Opinion
CASE NO. 20-23544-CIV-ALTONAGA/Goodman
2021-05-25
Jesus PORBEN, Plaintiff, v. ATAIN SPECIALTY INSURANCE COMPANY, Defendant.
Leo A. Manzanilla, Analise Perales, MSPG Law Group, P.A., Coral Gables, FL, Jonathan David Schwartz, Miami, FL, for Plaintiff. Richard Edward Zelonka, Jr., Wood Smith Henning & Berman, LLP, Atlanta, GA, for Defendant.
Leo A. Manzanilla, Analise Perales, MSPG Law Group, P.A., Coral Gables, FL, Jonathan David Schwartz, Miami, FL, for Plaintiff.
Richard Edward Zelonka, Jr., Wood Smith Henning & Berman, LLP, Atlanta, GA, for Defendant.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant, Atain Specialty Insurance Company's Motion for Summary Judgment [ECF No. 31], filed on March 9, 2021. Plaintiff, Jesus Porben, filed an Opposition to Defendant's Motion [ECF No. 34], with supporting exhibits (see id. 7–23); to which Defendant filed a Reply [ECF No. 37]. The Court has carefully considered the Complaint (see [ECF No. 1-2] 5–8, 43–46 ), the parties’ written submissions, the record, and applicable law. For the following reasons, the Motion is granted.
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
The parties’ factual submissions include: Defendant's Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment ("Def.’s SOF") [ECF No. 32]; Plaintiff's Statement of Facts in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.’s SOF") [ECF No. 35]; and Defendant's Reply to Plaintiff's Statement of Facts in Support of his Opposition to [Defendant's] Motion for Summary Judgment ("Def.’s Reply SOF") [ECF No. 38].
I. BACKGROUND
This case involves a property insurance dispute between Plaintiff and Defendant. (See generally Compl.). Plaintiff is a resident of Miami-Dade County, Florida. (See Notice of Removal [ECF No. 1] ¶ 10). Defendant, a Michigan corporation with its principal place of business in Michigan, provides property insurance coverage to Florida property owners. (See id. ¶ 9; Answer [ECF No. 1-2] 60–66, ¶¶ 2–3).
The facts . Defendant issued an insurance policy (the "Policy") to Plaintiff, covering multiple structures located at 58-60 West 17th Street, in Hialeah, Florida (the "Property"). (See Compl. ¶¶ 5, 7; Def.’s SOF ¶¶ 1–2). The Property was covered by the Policy from December 11, 2016 until December 11, 2017. (See Policy [ECF No. 32-1] 7).
Under Local Rule 56.1(a)(2), "[a]n opponent's Statement of Material Facts shall clearly challenge any purportedly material fact asserted by the movant that the opponent contends is genuinely in dispute." Id. (alteration added). Because Plaintiff did not respond to or dispute any of the material facts contained in Defendant's Statement of Undisputed Material Facts, as required by Local Rule 56.1, those facts are deemed undisputed. See Local Rule 56.1(c) ("All material facts in any party's Statement of Material Facts may be deemed admitted unless controverted by the other party's Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is supported by properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply."); Mid-Continent Cas. Co. v. Basdeo , 742 F. Supp. 2d 1293, 1305 (S.D. Fla. 2010), aff'd , 477 F. App'x 702 (11th Cir. 2012) ("[I]n accordance with Local Rule [56.1], where a party has failed to direct the Court to evidentiary support in the record for any proposed contravening material fact, the Court deems the corresponding proposed uncontroverted material fact admitted for purposes of the [motion] for [s]ummary [j]udgment, provided that the Court finds the statement of material fact at issue to be supported by the evidence." (alterations added; footnote call number omitted)).
On September 10, 2017, the Property allegedly sustained damages as a result of Hurricane Irma. (See Compl. ¶ 8; Def.’s SOF ¶ 10; Pl.’s SOF ¶ 1). Shortly thereafter, Plaintiff reported his claim to Defendant. (See Compl. ¶ 9; Pl.’s SOF ¶ 2). Defendant sent an independent adjuster to inspect the Property on September 23, 2017. (See Compl. ¶ 10; Pl.’s SOF ¶ 3; Dec. 1, 2017 Correspondence [ECF No. 34] 7). Following the inspection, the adjuster wrote Plaintiff a letter explaining Defendant denied coverage:
Local Rule 56.1(b)(1)(B) requires each fact listed in a statement of material facts to be "supported by specific, pinpoint references to particular parts of record material." Plaintiff's Statement of Facts contains no citations to the record, let alone "specific, pinpoint" citations. Although the Court could therefore strike the Statement, see Local Rule 56.1(d), even considering the facts stated therein, the Court finds Defendant is entitled to summary judgment.
Th[e] inspection revealed a small area on the roof where the rolled roofing was peeled back that is indicative of wind damage. This area is less than ten square feet. There was no exposed sheathing or felt[,] and there was no damage to the apartment beneath this
area of roof damage. [Defendant] also observed damage to the interior of the building as a result of wind driven rain with no evidence of damage to the exterior walls or roof surfaces above or around these areas that resulted from a covered cause of loss.
* * *
During [the] inspection, [Defendant] observed several areas of prior repairs, deteriorated areas of the roof covering, painted areas of the roof, as well as other areas that showed pre-existing and long-term damage. [Defendant] also found a paint roller that was adhered to the shingles on the right roof slope. In view of the above, [Defendant] must respectfully decline coverage for these damages as not the result from a covered peril, as well as interior water damage that did not result from damage to the exterior of the building.
However, [Defendant] has approved payment for the confirmed wind damage. [Defendant] [estimates] a gross building loss in the amount of R.C.V. $2,505.60. There is a 5% wind deductible contained in the [P]olicy, resulting in a $24,500 deductible applicable to this loss. The covered damages are below the wind deductible.
(Dec. 1, 2017 Correspondence 7, 9 (alterations added)).
The Policy . The Policy states that Defendant will pay "for direct physical loss of or damage to [the] Property ... caused by or resulting from any Covered Cause of Loss." (Policy 24 (alterations added)). Covered Cause of Loss means direct physical loss to the Property unless the loss is excluded or limited by the Policy. (See id. 42). Generally, "loss[es] or damage[s] caused by or resulting from ... [w]ear and tear"; "[r]ust or other corrosion, decay, [or] deterioration"; or "faulty [or] inadequate ... repair[s]" and "[m]aintenance" are excluded. (Id. 43–45 (alterations added)). The Policy also limits coverage for damage to "[t]he interior of any building" caused by rain, "whether driven by wind or not, unless ... [t]he building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain ... enters[.]" (Id. 46 (alterations added)).
The Policy provides a $490,000 coverage limit for damage to the Property. (See id. 19). However, a five percent deductible applies to loss or damage caused by a windstorm or hail, such that coverage for windstorm damage is not triggered "until the amount of loss or damage exceeds the ... [d]eductible." (Id. 39 (alterations added)). In addition, the Policy states Defendant "shall not be liable beyond the actual cash value of the [P]roperty ... on the date of loss" unless and "[u]ntil the lost or damaged property is actually repaired or replaced[.]" (Id. 21, 33–34, 37 (alterations added)).
Plaintiff's Complaint . On December 27, 2019, Plaintiff filed his Complaint against Defendant in state court asserting the Property was damaged on or around September 10, 2017 during Hurricane Irma. (See generally Compl.). He alleged Defendant "failed to properly indemnify Plaintiff for his losses" and "fail[ed] to tender an appropriate amount to repair the Property[.]" (Id. ¶¶ 12–13 (alteration added)). Plaintiff asserted one claim for breach of contract (Count I). (See generally id. ). Defendant removed the case, asserting diversity jurisdiction. (See generally Notice of Removal).
On September 10, 2020, the Court entered a Scheduling Order [ECF No. 11] setting January 22, 2021 as the deadline for the exchanging expert reports, February 5, 2021 as the deadline for exchanging rebuttal expert reports, and February 22, 2021 as the deadline for completing all discovery. (See Sch. Order 1–2). Neither Plaintiff nor Defendant disclosed any experts before the January 22, 2021 deadline. (See Def.’s SOF ¶ 16; Pl.’s SOF ¶ 7). Nevertheless, Plaintiff identified an expert as a "rebuttal expert" on February 5, 2021 (see [ECF No. 19]), although Defendant had not retained any expert for Plaintiff to rebut. The Court denied Plaintiff's two motions for additional time to serve an expert report for failure to establish good cause. (See Feb. 8, 2021 Order [ECF No. 24] 1; Feb. 17, 2021 Order [ECF No. 30]).
On March 24, 2021, the Court granted by default Defendant's Motion to Strike Plaintiff's Expert Disclosures. (See Mar. 24, 2021 Order [ECF No. 36]). Finally, on April 21, 2021, the Court granted by default Defendant's Motions in Limine [ECF No. 39], barring Plaintiff, in relevant part, from introducing evidence of replacement costs (see Apr. 21, 2021 Order [ECF No. 43]).
Defendant's Motion . Defendant now moves for summary judgment, arguing Plaintiff's failure to timely disclose an expert precludes him from meeting his burden to show a covered loss caused damage to the Property exceeding the wind deductible. (See generally Mot.; Reply).
II. LEGAL STANDARD
Summary judgment may only be rendered if the pleadings, discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is "material" if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "genuine" if the evidence could lead a reasonable jury to find for the non-moving party. See id. ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court draws all reasonable inferences in favor of the party opposing summary judgment. See Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000).
If the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by: (1) establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim, and (2) showing the Court there is insufficient evidence to support the non-moving party's case. See Blackhawk Yachting, LLC v. Tognum Am., Inc. , No. 12-14209-Civ, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015) (citations omitted). "Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must cite to ... materials in the record or show that the materials cited do not establish the absence or presence of a genuine dispute." Id. (citing Fed. R. Civ. P. 56(c)(1) ; alteration added; quotation marks omitted).
"Summary judgment may be inappropriate even where the parties agree on the basic facts [ ] but disagree about the inferences that should be drawn from these facts." Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (alteration added; citation omitted). Where "reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment" and proceed to trial. Id. (citations omitted).
III. ANALYSIS
"Under Florida law,[ ] insurance contracts are construed according to their plain meaning." Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So. 2d 528, 532 (Fla. 2005) (alteration added). "Ambiguities are construed against the insurer and in favor of coverage." Id. "Although ambiguous provisions are construed in favor of coverage, to allow for such a construction the provision must actually be ambiguous." Id. "Because they tend to limit or avoid liability, exclusionary clauses are construed more strictly than coverage clauses." Category 5 Mgmt. Grp., LLC v. Companion Prop. & Cas. Ins. Co. , 76 So. 3d 20, 23 (Fla. 1st DCA 2011) (citation omitted). But where "a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision." Taurus Holdings, Inc. , 913 So. 2d at 532 (quotation marks and citation omitted); see also Interline Brands, Inc. v. Chartis Specialty Ins. Co. , 749 F.3d 962, 965 (11th Cir. 2014) (explaining "courts may not rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties." (quotation marks and citation omitted)).
The parties do not raise a conflict-of-laws issue and appear to agree Florida law applies. (See generally Mot.; Opp'n).
Defendant insured the Property on an "all-risks" basis. (See Def.’s SOF ¶ 6). "An all-risks policy provides coverage for all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage." Mejia v. Citizens Prop. Ins. Corp. , 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (quotation marks and citation omitted). "[A]n ‘all-risk’ policy is not an ‘all loss’ policy, and this does not extend coverage for every conceivable loss." Sebo v. Am. Home Assurance Co. Inc. , 208 So. 3d 694, 696–97 (Fla. 2016) (alteration added; quotation marks and citation omitted).
"A plaintiff seeking to recover under an all-risks policy has the burden of proving that a loss occurred to the insured's property while the policy was in force." S.O. Beach Corp. v. Great Am. Ins. Co. of N.Y. , 305 F. Supp. 3d 1359, 1364 (S.D. Fla. 2018) (citation omitted). This includes the burden to prove that a covered cause of loss caused damage in excess of the policy's deductible. See Bray & Gillespie Plaza, LLC v. Lexington Ins. Co. , No. 6:07-cv-222, 2010 WL 11623659, at *4 (M.D. Fla. Feb. 10, 2010) ("[I]t is [the insured's] burden to prove that [the] [h]urricane ... caused damage over and above [the] deductible[.]" (alterations added)); Citizens Prop. Ins. Corp. v. Manning , 966 So. 2d 486, 487–88 (Fla. 1st DCA 2007) (reversing grant of summary judgment to the insured where the insured did not meet threshold burden to show wind damage exceeded the policy deductible; and requiring the insured to prove "which damage ... was done by wind alone" and "the amount of any such damage" (alteration added)). "The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms." Jones v. Federated Nat'l Ins. Co. , 235 So. 3d 936, 941 (Fla. 4th DCA 2018) (quotation marks and citations omitted).
Defendant contends that, without expert evidence, Plaintiff cannot meet his burden of proof to show a covered cause of loss caused the claimed damage to the Property. (See Mot. 6–8). Defendant further argues Plaintiff has not produced any admissible evidence that the actual cash value of the damage exceeded the Policy's deductible. (See id. 8–9). The Court agrees.
In insurance coverage disputes such as this, it is well-settled that expert evidence is generally necessary to establish the cause and scope of damage. See Mama Jo's, Inc. v. Sparta Ins. Co. , No. 17-cv-23362, 2018 WL 3412974, at *8 (S.D. Fla. June 11, 2018) ("While an expert is not necessary in all breach of contract cases, here the crucial question — whether [a covered cause of loss] caused damage to Plaintiff's property [—] is not one a lay witness can answer." (alterations added; citation omitted)); Young v. Lexington Ins. Co. , 269 F.R.D. 692, 694 (S.D. Fla. 2010) ("It is a known fact in cases such as this that expert witnesses are essential to establish the extent of damage caused by a windstorm."). There is no dispute Plaintiff did not timely disclose any expert in this case. (See Def.’s SOF ¶ 16; Pl.’s SOF ¶ 7; Mar. 24, 2021 Order). Absent expert evidence, Plaintiff cannot meet his burden to show a covered loss caused damage to his Property in excess of the Policy's deductible. See Mama Jo's, Inc. , 2018 WL 3412974, at *9 (granting summary judgment where excluded expert testimony was the only evidence on issue of causation; plaintiff therefore could not show covered loss caused the alleged direct physical loss to its property (citations omitted)); Peek v. Am. Integrity Ins. Co. of Fla. , 181 So. 3d 508, 509–11 (Fla. 2d DCA 2015) (plaintiffs could not establish cause of loss where they did not present expert testimony or other evidence as to the cause of loss).
Plaintiff nevertheless contends he does not need expert evidence on the issue of causation because he insists Defendant, in its December 1, 2017 coverage decision letter, "admitted" Plaintiff suffered a covered loss. (Opp'n 3). Specifically, Defendant's letter stated the "inspection revealed a small area on the roof where the rolled roofing was peeled back that is indicative of wind damage." (Dec. 1, 2017 Correspondence 7; see also id. 9 (referring to "confirmed wind damage")). Plaintiff therefore asserts "[t]he only question is the amount of damages and not the cause of the loss." (Opp'n 4 (alteration added)). Defendant vehemently denies the letter constitutes an admission of coverage (see Reply 3), but even assuming it does, argues that Plaintiff has failed to offer any admissible evidence that such damages exceeded the Policy's wind deductible.
Plaintiff submits an estimate of repair and replacement cost value, estimating damages to the Property totaling $136,603.88. (See Damage Estimate [ECF No. 34] 13–23). The document, which does not name an author or provide any facts to support the estimated values, is plainly inadmissible hearsay. See Fed. R. Evid. 801(c) ; Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999) ("[I]nadmissible hearsay cannot be considered on a motion for summary judgment." (alteration added; quotation marks, footnote call number and citation omitted)); Fed. R. Civ. P. 56(c)(2). The document is also inadmissible because, although expert evidence is required to "establish the extent of damage caused by a windstorm[,]" Young , 269 F.R.D. at 694 (alteration added), Plaintiff did not timely disclose an expert. The Court will not now permit Plaintiff to circumvent the missed expert disclosure deadline via submission of an unauthenticated, unsigned, and unsupported estimate of damages. See Matthews v. State Farm Fire & Cas. Co. , 500 F. App'x 836, 841 (11th Cir. 2012) ("written estimate [for repairs to home damages] is inadmissible hearsay" where "the only evidence in the record is the written estimate itself." (alteration added)).
More fundamentally, the document is inadmissible because it purports to estimate the replacement cost value of damage to the Property, without depreciation. (See Damage Estimate 20). Yet the Policy unambiguously limits Plaintiff's recovery to "the actual cash value of the [P]roperty ... on the date of loss" unless and "[u]ntil the lost or damaged property is actually repaired or replaced[.]" (Policy 21, 33–34, 37 (alterations added)). Plaintiff has offered no evidence that the damage to the Property has been repaired or replaced; Plaintiff is thus barred from introducing evidence of replacement costs. (See Apr. 21, 2021 Order; Def.’s Motions in Limine 2–6).
In any event, even if the Court considers the letter and Plaintiff's estimate of damages, Plaintiff still fails to meet his burden to show a covered loss caused damage to his Property in excess of the Policy's deductible. To the extent Defendant's letter "admit[s]" coverage (Opp'n 3 (alteration added)), it does so only with respect to "a small area on the roof" spanning "less than ten square feet" (Dec. 1, 2017 Correspondence 7). Calculating the replacement cost of ten square feet of roof damage using the prices listed in Plaintiff's estimate (see Damage Estimate 18), Plaintiff's damages amount to a maximum of approximately $10,144.74 — well below the $24,500 deductible (see Dec. 1, 2017 Correspondence 9). Notably, this generous estimate does not account for depreciation and therefore does not represent the actual cash value of the damaged Property.
This calculation also includes the cost of roofing felt for ten square feet, despite the fact that Defendant's letter remarked "[t]here was no exposed sheathing or felt[.]" (Dec. 1, 2017 Correspondence 7 (alterations added)).
Accordingly, even considering Plaintiff's proffered facts and evidence, the Court concludes Plaintiff has failed to establish a covered loss caused damage to his Property and that such damage exceeded the Policy's deductible. See Sunflower Condo. Ass'n, Inc. v. Everest Nat'l Ins. Co. , No. 19-cv-80743, 2020 WL 4501805, at *9 (S.D. Fla. Apr. 28, 2020) ("[Insured] cannot recover compensatory damages unless the value of the covered property damage exceeds the Policy deductible[.]" (alterations added)). Summary judgment in favor of Defendant is therefore appropriate.
Plaintiff now requests the Court compel appraisal to determine the amount of damages. (See Opp'n 4–5). Yet, the Complaint contains no reference to the right of appraisal and Plaintiff's Opposition appears to be Plaintiff's first mention or invocation of the appraisal provision, notwithstanding Plaintiff's litigation of this action for nine months in this Court and 17 months total. The Court therefore finds Plaintiff has waived any right to appraisal. See, e.g. , Tamiami Condo. Warehouse Plaza Ass'n, Inc. v. Markel Am. Ins. Co. , No. 19-cv-21289, 2019 WL 6130445, at *1–2 (S.D. Fla. Nov. 19, 2019) (explaining an insured waives the right to appraisal by actively participating in litigation or engaging in other conduct inconsistent with the right to appraisal).
IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant, Atain Specialty Insurance Company's Motion for Summary Judgment [ECF No. 31] is GRANTED .
2. Final judgment will issue by separate order.
DONE AND ORDERED in Miami, Florida, this 25th day of May, 2021.