28 Fla. L. Weekly Supp. 409a
Online Reference: FLWSUPP 2805PRID
Insurance — Homeowners — Coverage — Exhaustion of policy limits — Insurer that paid mold remediation claim up to policy limit of $10,000 fully satisfied its obligation under policy — Summary judgment is entered in favor of insurer
PRIDE CLEAN RESTORATION INC. (a/a/o Salvador and Camille Lopez), Plaintiff, v. FEDNAT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2019-014964-CC-05, Section: CC06. April 30, 2020. Luis Perez-Medina, Judge.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENTAND DENYING PLAINTIFF’S AMENDED MOTIONFOR PARTIAL SUMMARY JUDGMENT
This cause came before the Court on March 05, 2020, on Plaintiff’s Amended Motion for Partial Summary Judgment and Defendant’s Motion for Final Summary Judgment, and the Court having heard the argument of counsel, having reviewed the Motions and Responses, the summary judgment evidence, the pertinent case law, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED:
Defendant’s Motion for Final Summary Judgment is GRANTED. Plaintiff’s Motion for Partial Summary Judgment is DENIED. This matter is hereby dismissed, and Defendant shall go hence without day.
STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510; Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1919b]. Once the movant offers competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). It is not enough for the party opposing summary judgment merely to assert that an issue exists. Id.
“In reviewing a summary judgment, the Court must consider evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a]. If the slightest doubt exists as to a genuine issue of material fact, summary judgment is not appropriate. Gidwani v. Roberts, 248 So. 3d 203, 207 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1024a].
STATEMENT OF UNDISPUTED FACTS
Plaintiff, Pride Clean Restoration, Inc., filed suit for breach of contract to recover insurance benefits stemming from a mold remediation loss under an assignment of insurance benefits. FedNat Insurance Company issued a property insurance Policy to Salvador and Camille Lopez, the Insureds. On September 18, 2018, the Insureds reported a claim for water damage to the “dining and bedroom walls” of their property as well as “water stains on the ceiling.” Deposition of Tayxha Gonzalez, at 17. The damage to the interior of the residence was caused by wind driven rain entering through the roof which was damaged by Hurricane Irma. Plaintiff’s Amended Motion for Partial Summary Judgment, Exhibit A.
As a result of the water damage, the dining and bedroom walls as well as the ceiling developed mold or fungi which required removal. On January 7, 2019, Plaintiff commenced services for mold remediation to the Insureds’ property. Deposition of Jaritza Butler, at 40. The mold remediation consisted of testing for mold, setting up a containment area, using dehumidifiers and air scrubbers, demolishing the area that tested positive for mold, spraying anti-microbial, and retesting the residence to make sure all existing mold was removed. Id. at 16, 45. According to Ms. Butler, who was Plaintiff’s project manager, Plaintiff “[did] not do any repairs to the property.” Id. at 33, 43. The only work done by Plaintiff was for “mold remediation.” Id. at 42.
On January 14, 2019, Defendant received an invoice from Plaintiff for $21,603.83 for the mold remediation, removal, and cleaning. Deposition of Tayxha Gonzalez, at 27-28. Defendant paid $10,000, representing the Policy limit for mold remediation. Id. at 29. Plaintiff filed suit to collect the balance of the invoice which amounted to $11,603.83.
SUMMARY OF ARGUMENT
Defendant moved for final summary judgment arguing that Plaintiff was paid $10,000 which was the maximum allowed under the Policy for mold remediation measures. Plaintiff countered that since the mold remediation services arose from a covered loss, which was not subject to an exclusion under the Policy, the mold remediation was a necessary repair expense under Coverage A, which insured against the risk of direct physical loss to the property. See Plaintiff’s Motion for Partial Summary Judgment, at 3.
POLICY LANGUAGE
Defendant’s Policy insures “against risk of sudden and accidental direct physical loss to property described in Coverage A and B only if that loss is a physical loss to property.” FedNat Homeowners Insurance Policy, FNIC DP3 SP 11 16, at 4. The Policy excludes coverage for “ ‘Fungi”, Mold, Wet or Dry Rot, Or Bacteria”. However, the exclusion does not apply:
a. When “fungi”, mold, wet or dry rot, or bacteria results from fire or lightning; or
b. To the extent coverage is provided for in the “Fungi”, Mold Wet or Dry Rot, Or Bacteria Other Coverage under Coverages with respect to loss caused by a Peril Insured Against other than fire and lightning.
Id. at 6. (emphasis added). Under “Other Coverages”, limited coverage is provided as follows:
“Fungi”, Mold, Wet Or Dry Rot, Or Bacteria
(1) We will pay up to $10,000, or the amount shown in the Declarations if different, for:
a. The total of all loss payable under Coverages caused by or resulting directly or indirectly from “fungi”, mold, wet or dry rot, or bacteria.
b. The cost to remove “fungi”, mold, wet or dry rot, or bacteria from property covered under Coverage.
c. The cost to tear out and replace any part of the building or other covered property as needed to gain access to the “fungi”, mold, wet or dry rot, or bacteria; and
d. The cost of testing of air or property to confirm the absence, presence or level of “fungi”, mold, wet or dry rot, or bacteria; whether performed prior to, during or after removal, repair, restoration or replacement.
The cost of such testing will be provided only to the extent that there is a reason to believe that there is the presence of “fungi”, wet or dry rot, yeast or bacteria.
(2) The coverage described in a. only applies when such loss or costs are a result of a Peril Insured Against that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at and after the time the Peril Insured Against occurred.
(3) $10,000, or the amount shown in the Declarations if different, is the most we will pay for the total of all loss or cost payable under this Other Coverage regardless of the:
(1) Number of locations; or
(2) Number of claims made.
If there is covered loss or damage to covered property, not caused, in whole or in part, by “fungi”, mold wet or dry rot, or bacteria, loss payment will not be limited by the terms of this Other Coverage, except to the extent that “fungi”, mold, wet or dry rot, or bacteria causes an increase in the loss. Any such increase in the loss will be subject to the terms of this Other Coverage.
This coverage does not increase the limit of liability applying to the damaged covered property.
Id., at 4. The Insureds’ Declarations page provides for “Limited Fungi, Wet or Dry Rot, or Bacteria” coverage in the amount of $10,000. FedNat Homeowners Insurance Policy, FNIC DP3 DEC 04 16, at 2.
LEGAL ANALYSIS
To render this decision, the Court looks to the interpretation of the insurance contract. When “interpreting an insurance contract,” the Court is “bound by the plain meaning of the contract’s text.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569 (Fla. 2011) [36 Fla. L. Weekly S469a]). “Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a].
When applying the language of an all-risk policy to the facts of a particular case, the insured bears the initial burden of proving that the loss falls within the terms of the policy. W. Best Inc. v. Underwriters at Lloyds, London, 655 So. 2d 1213, 1214 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1238a]. Once it is established that a loss falls within the terms of the policy, the burden shifts to the insurer to prove that the loss falls “within an exclusionary provision.” Id. Finally, “[i]f there is an exception to the exclusion, the burden once again is placed on the insured to demonstrate the exception to the exclusion.” E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2257a] (citation omitted); see also Fla. Windstorm Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1213a] (“the insured has the burden to prove an exception to an exclusion contained within the policy”).
In the present case, Defendant’s Policy clearly excludes damage to the Insureds’ property caused by “ ‘fungi’, mold, wet or dry rot, or bacteria.” However, there are two exceptions to this exclusion. The first exception applies when the “ ‘fungi’, mold, wet or dry rot, or bacteria” results from a “fire or lighting” loss. Sinc
