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This post summarizes the significant insurance law opinions issued in the last month by Florida’s appellate courts, as well as the United States Court of Appeals for the 11th Circuit.

Robinson v. Liberty Mutual Ins. Co. (11th Cir. May 11, 2020): The insurer successfully moved to dismiss Plaintiff’s complaint for failure to state a claim, arguing that the insured’s loss caused by an infestation of brown recluse spiders was excluded as damage caused by “insects” or “vermin.” The insureds argued that the exclusion did not apply because spiders are scientifically classified as arachnids, not insects. The U.S. 11th Circuit affirmed, holding that spiders are both insects and vermin under the ordinary meaning of those terms. Words in a contract are to be understood in their ordinary, everyday meanings, rather than technical or legal terms.

South Winds Construction Corp. v. Preferred Contractors Ins. Co. (Fla. 3d DCA May 13, 2020): The trial court properly granted summary judgment for the insurer. In evaluating the “eight corners” of the complaint and the policy, it was clear that the loss was excluded from coverage. Thus, the insurer did not owe a duty to indemnify or defend as a matter of law.

Security First Ins. Co. v. Czelusniak (Fla. 3d DCA May 13, 2020): A directed verdict in favor of the insured was error where the trial court failed to apply the policy’s anti-concurrent cause provision.

People’s Trust Ins. Co. v. Vidal (Fla. 3d DCA May 13, 2020): The trial court erroneously denied the insurer’s motion to compel appraisal, because the insurer invoked its right to appraisal in the first responsive pleading, and did not otherwise waive its right of appraisal.

Deshazior v. Safepoint Ins. Co. (Fla. 3d DCA May 20, 2020): A summary judgment granted in favor of the insurer on a water loss claim was affirmed on appeal. The insurer met its summary judgment burden to establish that the loss was excluded under the policy’s “constant and repeated seepage or leakage” exclusion. The insured failed to produce any evidence establishing a genuine issue of material fact on their claim that the loss was caused by sudden water discharge. The insured’s expert testified at deposition that he could not determine how long the leak had been active. The trial court properly excluded the insured’s expert’s post-deposition affidavit that contradicted his deposition testimony.

Wesson v. Fla. Peninsula Ins. Co. (Fla. 1st DCA May 20, 2020): The trial court’s order denying a contingency fee multiplier on an attorney’s fee award was reversed on appeal due to procedural defects. First, the trial court should have considered whether the market overall requires a contingency fee multiplier to obtain competent counsel. Second, the trial court should have analyzed the plaintiffs’ ability to afford attorney’s fees in analyzing whether their attorney could mitigate the risk of nonpayment.

USAA v. Velez (Fla. 3d DCA May 6, 2020): Summary judgment should have been granted in favor of insurer, because the undisputed evidence showed that the insurer timely investigated the claim and issued payment based on its estimate, and then fully complied with the appraisal process.

Estevez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 6, 2020) Summary judgment affirmed for the insurer, where the insureds’ opposing expert affidavit only contained conclusions without setting forth an admissible, factually-based chain of reasoning in support of the opinion.

Hernandez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 20, 2020): The insurer’s summary judgment was affirmed. The policy’s exclusion for damages caused by “earth movement” included earth movements caused by rock blasting explosions occurring away from the insured property.

Kokhan v. Auto Club Ins. Co. of Fla. (Fla. 4th DCA May 20, 2020) (on motion for rehearing): Summary judgment for the insurer was reversed, because issues of fact remained as to whether a covered loss occurred under the insured’s “all risks” policy. The loss could not be excluded from coverage under the “water damage” exclusion: the insureds provided evidence that the loss was caused by a leak in their pool’s drain pipe, and the exclusion only applied to naturally-flowing water existing outside of the plumbing system.

Southern Owners Ins. Co. v. Hendrickson (Fla. 5th DCA May 15, 2020): On second-tier certiorari, the trial court violated a clearly established principal of law, resulting in a miscarriage of justice, when it allowed PIP reimbursement for medical services provided by a massage therapist. Such services are explicitly forbidden from being reimbursed for medical benefits under the PIP statutes.

About Scott J. Edwards, Esq.

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Scott J. Edwards is an appellate attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, insurance law, and jurisdictional issues.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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