25 Fla. L. Weekly Supp. 894a
Online Reference: FLWSUPP 2510DAVIInsurance — Homeowners — Exclusions — Marring exclusion in homeowners’ policy excludes loss that occurred when object fell in home and caused damage to tile — State courts have determined as matter of law that term “marring” is not ambiguous and includes dropped objects that fall and damage tile
LYZDETH DAVILA AND WILLIAM BURGOS, Plaintiff, v. FEDERATED NATIONAL INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-20869-CONS. February 23, 2017. Shirley Green, Judge. Counsel: Scot Strems, Coral Gables, for Plaintiffs. David Bear, Orlando, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS PLAINTIFF’S COMPLAINT
THIS MATTER came to be heard on Defendant, FEDERATED NATIONAL INSURANCE COMPANY’S (“Federated National”), Motion to Dismiss, and after a hearing on January 11, 2017, a review of all documents filed with this Court, and being otherwise advised of all pertinent matters, the Court makes these findings:
In their Complaint, Plaintiffs allege that on or about June 20, 2015 they held a policy of insurance with Federated National which provided coverage for the residence located at 3332 Planter Drive, Deltona, Florida, 32738. Complaint ¶3-4. The Policy was referenced by Plaintiffs in the Complaint as a basis of their cause of action, but a copy was not attached. Complaint ¶4-5. However, a copy of the Policy was provided as an exhibit to the Motion to Dismiss filed by Federated National. See Motion to Dismiss pg. 4; Defendant’s Notice of Filing in Support of Motion to Dismiss. It is proper for the Court to include this document in its evaluation of the Motion to Dismiss as the document was referenced in the Complaint as a basis of the cause of action and the Complaint specifically states that “all terms of the Policy are incorporated herein.” One Call Propr. Servs. v. Sec. First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a].
Plaintiffs allege that they suffered a loss at their property when an object fell in the living room causing damage to the tile. Complaint ¶7. Plaintiffs allege that this loss was covered under the Policy. Id. However, the Policy contains an exclusion for Marring, which reads as follows:
Section I — Perils Insured Against
Coverage A — Dwelling and Coverage B — Other Structures
We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property.
This includes the peril of “Catastrophic ground coverage” as provided in Part A. below.
We do not insure, however, for loss:
. . .
e. Any of the following: (1)
. . .marring. . .
Pg. 11 of Policy of Insurance which is attached as Exhibit “A” to Defendant’s Motion to Dismiss and is incorporated into Plaintiff’s Complaint by its ¶5; Defendant’s Notice of Filing in Support of Motion to Dismiss.
Absent ambiguity, the Court must give effect to the terms of an insurance policy through their plain meaning. Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197 (Fla. 4th DCA 2006) [32 Fla. L. Weekly D7a]. When those terms exclude coverage, there is no cause of action. Fayad v. Clarendon National Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005) [30 Fla. L. Weekly S203a].
As a matter of law, the Courts of this State have determined that the term marring is not ambiguous and includes dropped objects that fall and damage tile. Gamero v. Foremost Ins. Co., 2017 Fla. App. LEXIS 211 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D158b] (“We affirm the trial court’s orders, and hold that the damage to the floor tiles was a loss that constituted ‘marring,’ which was expressly excluded from coverage under the terms of the insurance policy. In this regard, we agree with the analysis and holding of Ergas v. Universal Property and Casualty Insurance Co. . . ., a case virtually identical in material respects involving a dropped item causing chipped floor tiles and a similar coverage exclusion clause for ‘loss [c]aused by . . . [w]ear and tear, marring, deterioration. . .”)(internal citations excluded); Ergas v. Universal Prop. & Cas. Ins. Co., 114 So. 3d 286 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D900a] (“As did the trial court, we conclude that the damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage.”).
Therefore, as a matter of law, the marring exclusion in Federated National’s Policy excludes the loss alleged by Plaintiffs in their Complaint. Discovery is not necessary in order to determine this as it is known by the pleadings.
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED.
