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Legal Updates for Florida Coverage and Property Litigation

Second District Court of Appeals finds the trial court erred in granting summary judgment in favor of insured where she and carrier’s competing affidavits created a general issue of material fact which should have precluded summary judgment.

Michel Lassiter v. Citizens Property Insurance Company, Fla. 2d DCA, No. 2D2022-2609, May 29, 2024

July 1, 2024

Ms. Lassiter alleged that in April 2020, her home sustained damage when wind and hail damaged her roof, causing leaks and resulting in interior water intrusion damage. Citizens denied the roofing portion of the claim on the basis that the damage was the result of wear and tear, which was not covered under the insurance policy. Citizens also denied the interior damages and informed Lassiter that the policy did not provide coverage for water damage to the interior of the home unless an opening is first created by an insured peril through which the water enters. In response to Citizens’ denial, Lassiter filed a breach of contract action. 

Thereafter, Citizens filed a motion for summary judgment for the reasons outlined above. Along with its motion for summary judgment, Citizens included an affidavit from its corporate representative which incorporated findings of and photographs taken by the Citizens’ field adjuster who inspected the property after the claim was filed. According to the affidavit, the inspection report revealed that there were no signs of covered damage to the roof or exterior of the property and that, instead, there were signs of wear and tear to the roof and clogged gutters.

Lassiter filed a response to the motion for summary judgment and filed an affidavit of her expert, an engineer. The affidavit also attached the engineer’s report, containing an analysis of how high winds and hail can affect a roof, as well as the engineer’s opinion as to the cause of the damages. The engineer opined that within a reasonable degree of engineering certainty, the property was affected by high wind and hail that created openings to the exterior walls and roof, allowing water to enter and cause damage, and were consistent with direct and indirect wind damage, hail impact and moisture infiltration. The engineer further opined that the openings created by the wind and hail allowed moisture to enter the property. The engineer also eliminated wear and tear, marring, chipping, scratches, dents, or deterioration as the proximate cause of the damages and, instead, opined that it was the wind, wind-borne debris impacts and hail that were the proximate cause of the majority of the damages to the property.

The trial court determined that both the corporate representative’s and the engineer’s affidavits essentially resulted in a “tie” and were insufficient because they were not based on each individual’s own personal observations but were, instead, conclusions and analyses derived from other sources. As a result, the trial court essentially removed the affidavits from the summary judgment equation and focused on the remaining evidence, which consisted of the photographs, the summary of findings by the adjuster and Ms. Lassiter’s testimony, which they felt was so one-sided as to permit granting Citizens’ motion for summary judgment.

On appeal, the Second District Court of Appeal highlighted that it is improper to consider either the weight of conflicting evidence or the credibility of witnesses in ruling on a motion for summary judgment. They further went on to conclude the record suggests that the trial court erred in disregarding both Citizens’ and Ms. Lassiter’s affidavits because they resulted in a “tie.” The court underscored the fact that the trial court was not permitted to weigh the evidentiary value of the competing affidavits in determining whether summary judgment was appropriate; instead, these competing affidavits created a genuine dispute as to a material fact as to the cause of the damage to the roof of the property, which should have precluded granting Citizens’ motion for summary judgment. 

 

Legal Update for Florida Coverage & Property Litigation – July 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.

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Thought Leadership

Employer/Carriers Must Explicitly Invoke Right to Deny Claim Under “Pay and Investigate” Statutory Provision; Employes Must Always Prove Medical Necessity of Treatment

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