CITIZENS PROPERTY INSURANCE CORPORATION v. RONA SALKEY & TREVOR SALKEY , 260 So. 3d 371 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CITIZENS PROPERTY INSURANCE, )
CORPORATION, )
)
Appellant, )
)
v. ) Case No. 2D14-3002
) 2D14-5077
RONA SALKEY and TREVOR SALKEY, )
) CONSOLIDATED
Appellees. )
)
Opinion filed November 16, 2018.
Appeal from the Circuit Court for Polk
County; J. Dale Durrance, Judge.
Kara Berard Rockenbach and David A.
Noel of Link & Rockenbach, P.A., West
Palm Beach; and Andrew P. Rock and
Karen M. Walker of The Rock Law
Group, Maitland, for Appellant.
Raymond T. Elligett, Jr. and Amy S.
Farrior, of Buell & Elligett, P.A., Tampa;
and K.C. Bouchillon of Sanders Law
Group, Bartow, for Appellees.
CRENSHAW, Judge.
Upon remand from the Florida Supreme Court, we reconsider our prior
decision1 in light of the subsequent opinion in Sebo v. American Home Assurance Co.
(Sebo II), 208 So. 3d 694 (Fla. 2016). In Sebo II, the supreme court clarified that the
concurrent-cause doctrine, not the efficient-proximate-cause doctrine, is the appropriate
theory of recovery to apply when two or more perils converge to cause a loss and at
least one of the perils is excluded from an insurance policy. Id. at 697.
In Salkey, we concluded that the trial court improperly instructed the jury
on the concurrent-cause doctrine and that it should have instructed the jury on the
efficient-proximate-cause doctrine. Citizens Prop. Ins. Corp. v. Salkey, 190 So. 3d
1092, 1094 (Fla. 2d DCA 2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017).
We also concluded that the jury instructions were confusing and may have misled the
jury. Id. at 1094-95. Because our determination that the jury instructions were
confusing and may have misled the jury is not affected by Sebo II, we again reverse and
remand for a new trial. We do not reach the issue of the attorneys' fee award.
Background
In 2008, Rona and Trevor Salkey (the Salkeys) purchased an all-risk
homeowner's insurance policy from Citizens Property Insurance Corporation (Citizens).
The policy insured against the risk of direct physical losses to the property unless
expressly excluded. Losses caused by mine subsidence and sinkholes were excluded
from the main policy. However, the Salkeys purchased the optional sinkhole loss
1CitizensProp. Ins. Corp. v. Salkey, 190 So. 3d 1092 (Fla. 2d DCA
2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017).
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coverage endorsement, which provided coverage for direct physical loss caused by
sinkhole activity.
The Salkeys presented a sinkhole claim to Citizens after discovering
damage to their property during the policy period. Citizens retained MCD of Central
Florida (MCD) to evaluate the property for sinkhole activity. MCD concluded that the
property damage was not caused by sinkhole activity but was caused by the ongoing
decay of organic soils and phosphatic clay in the reclaimed mine zone over which the
Salkeys' house was built. Citizens denied the Salkeys' sinkhole claim, and the Salkeys
filed a breach of contract claim against Citizens.
At trial, the parties disputed causation. Citizens presented expert
testimony to argue that there was no sinkhole activity and the damage to the property
was caused only by the ongoing decay of the soils beneath the home. The Salkeys'
presented their own expert evidence that while the soils beneath the home were
decaying and contributing to the damage suffered, the most substantial factor in the loss
was sinkhole activity. Citizens did not dispute that the Salkeys' property suffered
damage during the policy period; therefore, the trial court granted the Salkeys' motion
for directed verdict on their threshold burden: to prove that physical damage occurred
during the policy period.
At the charge conference, Citizens objected to a number of the Salkeys'
proposed jury instructions. The trial court crafted the following instruction:
Plaintiffs have the burden of proof to establish, by the greater
weight of the evidence, that their property experienced
damages from a sinkhole. If the greater weight of the evidence
does not support the Plaintiff's claim, your verdict should be for
the Defendant, Citizens Property Insurance Corporation.
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If, however, the greater weight of the evidence supports the
Plaintiffs' claim, then your verdict should be for the Plaintiffs, the
Salkeys.
The court has determined and now instructs you that the
Plaintiffs have met their burden of proving that damage
occurred to their home during the policy period.
You are instructed that the burden of proof is on Defendant to
prove that all of the damage to the residence is caused by
conditions excluded under the policy.
The Defendant has the burden to prove that all of the damage
is non-sinkhole related. If you find that any damage is caused
by sinkhole activity, or that sinkhole activity is acting in
conjunction with any other cause, the Defendant has not met its
burden and you must find that the damage is a covered loss.
The jury returned a verdict in favor of the Salkeys. Thereafter, the trial
court entered a final judgment in favor of the Salkeys, and in a separate order it granted
the Salkeys' motion for attorneys' fees and costs. Citizens appealed the final judgment.
As set forth in our prior opinion, we concluded that the trial court
improperly instructed the jury on Citizens' burden of proof. Salkey, 190 So. 3d at 1094.
Specifically, we held that the trial court should have instructed the jury on the efficient-
proximate-cause theory and not the concurrent-causation theory. Id. We further
concluded that the jury instructions were confusing and may have misled the jury, which
also required reversal. Id. at 1094-95.
In reaching the conclusion that the trial court should have instructed the
jury on the efficient-proximate-cause theory, we relied on this court's decision in
American Home Assurance Co. v. Sebo (Sebo I), 141 So. 3d 195 (Fla. 2d DCA 2013),
which has since been quashed by the supreme court. See Sebo II, 208 So. 3d 694.
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Thereafter, the supreme court quashed our decision in Salkey and remanded it to this
court for reconsideration in light of the Sebo II decision. Salkey, 190 So. 3d 1092.
Analysis of the case on remand
In Sebo II, the supreme court clarified that the concurrent-cause doctrine,
not the efficient-proximate-cause doctrine, is the appropriate theory of recovery to apply
when two or more perils converge to cause a loss and at least one of the perils is
excluded from an insurance policy. Id. at 697. On remand, Citizens argues that the
concurrent-cause doctrine should not be applied in this case, despite Sebo II, because
the policy here includes anti-concurrent cause language.
"An anti-concurrent cause provision is a provision in a first-party insurance
policy that provides that when a covered cause and non-covered cause combine to
cause a loss, all losses directly and indirectly caused by those events are excluded from
coverage." Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486, 487 n.1 (Fla. 5th DCA
2015). In Sebo II, the supreme court contemplated that it would have applied the
efficient-proximate-cause doctrine had there been anti-concurrent cause provisions in
the contract. Sebo II, 208 So. 3d at 700.
Citizens argues that its policy contains language sufficient to avoid
application of the concurrent-cause doctrine in two places. First, Citizens argues that
the earth movement exclusion contained in the policy explicitly contains anti-concurrent
cause language:
1. 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.
....
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b. Earth Movement and Settlement, meaning:
....
(3) mine subsidence;
....
i. Loss caused by "sinkhole."
However, the sinkhole endorsement purchased by the Salkeys expressly
provides as follows:
The GENERAL EXCLUSIONS – Earth Movement and
Settlement exclusion 1.b. does not apply with respect to
coverage provided by this endorsement.
....
The GENERAL EXCLUSIONS – Loss caused by Sinkhole
exclusion 1.i. does not apply with respect to coverage provided
by this endorsement.
Accordingly, because the plain language of the sinkhole endorsement
explicitly states that the anti-concurrent cause language found in section 1 of the policy
does not apply to sinkhole claims, the anti-concurrent cause provision found in section 1
does not apply in the instant case so as to avoid application of the concurrent-cause
doctrine.
Citizens also argues that the sinkhole endorsement requires "direct
physical loss" caused by sinkhole activity. Contrasted with the other exclusionary
clauses in Citizens' policy, the "direct physical loss" language is insufficient to avoid
application of the concurrent-cause doctrine.
Therefore, applying Sebo II to the instant case, we conclude that the trial
court properly instructed the jury on the concurrent-cause doctrine, requiring it to
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determine if at least one of the concurrent causes was covered under the insurance
policy.
However, in Salkey, we also concluded that the jury instructions were
confusing and may have misled the jury, which required reversal. Salkey, 190 So. 3d at
1094-95. This case involved an all-risks insurance policy. "[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." Mejia v.
Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (citing Hudson v.
Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA 1984)).
Here, the jury instructions improperly informed the jury that the Salkeys
had the burden to prove "that their property experienced damages from a sinkhole," see
Mejia, 161 So. 3d at 578, but then correctly advised that the "court has determined and
now instructs you that the Salkeys have met their burden of proving that damage
occurred to their home during the policy period." The trial court then instructed that
Citizens had the "burden to prove that all of the damage is non-sinkhole related." These
instructions are confusing and may have misled the jury, causing it to conclude that the
Salkeys' had proved that their property was damaged by a sinkhole—a burden they did
not have—and making it impossible for Citizens to meet its burden of proving that no
loss was sinkhole related. See, e.g., Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295
(Fla. 1974) ("An instruction which tends to confuse rather than enlighten the jury is
cause for reversal if it may have misled the jury and caused [it] to arrive at a conclusion
that otherwise [it] would not have reached." (citing Finch v. State, 156 So. 489 (Fla.
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1934))). Because the supreme court's decision in Sebo II does not affect our conclusion
that the jury instructions were confusing and may have misled the jury, we again
reverse and remand for a new trial.
Reversed and remanded.
BLACK and SALARIO,2 JJ., Concur.
2Judge Salario has been substituted for Judge Altenbernd, who was on
the original panel.
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