Florida Court admits construction expert’s testimony assessing negligence claims in personal injury action 

Expert Testimony on Workers’ Compensation Insurance Practices

Plaintiff Dennis Scott initiated a personal injury lawsuit against Defendant Paychex Insurance Agency, Inc. The case revolves around a Certificate of Insurance (COI) that Paychex Insurance Agency issued to James A. Jones, a general contractor. The situation arose in connection with a construction project for which Jones engaged Central Florida Siding Pros, LLC (CFSP) as a subcontractor.

Jones required proof of workers’ compensation insurance from subcontractors, and CFSP obtained its policy through Paychex Insurance Agency, with a coverage period of April 29, 2017, to April 29, 2018.

On February 6, 2018, the Paychex Insurance Agency issued the COI to Jones, stating CFSP’s coverage period as April 29, 2017, to April 29, 2018. However, at this time, CFSP’s workers’ compensation insurance policy was facing potential jeopardy due to non-payment of premiums.

Paychex Insurance Agency had an obligation to notify NorGuard, the insurer, if CFSP failed to pay premiums, which could lead to the loss or non-renewal of coverage. Paychex Insurance Agency knew that notifying NorGuard of CFSP’s noncompliance might result in the policy’s cancellation. 

By January 16, 2018, CFSP had not paid premiums, and on January 23, 2018, Paychex Insurance Agency informed NorGuard of CFSP’s noncompliance. Subsequently, on January 24, 2018, NorGuard issued a Notice of Cancellation, with the policy set to expire on February 10, 2018. The exact point at which Paychex Insurance Agency learned of this impending cancellation is disputed. 

Despite the looming cancellation, the COI falsely indicated that CFSP’s insurance would continue until April 29, 2018. However, the policy was actually cancelled on February 10, 2018. On April 24, 2018, Plaintiff Dennis Scott sustained injuries while working on the Project. 

During the ensuing workers’ compensation proceedings, the Judges of Compensation Claims (JCC) determined that CFSP was Scott’s employer at the time of the injury, despite lacking workers’ compensation insurance.

Additionally, Jones was considered the employer and was deemed liable for Scott’s injuries since he didn’t have the necessary workers’ compensation coverage for non-lease employees. Following this determination, Jones and Scott reached a settlement agreement, and Jones assigned to Scott any potential claims against Paychex Insurance Agency, Inc. 

Overall, the lawsuit revolves around the allegedly fraudulent or misleading COI issued by Paychex Insurance Agency to James A. Jones, which falsely indicated insurance coverage for CFSP beyond the actual policy cancellation date. This misinformation played a role in the subsequent workers’ compensation proceedings and the determination of liability for Scott’s injuries. 

 
Construction Industry Expert Witness

Paychex Insurance Agency, Inc. offered the expert testimony of Eric Todd Alford at trial “to testify as to the best practices for general contractors in obtaining proof of workers compensation insurance from subcontractors, and verification of coverage, pursuant to industry standards.”  Alford reviewed documentary evidence from this case to offer opinions on the likely identity of Scott’s employer at the time of the accident; the responsibilities of general contractors regarding obtaining and verifying workers’ compensation insurance; and the interactions between insurers, insurance agents, and contractors. Alford also provided expert opinions about the “best practices and applicable standard of care for general contractors.” 

Alford is a state of Florida Certified General Contractor, and past president and member of the Board of Directors for Association of Subcontractors. He has worked in the construction industry for almost four decades and holds numerous construction and contracting certifications. 

Dennis Scott demanded exclusion of Alford’s testimony contending it was inadmissible as per the Daubert standards since it consisted of unreliable, unqualified, improper lay opinions which were also impermissible legal conclusions. 

Discussion by the Court  

The Court observed Plaintiff’s argument that Alford was offering unqualified, improper lay opinions basically involved two separate questions: One question was whether Alford was a qualified expert; the other was whether Alford’s opinions were helpful enough to be of assistance to the jury, rather than improper lay testimony.

Plaintiff argued that Alford was not qualified as an expert in employment law, taxation principles, or statutory analysis. The Court held that Alford’s testimony was limited to matters within the scope of his expertise such as the best practices for general contractors in obtaining proof of workers’ compensation insurance from subcontractors and verification of coverage, pursuant to industry standards considering he had worked in the construction industry for almost four decades and held numerous construction and contracting certifications.

The Court concluded that neither the Defendant nor Alford’s expert report consisted of any opinions from the topics the Plaintiff identified. The Court rejected the Plaintiff’s argument that Alford was only qualified to offer opinions on “highly technical construction issues” as opposed to opinions otherwise resulting from the expertise he gained in a lifetime of work as a general contractor 

Plaintiff was free to take up his concerns regarding the scope of Alford’s expertise with the jury but no ground was found to warrant the Court’s disqualification of Alford’s testimony. 

Usually the expert testimony must be of assistance to the Court and the jury when it comes to deciding matters beyond the understanding of the average lay person in order to be admissible. 

The Court found that Alford’s opinions were crucial to analyse the claims critical to the Plaintiff’s case and the Defendant’s defense. For instance, when the Plaintiff accused the Defendant of negligent misrepresentation and the negligent-supply-of-information, Alford addressed the issue of whether or not Jones exercised the necessary reasonable diligence regarding his reliance on the COI by looking into whether it was appropriate for Jones, as a seemingly experienced general contractor, to take no further action once he obtained the COI through his expert opinions which could be relevant to Defendant’s comparative negligence defense. As previously established, Alford’s understanding of contractors and workers’ compensation insurance qualified him to opine on such issues and hence his testimony was very helpful to the trier of fact. 

When an expert is retained, his opinion is generally sought regarding the ultimate issue of fact and he is supposed to refrain from testifying as to the legal implications of the conduct. The Court noted that even though Alford had referenced certain Florida statutes so as to apply the facts and evidence in order to provide an opinion, his testimony did not consist of impermissible legal conclusions since he was not providing opinions as to the official interpretation of the sections concerned. 

Plaintiff insisted that Alford’s opinions were unreliable because they rested “on a flawed and incomplete analysis” and “jumped to conclusions based upon misconstrued and incomplete evidence.” When the Plaintiff attacked Alford’s methodology, the Court felt it was partially justified considering the substance of Alford’s opinions left something to be desired since he based some of his opinions on disputed facts. But the Court also held that it was the jury’s place to assess the persuasiveness of Alford’s proffered opinions. Even though the Plaintiff listed multiple flaws in Alford’s methodology, the Court held that it could only be effectively addressed through means of cross examination instead of a motion to exclude.

Held 

The Court held that Alford’s opinions were reliable as per the Daubert standards since his opinions were sufficiently based on the application of his expertise and denied the Plaintiff’s motion to exclude the testimony of Defendant’s expert witness, Todd Alford. Since the proceedings of the case are ongoing, the outcome of the case is unknown. 

Key Takeaways: 

1. Qualification: If an expert testifies within the scope of his expertise, the Court deems him qualified to provide opinions that shed light on the issues being addressed based on his experience and training. 

2. Lay Testimony vs Expert Testimony: If the expert is providing testimony on matters beyond the understanding of the average lay person and such testimony is found to be helpful to the trier of fact, it qualifies as expert testimony instead of lay testimony. 

3. Persuasiveness vs Admissibility: Usually the testimony is found to be admissible if it is premised on the application of the expert’s training and experience hence if the jury finds that the testimony is not persuasive enough or if the opposing party finds the expert’s methodology error-prone, it may not always necessarily affect the admissibility of the expert’s testimony if those errors are found to concern the persuasiveness of the expert’s testimony. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded. 

4. Legal Conclusion: The expert is allowed to refer to and mention legal sections as long as he is not testifying about the official interpretations of the legal sections or the legal implications of the conduct.