28 Fla. L. Weekly D567a
Insurance — Property insurance on residential rental property — Exclusions — Vacant property — Error to enter directed verdict for insurer in insured’s action for breach of insurance contract on ground that property was vacant where different conclusions can be drawn on issue from evidence — Whether property was vacant was issue for jury
JOHN W. ANDREWS and SUE ANDREWS, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. 2nd District. Case No. 2D01-4852. Opinion filed February 28, 2003. Appeal from the Circuit Court for Hillsborough County; James M. Barton, II, Judge. Counsel: J. Troy Andrews of Andrews Law Group, Tampa, for Appellants. Guy E. Burnette, Jr., and Yoniece M. Dixon of Butler Pappas Weihmuller, Katz Craig, LLP, Tallahassee, for Appellee.
(GREEN, OLIVER L., Senior Judge.) John W. Andrews and Sue Andrews appeal the directed verdict entered in favor of United Services Automobile Association (USAA) in their action against USAA for breach of the insurance contract covering property they used as a rental residential dwelling. We reverse.
USAA moved for a directed verdict on the issue of whether the Andrews’ property was vacant for purposes of the following clause, which excluded coverage for “loss on the Described Location if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant.” In directing a verdict in favor of USAA, the trial court found that the dwelling was not being constructed and that it was vacant. While the trial court correctly directed a verdict on the issue of whether the dwelling was being constructed, it abused its discretion in directing a verdict on the issue of whether the dwelling was vacant because different conclusions can be drawn from the evidence in this case on that issue. See Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So. 2d 398, 399 (Fla. 2d DCA 1988). Thus, whether the Andrews’ dwelling was vacant was an issue for the jury to decide.
Accordingly, we reverse and remand for a new trial. (DAVIS and COVINGTON, JJ. Concur.)
