Rodriguez v. Geovera Specialty Ins. Co.

• Decision Date: 22 October 2019
• Docket Number: Case No.: 1:18-cv-23585-UU
• Citation: 426 F.Supp.3d 1318
• Parties: Jose RODRIGUEZ, et al., Plaintiffs, v. GEOVERA SPECIALTY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

426 F.Supp.3d 1318

Jose RODRIGUEZ, et al., Plaintiffs,

v.GEOVERA SPECIALTY INSURANCE COMPANY, Defendant.

Case No.: 1:18-cv-23585-UU

United States District Court, S.D. Florida.

Signed October 22, 2019

Lazaro Vazquez, Anthony Accetta, Law Office of Lazaro Vazquez, P.A., Eduardo Gomez, Eduardo Gomez, P.A., Coral Gables, FL, for Plaintiffs.

Daniel Martin McNalis, Groelle & Salmon, West Palm Beach, FL, for Defendant.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon the cross-motions for summary judgment filed by Defendant GeoVera Specialty Insurance Company ("GeoVera"), D.E. 34, and Plaintiffs Jose Rodriguez and Marcee K. Rodriguez ("Plaintiffs"), D.E. 48 (collectively, the "Motions"). The Court has reviewed the Motions and the pertinent portions of the record and is otherwise fully advised of the premises. For the reasons set forth below, GeoVera's Motion is DENIED and Plaintiffs' Motion is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL BACKGROUND

A. The Policy

GeoVera issued homeowners insurance policy number GH50053835 (the "Policy") for the property located at 9558 SW 166th Ct, Miami, Florida 33196 (the "Property"). See D.E. 63 at 3 ¶ 5(A); see also D.E. 34-1 at 1 ¶ 2 & Ex. 1. The Policy's effective dates were August 22, 2015 through August 22, 2016.¹ See D.E. 63 at 3 ¶ 5(A); see also D.E. 34-1 at 1 ¶ 2 & Ex. 1. Plaintiffs were the named insureds under the Policy. D.E. 34-1 at Ex. 1. Coverage under the Policy was subject to the Policy terms, conditions, exclusions, and limitations. See Pretrial Stipulation at 3 ¶ 5(A); see also D.E. 34-1 at Ex. 1.

Under the Policy, GeoVera insured "against risk of direct physical loss to" the Property "described in Coverages A and B,"² subject to certain exclusions and limitations, including: (1) loss caused by wear and tear, marring, or deterioration; (2) loss caused by faulty, inadequate or defective design, specifications, workmanship, repair, construction, or maintenance; and (3) losses caused by mold or rot, if the mold or rot was caused by the events described in (1) and/or (2). See D.E. 34-1 at 15–16, 19, 42; see also D.E. 48-1 at 161–65. Further, under the "seepage or leakage" limitation, GeoVera "insure[s] for direct physical loss to property described in Coverage[ ] A ... caused by ... water or steam that seeps or leaks ... above the surface of the ground over a period of 14 days or more. However, such coverage is subject to the ‘per policy period seepage or leakage combined total sublimit.’ " D.E. 34-1 at 42. "Per policy period seepage or leakage combined total sublimit" is a defined term, imposing a $1,000 limit of liability for "covered loss caused by or resulting from water or steam that seeps or leaks ... above the surface of the ground over a period of 14 days or more." See id. at 41–42.

Additionally, the Policy was voidable under a "Concealment or Fraud" provision, which reads in pertinent part:

The entire policy will be voidable if, regardless of whether related to a loss, any ‘insured’, their agent, or their broker:

1. Intentionally conceals or misrepresents any material fact or circumstance;

2. Engages in fraudulent conduct; or

3. Makes false statements;

relating to the insurance provided under any part of this policy.

D.E. 34-1 at 48.

B. The Alleged December 19, 2015 Loss

On or about January 15, 2016, Plaintiffs—through their public adjuster, Jorge Aucar—notified GeoVera that on December 19, 2015, the Property sustained a covered loss consisting of interior damage from a roof leak (the "2015 Loss"). See D.E. 63 at 3 ¶ 5(B); D.E. 34 at 2 ¶ 2; D.E. 48-1 at 7:2–10; see also D.E. 48-1 at 154 (acknowledgment of claim). A letter from GeoVera to Mr. Aucar dated January 27, 2019, reflects that Mr. Aucar "reported that a hole in the roof...caused water damage to the ceiling, walls and wood floor [in] the interior of the insured's home." D.E. 48-1 at 157.

GeoVera assigned claim number HL15010774 (the "2015 Claim") to the notice of claim for the 2015 Loss, for purposes of conducting a claim inquiry. D.E. 34-1 at 2 ¶ 4; D.E. 48-1 at 7:2–5; see also D.E. 48-1 at 154, 157–59. GeoVera then requested a letter of representation and sworn proof of loss and assigned an independent adjuster to inspect the loss. D.E. 48-1 at 7:15–8:1.

Team One Adjusting inspected the Property on January 21, 2016, on behalf of GeoVera. D.E. 48-1 at 8:18–9:5; see also id. at 199–207. In a letter addressed to Mr. Aucar and dated February 22, 2016, GeoVera advised that it had determined Plaintiffs were entitled only to the $1,000 limit under the "seepage or leakage combined total sublimit" provision. See D.E. 48-1 at 160. GeoVera explained:

A thorough review of the insurance policy was performed. Due to the circumstances of the loss, it has been determined that a portion of your client's loss is not covered. In addition, the covered portion of your client's loss is subject to and limited by the $1,000 limit for long-term water damage per policy period limits as outlined in the US 03 55 (04-15) Limited Smog, Rust, Mold, Rot, or Bacteria Coverage and Limited Seepage or Leakage Coverage Endorsement (copy attached). The balance of this letter will provide you with a detailed explanation outlining our position and the reasons why the policy will limit the amount of recoverable damages.

Our understanding of your client's claim as you reported to us is that on the above captioned date of loss, your client discovered a hole in his roof which has resulted in interior water damage to the ceiling, walls and wood floor of their home.

As you know, we retained the services of Rafael Mayoral with Team One Adjusting services to inspect your client's property and assist us with our investigation of the cause of loss and extent of damage. The inspection of your client's home has revealed the following damage and/or conditions:

• There were no signs of wind, hail or other storm damage found to the 20 year old roof tiles or any exterior elevations of your client's home.

• Your client's roof is exhibiting signs of wear & tear and deterioration that occurs over time.

• The inspection also noted evidence of poor installation issues at the valley channels over the bedroom and garage gable roofs. The channels stop at the walls of the foyer gable. This does not allow for proper rain drainage. The water accumulates in this area and as the underlayment has deteriorated, water has leaked into the dwelling.

• The leak has caused water and mold damage to the drywall ceiling and walls in the garage, bedroom and bedroom closet and the laminate flooring in the bedroom and closet.

• Based on the extent of damage, it is apparent that the leak has been ongoing for a long period of time, certainly for more than 14 days.

D.E. 48-1 at 160–61; see also id. at 165–66; D.E. 40-1 at 12:14–13:24. GeoVera explained that because the Policy expressly excludes from coverage all damage caused by (1) wear and tear and deterioration; (2) faulty, defective or inadequate workmanship, construction and maintenance; and/or (3) mold and rot resulting from wear and tear and faulty workmanship and/or design, the only covered portion of the 2015 Claim was water damage to the interior. See D.E. 48-1 at 165. GeoVera stated:

With regard to the ensuing water damage to your client's home, although limited, this would be considered covered damages under your client's policy. Since the leak has been ongoing for more than 14 days, the water damages would be subject to the per policy period seepage or leakage combined total sublimit of $1,000 as outlined above. Our evaluation of the covered water damage portion of your client's claim totals $6,077.73. To this amount we have applied the long term water damage limits of $1,000.00 and issued payment in that amount.

Id. ; see also id. at 168 (GeoVera's statement of loss for the 2015 Loss).

Plaintiffs accordingly received a $1,000 payment from GeoVera. See D.E. 34-2 at 19:16–20; D.E. 34-3 at 15:20–25; D.E. 40-1 at 12:3–11. Plaintiff Jose Rodriguez testified that he used that money for some "minor repair work" to roof tiles and roofing tar, which work was done in February of 2016. D.E. 34-3 at 16:1–13, 21:12–21, 23:4–10.

Notably, in Plaintiffs' instant Motion, they make clear that they seek in this case only a final judgment of $5,077.73, representing the unpaid balance for the 2015 Claim of interior water damage. D.E. 48 at 2, 7 ¶ 12, 14. The 2015 Loss Estimate (as defined herein) includes alleged amounts to repair other damage, such as for roof replacement, but that damage is nowhere addressed in Plaintiffs' Motion. The Court deems Plaintiffs to have abandoned any request for reimbursement for property damage sustained on December 19, 2015, beyond their requested $5,077.73.

Further, though it is undisputed that GeoVera paid out $1,000 on the 2015 Claim, GeoVera appears to now take the position that the interior water damage is not a covered loss—as distinct from the February 22nd letter describing the damage as covered but limited. Compare D.E. 55 at 2 ¶ 8; D.E. 48-1 at 47:3–23 (testimony from GeoVera's corporate representative that interior water damage was caused only by wear and tear, deterioration, faulty and inadequate effective repair and maintenance) with D.E. 48 at 9 ¶ 18 (Plaintiffs argue that GeoVera "admits that the water damages occurred during the policy period, given the fact that it paid the $1,000 policy limit for water that leaks over a period of 14 days or more."); D.E. 48-1 at 11:19–12:9 (testimony from GeoVera's corporate representative that, based on Team One Adjusting estimate of the covered damages, GeoVera paid out $1,000); id. at 160, 165.

C. The Alleged September 10, 2017 Loss and Post-2017 Loss Inspection

On or about September 19, 2017, Plaintiffs reported that the Property had sustained damages on or about September 10, 2017, due to Hurricane Irma (the "2017 Loss"). See D.E. 34-1 at 2 ¶ 5. GeoVera assigned claim number HL17504437 (the "2017 Cla...