The Third District Court of Appeal penned a warning to litigators Wednesday when it ruled on an insurance case in which a then-82-year-old plaintiff had signed an affidavit that her attorneys appeared to have embellished to help strengthen her case—and praise their firm.

"I believe that Perry Neblett P.A., David Avellar Neblett and James M. Mahaffey III are some of the top attorneys in the field in the country regarding litigation of insurance matters, and I understand that David Avellar Neblett is board certified," the affidavit read.

But judges presiding over the litigation found that it sounded more like the words of lawyers than the work of a layperson, and the Third DCA called it hyperbolic.

In hindsight, attorney David Neblett said he stands by the affidavit's accuracy, but conceded there's one thing he'd do differently.

"I don't think I would have put the stuff in there about how great we are," he said. "We are great attorneys, I am board certified. But that also had to do with fees and other issues, so it's taken a little bit out of context. … I understand that the court doesn't want attorneys to embellish."

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A lesson

Plaintiff Irma Perez's affidavit exuded a bit too much certainty about particular facts, according to the opinion, including the timing and cause of water damage to her roof, plus commentary on the report and testimony of her insurer's engineering expert.

But Perez, who suffered from diabetes and had multiple memory problems, later testified that she didn't know what it meant to be board certified and didn't know about wind speed and roof damage. The plaintiff also changed her mind on the date of the loss, after conferring with a relative, the opinion noted.

"She had no training or expertise in engineering or construction, having been an elementary school teacher in Cuba for 30 years before coming to the United States," the opinion said. "Nonetheless, her affidavit included disagreement with statements made by SafePoint's expert engineer 'that a 30 mile an hour wind is not enough to cause an opening in the roof.'"

Though the panel ruled in the plaintiff's favor, it said the case should serve as a lesson.

"The trial court's reaction, and ours, to such hyperbole is a teaching point and a caution that a client's personal knowledge, however imperfect, is not to be gilded, excessively bolstered, or embellished by her counsel in the hope of improving a case," the opinion said.

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Fraud finding vacated

Perez sued SafePoint Insurance Co. in 2015 after it failed to pay her claim for about $23,000 to fix roof damage caused by wind. The insurer disputed the condition of the roof and the cause of the leak, according to the opinion.

After SafePoint moved to strike those pleadings, Miami-Dade Circuit Judge Abby Cynamon found Perez had perpetrated a fraud on the court, and dismissed her case with prejudice.

But the appellate panel vacated that decision, finding the trial court should have considered a lesser sanction instead. It ruled that such a severe punishment should be reserved for egregious cases where the plaintiff was shown to have used "some unconscionable scheme." The Third DCA also said trial courts should consider an attorney's contribution to alleged misconduct as a mitigating factor.

Meanwhile, Neblett stressed that although the appellate panel found embellishments, there was nothing incorrect in the affidavit. He said it wasn't intended to tout Perez as an expert, but instead referred to what experts had found.

"Everything in the affidavit was true," he said. "She didn't misrepresent anything. It's just they're saying it was a little much because she couldn't remember."

Neblett also claimed his elderly client only struggled to remember details when she was put on the spot by insurance defense attorneys, who were "grilling her" at a court hearing, where she was confused without being able to see related documents or photographs.

That, Neblett argued, wasn't akin to fraud on the court.

"They [the defense] made it into something that it wasn't," Neblett said. "If they had a problem with some of the things on the affidavit, they could have done something about the affidavit, but instead they took a very draconian, extreme position."

SafePoint's attorneys Hope Zelinger and Nicole Houman of Bressler, Amery & Ross in Fort Lauderdale did not respond to a request for comment by deadline.

In a twist, Neblett said he was pleased with the ruling.

"I know it wasn't extremely favorable to my firm and I, but we're happy that it was the right thing for the client, so we tried to kind of fall on the sword in terms of the briefing," Neblett said.

Third DCA Judge Vance E. Salter wrote the opinion, backed by Judges Thomas Logue and Edwin Scales.

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