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Admitting Prior Claim Documents Into Evidence in First-Party Property Disputes at Trial

Sarah R. Goldberg | June 27, 2024

In first party property disputes, insurance carrier defendants asserts affirmative defenses of pre-existing damage based on a prior claim involving similar damages. Central to this defense is showing the jury the damages claimed in the prior claim through documents such as photographs and repair estimates.
To admit prior claim documents into evidence, an insurance carrier must establish two things: (1) relevance of the documents to the claim in dispute and (2) proper foundation for the documents to be admitted into evidence.
Relevance is established by showing that the prior claim speaks to an element of the plaintiff’s current claim. See Tower Hill Signature Insurance Co. v. Speck, 199 So. 3d 350 (Fla. 5th DCA 2016) and State Farm Fire & Cas. Co. v. Pettigrew, 884 So.2d 191, 196–97 (Fla. 2d DCA 2004).  
After establishing that documentation from a prior claim is relevant, a foundation for the documents to be entered into evidence must be established under the business records exception to the hearsay rule (Section 90.803, Florida Statutes). The rule provides the following hearsay exception:
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.
To lay this foundation, the records custodian must be deposed to confirm the documents were created and maintained as part of regular business activities. While deposing the person who created the documents for the prior claim is ideal, it is not required. The records custodian only needs to be “well enough acquainted with the activity to testify that the…business relies on those records.”  See Alysworth v. Mutiny on the Bay, 275 So. 3d 781 (Fla. 3d DCA 2019). 
The insurance carrier being sued cannot use their records custodian to authenticate records of a third party over whom they have no control.  In Universal Prop. & Cas. Ins. Co. v. Nacimiento, Case No. 3D23-0301 (Fla. 3d DCA April 3, 2024), the Court found the insurance carrier could not meet the business records exception through testimony of their corporate representative to admit a sworn proof of loss and estimate from a prior claim.  The court reasoned that nobody from Universal prepared the sworn proof of loss or estimate. Those documents were prepared by third parties with no relationship to Universal.  In contrast, documentation prepared by a field adjuster acting on behalf of the insurance carrier, can be authenticated through the records custodian.
The prior claim should be covered in detail in the deposition of the insured. Documents from the prior claim intended for evidence should be reviewed and marked as exhibits to the insured’s deposition. This strategy allows the party seeking admission to establish authenticity without needing a records custodian deposition. Simply put, if the insured identified the documentation from the prior claim, it eliminates the need for a records custodian to authenticate the documents



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