United States District Court, M.D. Florida, Orlando Division
E. MENDOZA UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant's Motion for
Summary Judgment (Doc. 44) and Plaintiffs' Motion for
Final Summary Judgment (Doc. 60). This cause is also before
the Court on Plaintiffs' Daubert Motion to Exclude
Testimony of Defense Experts, Arthur Baker and Jason Neumann
(Doc. 59); Defendant's Daubert Motion to Strike
Plaintiffs' Expert Witness, Kathleen Norflus (Doc. 61);
Defendant's Daubert Motion to Strike Plaintiffs'
Expert Witness, James Purcell (Doc. 62); Defendant's
Motion in Limine Regarding Cumulative Expert Testimony (Doc.
63); Defendant's Daubert Motion to Strike or Limit
Plaintiffs' Expert Witness, Sonny Gulati (Doc. 64);
Defendant's Motion in Limine Regarding Testimony and
Evidence Regarding Claims Handling and/or Bad Faith (Doc.
74); Defendant's Motion in Limine Regarding Contract
Interpretation (Doc. 75); Defendant's Motion in Limine
Regarding Reference to and Improper Statements Regarding the
Daubert Standard (Doc. 76); Defendant's Omnibus Motion in
Limine (Doc. 77); and Defendant's Motion to Strike
Plaintiffs' Objection to Defendant's Summary Judgment
Response (Doc. 84). Each motion will be addressed in turn.
Motion to Strike
initial matter, Defendant filed a Motion to Strike
Plaintiffs' Objection to Defendant's Summary Judgment
Response (Doc. 84). Defendant filed its Response (Doc. 73) to
Plaintiffs' Motion for Summary Judgment on February 27,
2019. On March 12, 2019, Plaintiffs filed their
“Objection to Defendant's Summary Judgment Response
Pursuant to Fed.R.Civ.P. 56(c)” (Doc. 78). Clearly,
although titled “Objection, ” this document
constitutes Plaintiffs' Reply, which they were permitted
to file pursuant to the Case Management and Scheduling Order
(“CMSO, ” Doc. 14 at 6). Moreover, the document
was timely filed. The CMSO permitted Plaintiffs to file their
Reply within fourteen days of Defendant's Response being
served, (id.); it was filed within that
timeframe. Therefore, the Motion to Strike will be
February 7, 2017, Plaintiff Barbara Hatch arrived at her home
to discover it was flooded due to a leak that originated from
the hot water heater. (Doc. 44 at 4 ¶¶ 3, 5-6;
Pls.' Resp., Doc. 48, at 1 ¶¶ 3, 5-6; Doc. 60
at 2 ¶ 3; Doc. 73 at 6 ¶ 3). Later it was
determined that approximately 4000 gallons of water had
flooded the home. (Doc. 60 at 2 ¶ 5; Doc. 73 at 6 ¶
5). At the time, the home was insured under an
“all-risk policy” issued by Defendant. (Doc. 44
at 4 ¶¶ 1-2; Doc. 48 at 1 ¶¶ 1-2; see
also generally “Policy, ” Doc. 44-1).
Plaintiffs reported the claim to Defendant, who retained
Cindy Jean Bootier to inspect the property. (Doc. 60 at 2
¶ 7; Doc. 73 at 6 ¶ 7). A company called ServPro
was also hired to perform water mitigation. (Doc. 60 at 2
¶ 6; Doc. 73 at 6 ¶ 6). Defendant issued a payment
to Plaintiffs for repairs to the property. (Doc. 60 at 5
¶ 47; Doc. 73 at 9 ¶ 47).
Plaintiffs began demolition and repairs, they discovered a
crack in the floor of the master bedroom closet. (Doc. 60 at
3 ¶ 17; Doc. 73 at 6 ¶ 17). Plaintiffs then
retained Guardian Inspection & Information Services
(“Guardian”) to perform an inspection. (Doc. 60
at 3 ¶ 17; Doc. 73 at 6 ¶ 17). And, Defendant
retained Summit Engineering Consulting, Inc.
(“Summit”). (See generally Summit
Residence Damage Evaluation, Doc. 60-7). Both reported
additional damage to the foundation and structure of the home
(“structural damage”), and Defendant denied
coverage, concluding that it was excluded under the Earth
Movement Exclusion of the Policy. (See generally
June 14, 2017 Letter, Doc. 60-12, at 76-81).
parties have now filed cross motions for summary judgment
addressing whether the structural damage should have been
excluded, whether the Policy covers loss to the hot water
heater system itself, and whether Defendant sufficiently
compensated Plaintiffs for the non-structural damage.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In ruling on a motion for summary
judgment, the Court construes the facts and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, when faced with
a “properly supported motion for summary judgment,
” the nonmoving party “must come forward with
specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997).
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). “Essentially, the inquiry is
‘whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.'” Sawyer v. Sw. Airlines Co., 243
F.Supp.2d 1257, 1262 (D. Kan. 2003) (quoting
Anderson, 477 U.S. at 251-52); see also LaRoche
v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla.
1999) (“The law is clear . . . that suspicion,
perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
the parties' arguments involve interpretation of the
Policy. “Where the language in an insurance contract is
plain and unambiguous, a court must interpret the policy in
accordance with the plain meaning so as to give effect to the
policy as written. Washington Nat'l Ins. Corp. v.
Ruderman, 117 So.3d 943, 948 (Fla. 2013). “In
construing insurance contracts, courts should read each
policy as a whole, endeavoring to give every provision its
full meaning and operative effect.” Id.
(quotation omitted). On the other hand, policy language is
ambiguous “if the language is susceptible to more than
one reasonable interpretation, one providing coverage and the
other limiting coverage.” Id. (quotation
omitted). “Furthermore, in Florida, when an insurer
relies on an exclusion to deny coverage, it has the burden of
demonstrating that the allegations of the complaint are cast
solely and entirely within the policy exclusion and are
subject to no other reasonable interpretation.”
Castillo v. State Farm Fla. Ins. Co., 971 So.2d 820,
824 (Fla. 3d DCA 2007) (quotation omitted). “Once the
insured establishes a loss apparently within the terms of an
all-risk policy, the burden shifts to the insurer to prove
that the loss arose from a cause which is excepted.”
Id. (quotation omitted).
assert that the structural damage is covered by the
Policy-specifically pointing to the Policy provision
addressing accidental discharge or overflow of water or
steam. Defendant asserts that the structural damage is
excluded under the Earth Movement Exclusion.
Policy is broken up into sections. The first section
describes the property that is covered. As relevant here,
“[t]he dwelling on the ‘[R]esidence
home-“including structures attached to the
dwelling” are covered, but “land, including land
on which the dwelling is located” is not covered. (Doc.
44-1 at 9).
second relevant section addresses the “perils insured
against, ” and states that the Residence Premises is
insured against “direct physical loss” subject to
a list of exceptions. (Id. at 15). As relevant here,
the Policy provides:
We do not insure . . . for loss . . . [c]aused by . . .
[s]ettling, shrinking, bulging or expansion, including
resultant cracking, of bulkheads, pavements, patios,
footings, foundations, walls, floors, roofs or ceilings . . .
(Id. at 15-16 (Exception c. (6)(f)). The next
paragraph is titled “Exception [t]o c. (6)” and
contains exceptions to all of the exceptions listed in
Exception c. (6), including c. (6)(f). The Exception to c.
(6) provision states:
Unless the loss is otherwise excluded, we cover loss to [the
Residence Premises] resulting from an accidental discharge or
overflow of water or steam from within a . . . [p]lumbing,
heating, air conditioning or automatic fire protective
sprinkler system or household appliance on the
(Id. at 16).
last relevant portion of the Policy is the exclusions
section. As ...