Citizens Property Insurance Corporation v. Manning, 32 FLW D2458c (Fla. 1st DCA October 15, 2007)

In this newly decided case, the insured homeowners sought to recover from their homeowner’s insurer for the total loss of their home as a result of Hurricane Ivan which devestated the north-west coast of Florida on September 16, 2004. 

The trial court granted summary judgment in favor of the homeowner, and against Citizens Insurance Company.  The homeowner presented evidence at the summary judgment hearing that the total loss of their home was due, at least in part, by wind – a covered cause of loss.  The trial court held that under Florida Statute Section 627.702 the Valued Policy Law, the insured was owed the total policy limits under their homeowners insurance because the total loss was due “in part” to the wind damage. 

However, the trial court made this ruling before the Florida Supreme Court had ruled on the VPL in Florida Farm Bureau Casualty Insurance Co., v. Cox,  32 FLW S564 (Fla. Sept. 20 2007).  In Cox, the Supreme Court ruled that the VPL “does not establish any requirement for an insurer to pay for excluded or noncovered perils” identified by a windstorm policy as such.  Thus, the policy controls, not the VPL.  In this case, the Citizens’ policy excludes coverage for loss caused directly or indireectly by “water damage,” which includes “flood, surface water, waves, tidal water, storm surge, wave wash, or total wave overflow of a body of water, or spray from any of these, whether or not driven by wind,” and, except in certain circumstances, even wind-driven rain.  The policy also contains an anti-concurrent cause clause, providing that losses to which excluded perils contribute are “excluded regardless of any other cause or event contributing concurrently or in any sequence.”  The First DCA then noted that the record before it did not identify which damage to the house was done by wind alone, or the amount of any such damage. 

Thus, the parties were sent back down to the trial court level to determine which portion of the loss was due to wind – a covered cause of loss, and which portion was due to items that were not covered.  Obviously, the insured will argue that the burden of proof is on the insurance company to prove what portion is of the loss is excluded.  Given the “anti-concurring cause clause,” the insurance company will probably argue that they do not owe any of the loss as long as the loss is caused in part by a covered cause of loss, and in part by an excluded cause of loss.  I expect to see this case back up on appeal regardless of what happens.