

their windows and doors.

As described above, despite Plaintiffs not being able to use their experts’ evidence 

that their windows and doors were damaged by Hurricane Michael, Plaintiffs have 

ample evidence of damages to support their claim.2

20. Additionally, Plaintiffs procured a repair estimate for their Hurricane 

Michael damaged windows and doors from CMR Construction and Roofing, which 

directly contradicts Defendant’s estimation of damages and creates an issue of 

material fact. See CMR Construction and Roofing’s Windows and Doors Repair 

Estimate [Doc.66-3].

21. Pursuant to Rule 901(b)(1), Federal Rules of Evidence, CMR 

Construction and Roofing’s estimate was authenticated and supported during CMR 

Roofing and Construction’s corporate representative/records custodian’s deposition. 

Please see below:

Q: All right. Dan, as I'm going through this document, please review it, 

confirm for me that it is the one that you produced to us. And at the 

same time, as I'm going through it, please just let me know that you are 

familiar with these documents, okay?

A: Yes.

Q: All right. It's a large file. I'm going to be moving through it with a little 

bit of speed. If you need me to slow down for anything because 

something catches your attention, just let me know, okay?

A: Yes.

 

2

See, Section “A” of “Statement of Disputed Fact and Argument” above.

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Q: I'm going to stop screen sharing. So, first, are you familiar with this 

entire file that you produced over to us?

A: I am.

Q: Okay. Have you reviewed all of these documents prior to this 

deposition?

A: I have.

Q: Okay. Is it your company's business practice to prepare these type of 

records and to maintain these type of records?

A: It is.

MR. MOODY: Objection to form.

BY MR. GONZALEZ:

Q: All right. Were these records prepared in the ordinary scope of the 

business of your company?

A: They were.

Q: Okay. Were they prepared by somebody with knowledge from within 

the company?

A: Yes.

Q: Okay. Were these documents stored after they were prepared by your 

company?

A: They were.

Q: Okay. And where were they retrieved from?

A: Electronic --

MR. MOODY: Form.

THE WITNESS: -- electronic job file or system called AccuLynx, AC-C-U-L-Y-N-X.

BY MR. GONZALEZ:

Q: And are these types of documents the ones that would be kept under 

your custody or control at CMR?

A: Yes.

See Deposition of Daniel Lewis [Doc. 67-1] at 08:24 – 10:19, and CMR Construction 

and Roofing’s Windows and Doors Repair Estimate (contained in CMR’s entire file 

referenced and discussed in the excerpt above) [Doc. 69-1 (pages 177-209)].

22. Plaintiffs also procured a repair estimate for their Hurricane Michael 

damaged windows and doors from LJB Restoration Services, LLC., which directly 

contradicts Defendant’s estimation of damages and creates an issue of material fact. 

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See LJB Restoration Services, LLC.’s Windows and Doors Repair Estimate [Doc.71-

1].

23. Pursuant to Rule 901(b)(1), Federal Rules of Evidence, LJB 

Restoration Services, LLC.’s estimate was authenticated and supported during LJB 

Restoration Services, LLC.’s corporate representative/records custodian’s 

deposition. Please see below:

Q: You see the final estimate here, sir?

A: I see ONP subtotal. I don’t see – you didn’t scroll down far 

enough. Yes, I see it now.

Q: What’s the final?

A: $719,928.66

Q: Does LJB stand by this number, sir? Or at least at the time you 

drafted this?

A: Yes.

Q: Do you have any reason to believe this number is not an accurate 

reflection of what the cost would be to replace the doors and 

windows in the McPherson home?

A: Well, it includes more than that.

Q: Okay. Like what?

A: Well, I’m seeing stucco on the exterior, plaster repair. There is 

something on there roofing, 15,000; there’s drywall.

Q: When you demo windows and doors -- I think there was 115 or 

so in this?

A: Yeah.

Q: So you’re going to have stucco and drywall work?

A: Absolutely.

MR. MOODY: Form.

BY MR. RUDD:

Q: In order to tear out, replace, reinstall, and touch-up drywall and 

stucco, would this number accurately reflect the number of the 

cost associated with doing that?

A: Yes.

Q: At least at the time this was drafted?

A: Yes.

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See Deposition of James Rossi [Doc. 63-9] at 28:24 – 30:05.

24. Both companies, CMR Construction and Roofing and LJB Restoration 

Services, LLC., and their estimates were disclosed to Defendant through Initial 

Disclosures and through discovery responses. [Doc.13]

25. Therefore, Plaintiffs can establish the damages that Hurricane Michael 

caused to their windows and doors.

C. The subject policy is ambiguous as to whether Plaintiffs needed to

formally request ACV coverage, but assuming Plaintiffs needed to, 

Defendant was put on notice that Plaintiffs made an ACV claim, and by 

failing to make payment on Plaintiffs’ ACV claim, Defendant breached 

the insurance contract.

26. As will be discussed further below, the subject policy is ambiguous as 

to whether Plaintiffs needed to formally request ACV coverage. 

27. Despite submitting RCV estimates throughout the life of this claim, 

Plaintiffs are making an ACV claim with Defendant for their windows and doors, 

just as the Plaintiffs have settled all other portions of this Hurricane Michael claim 

with Defendant. See, St. Michaels Anglican Catholic Church of Panama City

Florida Inc. v. Church Mut. Ins. Co., 5:20-CV-235-AW-MAF, 2021 WL 6882431, 

at *5 (N.D. Fla. Nov. 24, 2021)(“CMIC was ‘arguably put on notice’ that St. 

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Michael's was seeking ACV payment. And, like in Buckley Towers, St. Michael's 

presuit submission of RCV estimates is not dispositive.”).

28. Therefore, Defendant was on notice that Plaintiffs were making an 

ACV claim, and by failing to make payment on Plaintiffs’ ACV claim, Defendant 

breached the insurance contract. 

29. In contrast to our case, in the cases Defendant cited to support its 

arguments, the plaintiffs were requesting RCV coverage prior to the insureds 

completing the repairs, which is why the courts ruled against them. See Metal Prods. 

Co. v. Ohio Sec. Ins. Co., No. 21-11612, 2022 U.S. App. LEXIS 844 (11th Cir. Jan. 

11, 2022); CMR Constr. & Roofing, LLC v. Empire Indem. Ins. Co., 843 F. App'x 

189 (11th Cir. 2021).

WHEREFORE, Plaintiffs, JAMES MCPHERSON & VICKI 

MCPHERSON, respectfully request that this Court deny Final Summary Judgment 

in favor of Defendant, on all issues, except matching and ordinance and law, and 

grant any further relief that this Court deems necessary and proper. 

MEMORANDUM OF LAW

I. STANDARD OF LAW

A court may grant a motion for summary judgment “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Further, the parties may support 

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their positions by citations to evidence in the record, including, among other things, 

depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An 

issue of fact is genuine if “a reasonable trier of fact could return judgment for the 

non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 

1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In addition, a fact is material if it 

“might affect the outcome of the suit under the governing law.” Id.

A court views the facts in the light most favorable to the nonmoving party, 

draws “all reasonable inferences in favor of the nonmovant and may not weigh 

evidence or make credibility determinations, which ‘are jury functions, not those of 

a judge.’ ” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019) 

(quoting Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013)); 

Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006); see also Crocker v. Beatty, 

886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-movant's] version of 

the facts as true and draw all reasonable inferences in the light most favorable to him 

as the non-movant.”). “The mere existence of a scintilla of evidence in support of 

the [non-moving party's] position will be insufficient; there must be evidence on 

which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. 

at 252, 106 S.Ct. 2505. “If more than one inference could be construed from the facts 

by a reasonable fact finder, and that inference introduces a genuine issue of material 

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fact, then the district court should not grant summary judgment.” Bannum, Inc. v. 

City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990). 

The moving party shoulders the initial burden of demonstrating the absence 

of any genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th 

Cir. 2008). If a movant satisfies this burden, “the nonmoving party ‘must do more 

than simply show that there is some metaphysical doubt as to the material facts.’ ” 

Ray v. Equifax Info. Servs., LLC, 327 F. App'x 819, 825 (11th Cir. 2009) (quoting 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct 

1348, 89 L.Ed.2d 538 (1986)). Instead, the non-moving party “must make a 

sufficient showing on each essential element of the case for which he has the burden 

of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). The non-moving party must produce evidence, going beyond the 

pleadings, and by its own affidavits, or by depositions, answers to interrogatories, 

and admissions on file, designating specific facts to suggest that a reasonable jury 

could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. Yet, even 

where a non-movant neglects to submit any alleged material facts in dispute, a court 

must still be satisfied that the evidence in the record supports the uncontroverted 

material facts proposed by the movant before granting summary judgment. Reese v. 

Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008).

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II. FIRST ARGUMENT

Plaintiffs do not need their expert witness evidence to establish that Hurricane 

Michael damaged their windows and doors. 

Despite Plaintiffs not being able to use their experts’ evidence that their 

windows and doors were damaged by Hurricane Michael, Plaintiffs have ample 

evidence to support their claim. 

Defendant argues that Porben, supports the proposition that expert witnesses 

are needed to establish the extent of damages caused by a windstorm. See, Porben 

v. Atain Specialty Ins. Co., 546 F. Supp. 3d 1325, 1330 (S.D. Fla. 2021). In Porben,

the plaintiff’s expert witnesses were stricken, and the plaintiff argued that it could 

prove causation of damages through just 1) a letter from defendant stating that during 

the claim investigation the defendant found wind damage from the storm, and 2) an

estimation of windstorm damages to the property. Id. at *1331. The defendant

argued that even if the letter was an admission of coverage, the plaintiff could not

show that said damages exceeded the policy’s wind deductible. Id. The court

considered Plaintiffs two pieces of non-expert windstorm damage evidence but

concluded that plaintiff had not proffered sufficient evidence to establish that a 

covered loss caused damage to his property and that such damage exceeded the 

Policy’s deductible. Id. at *1332.

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The instant case is distinguishable in that Plaintiffs have proffered 6 pieces of 

evidence of Hurricane Michael damage to Plaintiffs’ windows and doors.3 Given 

that this Court does not have to worry about the hurricane deductible being met in 

this case, this Court can consider Plaintiffs’ 6 pieces of evidence of Hurricane 

Michael damage, and, respectfully, Plaintiffs believe this Court should conclude that 

a jury can find that Plaintiffs established that Hurricane Michael caused the damages 

to their windows and doors. 

Defendant argues that Mama Jo’s, Inc., supports the proposition that expert 

witnesses are needed to establish the extent of damages caused by a windstorm. See 

Mama Jo's, Inc. v. Sparta Ins. Co., No. 17-cv-23362-KMM, 2018 U.S. Dist. LEXIS 

201852, at *22 (S.D. Fla. June 11, 2018). In reality, Mama Jo’s, Inc., does not 

support Defendant’s argument. First, said case acknowledges that an expert witness 

is not required in all cases. Second, said case states that lay witnesses cannot answer 

causation questions, in the very limited context of whether construction dust and 

debris caused damages to the insured’s property, none of which relate to the instant 

case. 

Given that the issue of whether Hurricane Michael caused the damages to 

Plaintiffs’ windows and doors is a question of state law, Florida case law supports 

Plaintiffs’ argument that non-expert evidence can be used to establish causation. In 

 

3

See, Section “A” of “Statement of Disputed Fact and Argument” above. 

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Frederick, the Florida District Court of Appeal found that the insured met her burden 

of showing the existence of a triable issue, as to the cause of her loss, by rebutting 

her insurer’s expert engineer’s opinion with an inspection report, an affidavit from 

the insured, and its general contractor’s deposition testimony. Frederick v. Citizens

Prop. Ins. Corp., 314 So. 3d 539, 540 (Fla. 3d DCA 2020) Just like in Frederick, in 

the instant case, Plaintiffs rebut Defendant’s engineers’ opinions with Defendant’s 

own inspection report, affidavits from the insureds, Plaintiffs’ general contractor’s 

deposition testimony, along with Defendant’s corporate representative’s deposition 

testimony, Plaintiffs’ deposition testimony, and two repair estimates. Respectfully, 

this Court should also conclude that a jury can find that Plaintiffs established that 

Hurricane Michael caused the damages to their windows and doors.

In addition to Frederick, in Morales, the same Florida District Court of Appeal 

found that for the purposes of a motion for summary judgment, the weight of the 

evidence was not as important as the question of whether a genuine issue of material 

fact existed. Morales v. Citizens Prop. Ins. Corp., 47 Fla. L. Weekly D649 *3 (Fla. 

3d DCA Mar. 16, 2022). In Frederick, the insured rebutted the insurer’s engineer’s 

opinion with the insured’s licensed contractor’s opinions. Id. at *1. The Court 

ultimately concluded that the insured presented sufficient evidence to introduce a 

genuine issue of material fact regarding the cause of damage to the property and that 

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the trial court improperly granted summary judgment in favor of the insurer. Id. at 

*3.

Similar to Morales, in the instant case, this Court should consider Plaintiffs’ 

evidence of Hurricane Michael damages to its windows and doors and determine if 

the evidence creates a genuine issue of material fact. Given that the courts in 

Frederick and Morales found genuine issues of material fact with much less 

evidence, respectfully, this Court should also conclude that Plaintiffs have presented 

sufficient evidence to introduce a genuine issue of material fact regarding the cause 

of damage to their windows and doors.

Federal case law also supports Plaintiffs’ argument that a jury can consider 

Plaintiffs’ non-expert evidence of causation to find that Plaintiffs established that 

Hurricane Michael caused the damages to their windows and doors. 

In Greater Hall Temple Church of God, The Eleventh Circuit of the United 

States Court of Appeals ruled that although the plaintiff presented no admissible 

expert testimony and although none of the plaintiffs lay witnesses observed 

Hurricane Matthew causing the damage to the property, plaintiff’s witnesses 

provided enough circumstantial evidence for a jury to draw the conclusion that 

Hurricane Matthew did, in fact, cause the home’s damages. Greater Hall Temple

Church of God v. S. Mut. Church Ins. Co., 820 Fed. Appx. 915, 922 (11th Cir. 2020). 

In Greater Hall Temple Church of God, the plaintiff presented testimony of the 

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church’s pastor that when he returned to the church after the storm, he noticed 

damages that he had never seen before the storm. Id. at *922. The Plaintiff also 

presented testimony from its stricken experts that they observed the church’s roof 

before and after the storm and that after the storm, they observed roof damages. Id. 

The Eleventh Circuit of the United States Court of Appeals concluded that the above 

evidence “’furnished facts from which a logical conclusion could be drawn’ that 

Hurricane Matthew caused the damage to the roof”. Id.

The facts in Greater Hall Temple Church of God were eerily similar to the 

facts of the instant case. In both cases, 1) defendant insured the plaintiff for “direct 

physical loss to covered property”, 2) defendant denied damages from a hurricane 

to a specific part of the property and claimed the damages were caused by preexisting issues, 3) the court struck plaintiffs’ experts, and 4) defendant argued at 

summary judgment that because the plaintiff could not present expert evidence of 

causation of damages, plaintiff’s claim would fail. Just like in Greater Hall Temple 

Church of God, The Plaintiffs in this case present circumstantial evidence from the 

Insureds and their general contractor. Plaintiffs acknowledge that the court applied 

Georgia law in Greater Hall Temple Church of God but given that the facts of the 

case are so similar, and given that the Plaintiffs in this case present more evidence 

than the plaintiffs in Greater Hall Temple Church of God did, respectfully, this Court 

should conclude that Plaintiffs have presented sufficient evidence to introduce a 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 20 of 34
21

genuine issue of material fact regarding the cause of damage to their windows and 

doors.

As discussed above, even if this Court were to conclude that Plaintiffs cannot 

prove that their windows and doors were damaged by Hurricane Michael without 

expert witness evidence, this Court should consider Defendant’s opposing opinions 

on causation of damage and this Court should conclude that Defendant itself 

introduced a genuine issue of material fact regarding the cause of damage to 

Plaintiffs’ windows and doors.4

III. SECOND ARGUMENT

Plaintiffs do not need their expert witnesses to establish the damages that Hurricane 

Michael caused to their windows and doors. 

As described above, despite Plaintiffs not being able to use their experts, they 

can use the Insureds’ testimony, their general contractor’s testimony, Defendant’s 

admission of Hurricane Michael damage to Plaintiffs’ windows and doors, 

Defendant’s payment for Hurricane Michael damage to Plaintiffs’ windows and 

doors, and Plaintiffs two, authenticated and supported, repair estimates to establish 

the damage that Hurricane Michael caused to their windows and doors.

5

 

4

See, Section “A” of “Statement of Disputed Fact and Argument” above.

5

See, Section “A” & “B” of “Statement of Disputed Fact and Argument” above.

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 21 of 34
22

CMR Construction and Roofing and LJB Restoration Services, LLC. both 

inspected the subject property, observed damages to Plaintiffs’ windows and doors, 

and estimated the repairs needed for those windows and doors. Defendant cites to 

Kakawi Yachting, Inc., which supports Plaintiffs proposition that despite not being 

able to provide expert witness testimony, CMR Construction and Roofing and LJB 

Restoration Services, LLC. should be able to provide their lay witness opinion on 

their personally observed matters, which in this case would be the damages to 

Plaintiffs’ windows and doors. Kakawi Yachting, Inc. v. Marlow Marine Sales, Inc., 

No. 8:13-cv-1408-T-TBM, 2014 U.S. Dist. LEXIS 200294, at *6 (M.D. Fla. Oct. 

28, 2014) (“There is a marked difference between traditional lay opinion testimony, 

which relates to personally observed matters (e.g., ‘it was about a mile away,’ or ‘the 

light was green’) and the type of testimony offered here — an opinion regarding a 

matter that has yet to occur based on specialized knowledge of yachts and the cost 

for their repair.”). 

In addition, pursuant to Rule 701, Federal Rules of Evidence, CMR 

Construction and Roofing and LJB Restoration Services, LLC. should be allowed to 

testify as to the amounts listed in their repair estimates as the testimony would be 1) 

rationally based on the damages they perceived, 2) the testimony would be helpful 

in clarifying and quantifying the damages they observed, 3) the testimony would be 

helpful in clarifying the fact that the Plaintiffs suffered damaged to their windows 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 22 of 34
23

and doors (which is a fact in issue), and 4) their testimony would not be based on 

scientific technical or other specialized knowledge. Arch Specialty Ins. Co. v. Bp 

Inv. Partners, LLC, No. 6:18-cv-1149-Orl-78DCI, 2021 U.S. Dist. LEXIS 88207, at 

*12-13 (M.D. Fla. Feb. 2, 2021) (“Escoto may testify to what he observed during his 

inspection, but he may not offer an opinion based on his specialized knowledge as a 

trained water restoration professional that such damages were caused by Hurricane 

Irma.”). 

Respectfully, this Court should find that Plaintiffs are able to establish the 

damages that Hurricane Michael caused to their windows and doors, that there is a 

genuine issue of material fact as to whether Defendant breached the insurance 

contract by failing to make payment on Plaintiffs windows and doors claim, and this 

Court should deny Defendant’s Motion for Final Summary Judgment, on this issue.

IV. THIRD ARGUMENT

The subject policy is ambiguous as to whether Plaintiffs needed to formally request 

ACV coverage, but assuming Plaintiffs needed to, Defendant was put on notice that 

Plaintiffs made an ACV claim, and by failing to make payment on Plaintiffs’ ACV 

claim, Defendant breached the insurance contract.

I. The subject policy is ambiguous as to whether Plaintiffs needed to 

formally request ACV coverage.

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 23 of 34
24

First, the applicable policy is ambiguous as to whether Plaintiffs needed to 

formally request ACV coverage. 

The relevant policy provisions are as follows: 

HOMEOWNERS 3 – SPECIAL FORM

(HO 00 03 10 00)

***

SECTION I – CONDITIONS

***

C. Loss Settlement

***

2. Buildings covered under Coverage A or B at replacement cost

without deduction for depreciation, subject to the following: 

d. We will pay no more than the actual cash value of the

damage until actual repair or replacement is complete.

Once actual repair or replacement is complete, we will 

settle the loss as noted in 2.a and b. above. 

However, if the cost to repair or replace is both: 

(1) Less than 5% of the amount of insurance in 

this policy on the building; and

(2) Less than $2,500;

We will settle the loss as noted in 2.a and b. above whether 

or not actual repair or replacement is complete. 

e. You may disregard the replacement cost loss settlement

provisions and make claim under this policy for loss to

buildings on an actual cash value basis. You may then

make any claim for any additional liability according to

the provisions of this Condition C. Loss Settlement,

provided you notify us of your intent to do so within 180

days after the date of loss.

[Doc. 63-2] at p.32 (emphasis added).

Last year, this Court addressed this very issue. See, St. Michaels Anglican

Catholic Church of Panama City Florida Inc. v. Church Mut. Ins. Co., 5:20-CV235-AW-MAF, 2021 WL 6882431, (N.D. Fla. Nov. 24, 2021). This Court reviewed 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 24 of 34
25

a strikingly similar RCV and ACV policy provision as the RCV and ACV policy 

provision that is at issue in this suit. See below:

[i]f Replacement Cost is shown in the Declarations Page ... we will determine the 

value of Covered Property ... as follows:

(1) At Replacement Cost (without deduction for depreciation) as of the time 

of loss or damage ....

(2) You may make a claim ... on an [ACV] basis instead of on a Replacement 

Cost basis. In the event you elect to have loss or damage settled on an [ACV] 

basis:

(a) We will then determine the value of Covered Property on an [ACV] 

basis ...;

(b) You may still make a claim on a Replacement Cost basis if you

notify us of your intent to do so within 180 days after the date of the

loss or damage.

St. Michaels Anglican Catholic Church of Panama City Florida Inc. v. Church Mut.

Ins. Co., 5:20-CV-235-AW-MAF, 2021 WL 6882431, at *2 (N.D. Fla. Nov. 24, 

2021)(emphasis added).

Despite not needing to decide on the issue definitively, this Court concluded 

that, considering the policy language, Defendant could not articulate what 

affirmatively electing ACV looked like, that the policy was ambiguous as to whether 

ACV or RCV coverage election was prioritized, and, finally, that the policy’s 

“Duties in the Event of Loss” were silent on the need for an insured to formally 

request ACV coverage as opposed to an RCV claim. Id. at *2.

Similarly in this case, the subject policy does not articulate what affirmatively 

electing ACV coverage looks like, the subject policy does not clarify whether an 

ACV or RCV claim is prioritized, and the subject policy is silent on the need for 

Plaintiffs to formally request ACV coverage as opposed to an RCV claim. 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 25 of 34
26

Given that the relevant portions of the two policies discussed above are so 

similar, respectfully, this Court should, again, find that Plaintiffs did not need to 

formally request ACV coverage, that there is a genuine issue of material fact as to 

whether Defendant breached the insurance contract by failing to make payment on 

Plaintiffs windows and doors claim, and this Court should deny Defendant’s Motion 

for Final Summary Judgment, on this issue. 

The Southern District of Florida further addresses this issue of policy

ambiguity, in regard to the requirement of a formal ACV coverage request from the

Insured. See Appel v. Liberty Am. Ins. Co., 08-20385-CIV, 2008 WL 11333591, 

(S.D. Fla. Nov. 25, 2008). In Appel, the court analyzed a nearly identical RCV and 

ACV policy provision as the RCV and ACV policy provision that is at issue in this 

suit and concluded as follows:

Based on its interpretation of the above provisions, the Court does not 

agree that Plaintiffs must allege actual repair or replacement (or that the 

cost to repair is less than 5% of the amount of insurance or less than 

$1,000) in order to give rise to Defendants' liability for replacement 

cost. Although Section (b)(4) indicates that the Plaintiffs would not 

receive more than actual cash value if a claim is made under this 

section, Section (b)(5) suggests that a claim can be made on an actual 

cash value basis under Section (b)(4) or on a replacement cost basis 

under Sections (b)(1) or (b)(2). Section (b)(5) even states that an 

insured can make an actual cash value claim and then submit a 

replacement cost claim later on. In other words, although Plaintiffs have 

not alleged repair or replacement and do not allege that the cost to repair 

the damage is less than $1,000, they are not precluded by the actual 

cash value provision from pursuing a claim for replacement cost. No 

where does Section (b)(4) state that actual repair or replacement must 

be complete in order for an insured to submit a claim for replacement 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 26 of 34
27

cost. Furthermore, although Defendants cite cases for the proposition 

that “courts have almost uniformly held that an insurance company’s 

liability for replacement cost does not arise until the repair or 

replacement has been completed”, a closer reading of the cases reveals 

that the courts based their decisions on the language of the policy at 

issue rather than some unanimous rule.

Appel v. Liberty Am. Ins. Co., 08-20385-CIV, 2008 WL 11333591, at *5 (S.D. 

Fla. Nov. 25, 2008)(emphasis added).

Given that the relevant portions of the two policies discussed above are so 

nearly identical, respectfully, this Court should find that Plaintiffs did not need to 

formally request ACV coverage, that there is a genuine issue of material fact as to 

whether Defendant breached the insurance contract by failing to make payment on 

Plaintiffs windows and doors claim, and this Court should deny Defendant’s Motion 

for Final Summary Judgment, on this issue. 

II. Assuming Plaintiffs needed to request ACV coverage, Defendant was put 

on notice that Plaintiffs made an ACV claim.

Second, assuming Plaintiffs needed to formally request an ACV claim, 

Defendant was put on notice that Plaintiffs made an ACV claim. 

This Court, in St. Michaels Anglican Catholic Church of Panama City Florida

Inc., found that defendant was put on notice of plaintiff’s ACV claim—despite

plaintiff only submitting RCV estimates to defendant—because, 1) the defendant’s

payment letters stated that the policy provides RCV coverage, but initially makes

payment based on ACV figures, and to recover RCV payment, the insured should

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 27 of 34
28

complete repairs or notify the insurer of insured’s intent to complete repairs, 2)

defendant’s statements of loss contained depreciation amounts labeled “recoverable

withholding upon completion.”, and 3) that the language found in the payment letters

and the statements of loss were similar to the language found in the policy relating

to ACV claims, not RCV claims. Id. at *4-5. Most importantly, this Court concluded

that based on the evidence above, a jury could infer that defendant was on notice

that plaintiff was making an ACV claim.

Similarly, in this case, throughout the life of the claim, Plaintiffs have

submitted RVC estimates to Defendant.

Similarly, in this case, Defendant’s payment letters state that, initially,

payments are made based on ACV figures, and to recover RCV payment, Plaintiffs

should complete repairs and submit paid repair invoices or receipts showing that

repairs were completed. See highlighted portions of Defendant’s March 3, 2020, and 

November 15, 2018, payment letters [Doc.71-2 and 3].

In St. Michaels Anglican Catholic Church of Panama City Florida Inc.,

insurer’s statements of loss contained depreciation amounts labeled “recoverable

withholding upon completion.”. Id. at *4. In this case, Defendant’s statements of 

loss contain depreciation amounts and the following statement “Any additional 

claim for replacement cost and recoverable depreciation to be filed in accordance 

with the terms and conditions of your policy.”. See highlighted portions of 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 28 of 34
29

Defendant’s November 19, 2018, Statement of Loss [Doc.71-4]. Plaintiffs 

acknowledge that in St. Michaels Anglican Catholic Church of Panama City Florida

Inc., the language of insurer’s statements of loss were slightly different, but 

Plaintiffs argue that both statements of loss indicate that the insurers were on notice 

that the insureds were making an ACV claim, despite submitting RCV estimates.

In this case, Defendant’s payment letters state that initially payments are made

based on ACV figures, and to recover RCV payment, Plaintiffs should complete

repairs and submit paid repair invoices or receipts showing that repairs were

completed, and Defendant’s statement of loss contain the following statement “Any 

additional claim for replacement cost and recoverable depreciation to be filed in 

accordance with the terms and conditions of your policy”. Very similar language is 

found in the subject policy relating to ACV claims, not RCV claims. See underlined

below:

HOMEOWNERS 3 – SPECIAL FORM

(HO 00 03 10 00)

***

SECTION I – CONDITIONS

***

C. Loss Settlement

***

2. Buildings covered under Coverage A or B at replacement cost 

without deduction for depreciation, subject to the following: 

d. We will pay no more than the actual cash value of the

damage until actual repair or replacement is complete.

Once actual repair or replacement is complete, we will

settle the loss as noted in 2.a and b. above. 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 29 of 34
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e. You may disregard the replacement cost loss settlement 

provisions and make claim under this policy for loss to 

buildings on an actual cash value basis. You may then

make any claim for any additional liability according to

the provisions of this Condition C. Loss Settlement,

provided you notify us of your intent to do so within 180 

days after the date of loss. 

[Doc. 63-2] at p.32 (emphasis added).

Given that the evidence in this case is so similar to the evidence in St. Michaels

Anglican Catholic Church of Panama City Florida Inc., respectfully, this Court

should, again, conclude that a jury could infer that Defendant was on notice that

Plaintiffs were making an ACV claim, that there is a genuine issue of material fact 

as to whether Defendant breached the insurance contract by failing to make payment 

on Plaintiffs windows and doors claim, and this Court should deny Defendant’s 

Motion for Final Summary Judgment, on this issue.

III. In the alternative, if this Court were to conclude that Defendant was not 

put on notice that Plaintiffs made an ACV Claim, Plaintiffs RCV 

estimates should be sufficient for Plaintiffs to survive Defendant’s Motion 

for Summary Judgment. 

The Southern District Court of Florida has recently addressed the issue of 

RCV estimates being sufficient to get past a motion for summary judgment. See, 

Marquez v. Nat'l Fire & Marine Ins. Co., 551 F. Supp. 3d 1313, 1322 (S.D. Fla. 

2021). In Marquez, the court concluded that—despite only submitting RCV 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 30 of 34
31

estimates—because the insured agreed with the depreciation values contained in the 

insurer’s repair estimate, the insured had submitted sufficient evidence to establish 

her actual cash value damages with reasonable certainty at trial. Id. at *1324.

“Plaintiff need only subtract Defendant’s depreciation amounts from Mr. Brizuela’s 

replacement cost estimate to derive the actual cash value here”. Id. “Because Mr. 

Brizuela's estimate supports Plaintiff's theory that the actual cash value of the loss 

exceeds what Defendant paid, Defendant's Motion must be denied on this issue.” Id.

at *1325.

In our case, Defendant has made an ACV payment (deducting an average of 

27% for depreciation) to Plaintiffs on 15 windows and 1 door of Plaintiffs’ property. 

See the “Windows & Doors” category of Young & Associates October 1, 2020, 

Repair Estimate [Doc. 65-7]. Just like in Marquez, Plaintiffs, in this case, do not 

dispute Defendant’s depreciation amounts for Plaintiffs’ covered windows and 

doors. Therefore, to derive the actual cash value of Plaintiffs’ repair estimates, 

Plaintiffs only need to subtract 27% for depreciation. Therefore, respectfully, this

Court should conclude that Plaintiffs have submitted sufficient evidence to establish

their actual cash value damages with reasonable certainty at trial, that there is a 

genuine issue of material fact as to whether Defendant breached the insurance 

contract by failing to make payment on Plaintiffs windows and doors claim, and this 

Court should deny Defendant’s Motion for Final Summary Judgment, on this issue.

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 31 of 34
32

The Middle District Court of Florida has also recently addressed the issue of 

RCV estimates being sufficient to get past a motion for summary judgment. See SFR

SERVICES LLC, a/a/o John Braun & Barbara Braun, Plaintiff, v. GEOVERA

SPECIALITY INSURANCE COMPANY, Defendant., 2:19-CV-466-JLB-MRM, 

2021 WL 1909669, at *1 (M.D. Fla. May 12, 2021). In SFR Services LLC, the 

plaintiff only submitted an RCV estimate to the insurer and the court concluded that 

“A plaintiff generally does not need to prove contractual damages with mathematical 

precision to survive summary judgment. It is enough for the plaintiff to establish that 

damages exist and can be proven with reasonable certainty.” Id. at *5. Just like in 

Marquez, the court in SFR Services LLC found that “deriving actual cash value from 

replacement cost is fairly simple; all you have to do is subtract depreciation. Thus, 

assuming the underlying loss is covered, it would clearly be possible for SFR to 

establish damages at trial with reasonable certainty.”. Id.

In this case, despite only submitting RCV estimates to Defendant, Plaintiffs 

have established that damages exist and said damages can be proven with reasonable 

certainty, for all the reasons discussed in this response. Therefore, respectfully, this

Court should conclude that Plaintiffs have submitted sufficient evidence to establish

their actual cash value damages with reasonable certainty at trial, that there is a 

genuine issue of material fact as to whether Defendant breached the insurance 

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 32 of 34
33

contract by failing to make payment on Plaintiffs windows and doors claim, and this 

Court should deny Defendant’s Motion for Final Summary Judgment, on this issue.

WHEREFORE, Plaintiffs, JAMES MCPHERSON & VICKI 

MCPHERSON, respectfully request that this Court deny Final Summary Judgment 

in favor of Defendant, on all issues, except matching and ordinance and law, and 

grant any further relief that this Court deems necessary and proper. 

 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 56.1(B)

Pursuant to Local Rule 56.1(B), the undersigned certify that this response

contains 7,835 words. 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(K)

Pursuant to Local Rule 7.1(K), Plaintiffs and the undersigned request oral 

argument for this response and estimate that 1.2 hours should be enough to resolve 

all the issues raised in this response.

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 33 of 34
34

CERTIFICATE OF SERVICE FOR PLAINTIFFS’ 

RESPONSE TO LEXINGTON INSURANCE COMPANY’S 

MOTION FOR FINAL SUMMARY JUDGMENT 

I HEREBY CERTIFY that on this 20th day of May 2022, I electronically 

filed the foregoing document with the Clerk of Court using the CM/ECF system 

which sent notification of such filing to the parties who are registered participants 

with the system: Thomas J Moody, Esq., Clausen Miller P.C, 4830 West Kennedy 

Blvd, Suite 600, Tampa, Florida 33609. (tmoody@clausen.com; 

hrice@clausen.com; amccarthy@clausen.com)

RUDD & DIAMOND, P.A.

Attorneys for Plaintiffs 

4000 Hollywood Blvd. 

Presidential Circle, Suite 120-N 

Hollywood, FL 33021 

Tel. (954) 961-5059 

Fax. (954) 961-8953

service@rudddiamond.com

By: __/s/_ Michael P. Rudd

Michael P. Rudd

99.14108/MPR/KG FL Bar No.: 782416

Case 5:20-cv-00318-TKW-MJF Document 73 Filed 05/20/22 Page 34 of 34