28 Fla. L. Weekly Supp. 240a
Online Reference: FLWSUPP 2803ASAP
Insurance — Coverage — Burden of proof — Policy — Discussion regarding differences between “all-risks” and “named perils” policies — Policy at issue is an “all-risk policy” where the covered perils are not named, but are instead defined by what is not covered — “Naming” perils by saying what they are not does not trigger “named peril” burden — Plaintiff is entitled to summary judgment on issue of coverage where insurer failed to allege an exclusion to all-risk policy as required
ASAP RESTORATION CORP. (a/a/o Elaine Miller), Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 18-17697 COCE (53). June 18, 2020. Robert W. Lee, Judge. Counsel: Aaron Silvers, Fort Lauderdale, for Plaintiff. Otto Espino, Jr., Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT FOR FAILURE TO RAISE ANY EXCLUSIONS BARRING COVERAGE
THIS CAUSE came before the Court on June 18, 2020 for hearing of the Plaintiff’s Motion for Partial Summary Judgment for Failure to Raise any Exclusions Barring Coverage, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED. At dispute in this Motion is whether the Citizens policy at issue in this case is an “all-risks” policy or a “named perils” policy. The distinction is important because under Florida law, where the burden falls at trial is different depending on what type of policy it is.
An “all-risks” policy does not extend coverage for every conceivable loss. Instead it provides coverage for all losses not resulting from misconduct or fraud unless the policy includes a specific provision expressly excluding the loss from coverage. Kokhan v. Auto Club Ins. Co., 45 Fla. L. Weekly D544a, D544 (Fla. 4th DCA), on rehearing, 45 FLW D1194 (Fla. 4th DCA 2020). Importantly, the burden is on the insured merely to show that a loss occurred during the policy period. Once this prima facie showing is made, the burden then shifts to insurer to show an exclusion to coverage. Kokhan.
On the other hand, however, if the policy were a “named perils” policy, the insured would have the burden of showing the loss falls within one of the named perils. Citizens Property Ins. Corp. v. Kings Creek South Condo, Inc., 45 FLW D597a (Fla. 3d DCA 2020).
The Court agrees with the Plaintiff that the Citizens policy in this case is an “all-risks” policy. In addition to Kokhan, the Court finds Mejia v. Citizens Property Ins. Corp. particularly instructive. 161 So.3d 576 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D2471a]. In Mejia, the appellate court explained that a named perils policy is one in which the peril is actually named. Id. at 578. In the instant case, the covered perils are not named — instead they are defined but what is not covered. In other words, the policy covers everything that is not excluded, which is the essence of an “all-risks” policy. Citizens is attempting to argue that “naming” the perils by saying what they are not, rather than what they are, similarly triggers the “named peril” burden. If Citizens were correct, however, the distinction between an all-risks policy and a named perils policy would practically disappear.
Because an insurer must allege an exclusion to an all-risks policy as an affirmative defense, see Kings Creek South Condo, and the Defendant in this case did not do so, the Plaintiff is entitled to summary judgment on the issue of coverage.
The loss in this case is a covered loss. There remains a dispute as to the extent of the damages, as well as the reasonableness of Plaintiff’s charges.
