28 Fla. L. Weekly Supp. 237a
Online Reference: FLWSUPP 2803CATA
Insurance — Homeowners — Where insured’s assignee met initial burden to prove that all-risk policy was in effect at time of loss, and insurer that denied coverage met burden to prove that loss fell within policy exclusion for damage caused by rain, burden of proof shifted back to assignee to prove that loss fell under exception to exclusion by establishing that rain entered home through peril-created opening — Because assignee failed to present any evidence that would create genuine issue of material fact as to existence of peril-created opening in roof, summary judgment is entered in favor of insurer
XPRESS RESTORATION INC., a/a/o/ Nicolai Catana, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE18007498, Division 52. April 15, 2020. Giuseppina Miranda, Judge. Counsel: Daniela Barreto, Marin, Eljaiek, Lopez & Martinez P.L., Coconut Grove, for Plaintiff. Miriam Merlo, Gaebe Mullen Antonelli & Dimatteo, Coral Gables, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE came before this Court for hearing on April 6, 2020 on Defendant’s Motion for Summary Judgment filed on September 17, 2019. The Court having reviewed the Motion and the sworn testimony filed in support thereof and in opposition to, considered the responses and legal memorandum filed by the parties, applied the relevant case law and having heard argument of counsel, the Court makes the following findings of fact and conclusions of law:
The parties agree that the insured, Nicolai Catana (hereinafter referred to as “CATANA”) was covered under a policy of insurance (hereinafter “the Policy”) issued by the Defendant which was in full force and effect when CATANA reported1 a loss on November 12, 2017. The alleged date of damage to CATANA’s property occurred on or about September 10, 2017.2 The loss is alleged to have been caused in connection with Hurricane Irma. The Plaintiff obtained an assignment of benefits from CATANA on November 13, 2017 (which was nine weeks after Hurricane Irma made landfall in South Florida).
The parties agree that the Policy is considered an “all-risk policy” and that the damage to the residence was caused by rain.
On November 13, 2017, Plaintiff contracted with CATANA to “provide water restoration services in an attempt to mitigate the damages.”3 to the property.4
CATANA signed Plaintiff’s “Assignment of Benefits Agreement” form when Plaintiff first began work at the property on November 13, 2017. The costs of Plaintiff’s services totaled $8,146.22. A copy of the invoice5 is attached to the affidavit of Plaintiff’s corporate representative, Jose Moran (hereinafter referenced to as “MORAN”).
On November 17, 2017 Defendant’s field adjuster, Mike Baser (hereinafter referred to as “BASER”) inspected the property. BASER took 39 photographs documenting his observations.6 Defendant denied coverage of the entire claim, asserting that the damage was not covered under the Policy. A letter dated November 29, 2017 was sent to Stellar Public Adjusting Services, LLC, (hereinafter referred to as “STELLAR”) documenting the denial of the claim.7
The pertinent portions of the Policy are set forth herein (and all emphasis to the cited sections is added by the Court).
SECTION 1 — PERILS INSURED AGAINST[8]
A. Coverage A — Dwelling And Coverage B — Other Structures
1. 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.
**********
2. We do not insure, however, for loss:
b. Caused by:
(8)[9] Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain. . .enters through this opening.
(9)[10] Any of the following:
(a) Wear and tear, . . . or deterioration;
Based on the plain language of the Policy, the Court finds that this is an “all risk” policy which excludes damage caused by rain, unless the rain enters the building though an opening caused by a covered peril. See Egan v. Washington Gen. Ins. Corp., 240 So. 2d 875, 878 (Fla. 4 DCA 1970 (recognizing all risk policy is constrained by express policy exclusions); Phoenix Ins. Co. v. Branc, 234 So.2d 396, 398 (Fla. 4 DCA 1970 (“Of course, despite the presence of the ‘all risks’ provision, the loss is not covered if it comes within any specific exclusion contained in the policy.”).
The law is clear regarding the parties’ burden of proof relative to the Policy terms. As succinctly stated in Zurich American Insurance Company v. Southern-Owners Insurance Company, 314 F. Supp.3d 1284, 1298-1299 (M.D. Fla. 2018):
Although the insured bears the burden of proving that a claim is covered by the insurance policy, the “burden of proving an exclusion to coverage is. . .on the insurer.” LaFrage Corp. v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir. 1997). However, if there is an exception to the exclusion, “the burden returns to the insured to prove the exception and show coverage.” See Mid-Continent Cas. Co. v. Frank Casserino Constr., Inc., 721 F.Supp.2d 1209, 1215 (M.D. Fla. 2010); see also LaFrage Corp., 118 F.3d at 1516; E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 678 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2257a].
Accordingly, this Court summarizes the burden of proof as follows:
a. Plaintiff has the initial burden to prove that a claim is covered by the insurance policy; meaning that the insured/assignee must establish that a loss occurred within the policy period.
b. Thereafter, the burden shifts to the Defendant to prove that the cause of the loss was excluded under the terms of the policy.
c. However, when there is an exception to the exclusion, the burden then shifts back to the Plaintiff to prove that the loss fails within the exception.
Therefore, once the Defendant proves that the loss was a result of rain entering the home, the burden shifts to the Plaintiff to prove that there was an opening in the roof that was created by covered peril and was not the result of wear and tear and/or deterioration of the roof. See 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 an insurance policy. . .”). See also, Divine Motel Group, LLC v. Rockhill Insurance Company, 2015 WL 4095449 (Fla. M.D. 2015) (“Divine’s argument is without merit. Devine ignores the portion of the exception that requires the rain to reach the interior of the Property through damage to the building cause by a Covered Cause of Loss.”).11
Based on this Court interpretation of the case law cited herein, the following step-by-step process outlines the parties’ obligations in the instant case:
a. To be afforded coverage, Plaintiff must prove that CATANA’s Policy was in effect at the time of the loss: DONE.
b. To deny coverage, Defendant must prove that the loss fails within an exclusion listed in the Policy, i.e.: that the damage to CATANA’s property was caused by rain: DONE.
c. To overcome summary judgment, Plaintiff must establish an exception to the exclusion, i.e.: a prima facie showing that the rain entered the home though an opening caused the winds or damage associated with Hurricane Irma: NOT ESTABLISHED.
Plaintiff failed to present any sworn evidence to support a factual basis for a prima facie finding that the damage was caused by rain entering through an opening caused by a covered peril.
Plaintiff’s argument is two-fold. First, Plaintiff argues that CATANA’s and BASER’s sworn deposition testimony establish that a genuine issue of material fact exists precluding summary judgment. Upon a review of the entirety of both depositions, the Court disagrees with Plaintiff’s argument. Moreover, the deposition testimony of both gentlemen actually supports Defendant’s position that no peril created opening existed.
CATANA testified that his interior ceiling experienced a leak during Hurricane Irma (which was first noticed by his ex-wife while he was at work). He went up on the roof at some point and saw standing water. CATANA testified that he did not know what caused the leak, but that he saw no openings.12 His ex-wife cleaned up the interior water and other than going up on the roof, he did nothing further. CATANA testified that he experienced other water leaks after Hurricane Irma and ultimately contacted STELLAR to file his property damage claim.13 STELLAR came to his home approximately one month after CATANA contacted them and CATANA signed a contract on November 11, 2017 to have STELLAR handle the insurance claim. Immediately thereafter, STELLAR hired the Plaintiff for remediation services. CATANA testified that Plaintiff drilled holes in the walls, torn down moldings but never installed a tarp14 on the roof.15 CATANA testified that Plaintiff never went on the roof.16 After being at his home for 2-3 days, Plaintiff left with their equipment. CATANA then experienced another leak (his ex-wife cleaned up the water again). Ultimately, CATANA went to Home Depot and purchased a pump, which he states kept the rain water from pooling/accumulating on his roof.17 This pump remedied the situation until CATANA contacted a person to fix the roof.18 CATANA testified that he got a roofer’s name (hereinafter referred to as “JOEY”) from a friend. CATANA could not remember JOEY’s last name and believed JOEY may have had his own business but couldn’t remember the name of the business. The repairs costs $400-500 for “patching” and a “coating” was applied to the roof costing $3,000.00. Plaintiff’s counsel attempted to introduce hearsay testimony from CATANA about what JOEY said was the cause of the leak. Pursuant to Fla.R.Civ.P. 1.510 (e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.” What JOEY told CATANA is classic hearsay testimony that would not be admissible at trial.19
BASER’s testimony about his observations and cause of the roof leak are consistent with CATANA’s observations. Most compelling is CATANA’s testimony that the pump that he purchased to keep the water from pooling on the roof corrected the problem. BASER explained on pages 25-28, 35-38, 40-46 (as well as other portions of the deposition) that he did not observed any openings on CATANA’s flat roof. He further testified that the cause of the leak was the improperly installed drainage system. This defective drainage system is what caused water to pool (which is exactly what CATANA described). Furthermore, BASER went on to explain that the roof was in poor condition and described the cracking (“alligatoring”) in the roofing material.
Plaintiff attempts to create an inconsistency in the testimony regarding the age/condition of the roof and argues this inconsistency establishes the “slightest doubt” requiring this Court to deny summary judgment. This too, is not established by the record evidence. Plaintiff contends that BASER was mistaken about the age of the roof and that CATANA testified that the roof was only five years old. However, CATANA’s actually testified that when he purchased the home in 2012 he “thinks” it was a brand new roof.20
Plaintiff’s first arguments fails because Plaintiff did not present competent, admissible evidence to rebut Defendant’s prima facie showing that the loss is a result of exclusion in the Policy.
Plaintiff second argument fails because Plaintiff incorrectly relies on its position that it is Defendant’s burden to prove that the roof leak was not caused by a covered peril. Plaintiff’s position misapplies the cases cited herein. Furthermore, Plaintiff’s mistakenly relies on the case Ortega v. Citizens Property Insurance Corp., 257 So.3d 1171 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] as a reason to deny summary judgment. This reliance is misplaced because the facts in Ortega are distinguishable from the instant case. In Ortega, the sworn testimony presented established conflicting factual allegations warranting a trial. Specifically, Armando Ortega testified in deposition that during a storm, “a tree branch ‘went through’ the roof. . .creating a ‘huge hole’ directly over the kitchen.” Id. at 1172. Also presented was an affidavit from a licensed general contractor and engineer who inspected the home and opinied that the damage was covered by the policy. “[W]ithout explication,” the trial court granted summary judgment in Citizen’s favor. Id. The Ortega court reversed, finding that sufficient evidence existed to ‘preclude entry of summary judgment on the material issue of whether a covered peril created an opening to the roof of Ortega’s home which then permitted rain water to enter and damage the interior of the home.” Id. at 1173 [citations omitted]. Unlike the Ortega case, Plaintiff provided no evidence establishing that testimony would be presented at trial that would create an issue of fact that an opening caused by a covered peril existed on CATANA’s roof.
For the reasons stated herein, Plaintiff has failed to come forward with any admissible evidence which would create a genuine issue of material fact as to a covered peril causing an opening in the roof which caused rain water to damage the interior of the home.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is GRANTED.
It is further ORDERED that Plaintiff, XPRESS RESTORATION, INC., a/a/o Nicolai Catana, takes nothing by this action and Defendant, CITIZENS PROPERTY INSURANCE CORPORATION, shall go hence without day. The court reserves jurisdiction to determine entitlement to attorney fees and cost.
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1CATANA’s claim was actually reported by Stellar Public Adjusting Services, LLC. CATANA hired the company on November 11, 2017 (see CATANA’s deposition at page 18).
2The record evidence references a different date which is noted in footnote #5 herein.
3See paragraph 10 of Plaintiff’s Complaint filed on April 5, 2018.
4CATANA did not personally contact Plaintiff. Instead, STELLAR requested Plaintiff’s services.
5The Court notes that the invoice references that the date of loss was August 23, 2017.
6Photographs 40-45 are aerial photographs taken by “Geomni” which is an aerial survey company as explained in BASER’s deposition.
7CATANA testified during his deposition that he was never made aware of the denial by STELLAR.
8See page 12 of 34 of the Policy.
9See page 13 of 34 of the Policy.
10See page 13 of 34 of the Policy.
11The provision of Rockhill‘s policy about the “exception to the exclusion” is similar to Defendant’s policy and is outlined in the case’s opinion.
12See CATANA deposition at page 16.
13CATANA never directly contact Defendant.
14Plaintiff’s invoice includes a $1,905.50 charge for “R&R Tarp — all purpose poly — per sq ft (labor and material).”
15See CATANA deposition at pages 19-23.
16See MORAN’s deposition testimony at pages 33-34, confirms that no one from Plaintiff’s company went on the roof. The deposition testimony also confirms that Plaintiff did not observe any openings in the roof and did not determine where the leak was coming from.
17See CATANA’s deposition at page 23.
18See CATANA’s deposition at pages 23-26.
19Even if the Court could consider the testimony, CANTANA’s recollection of the conversation was minimal, at best, and lack reliability. There was also no explanation of what would have cause the “rip” in the flashing. See CANTANA deposition at page 28, lines 14-20.
A. He said it was like a rip in the flashing, something like that, and he patched it up.
Q. Did he tell you how he thought the flashing got ripped?
A. I don’t know.
20CATANA’s deposition at page 38, lines 19-23.
