EMPIRE PRO RESTORATION, INC. A/A/O LAMBERT BOWDEN & ELAINE BOWDEN v. CITIZENS PROPERTY INSURANCE CORPORATION ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EMPIRE PRO RESTORATION, INC. A/A/O LAMBERT BOWDEN &
ELAINE BOWDEN,
Appellant,
v.
CITIZENS PROPERTY INSURANCE CORPORATION,
Appellee.
No. 4D21-237
[May 26, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Giuseppina Miranda, Judge; L.T. Case Nos. COCE17-
20678 and CACE18-25444.
Frantz C. Nelson of Font & Nelson, PLLC, Fort Lauderdale, for
appellant.
Maureen G. Pearcy of Paul R. Pearcy, P.A., Miami, for appellee.
FORST, J.
Appellant Empire Pro Restoration, Inc. seeks review of the trial court’s
order granting Appellee Citizens Property Insurance Corporation’s
(“Insurer”) motion for summary judgment. Appellant raises two issues on
appeal. We affirm on both issues but write only to address Appellant’s
first argument—that the trial court erred in its application of the burden-
shifting framework applicable to “all-risk” insurance policies.
Background
The home of Lambert Bowden (“Insured”) was covered by a
homeowner’s policy issued by Insurer. The policy contained an exclusion
for damage caused by “rain . . . to the interior of a building[.]” This
exclusion contained an exception if “a covered peril first damages the
building causing an opening in a roof or wall and the rain . . . enters
through this opening.”
In 2017, Insured sustained a roof leak causing water damage interior
to the home’s ceiling and walls. Appellant performed the remediation
services for the damages in exchange for assignment of Insured’s rights to
recover for the cost of the work under the insurance policy. Insurer denied
Appellant’s claim for benefits, maintaining that the policy at issue did not
cover damage caused by wear and tear, and that a “covered peril” did not
cause the opening in which the rain entered.
Following Insurer’s denial of the claim, Appellant filed a breach of
contract lawsuit. Neither party offered any evidence to establish what
caused the roof leak leading to the interior water damage. The trial court
observed that “[Appellant] failed to present any sworn evidence to support
a factual basis for finding that the damage was caused by rain entering
through an opening caused by a covered peril. . . . Furthermore,
[Appellant] agrees that they do not know what caused the roof to leak.”
(emphasis omitted). Based on Appellant’s failure to offer evidence
demonstrating the cause of the interior water damage, the trial court
granted Insurer’s motion for summary judgment. This appeal followed.
Analysis
“The standard of review of an order granting summary judgment is de
novo.” Bogatov v. City of Hallandale Beach, 192 So. 3d 600, 601 (Fla. 4th
DCA 2016) (quoting Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. 4th
DCA 2007)). Likewise, “[t]he construction of an insurance contract
involves a question of law, and an appellate court applies a de novo
standard of review.” Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197
(Fla. 4th DCA 2006) (citation and italics omitted).
“An all-risks policy provides coverage for all losses not resulting from
misconduct or fraud unless the policy contains a specific provision
expressly excluding the loss from coverage.” Kokhan v. Auto Club Ins. Co.
of Fla., 297 So. 3d 570, 572 (Fla. 4th DCA 2020) (quoting Mejia v. Citizens
Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (emphasis
omitted)). “[A]n insured claiming under an all-risks policy has the burden
of proving that the insured property suffered a loss while the policy was in
effect. The burden then shifts to the insurer to prove that the cause of the
loss was excluded from coverage under the policy’s terms.” Id. (alteration
in original) (quoting Jones v. Federated Nat’l Ins. Co., 235 So. 3d 936, 941
(Fla. 4th DCA 2018)). “If 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) (citation omitted); see also Deshazior v. Safepoint Ins.
Co., 305 So. 3d 752, 755 (Fla. 3d DCA 2020) (to survive summary
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judgment, the insured bears the burden of introducing evidence to create
a genuine issue of material fact after the insurer shows that the damage
falls under an exclusion to the insurance policy); Fla. Windstorm
Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla. 3d DCA 2005) (“[T]he
insured has the burden to prove an exception to an exclusion contained
within an insurance policy[.]”).
Here, Appellant met its initial burden of demonstrating that the policy
was in effect when the loss was incurred. Insurer then established that
an exclusion applied as the loss occurred due to rain causing water
damage to the interior of the home. The burden then shifted back to
Appellant to offer evidence that an exception—an opening in the roof
and/or wall(s) that was caused by a covered peril (such as hail) and not
the result of wear and tear of the roof and/or wall(s)—precipitated the
interior rain damage. Appellant offered no such evidence (as noted above,
the trial court observed that “[Appellant] agrees that they do not know what
caused the roof to leak”). Unlike in Jones where the parties offered
competing and conflicting evidence and theories as to the cause of the roof
damage, 235 So. 3d at 941, no such conflicting evidence was presented
here to create a genuine issue of material fact. Appellant failed to offer an
explanation as to what caused the entry points for the rain to come into
the home. Accordingly, in the absence of evidence as to the cause of the
roof damage, the trial court properly relied on Gajwani in granting
Insurer’s motion for summary judgment.
Affirmed.
WARNER, and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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