28 Fla. L. Weekly Supp. 308a
Online Reference: FLWSUPP 2804SPEE
Insurance — Property — Coverage — Based on property owner’s deposition testimony that leak in closet at rental property persisted over five months and caused mold, claim falls squarely under policy exclusions for leakage of water that occurs over a period of time and fungus
SPEED DRY, INC., a/a/o Jorge and Carmen Medina, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2018-CA-001286-O. October 28, 2019. Patricia L. Strowbridge, Judge. Counsel: David R. Heil, David R. Heil, P.A., Winter Park, for Plaintiff. Robert A. Kingsford, Alfano Kingsford, P.A., Maitland, for Defendant.
FINAL SUMMARY JUDGMENTIN FAVOR OF THE DEFENDANT,STATE FARM FLORIDA INSURANCE COMPANY
THIS MATTER came before the Court on the “Defendant’s First Motion for Final Summary Judgment,” filed on January 10, 2019, and heard on September 24, 2019. The Court, having reviewed the relevant pleadings, filings, and record evidence, having heard arguments from both counsel, and being otherwise duly advised in the premises, finds as follows:
RELEVANT FACTS AND PROCEDURAL HISTORY
The basic facts of this case are not in dispute. On December 13, 2016, the insureds, Jorge and Carmen Medina, reported a water leak under their insurance policy issued by the Defendant for a loss that manifested with mold and was first found in a closet at the Medinas’ Las Palmas Circle rental property. The Medinas later assigned their claim to Speed Dry, Inc. When the Defendant was investigating the claim, it retained Engineering Systems, Inc. to determine the cause and origin of the moisture intrusion. Engineering Systems prepared a report that indicated that the water damage and resulting mold “were caused by the leak from the Qest fitting used on the water supply line to the toilet inside the wall cavity” and “the leak was occurring for at least two months prior to the date of loss.” Based on this report, the Defendant denied coverage for the claim and indicated that this occurrence was excluded under the policy.
On February 5, 2018, the Plaintiff filed its “Complaint for Declaratory Relief,” requesting that the Court determine coverage for its claims under the insurance policy issued by the Defendant. On April 19, 2018, the Defendant filed its “Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial,” wherein it posited that the Plaintiff’s requested relief was excluded under the policy. On January 10, 2019, the Defendant filed its “Defendant’s First Motion for Final Summary Judgment,” and the Court heard the motion on September 24, 2019 and took the matter under advisement. This Order follows.STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of material fact and where the moving party is entitled to a judgment as a matter of law. Sunshine State Ins. Co. v. Jones, 77 So. 3d 254 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D164a].
The Defendant argues that the insurance policy contains the following provisions that preclude the Plaintiff’s suit as a matter of law:
SECTION I — LOSSES INSURED COVERAGE A — DWELLING
We insure for accidental direct physical loss to the property described in Coverage A, except as for provided in SECTION I — LOSSES NOT INSURED.
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SECTION I — LOSSES NOT INSURED
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1. We do not insure for loss to the property described in Coverage A and Coverage B either consisting of, or directly and immediately caused by, one or more of the following:
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h. continuous or repeated seepage or leakage of water or steam from a:
(1) heating, air conditioning or automatic fire protective sprinkler system;
(2) household appliance; or
(3) plumbing system, including from, within or around any shower stall, shower bath, tub installation, or other plumbing fixture, including their walls, ceilings, or floors.
Which occurs over a period of time;
i. wear, tear, marring, scratching, deterioration, inherent vice, latent defect and mechanical breakdown;
j. rust, mold, or wet or dry rot;
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2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
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(d) Neglect, meaning neglect of the insured to use all reasonable means to save and preserve property at and after the time of a loss, or when the property is endangered.
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3. We do not insure under any coverage for any loss consisting of one or more of the items below. Further, we do not insure for loss described in paragraphs 1 and 2 immediately above regardless of whether one or more of the following: (a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss:
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(b) defect, weakness, inadequacy, fault or unsoundness in:
(1) planning, zoning, development, surveying, siting;
(2) design, specifications, workmanship, construction, grading, compaction;
(3) materials used in construction or repair; or
(4) maintenance
Of any property (including land, structures, or improvements of any kind) whether on or off the residence premises.
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2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss.
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g. Fungus, including the growth, proliferation, spread or presence of fungus, and including:
(1) any loss of use or delay in rebuilding, repairing, or replacing covered property, including any associated cost or expense, due to interference at the described premises or location of the rebuilding, repair or replacement of that property by fungus;
(2) any remediation of fungus, including the cost or expense to:
(a) remove or clean the fungus from covered property or to repair, restore or replace that property;
(b) tear out and replace any part of the building or other property as needed to gain access to the fungus;
(c) contain, treat, detoxify, neutralize or dispose of in any way respond to or assess the effects of the fungus; or
(d) remove any property to protect it from the presence of or exposure to fungus;
(3) the cost of any testing or monitoring of air or property to confirm the type, absence, presence or level of fungus, whether performed prior to, during or after removal, repair, restoration or replacement of covered property.
In addition to the cited relevant portions of the policy, the Defendant also relies on Jorge Medina’s deposition testimony, wherein Medina indicated that his tenant complained of some black areas to him, and he went to the property and cleaned the affected areas with Clorox and painted over them. Medina stated that he believed that fixed the problem, until his tenant reported that the black areas returned. Medina also testified in his deposition that the leak had been ongoing for around five months. He also admitted that the walls and baseboards were deteriorating and moldy, caused by a long term leak in the house, which caused mold to develop in the walls of the house.
Determining whether alleged damage is subject to an exclusionary clause in an insurance policy is a question of law, and therefore appropriate in a motion for summary judgment. Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005) [30 Fla. L. Weekly S203a]. Additionally, lain insurance contract must be construed in accordance with the plain language of the policy.” Harrington v. Citizens Prop. Ins. Co., 54 So. 3d 999, 1001 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2838a]. Finally, a plaintiff/assignee of insurance benefits is only entitled to those benefits to which the assignor is entitled. See Law Office of David J. Stern, P.A. v. Security Nat. Svg. Corp., 969 So. 2d 962, 968 (Fla. 2007) [32 Fla. L. Weekly S396a].
When tempering Medina’s deposition testimony against the policy exclusions, it becomes clear that the claim squarely falls within several of the policy’s exclusions. For instance, Medina testified that the leak persisted for around five months, which the policy expressly indicates is not covered. The same is true of Medina’s testimony regarding mold in the house and the fungus policy exclusion. Therefore, the Court finds that the Plaintiff’s damages are precluded by the insurance policy issued by the Defendant as a matter of law.
Accordingly, the following is hereby ORDERED AND ADJUDGED:
1. “Defendant’s First Motion for Final Summary Judgment” is GRANTED.
2. Final judgment in this cause is hereby entered in favor of the Defendant, State Farm Florida Insurance Company. The Plaintiff, Speed Dry Inc., shall take nothing by this action against the Defendant, and the Defendant shall go hence without day.
The Court reserves jurisdiction over any claims made or to be made by said Defendant for an award of costs and attorney’s fees against the Plaintiff.
