Kokhan v. Auto Club Ins. Co. of Fla., No. 4D18-3607

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Gerber, J.
• Citation: 297 So.3d 570
• Parties: Viatcheslav KOKHAN and Zoia Kokhan, Appellants, v. AUTO CLUB INSURANCE COMPANY OF FLORIDA, Appellee.
• Docket Number: No. 4D18-3607
• Decision Date: 20 May 2020

297 So.3d 570

Viatcheslav KOKHAN and Zoia Kokhan, Appellants,
v.
AUTO CLUB INSURANCE COMPANY OF FLORIDA, Appellee.

No. 4D18-3607

District Court of Appeal of Florida, Fourth District.

[May 20, 2020]

Melissa A. Giasi of Giasi Law, P.A., Tampa, for appellants.

Kimberly Kanoff Berman and Michael A. Packer of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale, and Corey K. Setterlund of Marshall Dennehey Warner Coleman & Goggin, Jacksonville, for appellee.

ON APPELLEE'S MOTION FOR REHEARING AND/OR MOTION FOR REHEARING EN BANC

Gerber, J.

We grant in part and deny in part the appellee insurer's motion for rehearing, and substitute the following opinion for the opinion issued on March 11, 2020. We deny appellee's motion for rehearing en banc.

The homeowners appeal from the circuit court's final order granting the insurer's summary judgment motion on the homeowners’ breach of contract action. The homeowners’ action alleged they had filed a claim to be reimbursed for damages to their pool deck and surrounding structures due to a pool drainpipe leak, but the insurer improperly denied their claim on the basis that the policy's "water damage" and "wear and tear" exclusions barred their claim.

The circuit court agreed with the insurer's summary judgment motion that the policy's "water damage" exclusion barred the homeowners’ claim. However, the circuit court did not rule on the insurer's argument that the policy's "wear and tear" exclusion also barred the homeowners’ claim.

On appeal, the homeowners argue the circuit court erred in finding the policy's "water damage" exclusion barred their claim. The homeowners further argue the

297 So.3d 572

policy's "wear and tear" exclusion did not bar their claim either.

We agree with the homeowners that the circuit court erred in finding the "water damage" exclusion barred their claim. The "water damage" exclusion's plain language does not apply to the homeowners’ claim.

However, we do not reach the issue of whether the policy's "wear and tear" exclusion applied to the homeowners’ claim, because the circuit court never ruled on that issue. We remand to the circuit court for that review.

We present this opinion in five sections:

1. The policy at issue;

2. The homeowners’ claim and the insurer's denial;

3. The homeowners’ breach of contract suit and the insurer's summary judgment motion;

4. This appeal; and

5. Our review.

1. The Policy at Issue

The insurer issued an "all risks" policy to the homeowners. "[A]n ‘all-risk’ policy is not an ‘all loss’ policy, and this does not extend coverage for every conceivable loss." Sebo v. Am. Home Assurance Co. , 208 So. 3d 694, 696-97 (Fla. 2016) (citation omitted). "An all-risks policy provides coverage for all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage ." Mejia v. Citizens Prop. Ins. Corp. , 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (emphasis added; citation and internal quotation marks omitted). "[A]n insured claiming under an all-risks policy has the burden of proving that the insured property suffered a loss while the policy was in effect. The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms." Jones v. Federated Nat'l Ins. Co. , 235 So. 3d 936, 941 (Fla. 4th DCA 2018) (citation omitted). "In short, in all-risk policies ... construction is governed by the language of the exclusionary provisions." Sebo , 208 So. 3d at 697.

Here, the "all risks" policy at issue contains the following provisions and exclusions which are relevant here:

WHAT LOSSES ARE COVERED – COVERAGE A AND COVERAGE B

Except as excluded under WHAT LOSSES ARE NOT COVERED PART I, we cover accidental direct physical loss to the property that is described under WHAT PROPERTY IS COVERED – COVERAGE A and COVERAGE B.

....

WHAT LOSSES ARE NOT COVERED – PART I

1. We do not cover any loss to property insured under COVERAGES A, B or C that is caused by, resulting from, contributed to by, or consisting of:

....

c. WATER DAMAGE, meaning:

(1) flood, surface water, waves, tidal water, storm surge, tsunami, seiche, overflow of a body of water, or spray from any of these, whether or not driven by wind;

(2) water or waterborne material or substance from outside of the plumbing system on the residence premises that enters the residence premises through sewers or drains;

(3) water or waterborne material or substance which overflows or discharges from a sump, sump pump, or related equipment;

(4) water below the surface of the ground, including water which exerts pressure on or seeps or leaks or flows

297 So.3d 573

through a building; sidewalk; driveway; foundation; swimming pool; spa; or other structure;

(5) water which is released, overflows or escapes from a dam, levee, or other structure designed to contain surface water;

whether caused by or resulting from human, animal, or naturally occurring forces, or however caused.

We do cover direct physical loss by fire, explosion or theft resulting from or occurring as a consequence of water damage.

....

2. We do not cover any loss to property insured under COVERAGES A or B that is caused by, resulting from, contributed to by, or consisting of:

....

e. Any of the following:

(1) WEAR AND TEAR, marring, deterioration;

(2) continuous or repeated seepage or leakage of water or steam over weeks, months, or years from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance;

....

(7) cracking, shrinking, sagging, bulging, bending, expansion, or settling of:

(a) driveways, walkways, or patios;

(b) foundations, floors, walls;

....

If a loss excluded under e. above causes or results in sudden and accidental escape of water from a plumbing system; a heating system; an air conditioning system; an automatic fire protective sprinkler system; or a household appliance, we do cover the direct physical loss caused by the water including the cost of tearing out and replacing any part of a building that is needed to repair the system or appliance. We do not cover a loss to the system or appliance from which this water escaped.

(emphases in original).

...