United States District Court, M.D. Florida, Tampa Division
S. MOODY, JR., UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court upon Defendant's Motion for
Summary Judgment (Dkt. 18), Plaintiffs' Response in
Opposition (Dkt. 22), and Defendant's Reply (Dkt. 25).
The Court, having reviewed the motion, response, reply,
record evidence, and being otherwise advised in the premises,
concludes that the motion should be denied because there are
genuine issues of material fact that the jury must decide.
Gerald Gagliardi and Patricia Gagliardi allege that Defendant
Liberty Mutual Fire Insurance Company breached its insurance
policy with Plaintiffs when it denied their claim associated
with a sinkhole loss to their residence located in Hudson,
material times, Plaintiffs owned the property located at
13433 Oscar Ct., Hudson, FL 34669 (the “Insured
Property”). Defendant issued to Plaintiffs an insurance
policy, policy number H32-251-459831-101 3 (the
“Policy”), which was effective February 24, 2011,
to February 24, 2012. The Policy includes special provision
form FMHO 1067 12 10 that provides coverage for
“sinkhole loss” defined as “structural
damage to the building, including the foundation, caused by
sinkhole activity.” The Policy also provides that
Defendant will “pay to stabilize the land and building
and repair the foundation in accordance with the
recommendations of a professional engineer and in
consultation with you.” (Dkt. 22-1).
about March 12, 2011, Plaintiffs noticed cracking damage to
the Insured Property. Plaintiffs timely reported the loss and
damage to Defendant. In response to Plaintiffs' claim,
Defendant retained Ground Down Engineering
(“GDE”), a geotechnical and engineering firm, to
complete an investigation of the Insured Property.
about June 29, 2011, GDE issued a report of its findings and
conclusions from its investigation of the Insured Property.
In its report, GDE concluded that sinkhole activity was a
cause of damage, within a reasonable degree of professional
probability, and verified the existence of a sinkhole loss,
as that term is defined under the Policy. For subsidence
repairs, GDE estimated 300 to 400 cubic yards of compaction
sinkhole activity and resulting damages to the structure were
confirmed by GDE, Plaintiffs entered into a contract with
C&N Foundation Technologies (“C&N”) to
implement the subsurface repairs recommended by GDE.
Defendant used GDE to review and monitor implementation of
the subsurface repairs that were performed by C&N at the
Insured Property. C&N finished conducting subsurface
repair work at the Insured Property on or about October 5,
October 19, 2011, GDE issued its Grout Monitoring Report.
According to GDE's Grout Monitoring Report, only 113.8
cubic yards of compaction grout were installed at the Insured
Property. The Grout Monitoring Report noted that GDE
monitored the remediation at the Insured Property and that
the “purpose of the monitoring was to ensure that the
repairs were completed in accordance with GDE's repair
recommendations.” (Dkt. 18-14).
did not renew Plaintiffs' homeowners' insurance
coverage after the Policy expired February 24, 2012.
the completion of the remediation program, Plaintiffs
experienced continuing and increasing damage to the Insured
Property and reported their concerns to Defendant.
Specifically, Plaintiffs noticed a hole at the Insured
Property that occurred after completion of the remediation.
Plaintiffs also noticed drainage issues in the yard and were
concerned that the grouting process was causing the ground to
hold water and not drain as it had previously. In response,
Defendant retained GDE to conduct a site inspection of the
issued a report dated September 7, 2012. GDE concluded that
the additional damage at the Insured Property was not due to
sinkhole activity and/or the subsidence repairs conducted at
the Insured Property. The report stated that: “It is
our opinion that [the hole] is related to natural drainage
that occurs around sprinkler heads.” (Dkt. 18-18). GDE
also concluded that the grout was not affecting the drainage
and noted that the rainfall in the area had been higher than
about July 28, 2015, Plaintiffs continued to observe damage
at the Insured Property. Plaintiffs notified Defendant of the
damage and voiced their concerns regarding the sufficiency of
the subsurface repair work performed at their home. In
response, on or about August 10, 2015, Defendant requested
that Plaintiffs submit to examinations under oath. Defendant
also retained Anticus Engineering to evaluate whether the
damage Plaintiffs had reported was new damage or related to
the 2011 remediation.
issued a report dated January 11, 2016, that concluded that
the damage was not associated with sinkhole activity, that
the prior sinkhole activity was remediated, and that the
current damage was attributable to
“construction/installation methods and aging (exposure