322 So.3d 96
Fla. Dist. Ct. App.2021Background:
- Homeowner Lambert Bowden had an all-risks homeowners policy issued by Citizens Property Insurance Corporation that excluded "rain...to the interior of a building," but excepted rain that entered through an opening first caused by a covered peril.
- In 2017 the roof leaked, causing interior water damage to ceilings and walls; Empire Pro Restoration (assignee of Bowden) performed remediation and filed a claim under the policy.
- Citizens denied the claim, asserting the damage resulted from wear and tear and that no covered peril caused an opening allowing rain entry.
- In the breach-of-contract action, neither party introduced evidence establishing what caused the roof leak or the opening through which rain entered.
- The trial court granted Citizens’ motion for summary judgment, finding Empire failed to present sworn evidence that a covered peril caused the opening; Empire appealed, arguing misapplication of the all-risks burden-shifting framework.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court misapplied the all-risks burden-shifting rule, relieving Citizens of proving exclusion | Empire argued the trial court erred in applying burden shifting and that coverage should not be denied without resolving causation | Citizens argued it met its showing that the loss fell within the rain-to-interior exclusion and Empire failed to show the exception (opening caused by a covered peril) | Court affirmed: Empire met initial showing of a loss, Citizens established the exclusion, and Empire offered no evidence of an exception, so summary judgment for Citizens was proper |
| Whether absence of evidence on cause of roof leak precludes surviving summary judgment | Empire contended lack of proof did not justify judgment as factual dispute might exist | Citizens maintained that without evidence showing a covered-peril-caused opening, there is no genuine issue of material fact | Held: Under precedent, an insured must produce evidence of the exception once insurer shows exclusion; absence of such evidence supports summary judgment for insurer |
Key Cases Cited
- Kokhan v. Auto Club Ins. Co. of Fla., 297 So. 3d 570 (Fla. 4th DCA 2020) (all-risks burden-shifting framework)
- Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576 (Fla. 2d DCA 2014) (all-risks policies cover losses unless specifically excluded)
- Jones v. Federated Nat’l Ins. Co., 235 So. 3d 936 (Fla. 4th DCA 2018) (competing evidence on causation can create factual dispute defeating summary judgment)
- E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673 (Fla. 3d DCA 2005) (insured bears burden to prove an exception to an exclusion)
- Deshazior v. Safepoint Ins. Co., 305 So. 3d 752 (Fla. 3d DCA 2020) (insured must introduce evidence to create genuine issue after insurer shows exclusion)
- Fla. Windstorm Underwriting Ass'n v. Gajwani, 934 So. 2d 501 (Fla. 3d DCA 2005) (absence of evidence as to cause supports summary judgment)
- Arias v. Affirmative Ins. Co., 944 So. 2d 1195 (Fla. 4th DCA 2006) (insurance contract construction is reviewed de novo)