Hudson v. Prudential Property and Cas. Ins. Co.

• Decision Date: 09 May 1984
• Docket Number: No. 83-1237,83-1237
• Citation: 450 So.2d 565
• Parties: Donald H. HUDSON and Mary Hudson, his wife, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 565

450 So.2d 565

Donald H. HUDSON and Mary Hudson, his wife, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.

No. 83-1237.

District Court of Appeal of Florida Second District.

May 9, 1984.

Andrew R. Reilly of Reilly & Lasseigne, Haines City, and D.A. Troiano, Lakeland, for appellants.

Roy B. Dalton, Jr., Orlando, for appellee.

SCHEB, Acting Chief Judge.

This appeal addresses the question of which party has the burden of proof in an insured's action under a homeowners insurance policy. The focus of our opinion is directed to the sinkhole coverage mandated by Florida law.

In 1976 Donald and Mary Hudson purchased a homeowners insurance policy from Prudential Property and Casualty Insurance Company. The policy insured them "against all risks of physical loss to the property covered ... except as otherwise excluded or limited" but contained a standard exclusion for any loss caused by earth movement or sinking. The policy included a mandatory endorsement for sinkhole collapse coverage pursuant to section 627.706, Florida Statutes (1981). The endorsement covered direct loss to the Hudsons' property caused by sinkhole collapse and stipulated that: "Any provision in this policy which excludes loss by 'earth sinking' is amended to exclude loss by 'earth sinking other than sinkhole collapse.' "

In May 1981, while their policy with Prudential was in force, the Hudsons' home was damaged by a sudden collapse of the earth supporting it. They filed a claim with Prudential asserting that the damage was caused by a sinkhole. Prudential denied coverage on the basis that the damage was attributable to earth settlement.

On May 7, 1982, the Hudsons filed suit against Prudential for breach of contract. Prudential answered and asserted an affirmative defense that the damages sustained by the Hudsons were not the result of a sinkhole. A jury trial was held in April 1983. With sinkholes being an included peril in the policy and earth sinking being expressly excluded, the jury was essentially required to resolve conflicts in the testimony between experts presented by both sides on the question of whether the settlement underneath the home had been caused by sinkhole activity.

At the close of the evidence the Hudsons requested the following jury instruction:

The burden of proof is on the Hudson's to establish they have sustained damages by the collapse of their building or any part thereof not caused by settling, cracking, shrinkage, bulging or expansion. When plaintiffs have established this, they are entitled to recover for the damage unless PRUDENTIAL proves that the damage was caused or aggravated by earth movement, including but not limited to earthquake, volcanic eruption, landslides, mudflow, earth sinking, rising or shifting but excluding earth sinking other than sinkhole collapse.

The trial court, however, denied this request and gave the jury the following instructions requested by Prudential:

The issue that you will be called upon to determine in this matter on the breach of contract claim brought by Donald and Mary Hudson against Prudential Property and Casualty Insurance Company is whether Donald and Mary Hudson sustained damage to their property as a result of soil settlement caused by sinkhole activity below the property; and, if so, the extent of the damages sustained as a result of such settlement of the property.

Now sinkhole activity is defined by law and by the contract in this case as follows: Actual, physical damage arising out of or caused by the sudden settlement or collapse of the earth's supporting property and only when such settlement or collapse results from subterranean voids created by the action of [water] on limerock or similar rock formations. If the greater weight of the evidence does not support the claim of Donald and Mary Hudson in this regard, then your verdict should be for Prudential Property and Casualty Insurance Company. However, if the greater weight of the evidence does support the claim of Donald and Mary Hudson, then your verdict should be for Donald and Mary Hudson and against Prudential Property and Casualty Insurance Company.

By greater weight of the evidence, we mean the more persuasive and convincing force and effect of the entire evidence in the case.

After the jury retired to consider the case, it became apparent they were having difficulty in applying the instructions as given. After two hours of deliberation, they requested answers to the following two questions:

1. Do we have to decide whether or not the damage was attributable to the sinkhole activity?

2. Do we have to decide if the attorney for the Plaintiff was convincing enough to tip the scales to insure that sinkhole activity caused the damage?

The court responded to question 1 by saying: "I'll insert the word only, you may allow only damages caused by sinkhole activity." In response to question 2 the court said: "[N]o, it's the evidence which must convince you."

Shortly thereafter, the jury sent out three questions to be answered by the court:

1. Do we have to determine whether a sinkhole or sinkhole activity caused the settlement ...