22 Fla. L. Weekly Supp. 1020a

Online Reference: FLWSUPP 2209AVERInsurance — Homeowners — Coverage — Wood rot damage — Summary judgment — Affidavit filed by homeowners in opposition to summary judgment is stricken as untimely where affidavit was filed after 5 pm on Friday before Monday hearing — Outline of coverage listing alternative available coverage that would increase $10,000 coverage limit for wood rot damage to $50,000 does not create ambiguity regarding coverage limit where outline is not part of policy and section 627.4143 provides that outline is not admissible in civil actions — Even if court were to consider outline as part of policy, there is no ambiguity as to whether additional wood rot coverage existed — Summary judgment is entered in favor of insurer

TYLER AVERDICK and TERRY AVERDICK, individuals, Plaintiffs, vs. SECURITY FIRST INSURANCE COMPANY, a Florida corporation, Defendant. Circuit Court, 7th Judicial Circuit in and for St. Johns County. Case No. CA14-573, Division 55. April 16, 2015. Howard M. Maltz, Judge. Counsel: Doug Stanford, Robertson Firm, St. Augustine, for Plaintiff. W. Ashby Underhill, Hassell Legal, P.A., Daytona Beach, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT

This cause came on to be heard pursuant to Defendant Security First Insurance Company’s (“Security First”) Motion for Summary Judgment. (Dkt. #30) The Court has considered the Motion, Plaintiffs’ response thereto (Dkt. #34), as well as the arguments of counsel for the parties during the hearing held before this Court on April 6, 2015. Being fully advised in its premises, this Court finds as follows:

I. Facts

The undisputed material facts in this case are straight forward and reveal as follows. Plaintiffs Tyler Averdick and Terry Averdick (hereinafter “the Insureds”) bring suit against Security First, their homeowners’ insurer for breach of contract and declaratory judgment. (Dkt. #6) According to their Complaint, the Insureds had a homeowners’ insurance policy issued by Security First. According to their Complaint, the Insureds sustained a roof leak which resulted in damage to their residence from mold or wood rot. The Insureds made a claim to Security First for benefits under their homeowners’ insurance policy for reimbursement for the repair to their premises. The undisputed material facts reveal that Security First ultimately paid the Insureds $10,000 for their claim. Security First asserts that the insurance policy at issue contains a $10,000 policy limit on claims for property damage caused as a result of fungi, mold, and wet or dry rot, and that it paid its policy limit for the Insureds’ claim. The Insureds argue that the insurance policy contains an ambiguity regarding the extent of coverage for property damage caused as a result of fungi, mold, and wet or dry rot; therefore, the policy limit should be $50,000 for their claim, and they should be entitled to recover additional monies for their damages. The amount of the Insureds’ loss is not in dispute.

The only issue in dispute in this case is whether the insurance policy contains a $10,000 policy limit for this type of claim, as asserted by Security First, or whether the policy contains an ambiguity regarding the coverage for this type of claim, resulting in a policy limit of $50,000, as asserted by the Insureds. In support of its motion, Security First submitted the affidavit of Casmir Maliszewski, which identifies the applicable policy of insurance, and indicates that Security First paid $10,000 towards the Insureds’ claim. (Dkt. # 31) The pertinent policy of insurance issued by Security First in favor of the Insureds is attached to the Insureds’ Complaint. (Dkt. #6)

On Friday April 3, 2015 at 5:02 p.m., the Insureds electronically filed the affidavit of Tyler Averdick in opposition to Security First’s Motion for Summary Judgment. (Dkt. #36) Counsel for Security First received the affidavit shortly thereafter. Security First’s Motion for Summary Judgment had been duly noticed for hearing on Monday April 6, 2015. (Dkt. #32) Rule 1.510(c), Fla. R. Civ. P., provides, in pertinent part:

. . . The adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5 p.m. 2 business days prior to the day of the hearing. . . .

By filing and serving Mr. Averdick’s affidavit after 5 p.m. on the Friday before the Monday hearing, the affidavit is untimely. (Dkt. #38) Security First appropriately moved to strike Mr. Averdick’s affidavit. This Court will not consider Mr. Averdick’s affidavit. However, even if this Court was to consider Mr. Averdick’s affidavit, it does not create a factual dispute that defeats summary judgment.

II. Summary Judgment Standard

Generally, a motion for summary judgment must meet the strict procedural requirements enumerated in Fla. R. Civ. P. 1.510. The requirements set forth therein are designed to protect the litigants’ constitutional right to a trial on the merits of a particular claim. Bifulco v. State Farm Mutual Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]. The Court may grant a motion for summary judgment if the pleadings, discovery, affidavits and other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “The party moving for summary judgment has the initial burden of demonstrating the nonexistence of material issues of fact; after the movant has tendered competent evidence supporting its motion, the burden shifts to the other party to come forward with opposing evidence to show a question of material fact exists.” Hicks v. Hoagland, 953 So.2d 695, 697 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D909a](citing Carnes v. Fender, 936 So. 2d 11 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]). The trial judge must draw every inference or resolve every doubt in favor of the party opposing the motion. Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 504 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2614a]. Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Snow v. Byron, 580 So.2d 238 (Fla. 5th DCA 1991).

III. Analysis

It is well-established that where the language of a contract or insurance policy is unambiguous and not subject to conflicting inferences, its construction is for the court to be determined as a matter of law. Ellenwood v. So. United Life Ins. Co., 373 So.2d 392, 394 (Fla. 1979); Harrington v. Citizens Property Ins. Corp., 53 So.3d 999, 1001 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2838a]. Courts must construe insurance contracts “in accordance with the plain language of the policy.” Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla. 2002) [27 Fla. L. Weekly S492a]. The policy terms “should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street.’ ” State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 244 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1845a]. However, if the salient policy language is susceptible to two reasonable interpretations, the policy is considered ambiguous. Auto Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]; Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]. Ambiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured. Anderson, 756 So.2d at 34; State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla. 1998) [23 Fla. L. Weekly S527a]. Insurance contracts must be read in light of the skill and experience of ordinary people, and be given their everyday meaning. Keen v. Fla. Sheriffs’ Self-Insurance Fund, 962 So.2d 1021, 1023 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1900a].

There is nothing ambiguous about the extent of coverage for the wood rot damage that gave rise to the claim by the Insureds. The parties don’t dispute that Section I of the insurance policy covers property damage to the Insureds’ premises. The endorsement to the policy that provides coverage for Limited Fungi, Mold, Wet or Dry Rot, or Bacteria is attached to the policy and identified as endorsement SFIV HO 09 FCE 01 06 (hereinafter referred to as “the “Fungi Endorsement”). The parties do not dispute that this is the endorsement that provides coverage for the wood rot property damage suffered by the Insureds. The policy contains declarations, the second page of which identifies “Premium Bearing Endorsement Details.” The Premium Bearing Endorsements section of the policy declarations identifies the Fungi Endorsement by name and number. This portion of the policy declarations makes clear that the “Fungi (mold) coverage” limit for Section I of the policy (property damage) is $10,000 for each covered loss and policy aggregate. The only reference to $50,000 coverage for fungi is for Section II of the policy, which covers liability to other persons, not property damage. The Insureds do not argue that the $50,000 Fungi policy limit for liability coverage (Section II) creates an ambiguity.

The Insureds argue that Security First’s “Homeowners Policy Outline of Coverage,” (hereinafter “the Outline of Coverage”) that was provided to them with their policy, creates an ambiguity regarding the fungi coverage. Beginning on the second page of the Outline of Coverage, is the section identifying optional coverages available to insureds. The pertinent portions of this section of the Outline of Coverage provides as follows:

OPTIONAL COVERAGES AVAILABLE

Florida Law requires insurers to offer Replacement Cost Coverage on your dwelling and Ordinance or Law Coverage to you unless you reject these coverages in writing. You automatically have replacement cost coverage on your dwelling if you have a form HO 00 03 of HO 00 06. Form HO 00 08 is an actual cash value (ACV) policy which does not provide replacement cost coverage. However, it may be added by endorsement.

Other optional coverages available include:

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Limited Fungi, Wet or Dry Rot, or Bacteria — Increased Coverage allows the basic $10,000 limit to be increased to $50,000.

(Emphasis Added)

The Insureds argue that the aforementioned section of the Outline of Coverage creates an ambiguity regarding whether they had $10,000 or $50,000 of property damage coverage for the wood rot damage. This argument is without merit.

Florida Statutes, section 627.4143 requires homeowners policy insurers to provide insureds with an outline of coverage, including available additional coverages. Section 627.4143(6) provides:

Neither this section nor the outline of coverage or checklist mandated by this section alters or modifies the terms of the insurance contract, creates a cause of action, or is admissible in a civil action.

Section 627.4143(6) makes clear that the Outline of Coverage not only cannot alter or modify coverage, it is not admissible in a civil action, and thus, cannot be used to argue that it creates an ambiguity in the insurance contract.

Furthermore, the first paragraph of the Outline of Coverage provided to the Insureds contained the language required in Florida Statutes, section 627.4143(5), which states:

The following outline of coverage or checklist is for informational purposes only. Florida law prohibits this outline or checklist from changing any of the provisions of the insurance contract which is the subject of this outline. Any endorsement regarding changes in types of coverage, exclusions, limitations, reductions, deductibles, coinsurance, renewal provisions, cancellation provisions, surcharges or credits will be sent separately.

See also Florida Peninsula Ins. Co. v. Cespedes, ___ So.3d ___, 2014 WL 7156315 *6 (Fla. 2d DCA 2014) [40 Fla. L. Weekly D14b](Altenbernd, J., concurring)(outline of coverage is for informational purposes only and cannot change the provisions of the contract).

It was made clear to the Insureds that the Outline of Coverage was not part of the insurance policy. The Outline of Coverage cannot create an ambiguity in the insurance policy. This conclusion is consistent with the findings of the United States District Court in Vencor Hospitals So., Inc. v. Blue Cross and Blue Shield of Rhode Island, 86 F. Supp. 2d 1155 (S.D. Fla. 2000), where the Court addressed whether an outline of coverage can be considered part of the insurance contract in determining whether an insurance policy is ambiguous. The District Court concluded that Florida’s statutes regarding outlines of coverage make clear that it is not part of the insurance policy. As that Court stated, “[i]t would be nonsensical to consider the Outline to be part of the contract when on its face and in a very conspicuous manner it declares it is not.” Id. at 1159. The Court went on to state that “[s]ince the Outline of Coverage is not part of the contract, it constitutes parol evidence and is not admissible to create an ambiguity in the contract.” Id. at 1160. Although the Court in Vencor was interpreting Florida Statutes, section 627.642, which requires outlines of coverage for health insurance policies, the same analysis applies under the section 627.4138, since the same disclosures are required — that the outline is informational only and does not constitute part of the policy.

The Outline of Coverage cannot be considered to determine whether the policy is ambiguous since the outline is not part of the policy. However, even if this Court was to consider the outline as part of the policy, the outline makes clear that the Insureds could purchase additional coverage for fungi or wood rot loss up to $50,000, but there is no ambiguity whether such coverage existed.

The Insureds’ argument that the policy is ambiguous regarding the extent of coverage for property damage as a result of wood rot under the Fungi Endorsement based on the Outline of Coverage is without merit. The policy is unambiguous that the coverage limit for the loss at issue was $10,000 — an amount paid in full by Security First. The undisputed material facts reveal that Security First is entitled to judgment as a matter of law.

Therefore, it is ORDERED and ADJUDGED that:

1. Security First’s Motion for Summary Judgment is GRANTED;

2. Counsel for Security First shall submit to the Court a Final Judgment consistent with this Order, in the form provided by the Florida Rules of Civil Procedure.

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