Citizens Prop. Ins. Corp. v. Hamilton
| Decision Date | 07 July 2010 |
| Docket Number | NO. 1D09-4128,1D09-4128 |
| Parties | CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. WILLIAM T. HAMILTON AND CYNTHIA L. HAMILTON, Appellees. |
| Court | Florida District Court of Appeals |
Elizabeth McArthur and David A. Yon of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellant.
James F. McKenzie of McKenzie & Hall, P.A., Pensacola, for Appellees.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Santa Rosa County. R. V. Swanson, Judge.
In this wind insurance claim case, a jury awarded policy limits to the Hamiltons, whose mobile home was destroyed by Hurricane Ivan. Appellant Citizens Property Insurance Corp. (Citizens) raises numerous points; we focus upon the following: (1) the exclusion of evidence that flooding caused the total loss of the insured properties, including evidence that the Hamiltons also had aflood insurance policy from which they recovered policy limits; (2) the admission into evidence of the county's "substantial damage" determination; (3) the trial court's failure to give appellant's proposed jury instructions, including the contention that the court erred in failing to instruct the jury on the total loss recovery rule; and (4) an award of prejudgment interest on unpaid damages from the date of the loss. We affirm in part and reverse in part.
As of September 2004, appellees William and Cynthia Hamilton lived in a mobile home on Blackwater Bay, in Milton, Florida. Owing to the home's location in a flood zone, appellees obtained an insurance policy from the National Flood Insurance Program (NFIP), insuring the residence and its contents against flood loss. The Hamiltons also purchased an insurance policy from Citizens, a statutorily created insurer of last resort authorized to write insurance in Florida. The Citizens policy insured the home, its contents, and other on-site properties against loss caused by certain named perils, including windstorm. Conversely, the Citizens policy excluded coverage for losses caused by water damage, such as resulting from flood, waves, tidal water, and overflow. An anti-concurrent cause (ACC) clause in the policy stated that loss caused directly or indirectly by an excluded peril "is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss."
On September 16, 2004, storm surge and wave action from Hurricane Ivan washed away the Hamiltons' home, as well as out buildings described as a rabbit coop and metal garage. After appellees submitted a claim under the flood policy, adjusters inspected the property to make payment recommendations to the NFIP, set forth in a Flood Narrative and Final Report. In conjunction with the claim, NFIP provided the Hamiltons with a contents form, which listed separate columns for damage caused by flood or, alternatively, by wind. Appellees prepared and submitted the form, listing all items as damaged by flood. Mr. Hamilton also returned a sworn proof-of-loss, swearing that he was claiming under the policy for the full value of the home and its contents, based on the "flood loss" of September 2004. NFIP accepted the adjusters' recommendation to pay full policy limits for the loss, issuing to the Hamiltons checks of $63,700 (dwelling coverage) and $31,000 (contents).
The Santa Rosa County Building Inspection Department issued to appellees a notice of determination of "substantial damage," stating that the Hamiltons' dwelling had sustained damages exceeding 50 percent of its pre-damage value "as the result of the flooding related to Hurricane Ivan." Rather than undergo the expense to rebuild the home in compliance with floodplain regulations requiring elevation of the lowest floor to or above the 100-year flood elevation, appellees instead placed the land up for sale.
The Hamiltons thereafter presented a claim for total loss of their home under the windstorm policy issued by Citizens. Like NFIP, appellant sent an adjuster to inspect the property and determine the extent of the insurer's liability. The adjuster concluded that only tree damage to the roof of the garage had been caused by wind. A supplement to the resulting report recommended payment of $6,370 for wind damage, which Citizens subsequently paid to appellees.
The Hamiltons then filed suit against Citizens, seeking to recover full policy limits. The complaint alleged that the Hamiltons' dwelling was insured against losses caused by windstorm by a "valued policy" subject to section 627.702, Florida Statutes (2004). Appellees advanced the claim on the strength of Mierzwa v. Florida Windstorm Underwriting Association, which (incorrectly) interpreted the Valued Policy Law (VPL), section 627.702, Florida Statutes (2004), to allow an insured whose dwelling sustained a total loss by combination of wind and flood to recover the entire policy limits under a wind-only policy if the insured could prove that any part of the total loss was attributable to wind. See 877 So. 2d 774 (Fla. 4th DCA 2004), superseded by statute, § 627.702(1)(b), Fla. Stat. (2005), as recognized in Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So. 2d 815, 821 (Fla. 2007).
Citizens moved for partial summary judgment, arguing plaintiffs' recovery under the windstorm policy should be limited to the pre-storm value of their home, less payments received from NFIP. Appellant filed a second motion for partial summary judgment, asserting that any damages payable under the policy must be based on actual cash value, pursuant to the policy provision that provides for actual cash value when the damaged property is not actually repaired or replaced. Citizens also moved in limine to exclude evidence regarding Santa Rosa County's substantial damage rule.
The trial court denied or deferred ruling on Citizens' motions, but granted the Hamiltons' motion in limine to bar evidence of the amount of flood carrier payments and estimates. The parties' trial experts offered conflicting opinions on whether the mobile home sustained anything more than minor wind damage before being inundated and washed away by storm surge. Mark Spitznagel, a professional engineer and general contractor, testified for the Hamiltons:
[T]he majority of the damage was caused by the high winds and the storm surge just washed away what was left of the house. The house would have been substantially damaged well before the storm surge would have washed away the debris or toppled over what was left if it hadn't been toppled over already.
Spitznagel estimated the cost of a replacement home at $120,000, including the expense to elevate the unit as required by the floodplain regulations. Conversely, James Phillip Wilbourn, II, a licensed structural engineer, offered his expert opinion on behalf of Citizens:
Basically, the mobile home would not have sustained any significant damage prior to the storm surge reaching the... home and causingdamage. By the time the winds clocked around to an angle where they would be impacting the [structure] directly, the storm surge was already about 2.6 feet above the floor line of the... home, and it only takes about a foot of water depth... in order to cause [the structure] to float up off of its foundation....
Upon submission of an interrogatory verdict form, the jury found that wind caused a total loss of the Hamiltons' home and awarded damages of Citizens' policy limits. The jury also determined that the garage and rabbit coop sustained damage due to windstorm, assigning damage amounts for the out structures based on instructions that the Citizens policy provided for payment of losses on the basis of replacement cost.
The trial court rendered a final judgment in accordance with the jury verdict, subject to an offset in the amount previously paid for wind damage. Over appellant's objection, the court awarded prejudgment interest on the entire damages award from the date of the loss.
We review a trial court's evidentiary rulings, in the context of the entire trial, for abuse of discretion. See H & H Elec., Inc. v. Lopez, 967 So. 2d 345, 347 (Fla. 3d DCA 2007). Citizens challenges first the court's ruling on the Hamiltons' motion in limine, upon consideration of which the court resolved to allow appellant to reference the flood coverage, the flood damage, and the flood loss claim, except as to dollar amount. Citizens contends that these representations, in addition to aletter from trial counsel acknowledging full payment of the Hamiltons' "total loss" flood claim, are admissible as statements against interest, pursuant to section 90.803(18), Florida Statutes (2003). Appellees respond that such evidence is irrelevant and barred by the common law collateral source rule.
The collateral source rule is a doctrine prohibiting "both the introduction of evidence of collateral insurance benefits received, and the setoff of any collateral source benefits from the damage award." Rollins v. Pizzarelli, 761 So. 2d 294, 300 (Fla. 2000) (citing Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457-59 (Fla. 1991)). In accordance with this district's precedent, we apply the collateral source rule to causes of action in contract, as well as to actions in tort. See Rease v. Anheuser-Busch, Inc., 644 So. 2d 1383, 1387 n.3 (Fla. 1st DCA 1994) (citing Hartnett v. Riveron, 361 So. 2d 749, 751 (Fla. 3d DCA 1978) (); Bangert v. Beeler, 470 So. 2d 817, 818 (Fla. 1st DCA 1985); Walker v. Hilliard, 329 So. 2d 44, 45 (Fla. 1st DCA 1976) (...
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