DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHARLES HERRINGTON,
Appellant,
v.
CERTAIN UNDERWRITERS AT LLOYD’S LONDON,
Appellee.
No. 4D21-1669
[June 29, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE19-
021771.
Ronald P. Weil of the Weil Law Firm, P.A., Miami, for appellant.
Clinton D. Flagg and Carol A. Fenello of the Law Offices of Clinton D.
Flagg, Miami, for appellee.
WARNER, J.
An insured homeowner appeals a summary judgment in favor of the
insurer finding that a property insurance policy endorsement limited his
losses for water damage to $5,000. Insured claims that the endorsement’s
limitation did not extend to “tear out” expenses incurred as a result of the
water damage. We affirm, finding that the endorsement covered all such
losses arising out of water damage.
Insured suffered damage to his home caused by a water pipe leak.
Insurer capped coverage for insured’s water loss at $5,000 based on a
policy endorsement known as the “water damage aggregate limitation.”
That endorsement provided as follows:
THIS ENDORSEMENT CHANGES THE PROPERTY
COVERAGES PROVIDED BY YOUR POLICY. PLEASE READ
IT CAREFULLY.
USIB02 Conditional Property Endorsements
In consideration of the premium charged, your policy has been
modified as follows:
....
WATER DAMAGE AGGREGATE LIMITATION
It is hereby understood and agreed that for such insurance as
is afforded by this policy, loss(es) paid for damage arising out
of water shall be subject to a maximum amount of $5,000
during the policy term.
....
These endorsements supersede any conflicting wordings
within the policy.
ALL OTHER TERMS AND CONDITIONS OF THE POLICY
REMAIN UNCHANGED.
(Emphasis added).
The “tear out” provision in the policy, relied upon by insured for
coverage, provides as follows:
SECTION 1—PERILS INSURED AGAINST
COVERAGE A—DWELLING and COVERAGE B—OTHER
STRUCTURES
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. We do not insure, however, for loss:
....
2. Caused by:
....
e. Any of the following:
(1) Wear and tear, marring, deterioration;
2
....
If any of these cause water damage not otherwise excluded,
from a plumbing, heating, air conditioning or automatic fire
protective sprinkler system or household appliance, we cover
loss caused by the water including the cost of tearing out and
replacing any part of a building necessary to repair the system
or appliance. We do not cover loss to the system or appliance
from which this water escaped.
(Emphasis added).
As noted above, the trial court granted insurer’s motion for summary
judgment, concluding that the “Water Damage Aggregate Limitation”
capped the amount insurer was required to pay for all losses arising out
of water damage, including tear out damages. Insured appeals that
summary judgment.
“[C]ontracts should be interpreted to give effect to all provisions.” City
of Homestead v. Johnson,
760 So. 2d 80, 84 (Fla. 2000) (citing Sugar Cane
Growers Coop. of Fla., Inc. v. Pinnock,
735 So. 2d 530, 535 (Fla. 4th DCA
1999)). “[I]nsurance contracts are interpreted according to the plain
language of the policy except ‘when a genuine inconsistency, uncertainty,
or ambiguity in meaning remains after resort to the ordinary rules of
construction.’” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co.,
913 So. 2d
528, 532 (Fla. 2005) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen,
498
So. 2d 1245, 1248 (Fla. 1986)). Moreover, “a single policy provision should
not be read in isolation and out of context, for the contract is to be
construed according to its entire terms, as set forth in the policy and
amplified by the policy application, endorsements, or riders.” Certain
Interested Underwriters at Lloyd’s London v. Pitu, Inc.,
95 So. 3d 290, 292
(Fla. 3d DCA 2012) (quoting State Farm Mut. Auto. Ins. Co. v. Mashburn,
15 So. 3d 701, 704 (Fla. 1st DCA 2009)). “Courts must ‘construe contracts
in such a way as to give reasonable meaning to all provisions,’ rather than
leaving part of the contract useless.” Publix Super Mkts., Inc. v. Wilder
Corp. of Del.,
876 So. 2d 652, 654 (Fla. 2d DCA 2004) (quoting Hardwick
Props., Inc. v. Newbern,
711 So. 2d 35, 40 (Fla. 1st DCA 1998)).
However, “[t]he law in Florida is clear that to the extent an endorsement
is inconsistent with the body of the policy, the endorsement controls.”
Allstate Fire & Cas. Ins. Co. v. Hradecky,
208 So. 3d 184, 187 (Fla. 3d DCA
2016) (citing Family Care Ctr., P.A. v. Truck Ins. Exch.,
875 So. 2d 750, 752
(Fla. 4th DCA 2004)). “Even if there were an ambiguity between the
endorsement and the body of the policy, the endorsement, which is clear,
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controls.” Family Care,
875 So. 2d at 752 (citations omitted); see also
Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s London,
696
So. 2d 376, 379 (Fla. 1st DCA 1997) (stating “in general, to the extent an
endorsement is inconsistent with the body of the policy, the endorsement
controls” (citing 13A JOHN A. APPLEMAN & JEAN APPLEMAN, INSURANCE LAW &
PRACTICE §§ 7537–8 (1976))).
In Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., the
Third District construed an endorsement with very similar language:
In consideration of the premium charged, it is hereby
understood and agreed that for such insurance as is afforded
by this policy, loss(es) paid arising out of, or caused by, water
damage shall be subject to a maximum amount of $25,000
during the policy term.
95 So. 3d at 293 (emphasis added). The court found this endorsement to
be clear and unambiguous in its limitation of coverage for those losses
covered by the policy to $25,000. In a footnote, the court explained the
breadth of the use of the term “arising out of”:
“The term ‘arising out of’ is broader in meaning than the term
‘caused by’ and means ‘originating from,’ ‘having its origin in,’
‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a
connection with’. . . .” Hagen v. Aetna Cas. & Sur. Co.,
675
So. 2d 963, 965 (Fla. 5th DCA 1996); see also Nat’l Indem. Co.
v. Corbo,
248 So. 2d 238, 240 (Fla. 3d DCA 1971) (recognizing
that “arising out of” means “causally connected with, not
proximately caused by”); Taurus Holdings, Inc.,
913 So. 2d at
533 (confirming “the proposition that ‘arising out of’ does not
equate to proximate cause—at least in coverage provisions”).
Thus, regardless of whether the broken pipe was the
proximate cause of the loss, there is no dispute, and indeed
Pitu did not dispute, that this loss was incident to or
connected with the water flowing from it.
Id. at 293 n.3.
Similarly, the endorsement in this case limits losses paid for damages
“arising out of water.” We see little difference between the language of the
two endorsements. While insured claims that losses from “damage arising
out of water” means something different than losses “arising out of water
damage,” we are not persuaded that there is a difference. Both cover losses
“incident to” or “having a connection with” water.
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Insured argues that “tear out” expenses are not “damages” and thus
not subject to the endorsement limitation. We disagree. The policy
language covers “loss caused by the water including the cost of tearing out”
parts of the structure to repair the system which leaked. “Tear out” costs
are thus part of the water damage loss. Therefore, the endorsement
limiting all water damage loss includes tear out expenses.
We thus affirm the final summary judgment holding that insured’s
covered loss for water damage, including tear out expenses, was limited to
$5,000 by the policy endorsement.
Affirmed.
FORST and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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