Right to Record

By Michael J. Gelfand, Esq. / Published November 2021

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Can Hear You! Do You Want to Be Heard?

     Can a property owner make a recording of a visitor in her own Florida home? Can you be recorded, or may you record another, outside of an association meeting in Florida? While Florida law prohibits audio recording of conversations in certain circumstances, the bottom line may depend on whether the person being recorded has an expectation of privacy in the property owner’s home.

     These issues are real, coming to our attention when a Florida appellate court recently ruled that a homeowner would not violate Florida law if she video recorded an inspection of her home. The facts in Silversmith v. State Farm Insurance Company, 46 Fla. L. Weekly D 1592 (Fla. 4th DCA, July 7, 2021), indicate that the insured filed a claim with her insurer for property damage to her home.

     The insurer invoked its policy’s right to appraise the claim. The appraiser objected to the recording of the inspection. This led the insured owner to file a lawsuit seeking a declaration from the court that she had the right to record the appraiser’s inspection of her home. The trial court denied the insured owner’s motion for summary judgment on the grounds that no one can record an inspection unless all participants to the conversation consent to the recording.

     The Florida appellate court disagreed with the decision of the trial court that the insured owner could not record the appraisal in her own home. The appellate court concluded that the appraiser has no legitimate expectation of privacy while he is in the insured’s home for an inspection. The court noted that §934.03, Fla. Stat. (2020), precludes the recording of conversations when the speaker has “an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.”

     Therefore, the homeowner was permitted to record the appraiser’s inspection of her Florida home, even if all participants do not consent to the recording. As the appellate court stated, “nothing in the policy precluded audio/video recording of an appraisal inspection and that the insurer’s appraiser has no legitimate expectation of privacy while in the insured’s home for the inspection.”

     In other words, a property owner can openly record an inspection of his or her own Florida home. This right to record presumably would also apply to an association if it desires to record an inspection of association property damage located in Florida.

     Please remember that the rules are much broader concerning directors’ and members’ Florida meetings. Usually, a Florida association member entitled to attend a Florida community association meeting may audio and video record the meeting as allowed by the Condominium Act and the Homeowners Association Act.

Missing Evidence? You May Be to Blame If You Destroyed or Even Merely Lost It!

     When a lawsuit is filed, evidence to prove a point is frequently sought. What happens when a party to the lawsuit destroyed or lost the evidence? If the evidence is critical for the other side proving its case, then there may be a presumption that the lost evidence would have helped the other side, which can cause the loss of the case!

     In a recent decision, a Florida appellate court ruled that a trial court did not err when instructing that the jury could make an “adverse inference” from missing evidence. In Adamson v. R.J. Reynolds, 46 Fla. L. Weekly D 1679 (Fla. 4th DCA, July 21, 2021), Jacklyn Adamson, who smoked 50 cigarettes a day, was diagnosed with lung cancer at age 40 and died one year later in 1993. In 2006, her husband filed a wrongful death lawsuit against cigarette manufacturer R.J. Reynolds. One of the disputes in the case was whether Ms. Adamson’s lung cancer originated in her lungs and then spread elsewhere, or whether her cancer originated elsewhere and then spread to her lungs.

     The only medical records that were available were about 42 pages memorializing Ms. Adamson’s hospitalization and tumor surgery in 1993. The report stated: “This is a woman who presents with a lung mass of May of 1992.” Without copies of more medical records, the defense experts were unable to state with certainty where the cancer began.

     When asked if he had any medical records for his wife, Ms. Adamson’s husband told a paralegal at his law firm that he shredded any medical records he had for the decedent Ms. Adamson about two years earlier because they were old, and he did not think he would ever need them. R.J. Reynolds moved for a jury instruction permitting the jury to draw an adverse inference if the jury concluded that a party lost or destroyed evidence that “would have been material in deciding the disputed issue in this case.” The trial court granted the motion and issued the jury instruction, stating:

          The problem with destroyed evidence, of course, is that it is unavailable. And the point of an adverse inference instruction is to inform the jury that it may (but need not) resolve the uncertainty that has resulted from the loss of the evidence against the party that lost it.

The jury returned a verdict for R.J. Reynolds.

     The Florida appellate court affirmed the verdict, ruling that the trial court did not err in issuing the jury instruction. The court explained that 

“spoliation” occurs when a party loses or destroys evidence. When determining what remedy to impose, the court must address three questions:

1. Whether the evidence existed at one time
2. Whether the spoliator had a duty to preserve the evidence
3. Whether the evidence was critical to an opposing party being able to prove its case or defense.

     Here, the court found that the jury instruction was reasonable because the husband admitted he shredded the medical records of the decedent. The missing records would have been material in resolving disputed issues in the case. The court explained:

     As Judge Sasser reasoned, the problem with destroyed evidence is that it is unavailable and thus unknowable. Exactly what medical records Mr. Adamson destroyed is unknown because he shredded them. The purpose of instruction 301.11(a) is to tell the jury that it may, but is not required to, resolve the resulting uncertainty against the party who destroyed the evidence. The materiality of the destroyed records is a jury question under Instruction 301.11(a). RJR’s proffer was sufficient to allow the jury to decide whether Mr. Adamson destroyed material evidence.

     The moral to the story is that when bad things happen, do not destroy evidence!

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.