Gonzalez v. Citizens Prop. Ins. Corp.

• Decision Date: 13 March 2019
• Docket Number: No. 3D17-2609,3D17-2609
• Citation: 273 So.3d 1031
• Parties: Yosvani GONZALEZ and Yenisleidy Perez, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
• Court: Florida District Court of Appeals

273 So.3d 1031

Yosvani GONZALEZ and Yenisleidy Perez, Appellants,

v.CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

No. 3D17-2609

District Court of Appeal of Florida, Third District.

Opinion filed March 13, 2019

Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellants.

Cole, Scott & Kissane, P.A., and Kathryn L. Ender, Scott A. Cole, Mark D. Tinker, and Aram P. Megerian (Tampa); Hinshaw & Culbertson LLP, and Maureen G. Pearcy, Coral Gables, for appellee.

Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.

LOGUE, J.

Yosvani Gonzalez and Yenisleidy Perez (the "Homeowners') appeal from a final summary judgment entered in favor of Citizens Property Insurance Corporation ("Citizens"). While the affidavits filed by Citizens met its burden as the movant for summary judgment, the affidavits filed by the Homeowners did not satisfy their burden as the opponents. Accordingly, we affirm.

Facts

The Homeowners sued Citizens, their property insurance carrier, for water damage to the interior of their home due to a leak in their roof. In their complaint, they alleged the roof leak was created by a wind storm event which occurred on or around July 17, 2013. The over-arching issue in the lawsuit was whether the leak in the roof was due to a wind storm event (covered by their policy) or normal wear and tear (not covered by their policy).

Citizens moved for summary judgment asserting that the leak was caused by normal wear and tear of a roof beyond its useful life and no genuine issue of fact existed in this regard. Citizens grounded its motion on two affidavits based on two separate inspections of the damaged roof. One inspection was conducted two days after the loss occurred and the other nine months after the loss occurred. Both inspections took place before the roof was replaced. The claims adjuster and roofing contractor who conducted the inspections found no evidence of wind damage. Both attributed the roof leak to wear and tear due to age. The roofing contractor indicated that the roof was twenty-one years old and beyond its useful life. He described in detail cracks in the roof membrane and the loss of the seal on the roof which he attributed to normal age-related deterioration of the roof.¹

To oppose the summary judgment, the Homeowners filed two affidavits by Al Brizuela, a registered engineer. The first affidavit is entirely conclusory. In it, Mr. Brizuela does little more than announce "the roof leak was the result of a one-time wind event on or about 7/17/2013" and broadly disagree with the opinion of the roofing contractor: "[t]his opinion by [the roofing contractor] is not backed by any scientific evidence and there is no evidence to support the application of these allegations to the subject house or roof." Significantly, Mr. Brizuela had not inspected the property at the time he signed his first affidavit and he gives no basis for his opinion.

Mr. Brizuela then submitted a second affidavit based on an inspection. In it and the attached "Proof of Loss Evaluation and Assessment Report," Mr. Brizuela opined that "openings [in the roof] were created by strong wind and rain events that took place between June 29th and July 3rd, 2013." (Emphases omitted). His opinion in this regard was based first upon his "eye witness account" in which "[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge." He did not describe what the damage to the roof looked like. He admits, moreover, that his inspection of the roof occurred one year after the Homeowner had entirely replaced the damaged roof. He did not explain how he was able to observe "damages to the roof" when the damaged roof had been replaced one year earlier.²

Secondly, he finds that the roof was subject to "high winds between June 29th and July 3rd, 2013 when winds up to 60 mph were recorded near the property." In particular, he opined that the subject property experienced 60-mph winds because Miami-Opa Locka Airport, which is located more than three miles from the subject property, recorded wind "gusts" of 60 miles per hour of unknown duration on June 29, 2013. Significantly, the claimed date of loss was two weeks later on or about July 17, 2013. Moreover, Mr. Brizuela admitted "Predicting wind at other locations, wind speed from a particular direction at a particular time, with an acceptable degree of accuracy is currently highly inaccurate."

Analysis

This Court reviews a trial court's ruling on a motion for summary judgment de novo. Volusia Cty. 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. "Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334–35 (Fla. 3d DCA 2015).

A court considering summary judgment must avoid two extremes. On the one hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez–Gurri Corp. v. McLeod, 238 So.3d 347, 350 (Fla. 3d DCA 2017). On the other hand, a "party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict." Perez-Rios v. Graham Cos., 183 So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1108 (Fla. 4th DCA 2000) ).

We hold that the two affidavits submitted by Citizens were sufficient to meet its burden as movant for summary judgment. It therefore became the burden of the Homeowners, as the parties opposing the motion, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to subsection (f) of the rule; or (2) file "summary judgment evidence on which the adverse party relies," pursuant to subsection (c) of the summary judgment rule. Fla. R. Civ. P. 1.510.

The Homeowners chose the second option and filed affidavits in opposition. In this situation, the law of Florida shifts the burden to present evidence from the movant to the party opposing summary judgment:

If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result - that is, evidence sufficient to generate an issue on a material fact. When analyzed in this fashion the summary judgment motion may be categorized as a "pre-trial motion for a directed verdict." At least it has most of the attributes of a directed verdict motion.

The initial burden, therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent's witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.

Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782-83 (Fla. 1965) (citations omitted).³

In this regard, the Rule requires that "opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary judgment must identify "admissible evidence that creates a genuine issue of material fact." Panzera v. O'Neal, 198 So.3d 663, 665 (Fla. 2d DCA 2015) (citing Rooker v. Ford Motor Co., 100 So.3d 1229, 1231 (Fla. 2d DCA 2012) ). The purpose of this requirement is "to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief." Alvarez v. Fla. Ins. Guar. Ass'n, Inc., 661 So.2d 1230, 1232 (Fla. 3d DCA 1995) (quoting Pawlik v. Barnett Bank of Columbia Cty., 528 So.2d 965, 966 (Fla. 1st DCA 1988) ).

The focus is on whether the affidavits show evidence of a nature that would be admissible at trial; if so, any questions regarding relative credibility or weight of that evidence compared to other evidence cannot be resolved on summary judgment but must be left for the trier of fact. Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999) ("In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence.").

Thus, for example, an affidavit averring a pilot had sometimes in the past allowed other persons in a plane to pilot aircrafts did not create an issue of fact as to whether the pilot was allowing another person to...