final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Monroe County, Luis M.
Garcia, Judge. Lower Tribunal No. 13-741-P
Alvarez, Carbonell, Feltman, & DaSilva and Paul B.
Feltman, for appellant.
Weihmuller Katz Craig, Timothy Engelbrecht and Ezequiel Lugo
(Tampa), for appellee.
SUAREZ, C.J., and WELLS and EMAS, JJ.
Gamero, the plaintiff below, appeals the trial court's
orders denying his motion for summary judgment, granting
Foremost Insurance Company's motion for summary judgment,
and entering final judgment in favor of Foremost. Following
our de novo review, and for the reasons that follow, we
home sustained damage when a vase fell and cracked two floor
tiles in the living room. Gamero filed a claim to recover for
this damage under the policy and, in turn, Foremost initially
accepted coverage and offered payment in the amount of nearly
$4000. Gamero disagreed as to the amount of the loss and
invoked the policy's appraisal provision. An appraisal
panel determined the replacement cost value of the loss was
$18, 863.41, and stated that this determination was
"made without consideration of any other terms,
conditions, provisions or exclusions of the above policy,
which might affect or [sic] the amount of the insurer's
liability thereunder." The appraisal amount reflected
the cost for replacement of the tile throughout the entire
Foremost sent a letter to Gamero explaining that only $8,
781.27 of the appraisal amount was covered by the policy, and
issued payment in the amount of $3, 801.59, after subtracting
the policy deductible ($250), depreciation ($815.99) and the
original payment ($3, 913.69). Foremost asserted that the
cost of replacing tile in the rest of the house ($10, 082.14)
was not covered under the policy.
February 7, 2014, Gamero filed a complaint for breach of
contract. The complaint alleged that Foremost "refuse[d]
to provide coverage or payment to the Insured for their
losses stemming from the Loss, as they are entitled to under
the Policy." Foremost filed an answer denying any breach
of contract and asserted, as an affirmative defense, that the
policy's marring exclusion applied and that there was no
coverage for this claim. Gamero did not file a Reply to
Foremost's affirmative defense.
party filed a motion for summary judgment. Following a
hearing on the motions, the trial court determined there was
no genuine issue of material fact, and that, as a matter of
law, Gamero's loss was excluded from coverage under the
terms of the policy. The trial court denied Gamero's
motion for summary judgment, granted Foremost's motion
for summary judgment, and entered judgment thereon.
affirm the trial court's orders, and hold that the damage
to the floor tiles was a loss that constituted "marring,
" which was expressly excluded from coverage under the
terms of the insurance policy. In this regard, we agree with
the analysis and holding of Ergas v. Universal Property
and Casualty Insurance Co., 114 So.3d 286 (Fla. 4th DCA
2013), a case virtually identical in material respects,
involving a dropped item causing chipped floor tiles and a
similar coverage exclusion clause for "loss [c]aused by
. . . [w]ear and tear, marring, deterioration . . .
reject Gamero's argument that Foremost waived its right
to rely upon the marring exclusion by its pre-suit conduct in
initially acknowledging coverage and paying a portion of the
claim. Moreover, even if such actions by Foremost amounted to
a waiver,  Gamero failed to preserve the issue below.
After Gamero filed suit for breach of the insurance contract,
Foremost answered and asserted, as an affirmative defense,
that Gamero's claim was excluded from coverage because
the loss constituted marring. Gamero, however, failed to
reply to, or avoid, this affirmative defense by alleging, as
he does in this appeal, that the affirmative defense was
waived by Foremost's conduct in initially acknowledging
coverage and paying a portion of the claim. Instead, Gamero
raised this issue, for the first time, in opposition to
Foremost's motion for summary judgment. The trial court
was correct in not considering this issue, raised for the
first time in opposition to Foremost's motion for summary
judgment. See Fla. R. Civ. P. 1.100(a) (providing
"[i]f an answer . . . contains an affirmative defense
and the opposing party seeks to avoid it, the opposing party
shall file a reply containing the avoidance"); see
also Fla. R. Civ. P. 1.110(d) (providing that "[i]n
pleading to a preceding pleading a party shall set forth
affirmatively . . . any other matter constituting an
avoidance or affirmative defense"); Lobrillo v.
Brokken, 837 So.2d 1059 (Fla. 3d DCA 2002) (holding that
defendants' failure to plead affirmative defense of
statute of limitations in their answer to complaint precluded
trial court from considering such defense and granting
defendants' motion for summary judgment on that basis);
Accurate Metal Finishing Corp. v. Carmel, 254 So.2d
556 (Fla. 3d DCA 1971) (holding that affirmative defenses
must be pleaded and are not properly raised for the first
time in an affidavit filed in opposition to a motion for
summary judgment); Frisbie v. Carolina Cas. Inc.
Co., 162 So.3d 1079 (Fla. 5th DCA 2015) ...