Archer v. Tower Hill Signature Ins. Co.

• Decision Date: 24 March 2021
• Docket Number: No. 4D19-3702,4D19-3702
• Citation: 313 So.3d 645
• Parties: Dorothy ARCHER, Appellant, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 645

Dorothy ARCHER, Appellant,

v.TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.

No. 4D19-3702

District Court of Appeal of Florida, Fourth District.

[March 24, 2021]

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 The policy had a Water Damage Exclusion that was later superseded by two endorsements: a Water Damage Exclusion Endorsement and a Special Provisions for Florida endorsement.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 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

(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 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...