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Jones v. Federated National Insurance Co.

Florida Court of Appeals, Fourth District

January 17, 2018

RICHARD W. JONES and LOUISE A. KIERNAN, Appellants,
v.
FEDERATED NATIONAL INSURANCE COMPANY, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Paul B. Kanarek, Judge; L.T. Case No. 31-2014-CA-000302.

          D. John Rhodeback and J. Garry Rooney of Rooney & Rooney, P.A., Vero Beach, for appellants.

          Warren Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellee.

          FORST, J.

         Appellants Richard Jones and Louise Kiernan ("Homeowners") appeal a final judgment in favor of appellee Federated National Insurance Company determining that Insurance Company did not breach the insurance contract by failing to pay for Homeowners' damaged roof. On appeal, Homeowners argue that the court committed various errors in its jury instructions, including applying the wrong coverage doctrine as well as improperly shifting the burden of proof. We agree that the court erred in these two respects, and reverse and remand for a new trial.

         Background

         Homeowners filed an insurance claim for their damaged roof, maintaining that the damage was attributable to a hailstorm one-and-a-half years prior to the claim. Insurance Company denied the claim based on specified insurance policy exclusions. Subsequently, Homeowners filed a complaint for breach of contract seeking the cost to replace their roof. Attached to the complaint was an "all-risk" insurance contract in which Insurance Company expressly agreed to cover all direct physical losses to the insured home except those explicitly excluded by the contract.

         Insurance Company agreed that the insurance contract was in effect at the time of the alleged hailstorm. However, it pleaded that any damage to the roof qualified as one of the following events excluded from coverage under the insurance policy: "wear and tear, marring, deterioration"; "faulty, inadequate or defective design"; "neglect"; "existing damage"; or "weather conditions."

         At trial, both parties presented conflicting evidence regarding the cause of the damage. Homeowners presented evidence that the hailstorm caused damage to the roof. Insurance Company presented evidence that the hailstorm caused no meaningful damage, and that all the damage had already existed prior to the hailstorm as wear and tear, attributable in part to leaks from solar panels in a portion of the roof. In rebuttal, Homeowners presented evidence that the leaking solar panels could not have been the only cause of damage, pointing to the presence of hundreds of divots spread across the roof and various other leaks that were located away from the solar panels.

         At the close of evidence, Insurance Company moved for a directed verdict, arguing that "wear and tear, marring, deterioration" and leaking solar panels were the principal cause of damage to the roof. Homeowners responded that there was another cause, the hailstorm, and that, regardless, the matter was for the jury to decide. The trial court agreed that the matter was a jury question, and denied the motion.

         At the charge conference, Homeowners took issue with the jury instruction that required them to prove that the hailstorm was the "most substantial or responsible cause" of damage to the roof. Homeowners explained that the trial court would be wrong to apply the "efficient proximate cause doctrine" as advanced by American Home Assurance Co. v. Sebo, 141 So.3d 195 (Fla. 2d DCA 2013) (Sebo I). They argued that the contract at hand was an all-risk one, expressly guarding against all losses except those caused by specifically excluded events. Thus, Homeowners contended the court should apply the "concurrent cause doctrine" pursuant to Wallach v. Rosenberg, 527 So.2d 1386 (Fla. 3d DCA 1988). Faced with the district court split, and cognizant that the Florida Supreme Court had recently accepted certiorari to review Sebo I, the trial court opted to apply the efficient proximate cause doctrine: "And I think I agree with the policies that are set out in [Sebo I], that the correct rule to follow is that where there are multiple, possible causes, it is the efficient proximate cause, the one that is most likely the actual cause . . . of the damage . . . that controls . . . ." Thus, the trial court denied Homeowners' request to amend the proposed jury instruction, explaining "because the complaint alleges that the damage was caused by hail[, t]hat's what the whole case is about."

         The jury ultimately determined that Homeowners could not satisfy their burden of proof, as set forth in the jury instruction discussed above and below. Thus, the trial court entered a final judgment ...


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