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Omega Insurance Co. v. Wallace

Florida Court of Appeals, Second District

August 16, 2017

OMEGA INSURANCE COMPANY, Appellant,
v.
WILLIAM WALLACE and JOAN WALLACE, husband and wife, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; John M. Radabaugh, Judge.

          Scot E. Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Petersburg, for Appellant.

          Richard N. Asfar and George A. Vaka of Vaka Law Group, P.L., Tampa and Richard T. Heiden of Richard T. Heiden, P.A., Clearwater, for Appellees.

          SILBERMAN, JUDGE.

         Omega Insurance Company seeks review of a final judgment awarding William and Joan Wallace just over $200, 000 for subsurface remediation in their sinkhole action. The final judgment was based on a directed verdict entered after the trial court refused to consider the testimony of Omega's expert engineers and the neutral evaluator regarding the proper method of subsurface repair. We conclude that the proper method of subsurface repair is a jury question and reverse.

         This appeal arises from a sinkhole insurance claim under a policy issued by Omega to the Wallaces in August 2010. Much of the argument on appeal, as in the trial court, concerns expert testimony and the proper definition of certain terms used in the Omega policy. The policy contains a sinkhole loss coverage endorsement which provides, in pertinent part, as follows:

B. COVERAGE
We insure for direct physical loss to property covered under Section I caused by a Sinkhole Loss, including the costs incurred to:
1. Stabilize the land and building; and
2. Repair the foundation;
In accordance with the recommendations of the professional engineer who verifies the presence of a Sinkhole Loss in compliance with Florida sinkhole testing standards and in consultation with you.

(Emphasis added.) It also provides the following definitions:

"Sinkhole Activity" means settlement or systematic weakening of the earth supporting such property only when such settlement or systematic weakening results from movement or raveling of soils, sediments, or rock materials into subterranean voids created by the ...

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