Fla. Farm Bureau Cas. Ins. Co. v. Mathis
| Decision Date | 20 April 2010 |
| Docket Number | No. 1D09-1707.,1D09-1707. |
| Citation | 33 So.3d 94 |
| Parties | FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant,v.Willis F. MATHIS and Katherine W. Mathis, Appellees. |
| Court | Florida District Court of Appeals |
Elliot H. Scherker, Elliot B. Kula, and Daniel M. Samson of Greenberg Traurig, P.A., Miami; Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Alabama, for Appellant.
James F. McKenzie of McKenzie & Hall, P.A., Pensacola, for Appellees.
Florida Farm Bureau Casualty Insurance Company appeals a final judgment entered in favor of Willis F. Mathis and Katherine W. Mathis which awards them the full policy limits of their Florida Farm homeowners policy. Florida Farm argues that the Mathises were impermissibly allowed a double recovery for their loss because previously they had been paid policy limits under their separate flood insurance policy. In response, the Mathises assert they introduced evidence, which the jury accepted, that the wind damage, a covered peril under their homeowners policy, caused a total loss or constructive total loss of their home, so that under Florida's Valued Policy Law (VPL), section 627.702(1), Florida Statutes (2004),1 they were entitled to recover their policy limits under the homeowners policy. For the reasons that follow, we affirm.
The Mathises owned a two-story home in Navarre Beach when Hurricane Ivan struck in September 2004, causing substantial wind and flood damage to their home. The home was insured with a flood insurance policy with policy limits of $250,000, issued pursuant to the National Flood Insurance Program and administered by Southern Farm Bureau Casualty Insurance Company. The Mathises also insured the home with a Florida Farm homeowners policy with policy limits of $295,600, which covered windstorm damage among other perils. The homeowners policy excluded water damage due to “[f]lood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind.” Loss due to water damage was excluded “regardless of any other cause or event contributing concurrently or in any sequence to the loss.”
After the hurricane, the Mathises received a letter from Santa Rosa County advising them that the damages to their home exceeded fifty percent of its value. As a result of this determination, the Mathises were required to apply for permits to repair and rebuild the home and new construction or repairs were required to be completed in accordance with current building code requirements. The elevation of the Mathises' home, built in 1995, did not meet current code requirements. Because of the expense to rebuild the home pursuant to current codes and because the existing structure was deemed unsafe, the Mathises were left with no other choice but to demolish the home.
The Mathises were paid the flood insurance policy's full $250,000 policy limits less the deductible. Florida Farm tendered approximately $102,000 for wind damages under the homeowners policy. The Mathises filed suit contending they were entitled to recover the full policy limits under the VPL. Florida Farm answered the complaint and filed a counterclaim for declaratory judgment. Florida Farm alleged that the Mathis home was not a total loss; that, even if it was, the loss was due to flood damage; and that allowing the Mathises to recover the limits of the wind insurance would constitute unjust enrichment. Florida Farm did not assert set-off as a defense.
This is the second appearance of this proceeding in this court. The trial court's initial summary judgment in favor of the Mathises was reversed Florida Farm Bureau Casualty Insurance Company v. Mathis, 978 So.2d 856 (Fla. 1st DCA 2008), based upon the Supreme Court's decision in Florida Farm Bureau Casualty Insurance Company v. Cox, 967 So.2d 815 (Fla.2007). On remand, the evidence showed that there was a water line inside the Mathis house four feet, two inches above the floor. The parties tried the case on the basis that damage to the house six feet and below was related to flood and damage above six feet was related to the wind.
The Mathises filed a motion in limine seeking to prohibit Florida Farm from introducing any evidence of flood payments, arguing that they were trying the case based upon the damages associated by the covered peril of wind only and that evidence of flood payments would be immaterial, irrelevant, and prejudicial and would confuse the issues before the jury. The trial court ruled that it would allow evidence as to flood damages, but would not allow evidence as to the amount of the recovery under the flood policy. Florida Farm does not appeal the trial court's ruling on the motion in limine.
The Mathises' home had not been appraised. At trial, Mr. Mathis estimated that it was valued between $400,000 and $410,000.2 John Minor, a licensed general contractor who repairs buildings damaged by storms, testified as an expert for the Mathises. He performed an assessment of the cost to repair the damage to the second story and the damage above ten feet of the first floor. He estimated the cost to repair the wind damage at $325,548.10. He testified that the house was composed of approximately 3,000 square feet of living space and that restoration would cost $200 per square foot or approximately $500,000. The parties' experts disagreed concerning whether the house had been substantially damaged by flood. During closing argument, the Mathises argued that their house was a constructive total loss and could not be repaired. Florida Farm argued that the house was not a total loss and that the second floor could have been repaired.
The jury was instructed that its inquiry was limited “solely to the amount of wind damage legally caused to the Mathises' residence and whether that wind damage caused a total loss either constructively or because of the cost to repair the damage.” The trial court instructed that a “constructive total loss” occurs when the home, “although still standing, is damaged to the extent that ordinances or regulations in effect require its demolition or prohibit or prevent [its] repair.” Regarding a total loss, the jury was instructed that a “total loss” occurs when “the cost to repair the damages due to a covered peril exceeds the pre-loss market value of the [home], less salvage value, so that it is not economically feasible that the property be repaired.” Finally, the jury was instructed that if they determined that a total loss did not occur, the VPL would not apply. Specifically, the jury instructions stated:
If you determine that there was not a total loss to the dwelling, you must determine the total amount, up to 100 percent, of all damages caused by wind to the Mathis home. You should award ... an amount of money that the greater weight of the evidence shows will fairly and adequate compensate them for the damages legally caused by the peril of wind.
There was no objection to the instructions.
Thereafter, the jury returned a verdict answering “yes” to the question “[d]id the wind damages in this case amount to a constructive total loss of the property or to a total loss because...
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