Comisar v. Heritage Prop. & Cas. Ins. Co.

• Decision Date: 10 August 2022
• Docket Number: 4D21-2468
• Citation: 344 So.3d 46
• Parties: Linda COMISAR and Bernard Comisar, Appellants, v. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

344 So.3d 46

Linda COMISAR and Bernard Comisar, Appellants,
v.
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.

No. 4D21-2468

District Court of Appeal of Florida, Fourth District.

[August 10, 2022]

Samuel Alexander of Alexander Appellate Law, P.A., DeLand, and Erik D. Diener of The Diener Firm, P.A., Plantation, for appellants.

Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, PA, West Palm Beach, for appellee.

Klingensmith, C.J.

Linda and Bernard Comisar ("insureds") filed a declaratory judgment action against their insurer, Heritage Property and Casualty Insurance Company ("insurer"), after their home was allegedly damaged by a roof leak. The trial court dismissed their complaint with prejudice for failure to properly plead a cause of action for declaratory relief, and insureds appealed. For the reasons below, we reverse.

Insureds had an all-risk policy with insurer that contained numerous exceptions from coverage, including an exclusion for any losses caused by "wear and tear, marring, [and] deterioration." After insureds filed their claim, insurer sent a field adjuster to inspect the home. Because the adjuster did not observe any wind or storm damage to the insureds’ roof, insurer denied coverage, and insureds filed their lawsuit.

Insureds made several attempts to amend their complaint during the litigation. Their last operative pleading, a third amended complaint, asked for a determination whether certain conditions, including weather conditions and foot traffic, contributed to the damage caused by the roof leak. Upon the insurer's motion, the trial court dismissed the complaint with prejudice for failure to state a claim for declaratory relief. This appeal followed.

We generally review an order dismissing a declaratory action for an abuse of the trial court's discretion. Goldman v. Lustig , 237 So. 3d 381, 384 (Fla. 4th DCA 2018) (citing Academy Express, LLC v. Broward County , 53 So. 3d 1188, 1190 (Fla. 4th DCA 2011) ). "However, to the extent a court's dismissal is based on a legal determination, this court may conduct de novo review." S.L.V. v. Toth , 268 So. 3d 801, 803 (Fla. 4th DCA 2019). We also review de novo "a dismissal for failure to state a cause of action." Academy Express, LLC , 53 So. 3d at 1190.

Parties may seek declaratory relief from courts as a matter of law. § 86.101, Fla. Stat. (2021). A party that is "in doubt about its rights under a contract or other instrument may seek a judicial declaration" to determine those...