25 Fla. L. Weekly Supp. 402c
Online Reference: FLWSUPP 2505DOUGInsurance — Automobile — Property damage — Trial court erred in entering summary judgment in favor of insurer in action alleging insurer breached contract by denying coverage for damages sustained when “simulated convertible roof top” blew off vehicle based on policy’s “normal wear and tear” exclusion where genuine issues of material fact existed as to cause of the loss
JEROME DOUGLAS, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County. Case No. 2016-AP-04. L.T. Case No. 2014-CC-112. June 26, 2017. Appeal from the County Court in and for Hernando County, The Honorable Judge McCathran. Counsel: Chad A. Barr, Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant. William Kebler, Banker Lopez Gassler, St. Petersburg, for Appellee.
OPINION
(FALVEY, J.) Jerome Douglas, Plaintiff below, appeals an order denying his motion for summary judgment and granting Defendant State Farm’s motion for summary judgment. This Court has jurisdiction pursuant to Rule 9.030(c)(1)(A), Florida Rules of Appellate Procedure. For the reasons that follow, we reverse the trial court’s order granting State Farm’s motion for summary judgment dated February 8, 2016 along with the final judgment dated September 1, 2016 and remand for further proceedings.Factual and Procedural Background
On April 4, 2012, Jerome Douglas (“Douglas”) was driving home during inclement weather when the “simulated convertible roof top” blew off his 1990 Cadillac Fleetwood. Douglas filed a loss claim with his auto insurance carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). Following a vehicle inspection, State Farm determined the loss was due to “normal wear and tear,” an exclusion from coverage under Douglas’s policy, and denied the claim. Douglas sued State Farm for breach of contract, arguing a sudden gust of wind caused the loss. During litigation, the parties filed competing motions for summary judgment. The trial court granted State Farm’s motion for summary judgment and denied Douglas’s motion. Douglas timely appealed.
“The standard of review of a trial court’s entry of a final summary judgment is de novo.” T-Quip of Florida, Inc. v. Tietig, 207 So. 3d 958, 960 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2740d]; citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact, and that the movant is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Unless the facts are so crystallized that only questions of law remain, summary judgment is inappropriate. See Bess v. 17545 Collins Ave., Inc., 98 So.2d 490 (Fla. 1957); Rodriguez v. Saenz, 866 So.2d 184, 186 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D456b]. “When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action.” Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1087c] citing Publix Super Mkts., Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987). “Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’ ” Id. citing Besco USA Int’l Corp. v. Home Sav. of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1450b]. “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Moore, 475 So.2d 666, 668 (Fla. 1985).
On appeal, Douglas argues, among other things, that a genuine issue of material fact remains as to the cause of the loss and that the trial court improperly weighed evidence. A review of Douglas’s deposition reveals that he bought the car about a year prior to the incident, it was in good condition with low mileage for its age, and it had always been kept in the garage or under cover. According to Douglas, while traveling on an interstate highway during inclement weather, there was a wind gust, he heard a “big woof” and, shortly thereafter, he determined the vinyl top had blown off the car roof. In an affidavit accompanying his motion for summary judgment, he stated he believed inclement weather caused the loss.
A review of the deposition of the State Farm inspector reveals he noted the exposed roof top adhesive was deteriorated and the rivets used to attach the simulated roof top were corroded. He opined that this deterioration occurred over a long period due to the car’s age along with exposure to sun and heat. He concluded that wind passing over the leading edge of the windshield lifted the roof top in an area where it was already loose.
We find that there is a genuine issue of material fact as to the cause of the loss. The trial court’s order states only that the “Court agrees with the arguments set forth in Defendant’s motion and Defendant’s response to the Plaintiff’s motion.” This was an improper weighing of evidence, as it is not the trial court’s function to determine if the plaintiff proved his case, its function was to determine whether the defendant “proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’ ” See Winston Park, Ltd., 872 So. 2d at 418. As in Moore, Douglas’s statements conflict with the inspector’s opinion, raising genuine issues of material fact that “should be submitted to the jury as a question of fact to be determined by it.” See Moore, 475 So.2d at 668.
Additionally, Douglas filed a motion for award of his attorney’s fees and costs on appeal pursuant to section 627.429, Florida Statutes, and Florida Rule of Appellate Procedure 9.400. Douglas’s motion for attorney’s fees is granted as to entitlement and remanded to the trial court for determination of the amount, contingent upon which party ultimately prevails. Rados v. Rados, 791 So. 2d 1130, 1132 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D932a] (“If an appeal does not conclude a case, but rather results in further proceedings during which either party may ultimately prevail, the appellate court often ‘grants’ the motion for attorney’s fees contingent upon the movant ultimately prevailing below.”). The motion as to costs is denied because “[c]osts shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order.” Fla. R. App. P. 9.400(a); see also Garcia v. Collazo, 178 So. 3d 429, 430 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2189f] (“Motions for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate.”).
Conclusion
Accordingly, there is a genuine issue of material fact as to the cause for failure of the simulated roof such that summary judgment in favor of State Farm was inappropriate. The trial court’s order granting State Farm’s motion for summary judgment is reversed and remanded for further proceedings. Appellant’s motion for attorney’s fees is granted as to entitlement and also remanded for further determination. Appellant’s motion as to costs is denied without prejudice. REVERSED and REMANDED (SEMENTO and HODGES, JJ., concur.)
