Professional Liability

In April, the Second District Court of Appeal affirmed the lower court’s ruling that a statutory change, which added a definition for the term “structural damage” to a particular statute governing insurance coverage for sinkhole losses (Florida Statute § 627.706), did not alter an insureds’ burden of proof to establish that sinkhole damage to their home occurred during the period when the property had insurance coverage.

Citizens Property Insurance appealed the lower court’s ruling after final judgment was entered in favor of the homeowners in their breach of insurance contract claim related to sinkhole damage to their property. Part of Citizens’ argument was that the trial court erred in the instructions given to the jury regarding each party’s burden of proof. In support of its argument, Citizens relied primarily on a statutory change that was in effect during the policy period. The statutory change added a definition for the term “structural damage” and specified what would constitute such damage. (F.S. § 627.706(2)(k)). Citizens argued that the trial court should have instructed the jury that the homeowners had to prove “structural damage” to their property, not just generalized property damage. The homeowners, instead, argued that the statutory change did not alter the burden of proof and that the trial court’s instruction was fully consistent with the applicable law.

The Second District Court of Appeal agreed with the lower court’s ruling in favor of the homeowners. They agreed that the addition of a definition for the term “structural damage” to section 627.706(2) did not alter an insured’s burden of proof. Citing the lower court’s ruling, the appellate court stated that under the homeowners’ “all-risk” policy of insurance, an insured has the initial burden of proof to establish that the damage at issue occurred during a period in which the damaged property had insurance coverage and that, once an insured meets this initial burden, the burden then shifts to the insurance carrier to show that the loss resulted from an excluded cause. Thus, the appellate court concluded that the homeowners were not specifically required to prove structural damage to meet their burden and that the lower court’s jury instructions were in accordance with Florida law. 

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_{Legal Update for Florida Coverage & Property Litigation – June 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}