Mejia v. Citizens Prop. Ins. Corp., No. 2D13–2248.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: NORTHCUTT, Judge.
• Citation: 161 So.3d 576
• Docket Number: No. 2D13–2248.
• Decision Date: 26 November 2014
• Parties: Alfredo MEJIA, Appellant, v. CITIZENS PROPERTY INSURANCE CORP., Appellee.

161 So.3d 576

Alfredo MEJIA, Appellant
v.
CITIZENS PROPERTY INSURANCE CORP., Appellee.

No. 2D13–2248.

District Court of Appeal of Florida, Second District.

Nov. 26, 2014.

161 So.3d 577

Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa; Michael Laurato and Laura Datz of Austin & Laurato, P.A., Tampa; and Thomas W. Thompson, Jr., and A. Lee Smith of The Thompson Trial Group, P.A., Tampa, for Appellant.

Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for Appellee.

Opinion

NORTHCUTT, Judge.

Alfredo Mejia appeals a final judgment in favor of Citizens Property Insurance Corp. following a jury trial on his insurance claim for damages to his home allegedly caused by sinkhole activity. The trial court erred in allocating the burden of proof between the parties, and it erred in excluding evidence that tended to impeach the credibility of an expert witness who testified for Citizens. Accordingly, we reverse and remand for a new trial.

161 So.3d 578

Mejia owned a home that was insured under a policy issued by Citizens.¹ The standard policy insured against risk of direct physical loss to the property. It excluded, among other things, coverage for loss caused by earth movement and settlement and loss caused by sinkholes. Mejia, however, had paid an additional premium for a Sinkhole Loss Coverage endorsement.² This endorsement added sinkhole loss as a covered peril, and it stated that the earth movement and sinkhole exclusions did not apply.

During the policy term, Mejia reported a claim for damage to his home. Citizens retained BCI, an engineering firm, to evaluate the property for sinkhole activity. BCI investigated and concluded that the damage was not caused by sinkhole activity, and Citizens denied Mejia's claim. At trial on Mejia's breach-of-contract claim, Citizens relied on testimony from experts, including an engineer from BCI, to argue that there was no sinkhole activity and no structural damage to the property. Mejia presented his own expert evidence that his home had suffered structural damage due to sinkhole activity.

Prior to trial, the court ruled that Mejia had the burden of showing that the damage was caused by sinkhole activity during the policy period. This was contrary to the jury instructions requested by Mejia, which required him to show only that his home was damaged while the insurance policy was in force and then shifted to Citizens the burden to show that the cause of the damage was not covered by the policy. Instructed otherwise pursuant to the pretrial ruling, the jury found that Mejia had not established by the greater weight of the evidence that his home had suffered physical damage caused by a sinkhole. Final judgment was thereafter entered in favor of Citizens, and this appeal followed.

Mejia argues on appeal, and we agree, that the trial court erred in allocating the burden of proof. In litigation involving an insurance claim, the burden of proof is assigned according to the nature of the policy. Without dispute, the insurance policy at issue here is an “all risks” policy. 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.” Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984) (contrasting an all-risks policy from a specific peril policy which insures only against named risks). Consistent with the jury instruction requested by Mejia in this case, an 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. Id.

As we held in Hudson, it makes no difference that the sinkhole coverage at issue was provided in an endorsement to the underlying policy. In Hudson, as here, the homeowner had an all-risks policy with a sinkhole endorsement. This court held that the “endorsement did not change the ‘all risks' nature of the underlying policy; it merely narrowed the earth sinking exclusion.” Id. at 568. And in that case, as here, the jury instructions “had the effect of improperly placing the burden on the Hudsons to prove that their home was damaged by a sinkhole.” Id. Based on that error, we reversed and remanded for a new trial.

161 So.3d 579

Neither does it matter that the sinkhole endorsement in Hudson was obtained under an earlier version of the applicable insurance statute. In Hudson, the statute provided that every property insurer in Florida “shall make available coverage for insurable sinkhole losses on any structure.” § 627.706(1), Fla. Stat. (1981). The version of the statute applicable to Mejia's policy was substantially identical save for specifying that every property insurer in Florida “shall make available, for...