2 Fla. L. Weekly Supp. 306a

Insurance — Homeowners — Exclusions — Loss caused by rain unless wind first damages roof or walls and then forces rain through the damaged roof or wall — Insurer could not apply exclusion to deny coverage for water damage to insured’s property resulting from second rainstorm which occurred while damage to roof sustained during first storm was being repaired

JANE RUSSELL, Plaintiff, vs. CLEARWATER KEY ASSOCIATION — BAYSIDE GARDENS NORTH, INC., a Florida corporation; ELASTIC ROOF COATING, INC., a Florida corporation; ALLSTATE INSURANCE COMPANY; and McDERMOTT CONSTRUCTION COMPANY, INC., Defendants. In the County Court for Pinellas County, County Civil Division. County Case No. 92-7263-CO-41. April 19, 1994. Stephen O. Rushing, Judge. Harold D. Oehler, Tampa, for Plaintiff. Michael J. Gross, St. Petersburg; M. Teresa Harris of The Thompson Law Group, P.A., St. Petersburg; and William C. Kaleel, Jr., St. Petersburg, for Defendants.

AMENDED ORDER GRANTING PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF

THIS CAUSE having come before this Court upon a Motion for Summary Judgment by Plaintiff and the parties being represented by counsel and the Court having heard legal arguments, and having received Memoranda of Law and cases from the respective parties and being otherwise fully advised in the premises, finds as follows:

I. THE AGREED UPON FACTS ARE AS FOLLOWS:

A. The Plaintiff purchased a homeowner’s policy from Allstate. The Plaintiff bought optional coverage called “Replacement Cost on Contents”. This optional coverage would pay the replacement cost for any damaged personal property. The Plaintiff paid her premiums to Allstate for this extra coverage.

B. On approximately April 25, 1991, a tornado hit Clearwater Beach. This storm damaged the roof of the Plaintiff’s building, causing a leak in the Plaintiff’s unit. Allstate paid the Plaintiff for damage caused by this initial storm.

C. The condominium association hired McDermott Roofing, Inc. to temporarily repair the roof until a permanent roof could be laid. McDermott installed a temporary layer of waterproof sheathing to prevent further leakage during any subsequent storms. The waterproof sheathing was temporary because it would leak after several weeks. The temporary repairs were sound and did not allow any water intrusion into the condominium unit. Prior to the permanent repairs being performed, the entire roof over the Plaintiff’s condominium, both permanent and temporary in nature, resulted in a water-tight roofing system.

D. Several weeks after the temporary repairs were performed, work began to permanently repair the damaged roof. Both the temporary and permanent roofs were simultaneously removed, section by section, by Elastic Roof Coating, Inc., the roofers hired by the condominium association to conduct the permanent repairs. After the permanent repairs had begun, a second storm struck, causing a substantial amount of water to leak into the Plaintiff’s unit. The Plaintiff’s son, Richard Kowalski, was in the unit when the storm started and observed water leaking into the unit. Mr. Kowalski assumed the workers on the roof left during the storm because he did not hear footsteps soon after the storm started. The Plaintiff lost several thousands of dollars worth of personal property due to the leakage.

E. If a rainstorm strikes while a section of the roof is removed, there will be leakage. There is no evidence, however, regarding the actual condition of the Plaintiff’s roof at the commencement of this rainstorm. There is circumstantial evidence, however, that it was Elastic’s practice to remove one section of the roof at a time with a tear off spade and promptly re-cover the section in order to prevent leakage if a rainstorm suddenly struck. It was also Elastic’s practice to secure a layer of waterproof material over any open sections whenever it appeared that a storm was eminent. It was Elastic’s policy never to leave a roof during a rainstorm until any opening in the roof was sealed with waterproof material. There is no evidence, however, as to whether Elastic followed its procedures in this case. Therefore, it is unknown whether there were any openings in the roof when the rainstorm struck.¹

F. Allstate refused to cover the Plaintiff’s personal property. Allstate claimed that exclusions in the policy allow it to deny coverage for the Plaintiff’s losses. These exclusions state:

We will pay for sudden and accidental direct loss to the property described in the Personal Property Protection coverage, except as limited or excluded in this policy caused by:

2. Windstorm or Hail.

We do not cover:

(a)loss to covered property inside a building, caused by rain, snow, sleet, sand or dust unless the wind or hail first damages the roof or walls and the wind forces rain, snow, sleet, sand or dust through the damaged roof or wall; (Emphasis added).

9. Falling Objects.

We do not cover loss to personal property inside a building unless the falling object first damages the exterior walls or roof of the building.

II. The sole issue is whether or not there is insurance coverage under the Allstate Condominium Owner’s Policy for damage to the Plaintiff’s property. The Plaintiff claims that the damage was caused by “rain” that entered “through the damaged roof or wall” and is, therefore, covered under the policy. Allstate claims that there is a specific exclusion under the policy for loss to property inside a building caused by rain “unless the falling object first damages the exterior walls or roof of the building.” Allstate claims that because the damaged roof was in the process of being repaired during the second storm, this exclusion allows them to avoid covering Plaintiff’s losses, although the initial damage to the roof was caused by a storm.

The Court makes the following findings that support the existence of coverage to the Plaintiff under this policy of insurance.

1. An insurer will not be allowed to use obscure terms to defeat the purpose for which a policy is purchased. Weldon vs. All American Life Ins. Co., 605 So. 2d 911, 915 (Fla. 2d DCA 1992); Hartnett vs. Southern Ins. Co., 181 So. 2d 524, 528 (Fla. 1965).

2. If an insurer wishes to condition its liability, it must do in clear, unambiguous language. National Merchandise Co., Inc. vs. United Service Automobile Assoc., 400 So. 2d 526, 530 (Fla. 1st DCA 1981).

3. An insurer cannot, by failing to define terms or to include any additional or qualifying or exclusionary language, insist upon a narrow, restrictive interpretation of coverage. Dahl-Elmers vs. Mutual of Omaha, 986 F. 2d 1379, 1381 (11th Cir, 1993).

4. If a term in a policy is susceptible to two reasonable interpretations, one resulting in coverage and another resulting in exclusion of coverage, that term is ambiguous, and the ambiguity must be construed against the drafter and in favor of coverage. Dahl-Elmers vs. Mutual of Omaha, Id. at 1381; Waldon vs. All American Life Ins. Co., 605 So. 2d 911, 915 (Fla. 2nd DCA 1992); Stuyvesant Ins. Co. vs. Butler, 314 So.2d 567, 570 (Fla. 1975); Harris vs. Carolina Life Ins. Co., 233 So. 2d 833, 834 (Fla. 1970).

5. Exclusionary language is to be interpreted most strictly against the insurer. Swindal vs. Prudential and Casualty Ins. Co., 599 So. 2d 1314, 1318 (Fla. 2d DCA 1992); Kirsch vs. Aetna Casualty & Surety Co., 598 So. 2d 109, 112 (Fla. 2d DCA 1992); State Farm Mutual Automobile Insurance Co. vs. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986).

6. When a policy is ambiguous, but the facts are not in dispute, it is the province of the trial judge to resolve the ambiguity as a matter of law. Dahl-Elmers vs. Mutual of Omaha, supra, 1381; Gulf Tampa Drydock Co. vs. Great Atlantic Ins. Co., 757 F. 2d 1172, 1174 (11th Cir. 1985); Smith vs. State Farm Mutual Auto. Ins. Co., 231 So. 2d 193, 194 (Fla. 1970); U.S. Automobile Ass’n. vs. Porras, 214 So. 2d 750 (Fla. 3d DCA 1965).

7. The policy provides for coverage for “windstorm” and “rain” forced through the damaged roof by wind. The damage sustained by the Plaintiff was a direct result of water damage from rain forced through the damaged roof in a windstorm.

8. The policy does not specifically exclude loss inside a building caused by rain upon temporary coverings installed during repair from a previous storm. At the very least, the policy contains an ambiguity which must be construed in favor of the insured.

A. In Mitchell vs. California Fair Plan Association, 260 Cal. Rptr. 3, (Cal. App. 2d Dist. 1989), an insured brought a claim on a homeowner’s policy when the insured’s roof leaked when a storm suddenly struck while the roof was being repaired. Portions of the roof were only covered with temporary sheathing when the storm struck.

There, also, the insurance company tried to exclude coverage under a similar exclusion for loss to property caused by rain:

unless direct force of wind or hail damages the building causing an opening in roof or wall and rain enters through this opening.

The insurance company claimed that the word “roof” did not mean a roof which was in a state of repair. The insurance company relied on New Hampshire Insurance Co. vs. Carter, 359 So.2d 52 (Fla. 1st DCA 1978) and Camden Fire Ins. Ass’n. vs. New Buena Vista Hotel Co., 24 So. 2d 848 (Miss. 1946).

The Mitchell court found the terms “roof”, “wall”, or “building” were not defined and held these terms were ambiguous and ordered that the policy be interpreted in favor of the insured.

In the instant case, Defendant Allstate had the duty to define the terms “roof” or “falling objects” if they intended these provisions to not apply to the instant situation. The exclusion expressly anticipates initial damage to the roof caused by a windstorm or rainstorm. However, the policy is ambiguous as to whether or not coverage applies to water damage caused by a subsequent rainstorm during the repair of the damaged roof. As the court in Mitchell stated:

Here the terms in question could be limited to parts or all of the permanent structure, or they could include normally adequate temporary coverings installed during repair or remodeling. Both positions are plausible.

Had the insurers decided to exclude from coverage rain damage resulting from the direct force of wind upon temporary coverings installed during repair or remodeling, they could easily have so specified. Their failure to do so left their policies in a state of ambiguity. Recognizing decisions to the contrary in other jurisdictions (Camden Fire Ins. Ass’n. vs. New Buena Vista Hotel Co., supra, 24 So. 2d 848, 849-850, reconsidered at 199 Miss. 585, 26 So. 2d 174, 175; New Hampshire Ins. Co. vs. Carter, supra, 359 So. 2d 52, 53, 54), we are nonetheless obliged to determine the matter before us in this state. That precedent requires that we resolve any doubts, uncertainties and ambiguities in favor of the insureds to protect their reasonable expectations of coverage…Mitchell vs. California Fair Plan Association, supra at 6.

B. The facts of this case are distinguishable from those in New Hampshire Company vs. Carter, supra, in that there was no prior windstorm before the repair to the roof, no initial damage to the roof caused by a windstorm and the following underlined language in the “excluding loss” provision in New Hampshire is not in the exclusion in this case:

Excluding loss:

(b)caused by rain, snow, sand or dust, all whether driven by wind or not, unless the building containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then this Company shall be liable for loss to the property covered therein caused by the rain, snow, sand or dust entering the building through openings in the roof or walls made by direct action of wind or hail.

The Court also finds Debothuri vs. Allstate Insurance Co., (Case No. CI 87-2973AJ, Fifteenth Judicial Circuit, October 11, 1989) to be persuasive, in determining that under the rules of construction, the facts and the instant contract that:

1.the initial damage to the roof was caused by windstorm and or falling objects (rain).

2.the subsequent damage to “covered property inside a building” was caused by “rain” forced “through the damaged roof” that was “first” damaged by wind.

THEREFORE, it is hereby

ORDERED AND ADJUDGED that there was coverage under the instant policy of insurance.

The Court reserves jurisdiction to award damages, costs and attorney fees.

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¹For the reasons set forth in Section “II A” below, the condition of the Plaintiff’s roof during the rainstorm is not dispositive to the issue of whether the Plaintiff is entitled to summary judgment on the issue of coverage.

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