Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

ABOUT THE AUTHOR

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Appellate Court Holds Policy’s Faulty Workmanship Exclusion is Not Ambiguous 

An insured hired a contractor to install an addition to her property. During the installation process, a portion of the roof was left open and the home sustained damage from rain. The insurer denied the claim based on the policy’s faulty workmanship exclusion. The insured filed suit. The trial court entered summary judgment in favor of the insurer based on the policy exclusion and the insured appealed. The insured argued the term “workmanship” was ambiguous since it could refer to either “the faulty quality of a finished product” or “a faulty process”. The appellate court affirmed the judgment in the insurer’s favor holding the policy’s faulty workmanship provision was not ambiguous and excluded damage caused by both a faulty finished product and a faulty process. Saunders v. Florida Peninsula Ins. Co., 3d DCA (Dec. 23, 2020). 

TIPS & LESSONS

• The appellate court held simply because a word standing alone is susceptible to two meanings, does not make the exclusion ambiguous when the context of the policy provides meaning.
• This case is helpful to use when arguing policy construction.

Whether a Covered-Peril Caused an Opening in the Roof was a Triable Issue of Fact 

An insured suffered damage to her home from a roof leak after a thunderstorm. The insurer denied the claim based on policy provisions excluding damage caused by rain unless a covered-peril first damages the building causing an opening through which the rain entered, and the damage was from wear and tear. The insured filed suit. The insurer then sought summary judgment based on an engineer’s report and affidavit concluding the roof leaks were caused by wear and tear. The insured presented a competing affidavit from a general contractor who concluded the roof leaks were from micro fissures caused by strong wind gusts and wind-driven rain. The trial court entered summary judgment in favor of the insurer finding that the insured’s opposing affidavit was insufficient. The appellate court reversed and held the insured’s counterevidence was sufficient to create a triable issue as to the cause of her loss. Frederick v. Citizens Prop. Ins. Corp., 3d DCA (Dec. 9, 2020).

TIPS & LESSONS

• The insurer argued in the trial court the opposing affidavit was conclusory and “deficient of reliable facts” since the expert inspected the roof more than 2 years after the claimed loss event and after an intervening Hurricane and could not distinguish the damage. The appellate court did not address this argument in its opinion.
• Every outcome rests on a specific set of facts. There are many other appellate cases where courts have disregarded an opposing expert affidavit because the affidavit was conclusory with no factually based chain of reasoning or conflicted with deposition testimony.