28 Fla. L. Weekly Supp. 544b

Online Reference: FLWSUPP 2806IKON

Insurance — Property — Coverage — Insurer did not breach policy by denying coverage where policy unambiguously excluded coverage for loss caused directly or indirectly by any type of fungus, mold, mildew or wet rot, and it was undisputed that loss was caused by mold, mildew, fungi or wet rot

IKON RESTORATION SERVICES, INC., Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2017-008100-CC-05, Section CC02. August 18, 2020. Lody Jean, Judge. Counsel: Annette Del Aguila, Marin, Eljaiek, Lopez & Martinez, P.L., Miami, for Plaintiff. Miriam Merlo and Emily C. Smith, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court on Defendant’s, CITIZENS PROPERTY INSURANCE CORPORATION’s, Motion for Final Summary Judgment, and the Court having reviewed all relevant pleadings and record evidence, having heard argument of counsel and being otherwise fully informed, and viewing the record evidence and making all reasonable inferences in the light most favorable to the Plaintiff, hereby GRANTS Final Summary Judgment in favor of the Defendant.Undisputed Material Facts:

The Court finds the following issues of material fact are undisputed on summary judgment:

1. Plaintiff, Ikon Restoration Services, Inc., provided remediation services for a loss which occurred at the property located at 5077 NW 7th Street, Unit #501, Miami, FL 33126 (the property), and insured by Defendant, Citizens Property Insurance Corporation.

2. As Plaintiff’s Corporate Representative testified, mildew or fungi, wet rot, mold and mildew were present at the property. See Deposition of Daniel Bello, pp. 18-20, pp. 40-41.

3. As Plaintiff’s Corporate Representative testified, the services provided by Plaintiff at the property were for the remediation of mold, mildew, fungi and/or wet rot at the property. See Deposition of Daniel Bello, pp. 14-15, p. 24.

4. As Plaintiff’s Corporate Representative testified, Plaintiff did not determine the source of water, moisture or humidity at the property, other than determining that it was coming from ‘an above source.’ See Deposition of Daniel Bello, pp. 36-37, 39.

5. The insurance policy issued by Defendant for this property defines “Fungi” as follows: “2. “Fungi” means any type or form of fungus, including: a. Mold or mildew; and b. Any mycotoxins, toxins, spores, scents or byproducts produced or released by fungi.”

6. The insurance policy issued by Defendant for this property insures against the certain perils stated in the section entitled “PERILS INSURED AGAINST.”

7. The insurance policy issued by Defendant for this property sets forth certain exclusions under the section entitled “GENERAL EXCLUSIONS,” and states, in relevant part:

GENERAL EXCLUSIONS

A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.

. . .

10. “Fungi”, Wet Or Dry Rot, Yeast Or Bacteria meaning:

The presence, growth, proliferation, spread, or any activity of “fungi”, wet or dry rot, yeast or bacteria.

This Exclusion 10. does not apply:

a. When “fungi”, wet or dry rot, yeast or bacteria results from fire or lightning; or

b. To the extent coverage is provided for in the “Fungi”, Wet Or Dry Rot, Yeast Or Bacteria Other Coverage with respect to loss caused by a Peril Insured Against other than fire or lightning.

Direct loss by a Peril Insured Against resulting from “fungi”, wet or dry rot, yeast or bacteria is covered.

8. The insurance policy issued by Defendant provides certain coverages under the section “Coverages,” and under Subsection “E. Other Coverages,” and states, in relevant part:

COVERAGES

E. Other Coverages

. . .

5. Reasonable Repairs

In the event that a covered property is damaged by an applicable Peril Insured Against, we will pay the reasonable cost incurred by you for necessary measures taken solely to protect against further damage.

. . .

9. “Fungi”, Wet Or Dry Rot, Yeast Or Bacteria

a. We will pay up to $10,000 for:

(1) The total of all loss payable under the Coverages section of your Policy caused by “fungi”, wet or dry rot, yeast or bacteria;

. . .

b. The coverage described in a. only applies:

(1) When such loss or costs are a result of a Peril Insured Against that occurs during the policy period; . . .

9. The insurance policy issued by Defendant sets forth certain conditions, in Section “CONDITIONS,” under Subsection “D. Duties After Loss,” and states, in relevant part:

CONDITIONS

D. Duties After Loss

You must see that the following are done in the event of loss or damage to the covered property:

. . .

2. Property the property from further damage. If repairs to the property are required, you must:

a. Make reasonable and necessary temporary repairs to protect the property; and

b. Keep an accurate record of repair expenses.

FINDINGS

“[S]ummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. Here, no genuine issue of material fact exists and, viewing the facts and making all reasonable inferences in the light most favorable to the Plaintiff, the Court finds as follows:

The Court finds that the above language cited in paragraphs (5)-(9) of this Order is clear and unambiguous. The Court further finds that Section “CONDITIONS,” Subsection “D. Duties After Loss,” does not create any ambiguity as to the coverage afforded under Section “COVERAGES” and does not create any ambiguity as to the exclusions set forth in Section “EXCLUSIONS.” Florida law is clear that “coverage under an insurance contract is defined by the language and terms of the policy.” Swire Pacific Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 169 (Fla. 2003) [28 Fla. L. Weekly S307d]. See Siegle v. Progressive Consumers Ins. Co, 788 So. 2d 355, 359 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1506a]. “Where the language of the policy is plain and unambiguous, there is no need for judicial construction and the contract must be enforced as written.” Siegle, 788 So. 2d at 359. (internal citations omitted).

The Court finds that, applying the clear and unambiguous language of the insurance policy to the undisputed material facts, the loss is excluded from coverage under the policy issued by Defendant. Under Florida law, “the burden rests with the insured, as an initial matter of law, to prove coverage for a claim under an insurance policy”. Citizens Prop. Ins. Corp. v. Manning, 966 So. 2d 486, 488 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D2458c]; see also Exhibitor, Inc. v. Nationwide Mut. Fire Ins. Co., 494 So. 2d 288, 289 (Fla. 1st DCA 1986) (“In a suit to recover under an insurance policy, the insured must prove that the loss did occur and that it was within the coverage of the policy”). As an assignee of the Insured’s benefits, Plaintiff steps into the shoes of the Insured as it pertains to coverage under the terms and conditions of the Insured’s Policy with Defendant. The undisputed material facts in the present case are that this loss was caused by mold, mildew, fungi and/or wet rot. As set forth in Section “GENERAL EXCLUSIONS,” the policy issued by Defendant does not insure for loss caused directly or indirectly by “Fungi,” meaning any type or form of fungus, including mold and mildew, or wet rot. Therefore, because the loss was excluded under Section “GENERAL EXCLUSIONS” of the policy, Defendant did not breach the insurance policy by denying coverage.

The Court finds that, applying the clear and unambiguous language of the insurance policy to the undisputed material facts, the loss is not covered under Section “COVERAGES,” Sub-subsections E.5. and/or E.9. under the policy issued by Defendant. Section “COVERAGES,” Subsection “E. Other Coverages,” Sub-subsection “5. Reasonable Repairs,” and Sub-subsection “9. Fungi, Wet Or Dry Rot, Yeast Or Bacteria” each contain the explicit requirement that the loss be caused by a “Peril Insured Against” as defined in the policy. Here, there is no record evidence that the loss was caused by a “Peril Insured Against.” In the absence of any evidence that the loss was caused by a “Peril Insured Against,” the loss is not covered under Subsection “E. Other Coverages.” Therefore, Defendant did not breach the insurance policy by denying coverage.

For the reasons and authorities forth above, there are no disputed issues of material fact and that Defendant is entitled to entry of Final Summary Judgment in its favor as a matter of law. Accordingly, the Court hereby GRANTS Defendant’s Motion and enters FINAL SUMMARY JUDGMENT in favor of Defendant, CITIZENS PROPERTY INSURANCE CORPORATION.