DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOROTHY ARCHER,
Appellant,
v.
TOWER HILL SIGNATURE INSURANCE COMPANY,
Appellee.
No. 4D19-3702
[March 24, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. CACE-18-4463 (21).
Paul B. Feltman of Alvarez, Feltman, Da Silva & Costa, PL, Coral
Gables, and Justin Cernitz of Cernitz, Shanbron, LLC, Miami, for
appellant.
Daniel M. Schwarz of Link & Rockenbach, P.A., West Palm Beach, and
Paul S. Vicary of Zinober, Diana & Monteverde, P.A., Fort Lauderdale, Fort
Lauderdale, for appellee.
LEVINE, C.J.
An insured appeals a final summary judgment on her claims for
damage from a plumbing leak and a hurricane. The insured argues that
a genuine issue of material fact remained as to whether the hurricane
caused an opening in her roof through which water entered. The insured
further argues that two endorsements to the insurance policy created an
ambiguity such that a water damage exclusion did not apply to the
plumbing leak claim. We find that the insured’s affidavits and deposition
were conclusory and insufficient to create a genuine issue of material fact
as to the roof claim. We further find that the endorsements were not
ambiguous and thus the water damage exclusion barred the plumbing
leak claim. We affirm without comment the insured’s claim relating to
underpayment for hurricane damage to her pool screen and fence.
The insured had a homeowner’s insurance policy with Tower Hill. The
policy had a Water Damage Exclusion that was later superseded by two
endorsements: a Water Damage Exclusion Endorsement and a Special
Provisions for Florida endorsement.
The Water Damage Exclusion Endorsement provided as follows:
WATER DAMAGE EXCLUSION ENDORSEMENT
For the premium charged, your policy is changed as follows:
....
SECTION I – EXCLUSIONS
Paragraph 1.c. Water Damage is deleted and replaced by the
following:
c. Water Damage, meaning:
(1) Flood, surface water, waves, tidal water, overflow of a
body of water or spray from any of these, whether or not
driven by wind;
(2) Water, water-borne material or sewage which backs up
through sewers or drains or which overflows from a
sump; or
(3) Water, water-borne material or sewage below the surface
of the ground including water which exerts pressure on
or seeps or leaks through a building, sidewalk, driveway,
foundation, swimming pool or other structure.
(4) Accidental or intentional discharge or overflow of water or
steam from within a plumbing, heating, air conditioning
or automatic fire protective sprinkler system or from
within a household appliance,
(5) Water penetration through the roof system or exterior
walls or windows whether or not driven by wind unless
water penetration is a direct result of damage caused by
wind or hail. Water damage resulting from rain that
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enters the insured dwelling through an opening that is a
direct result of a “hurricane loss” is covered as a
“hurricane loss” and is subject to the hurricane
deductible stated in your policy declarations. Water
damage subsequent to and as a result of an opening
caused by wind or hail will be covered as a wind or hail
loss provided that your policy includes coverage for wind
or hail.
Direct loss by fire or explosion resulting from water damage is
covered.
The Special Provisions endorsement provided:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE
READ IT CAREFULLY.
SPECIAL PROVISIONS FOR FLORIDA
....
GENERAL EXCLUSIONS
....
Exclusion 1.c. Water Damage is deleted and replaced by the
following.
c. Water Damage, meaning:
(1) flood, surface water, waves, tidal water, overflow of a body
of water, or spray from any of these, whether or not
driving [sic] by wind;
(2) water, water-borne material or sewage which backs up
through sewers or drains or which overflows or is
discharged from a sump, sump pump or related
equipment; or
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(3) water, water-borne material or sewage below the surface
of the ground, including water which exerts pressure in
or seeps or leaks through a building, sidewalk, driveway,
foundation, swimming pool or other structure.
Direct loss by fire, explosion or theft resulting from water
damage is covered.
The insured, through her public adjuster, notified Tower Hill of two
separate claims that occurred on two separate dates: a plumbing leak and
roof damage from Hurricane Irma. After Tower Hill denied the claims, the
insured filed a complaint against Tower Hill for declaratory relief as to the
plumbing leak and breach of contract as to the roof claim. Tower Hill filed
an answer and affirmative defenses, arguing that the policy excluded
coverage for water damage.
Tower Hill moved for summary judgment, arguing that there was no
damage to the roof caused by the hurricane and that the water damage
exclusion excluded coverage for the damage alleged by the insured. In
support of its motion, Tower Hill filed several affidavits, including the
affidavit of its field adjuster who inspected the property. The field adjuster
determined the roof was at least twenty years old. Tower Hill’s field
adjuster did not see any openings in the roof or any obvious wind-related
damage to the roof.
Tower Hill also filed the deposition of the insured, who testified that she
went to the house after Hurricane Irma and saw the ceiling had “come
down on the floor” and “some of the rooms were soaked.” She had someone
seal cracks in the roof to stop the leaks. Prior to Hurricane Irma, she had
someone else seal the roof “maybe once or twice,” but it had been “a long
time.”
The insured filed a response in opposition to the motion for summary
judgment and a cross-motion for summary judgment, relying on several
affidavits as well as her own deposition. Dawkins’s affidavit stated that he
had previously resealed the roof and that after Hurricane Irma, he
“observed wind damage to the roof,” “cracks and openings to the roof,” and
“water damage to the interior of the Property which entered through
openings from the roof.” The affidavit of Leath—a person who according
to the insured sealed cracks in the roof after Hurricane Irma—stated that
he “observed water damage to the interior of the Property which entered
through openings from the roof.” The affidavit of the insured’s public
adjuster stated: “Based upon my inspection of Plaintiff’s dwelling and my
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years of experience as a public adjuster, the interior damages that I
witnessed is consistent with damages that entered through openings
created by Hurricane Irma.”
After a hearing, the trial court entered summary judgment in favor of
Tower Hill. The insured appeals.
The standard of review for summary judgment is de novo. Volusia Ctny.
v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000).
“Summary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law.”
Id. “[T]he burden of proving the absence of a genuine issue of material fact
is upon the moving party.” Holl v. Talcott,
191 So. 2d 40, 43 (Fla. 1966).
“[O]nce there is a motion for summary judgment that is supported by
affidavit or other factual showing, the burden shifts to the opposing party
to show by appropriate means that genuine and material issues do remain
to be tried.”
Id. at 42.
Hurricane Claim
The trial court properly entered summary judgment on the insured’s
Hurricane Irma breach of contract claim. The policy provided coverage for
water damage only when wind or hail creates an opening through which
the water enters. Tower Hill satisfied its initial burden of demonstrating
no issues of material fact by submitting the affidavit of its field adjuster
who did not see any openings in the roof through which water could have
entered. The burden then shifted to the insured to show that genuine
issues of material fact did remain to be tried. Holl,
191 So. 2d at 42.
The insured failed to meet her burden because her affidavits and
deposition were conclusory. Conclusory statements which are framed in
terms only of conclusions of law are not sufficient to prove the non-
existence of a genuine issue of material fact. Progressive Express Ins. Co.
v. Camillo,
80 So. 3d 394, 399 (Fla. 4th DCA 2012) (citing Heitmeyer v.
Sasser,
664 So. 2d 358, 360 (Fla. 4th DCA 1995)).
The insured offered the affidavits of Dawkins and Leath as lay
witnesses. Dawkins’s affidavit did not describe the nature or appearances
of the cracks and openings, what led him to believe the cracks and
openings were caused by wind from Hurricane Irma, or the location of the
cracks and openings on the roof. All Dawkins relates to seeing is “wind
damage to the roof” and “cracks and openings to the roof.” He does not
explain how there is wind damage or how the damage was caused by the
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wind. Merely reciting conclusory statements does not rebut the
statements of Tower Hill’s field adjuster. Similarly, Leath’s affidavit did
not set forth the basis for his knowledge or even state that the openings
were caused by Hurricane Irma. Additionally, the insured’s deposition did
not say anything about openings on the roof.
The affidavit of the insured’s public adjuster was also insufficient to
show that a genuine issue of material fact existed as to the existence and
cause of an opening in the roof. Section 90.702, Florida Statutes (2017),
which codifies the Daubert standard, states:
[A] witness qualified as an expert by knowledge, skill,
experience, training, or education may testify about it in the
form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
The affidavit did not say anything about the public adjuster’s
qualifications, training, education, or methodology. In fact, she never even
stated that she saw any openings in the roof. The public adjuster did not
expound on her observations or explain how she came to her conclusion,
other than to cite her years of experience as a public adjuster. “[N]o weight
may be accorded an expert opinion which is totally conclusory in nature
and is unsupported by any discernible, factually-based chain of
underlying reasoning.” Parc Royale E. Dev., Inc. v. U.S. Project Mgmt., Inc.,
38 So. 3d 865, 869 (Fla. 4th DCA 2010) (citation omitted).
The insured’s evidence was unlike, for example, that in Garcia v. First
Community Insurance Co.,
241 So. 3d 254, 257-58 (Fla. 3d DCA 2018),
where the insured successfully opposed summary judgment by submitting
an engineering report explaining that the dynamic force of the winds
caused an opening in the roof by uplifting and debonding the shingles,
causing damage to the underlayment through which rain was able to
enter. See also Ortega v. Citizens Prop. Ins. Corp.,
257 So. 3d 1171, 1172-
73 (Fla. 3d DCA 2018) (finding issue of material fact where deposition
testimony stated that a tree branch went through the roof, creating a huge
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hole, and affidavit of general contractor and engineer attested to uplift
damage to roof from windstorm which allowed water to enter); Frederick v.
Citizens Prop. Ins. Corp., 45 Fla. L. Weekly D2750 (Fla. 3d DCA Dec. 9,
2020) (finding insured met burden of showing existence of triable issue by
relying on affidavit, inspection report, and deposition of general contractor
who concluded that roof leaks resulted from micro fissures in the roof
caused by strong wind gusts and wind-driven rain).
Plumbing Claim
With respect to her plumbing leak claim, the insured argues that the
trial court erred in applying the Water Damage Exclusion Endorsement
because it conflicts with the Specific Provisions for Florida endorsement,
creating an ambiguity in the policy. She further argues that the ambiguity
should be construed in her favor to provide coverage.
“[W]e rely upon the rule of construction requiring courts to read
provisions of a contract harmoniously in order to give effect to all portions
thereof.” Homestead v. Johnson,
760 So. 2d 80, 84 (Fla. 2000). “[A]n
interpretation which gives a reasonable, lawful, and effective meaning to
all its terms is preferred to an interpretation which leaves a part of the
contract unreasonable, unlawful or of no effect.” Raytheon Subsidiary
Support Co. v. Crouch,
548 So. 2d 781, 783 (Fla. 4th DCA 1989).
We find there is no ambiguity in the policy. The Water Damage
Exclusion Endorsement and the Special Provisions endorsement both
stated that they replace the Water Damage exclusion in the original policy.
Additionally, there is no conflict between the two endorsements as the first
three subsections are virtually identical in each endorsement. The Special
Provisions endorsement includes two additional exclusions that
supplement, and do not conflict with, the first three exclusions.
The insured alleges that the Special Provisions endorsement went into
effect after the Water Damage Exclusion Endorsement. The insured
suggests that because that the Water Damage Exclusion Endorsement is
older, the newer water damage definition in the Special Provisions
endorsement should apply. However, which endorsement came first, in
this case, is irrelevant. Nothing in the second endorsement, the Special
Provisions endorsement, suggests it was intended to supplant the first
endorsement, the Water Damage Exclusion Endorsement. Rather, both
endorsements replaced the Water Damage exclusion clause in the original
policy. The use of two separate endorsement forms can be explained
because one was intended for use in many states, whereas the other was
specific to Florida, a practice that insurers commonly employ. See Fla.
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Peninsula Ins. Co. v. Cespedes,
161 So. 3d 581, 587 (Fla. 2d DCA 2014)
(Altenbernd, J., concurring in part and dissenting in part).
Because there is no conflict between the endorsements, the trial court
properly gave effect to subsection (4) of the Water Damage Exclusion
Endorsement, which excluded the plumbing leak from coverage.
In conclusion, because there were no issues of material fact on the
hurricane damage claim and no ambiguity in the policy as to the plumbing
leak claim, we affirm the final summary judgment.
Affirmed.
GROSS and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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