Third District Court of Appeal

State of Florida 

Opinion filed March 1, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-398

Lower Tribunal No. 17-26083

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Maria Mesa, et al.,

Appellants,

vs.

Citizens Property Insurance Corporation,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto 

Diaz, Judge.

Giasi Law, P.A., Melissa A. Giasi and Erin M. Berger (Tampa), for 

appellants.

Dutton Law Group, PA, and Rebecca Delaney and Scott W. Dutton 

(Tampa), for appellee.

Before EMAS, SCALES and LINDSEY, JJ. 

SCALES, J.
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In this first-party property insurance case, appellants Maria Mesa and 

Roxana De Leon (“Insureds”), the plaintiffs below, appeal a final judgment 

for appellee Citizens Property Insurance Corporation (“Citizens”), the 

defendant below, rendered after a jury found that rainwater damage suffered 

by Insureds’ home was not covered under Insureds’ property insurance 

policy with Citizens. Underlying the jury’s verdict was a policy provision 

excluding coverage for a loss caused by rainwater unless a covered peril 

first damaged the home causing an opening in the home’s roof through which 

the rainwater entered. Because Citizens’ primary rebuttal evidence 

supporting the jury’s verdict on this pivotal fact issue was the inadmissible 

hearsay testimony from Citizens’ corporate representative who, admittedly, 

had no personal knowledge of the facts about which she was allowed to 

testify, and because we are unable to conclude that such error was 

harmless, we are compelled to reverse the judgment and remand for a new 

trial.

I. RELEVANT BACKGROUND

Citizens issued a property insurance policy for Insureds’ home for the 

policy period between June 24, 2017, and June 24, 2018. The policy 

provided coverage for a physical loss to the dwelling but, as relevant here, 

excluded coverage for “loss . . . [c]aused by . . . [r]ain . . . unless a covered 
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peril first damages the building causing an opening in a roof . . . and the rain 

. . . enters through this opening.” On July 16, 2017, Insureds’ home was 

damaged when rainwater entered through the home’s roof and damaged the 

home’s interior. 

Insureds reported the loss to Citizens and, on August 1, 2017, Citizens’ 

field adjuster inspected the property. The field adjuster took photographs of 

the roof and prepared a report that documented the field adjuster’s findings. 

Based solely on the field adjuster’s documentation of wear and tear, and the 

field adjuster’s determination that there was no wind-created opening in the 

roof, Citizens denied coverage for the claim on August 14, 2017. 

On November 9, 2017, Insureds filed this first-party action against 

Citizens in the Miami-Dade County circuit court seeking coverage for their 

loss. Citizens’ amended answer and affirmative defenses denied that there 

was coverage, in part, based on the above referenced policy exclusion. The 

trial court held a three-day jury trial on November 1-3, 2021. The primary 

issue at trial was whether, on July 16, 2017, wind (the covered peril) had 

created an opening in the insured home’s roof through which the rainwater

then entered. 

To this end, both sides presented expert testimony from a 

meteorologist and an engineer. Insureds also presented the testimony of 
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their public adjuster, who had inspected the property on November 21, 2019, 

nearly two years after the loss. Importantly, Citizens’ field adjuster did not 

testify at trial. Nor did Citizens seek to introduce the field adjuster’s report 

into evidence as a business record. Rather, Citizens presented the testimony 

of Alicia Wright, who identified herself as “the corporate representative for 

Citizens.” Wright testified that she had reviewed the claim file and, as “the 

voice of Citizens,” had “come to advise [the jury] what happened throughout 

the claim.” 

Over Insureds’ counsel’s objection that “the witness does not have 

personal knowledge,” the trial court permitted Wright to testify as to the 

contents of the field adjuster’s report. Specifically, Wright testified that, after 

viewing the field adjuster’s photos (that were admitted at trial) and the field 

adjuster’s “documented . . . findings within the file” – including documentation 

of “wear and tear, prior repairs to the roof, deteriorated areas on the roof[,] . 

. . water pooling on the roof” and “no evidence of wind damage to the roof”

– Citizens had agreed with the field adjuster’s determination that “during his 

inspection, he didn’t find any covered loss to the roof.” 

At the close of the evidence and consistent with the subject policy 

exclusion, the trial court instructed the jury that “Plaintiffs have the burden of 

proof by the greater weight of the evidence that their property incurred a 
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direct physical loss for a covered peril on July 16, 2017 and that a covered 

peril caused an opening in the roof which allowed rain to enter and that 

opening caused damage to the interior of the property.” The jury returned a 

verdict in favor of Citizens. Insureds thereafter filed a motion for new trial 

arguing, among other things, that a new trial was warranted because the trial 

court erred in permitting Wright, over the objection that Wright lacked 

personal knowledge, to testify as to the contents of, and relay to the jury the 

opinions contained within, the field adjuster’s report. The trial court denied 

the motion for new trial and entered the challenged judgment that Insureds 

have timely appealed.

II. ANALYSIS1

A. Inadmissible Hearsay Testimony

We agree with Insureds that the trial court abused its discretion by 

permitting what was clearly inadmissible hearsay testimony from Citizens’

corporate representative, Alicia Wright. See §90.604, Fla. Stat. (2021) 

(“Except as otherwise provided in s. 90.702, a witness may not testify to a 

matter unless evidence is introduced which is sufficient to support a finding 

1 “Our standard of review on a trial court’s evidentiary rulings is abuse of 

discretion.” Philip Morris USA, Inc. v. Ledoux, 230 So. 3d 530, 536 (Fla. 3d 

DCA 2017). We also review the trial court’s denial of a motion for new trial 

for an abuse of discretion. Id. at 538. 
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that the witness has personal knowledge of the matter.”); § 90.801(1)(c), Fla. 

Stat. (2021) (“‘Hearsay’ is a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth 

of the matter asserted.”). Indeed, in its answer brief, Citizens seems to 

concede the error, citing as authority for the testimony only Florida Rule of 

Civil Procedure 1.310(b)(6).2 While this rule permits a corporation to 

designate an individual to appear at a deposition to “testify about matters 

known or reasonably available to the organization,” Id., Citizens cites to no 

authority that this discovery rule is tantamount to a trial hearsay exception.

2 Governing “Depositions Upon Oral Examination,” rule 1.310 provides, in 

relevant part:

(b) Notice; Method of Taking; Production at Deposition.

. . . .

(6) In the notice a party may name as the deponent a public or 

private corporation, a partnership or association, or a 

governmental agency, and designate with reasonable 

particularity the matters on which examination is requested. The 

organization so named must designate one or more officers, 

directors, or managing agents, or other persons who consent to 

do so, to testify on its behalf and may state the matters on which 

each person designated will testify. The persons so designated 

must testify about matters known or reasonably available to the 

organization. This subdivision does not preclude taking a 

deposition by any other procedure authorized in these rules.

Fla. R. Civ. P. 1.310(b)(6).
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In fact, it is well established that a trial court reversibly errs by allowing a 

witness to testify as to the contents of a business record when the business 

record itself is not entered into evidence. See Mace v. M&T Bank, 292 So. 

3d 1215, 1220 ( Fla. 2d DCA 2020) (“[T]he Bank did not present any 

testimony by a witness with personal knowledge that the [default] letter was 

mailed. . . . [Rather,] any information she did have came from conversations 

she had with someone . . . and her review of Bank records that were not 

offered or admitted into evidence. It should go without saying (1) that 

testimony by a witness without personal knowledge is inadmissible, and (2) 

that testimony based on what other people or documents say, when offered 

for the truth of the matter, is hearsay and, when unaccompanied by any 

showing that an exception to the hearsay rule applies, is inadmissible.”)

(citations omitted); Roberts v. Direct Gen. Ins. Co., 337 So. 3d 889, 891 (Fla. 

2d DCA 2022) (“But ‘[w]hile the business-records exception . . . allows the 

admission of ‘[a] memorandum, report, record, or data compilation,’ it does 

not authorize hearsay testimony concerning the contents of business 

records which have not been admitted into evidence.” (quoting Thompson v. 

State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998))).

Absent Citizens’ introduction of its field adjuster’s report at trial as a 

business record, Wright was only competent to testify from her personal 
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knowledge of the condition of the home’s roof. See Roberts, 337 So. 3d at 

892 (“Because Direct General did not offer any records from the underwriting 

file, the trial court’s reliance on the business records exception in 

establishing the admissibility of Robison’s deposition testimony was 

misplaced. Nevertheless, we affirm the trial court's entry of final summary 

judgment based on our conclusion that Robison’s testimony was admissible 

because she was competent to testify from personal knowledge. Robison is 

the manager of Direct General’s underwriting department, and her testimony 

reflected her familiarity with Direct General’s underwriting guidelines, the 

program used to calculate insurance premiums, and the process for running 

additional premium quotes. And prior to her deposition, she reviewed the 

underwriting file in this case. This provided a sufficient basis for Robison to 

testify from personal knowledge on this issue.”) (citations and footnote 

omitted). Citizens did not seek to establish that Wright possessed such 

personal knowledge at trial, nor did Wright’s testimony reveal that she was 

testifying based on personal knowledge;

3 therefore, the trial court erred by 

3 When asked, at trial, to explain her role as Citizens’ corporate 

representative, Wright testified that “throughout the claim process, there may 

be many individuals that review the claim, adjust the claim, things of that 

nature” and that “instead of calling all of those individuals in, I’m more of the 

voice of Citizens and I come to advise [the jury] what happened throughout 

the claim.”
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permitting Wright’s testimony as to the contents of, and opinions contained 

within, the field adjuster’s report.

B. Harmless Error Analysis

We also do not see how the trial court’s error in permitting Wright’s 

hearsay testimony was harmless. See § 59.041, Fla. Stat. (2021); R.J. 

Reynolds Tobacco Co. v. Hamilton, 316 So. 3d 338, 342 (Fla. 4th DCA 2021) 

(“Errors in evidentiary rulings in civil cases are subject to harmless error 

analysis.”). “To test for harmless error [in a civil case], the beneficiary of the 

error has the burden to prove that the error complained of did not contribute 

to the verdict. Alternatively stated, the beneficiary of the error must prove 

that there is no reasonable possibility that the error contributed to the 

verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014).

“As the appellate court evaluates whether the beneficiary of the error has 

satisfied its burden, the court’s obligation is to focus on the effect of the error 

on the trier-of-fact and avoid engaging in an analysis that looks only to the 

result in order to determine harmless error.” Id.

At trial, the parties agreed that the subject “policy was in effect when 

the loss was incurred,” and that a policy “exclusion applied as the loss 

occurred due to rain causing water damage to the interior of the home.” 

Empire Pro Restoration, Inc. v. Citizens Prop. Ins. Corp., 322 So. 3d 96, 98 
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(Fla. 4th DCA 2021). Insureds, therefore, bore the trial burden of establishing

an exception to the policy exclusion for there to be coverage for their loss, 

i.e., that a covered peril (wind) caused an opening in the roof of their home 

through which the rainwater entered. Id.; see also Fla. Windstorm 

Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla. 3d DCA 2005)

(recognizing, with respect to a similar policy provision, that “the insured has 

the burden to prove an exception to an exclusion contained within an 

insurance policy”).

Citing to “conflicting testimony from two or more witnesses as to 

whether [Insureds] had suffered a covered loss,” Citizens’ answer brief tacitly 

concedes that Insureds – through the testimony of Insureds’ expert 

witnesses and their public adjuster – presented sufficient evidence below to 

submit this coverage issue to the jury. We agree. Tellingly absent, though,

from Citizens’ briefing to this Court is any argument suggesting that the 

erroneous admission of Wright’s hearsay testimony was harmless in light of 

Insureds’ evidence. We conclude that, on the facts of this case, the 

erroneous admission of Wright’s hearsay testimony was not harmless.

Insureds’ property incurred water damage on July 16, 2017. Citizens’ 

field adjuster inspected the roof on August 1, 2017. Citizens denied the claim 

on August 14, 2017. According to Wright’s testimony, Citizens denied the 
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claim based solely on the field adjuster’s determination that the roof had 

wear and tear and that wind did not create an opening in the roof that allowed

the rainwater to enter the property’s interior. While Citizens did present 

expert witnesses at trial to support its argument that there was no windcreated opening in the roof, those experts did not have the opportunity to 

inspect the roof near the time that Insureds made their claim4 and their expert 

opinions did not have an impact on Citizens’ decision to deny the claim. On 

this record, Citizens failed to prove that there is no reasonable possibility that

Wright’s hearsay testimony contributed to the jury verdict in Citizens’ favor. 

See Hamilton, 316 So. 3d at 342-43 (concluding that the erroneous 

admission of hearsay testimony was not harmless because, “considering the 

strong evidentiary value of Mrs. Hamilton’s statement, it cannot be said there 

is no reasonable possibility that the error contributed to the verdict”).

4 At trial, Citizens introduced the deposition testimony of the roofer whom 

Insureds had hired to repair the roof near the time that Insureds discovered 

the roof leak. At his deposition, the roofer testified to the general condition of 

the roof, the location of the leak, and the roof repairs that he had performed. 

Aside, however, from a vague question asking whether “there was damage 

from some sort of storm,” – the roofer answered “no” – the roofer was not 

asked to explain the basis for his “no” answer or whether the roof had a windcreated opening. This vague deposition testimony did not render harmless 

the erroneous introduction of Wright’s testimony.
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We are therefore compelled to reverse the final judgment for Citizens 

and remand for a new trial.5

Reversed and remanded.

5 Given our resolution, we need not, and therefore do not, reach the other 

appellate issues raised by Insureds.