Third District Court of Appeal
State of Florida
Opinion filed March 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-276
Lower Tribunal No. 19-24251
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Magdiel Morales, et al.,
Appellants,
vs.
Citizens Property Insurance Corporation,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz,
Judge.
Behnejad Law PLLC, and Ruzy Behnejad and Richard Rafuls, for
appellants.
Lewis Brisbois Bisgaard & Smith LLP, and Kathryn L. Ender, for
appellee.
Before FERNANDEZ, C.J., and HENDON and GORDO, JJ.
HENDON, J.
Magdiel Morales and Lissandra Fournier (“the Homeowners”), appeal
from a final summary judgment in favor of Citizens Property Insurance
Corporation (“Citizens”). We reverse.
The Homeowners’ property is insured by Citizens. In 2017, the
property was allegedly damaged by Hurricane Irma. The Homeowners
timely filed a claim with Citizens. Citizens sent its adjuster to inspect the
property, and Citizens subsequently denied the claim. The claim rejection
letter explained that Citizens' policy does not cover damages caused by
wear and tear, but provides coverage for "direct physical loss to property
described in Coverages A and B only if that loss is a physical loss to
property” and excludes coverage for loss caused by "[r]ain, snow, sleet,
sand or dust to the interior of a building,” and that there is no coverage
"unless a covered peril first damages the building causing an opening in a
roof or wall and the rain, snow, sleet, sand or dust enters through this
opening."
The Homeowners filed a complaint against Citizens for breach of
contract. Citizens moved for summary judgment. At the hearing on
Citizens’ motion for summary judgment, Citizens submitted the affidavit of
its expert civil engineer, Enrique Matta, who concluded upon his inspection
of the property that there were no storm-created openings in the property
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roof. The Homeowners engaged Steven Delgado, a licensed contractor, to
inspect the property and provide expert testimony in the case. Mr. Delgado
filed his affidavit in opposition to summary judgment, his inspection report,
photos, as well as his extensive resumé. In his affidavit, Mr. Delgado
stated, in pertinent part,
Insured's Property is a single-family home. The roof consisted
of a wood-framed structure, covered with asphaltic shingles.
During a hurricane, severe winds can lift shingles and flashings
causing damage to the underlayment in the form of small
openings which allow of water to enter the property. These high
winds can also break the seals which fasten the shingles
together, which can similarly cause wind created openings in
the underlayment, leading to rainwater intrusion.
During my inspection and review of the claim documents
referenced in Paragraph 5 of this affidavit, I observed significant
damage to the roofing system and significant water intrusion
through the roof. I observed loose shingles which were most
likely damaged during Hurricane Irma allowing for high winds
and airborne debris to create small openings allowing for water
intrusion. My observations are consistent with roof damage
caused by a severe windstorm event such as Hurricane Irma.
Citizens argued that Mr. Delgado was not qualified to evaluate the
roof damage.1 The trial court subsequently rejected the Homeowners’
expert, reasoning that, as a general contractor, Mr. Delgado was not
qualified to provide expert testimony as to causation, and who merely
opined that Hurricane Irma’s winds were sufficient to lift and crack the
1
Interestingly, Mr. Delgado was certified in 2011 by Citizens with an
Advanced Wind Mitigation Inspection Certification.
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property’s roof shingles and allow water to enter the property’s interior.
The trial court granted summary judgment for Citizens, and the
Homeowners appeal followed.
Our standard of review of a final summary judgment order is de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130
(Fla. 2000). Moreover, in reviewing a summary judgment, this Court must
view the evidence in the light most favorable to the non-moving party.
Tropical Glass & Constr. Co. v. Gitlin,
13 So. 3d 156, 158 (Fla. 3d DCA
2009).
Discussion
Citizens, as the party moving for summary judgment, had the burden
“to demonstrate that the facts showed that the party moved against cannot
prevail.” Alfre Marble Corp. v. Twin Stone Designs & Installations, Inc.,
44
So. 3d 193, 194 (Fla. 3d DCA 2010) (quoting Fla. E. Coast Ry. Co. v.
Metro. Dade Cnty.,
438 So. 2d 978, 980 (Fla. 3d DCA 1983)). If Citizens
could establish that there were no genuine issues of material fact, then the
Homeowners had to come forward with counterevidence sufficient to create
a genuine issue of material fact. 2 See
id. Here, that genuine issue of
2
The Florida Supreme Court recently amended Florida Rule of Civil
Procedure 1.510(c), adopting the summary judgment standard of Celotex
Corp. v. Catrett,
477 U.S. 317 (1986). See In re: Amends. to Fla. R. Civ. P.
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material fact is whether hurricane force winds created openings in the roof
to allow water to enter the interior, creating damage that is covered by the
Homeowners’ windstorm policy. “If the record on appeal reveals the merest
possibility of genuine issues of material fact, or even the slightest doubt in
this respect, the summary judgment must be reversed.” Piedra v. City of N.
Bay Vill.,
193 So. 3d 48, 51 (Fla. 3d DCA 2016).
In Frederick v. Citizens Property Insurance Corp.,
314 So. 3d 539,
540 (Fla. 3d DCA 2020), a case very much on point with the current
appeal, this Court explained:
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, as well as deposition
testimony of the insured's general contractor. The insured
1.510,
309 So. 3d 192 (Fla. 2020); Fla. R. Civ. P. 1.510(a) ("The summary
judgment standard provided for in this rule shall be construed and applied
in accordance with the federal summary judgment standard."). However, as
the effective date of the amendment was May 1, 2021, and the summary
judgment in this case was rendered on December 21, 2020, the new
standard does not apply to this appeal.
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opposed summary judgment relying on an affidavit, inspection
report, and deposition of its general contractor, who ultimately
concluded that the roof leaks 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.
Citizens Prop. Ins. Corp.,
257 So. 3d 1171, 1173 (Fla. 3d DCA
2018) (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.
(emphasis added).
The facts in this appeal are no different. The Homeowners’ expert
provided sufficient evidence to introduce a genuine issue of material fact
regarding the cause of the property damage. The trial court appeared to
weigh the evidence rather than determine whether a genuine issue of
material fact existed. Alvarez v. Citizens Prop. Ins. Corp.,
328 So. 3d 61,
63 (Fla. 3d DCA 2021). We conclude on de novo review of the record that
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the trial court improperly granted summary judgment in favor of Citizens.
We therefore reverse and remand for further proceedings consistent
herewith.
Reversed and remanded.
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