Third District Court of Appeal
State of Florida
Opinion filed December 9, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1209
Lower Tribunal No. 16-10964
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Bessie Frederick,
Appellant,
vs.
Citizens Property Insurance Corporation,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellant.
Paul R. Pearcy, P.A., and Maureen G. Pearcy, for appellee.
Before SCALES, LINDSEY and LOBREE, JJ.
PER CURIAM.
In this breach of insurance contract action, Bessie Frederick (the “insured”)
appeals from the trial court’s entry of summary judgment in favor of Citizens
Property Insurance Corporation (the “insurer”). After a de novo review, we find that
disputed issues of material fact exist as to the cause of the loss, and reverse.
After a thunderstorm in November 2015, the insured’s home sustained
damage from rainwater that came in through the roof. Following a denial of
coverage, the insured filed the instant action seeking coverage for her claim. In
moving for summary judgment, the insurer relied upon its engineer’s report and
affidavit, which ultimately determined that the roof leaks were caused by wear and
tear of the roof, 1 as well as deposition testimony of the insured’s general contractor.
The insured opposed summary judgment relying on an affidavit, inspection report,
and deposition of its general contractor, who ultimately concluded that the roof leaks
1
The subject insurance policy provides:
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:
....
h. Rain, . . . unless a covered peril first damages the
building causing an opening in a roof or wall and the rain
. . . enters through this opening.
i. Any of the following:
(1) Wear and tear, marring, deterioration;
2
resulted from micro fissures in the roof caused by strong wind gusts and wind-driven
rain during the November 2015 thunderstorm. The trial court determined that the
evidence relied upon by the insured was insufficient to withstand summary judgment
as to whether a covered peril caused an opening in the building’s roof and entered
final judgment in favor of the insurer.
After thorough examination of the record, we find that the insured met her
burden of showing the existence of a triable issue as to the cause of her loss. See
Garcia v. First Cmty. Ins. Co.,
241 So. 3d 254, 257-58 (Fla. 3d DCA 2018) (holding
summary judgment inappropriate where findings of insurer’s expert–that roof leak
was caused by combination of age-related deterioration, tree branch abrasions, and
construction defect–and conclusions of insured’s expert–that roof leak was caused
by wind event–were “clearly at odds”); see also Ortega v. v. Citizens Prop. Ins.
Corp.,
257 So. 3d 1171, 1173 (Fla. 3d DCA 2108) (finding homeowner’s
counterevidence sufficient to create disputed issues of material fact as to whether
covered peril caused opening in roof of her home, allowing rainwater to enter and
damage home’s interior).
Accordingly, we reverse and remand for further proceedings in conformity
with this opinion.
3
