RICHARD W. JONES and LOUISE A. KIERNAN, Appellants,
FEDERATED NATIONAL INSURANCE COMPANY, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Paul B. Kanarek, Judge; L.T. Case No.
John Rhodeback and J. Garry Rooney of Rooney & Rooney,
P.A., Vero Beach, for appellants.
Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets,
PLC, Fort Lauderdale, for appellee.
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.
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.
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
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
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
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."
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 ...