Plaintiff, Greenwich Insurance Company, is a Delaware-based insurance carrier that issued two excess coverage insurance policies to Mirador Master Association, Inc. (“Mirador Master”), a Miami Beach-based condominium association. The first excess policy was in effect between July 17, 2020, and January 4, 2021, and the second covered the period from February 2, 2021, to July 17, 2021.
In November 2020, four months after the first excess policy took effect, a construction company sued Mirador Master in Florida state court, later amending its complaint to add Mirador Master’s sub-associations, Mirador 1000 Condominium Association, Inc. and Mirador 1200 Condominium Association, Inc. (“Mirador 1000 and 1200”) as Defendants.
In July 2021, Mirador 1000 and 1200 filed crossclaims and a third-party complaint against Mirador Master and its officers and directors—including Bernardo Sandoval and Humberto Fernandez (collectively, the “D&Os”)—alleging that the D&Os mismanaged and misappropriated funds and breached fiduciary duties owed to Mirador 1000 and 1200.
Mirador 1000 and 1200 also moved for appointment of a receiver for Mirador Master; and the state court granted the motion, appointing the Receiver in February 2023.
When Plaintiff continued to deny coverage for Mirador Master, the D&Os, and Mirador 1000 and 1200, the Receiver, the D&Os, and Mirador 1000 and 1200 executed a Coblentz agreement (the “Assignment Agreement” or “Agreement”) alongside several related settlement agreements. In the Assignment Agreement, the parties to the state-court action agreed not to seek recovery from each other and to assign their rights to assert claims against Plaintiff.
Plaintiff sought declarations that it has no duty to defend or indemnify Mirador Master, the Receiver, Fernandez, Sandoval, Frohlich, and Herman.
The Court concluded that the Assignment Agreement is unenforceable against Plaintiff because the underlying insurance policy was not exhausted until after the Assignment Agreement was executed.
The Experts and Motions
The Receiver, Mirador 1000 and 1200, and Plaintiff retained experts who prepared reports addressing the enforceability of the Assignment Agreement, including its reasonableness; the scope of any coverage owed by Plaintiff; and whether Plaintiff received timely notice of the state-court litigation.
Mirador 1000 and 1200’s proposed expert is R. Hugh Lumpkin, an attorney specializing in insurance who opined that Plaintiff received timely notice. Plaintiff’s proposed expert is Barry L. Davis, an attorney focusing on insurance law who rebuts Kammer’s conclusion that the Agreement is reasonable and Lumpkin’s opinion that Plaintiff received timely notice.
The Receiver challenged the admissibility of Davis’ testimony, while Plaintiff challenged the admissibility of Lumpkin’s testimony.
The Receiver argued that Davis offered impermissible legal conclusions regarding insurance-policy interpretation and relied on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Plaintiff asserted that Lumpkin offered improper legal conclusions concerning timely notice under the excess policies and the reasonableness of the Assignment Agreement, and Lumpkin’s reliance on industry standards was irrelevant and unhelpful to the factfinder.
Law And Legal Expert Witnesses
Barry L. Davis has served as lead trial counsel to both Plaintiffs and Defendants in hundreds of complex construction and commercial disputes, insurance coverage and bad faith cases, and high-profile personal injury and wrongful death matters.
Davis has been a Florida Bar Board Certified Civil Trial lawyer since 1989, was elected by his peers as a Super Lawyer and holds a Martindale-Hubbell AV Preeminent rating. As an adjunct professor of law for several years, Davis taught classes in settlement negotiation and was trial team coach.
R. Hugh Lumpkin has acted as the lead counsel in hundreds of insurance disputes, having taken an uncounted number of depositions of insurer corporate representatives, adjusters, managers and executives, underwriters, actuaries and marketing people, as well as those hired by insurers to act as experts on claim handling standards and practices and underwriting over the course of the last 35 years in his insurance practice.
He attended the University of Miami School of Law, graduating in 1980 and becoming a member of the Florida Bar that same year.
Discussion by the Court
The Receiver’s Motion
The Receiver argued that Davis should be precluded from testifying because he offered legal conclusions regarding insurance coverage under the excess policies that are disguised as expert opinions.
Since Davis attempted to define the scope of coverage under the excess policies, the Court granted receiver’s motion to the extent that Plaintiff may seek to have Davis “state legal conclusions drawn by applying the law to the facts.” Certainly, Davis’ “legal analysis of the facts” is inadmissible.
The Court did not address the Receiver’s argument that Davis relies on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Because expert testimony on reasonableness is directed only to the enforceability of the Agreement — and enforceability has already been resolved — the Court did not reach the Daubert challenge to that testimony.
Plaintiff’s Motion
Plaintiff challenged Lumpkin’s proposed testimony on two grounds. First, Plaintiff objected to Lumpkin’s opinions on what is required by the notice provisions of the excess policies and whether Plaintiff breached the policies by denying coverage, contending these opinions amount to impermissible legal conclusions based on interpretations of the insurance contracts. Second, Plaintiff objected to Lumpkin’s opinions on “industry standards” as unhelpful.
As Plaintiff noted, Lumpkin’s proposed testimony included legal analysis of the facts. As a result, the Court granted Plaintiff’s motion to the extent the Receiver sought to have Lumpkin opine on insurance-policy interpretation or the legal consequences of the parties’ conduct.
However, Plaintiff’s arguments regarding Lumpkin’s “industry standards” opinions failed to persuade the Court. Expert testimony as to standard practices in an industry is admissible when it is relevant and the expert has demonstrated a basis for the opinion.
In this case, Lumpkin offered “industry standards” opinions that are relevant. For example, Lumpkin asserted that the industry standard for when an excess insurer should receive notice is “as soon as practicable after it is believed by the policyholder that the claim involved may exceed the limits of the primary insurance policy.” Such testimony could assist the trier of fact in deciding a genuine dispute of material fact: whether Plaintiff received timely notice of a claim as required by the excess policies.
While Plaintiff insisted Lumpkin’s testimony is not relevant, Plaintiff neither provided authority stating that industry standards are irrelevant to breach-of-contract actions, nor explained why industry standards could not be relevant to the claims and defenses asserted in this case.
Held
- The Court granted in denied in part the Defendant/Counter-Plaintiff, the court-appointed Receiver for Defendant, Mirador Master Association, Inc.’s Daubert motion to exclude the testimony of Barry L. Davis.
- The Court granted in denied in part the Plaintiff, Greenwich Insurance Company’s Daubert motion to exclude the testimony of R. Hugh Lumpkin.
Key Takeaway
While an expert may provide an opinion on an ultimate issue of fact, testimony regarding the legal implications of conduct is impermissible. To protect the Court’s exclusive prerogative to charge the jury regarding the applicable law, the Court must remain vigilant against the admission of legal conclusions.
Case Details:
| Case Caption: | Greenwich Insurance Company V. Fernandez |
| Docket Number: | 1:24cv23909 |
| Court Name: | United States District Court, Florida Southern |
| Order Date: | January 17, 2026 |
