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Filing# 152353542 E-Filed 06/28/2022 03:31:38 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-21-011944
ARMIN MIHANDOUST,
Plaintiff,
V.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
I
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant, CITIZENS PROPERTY INSURANCE CORPORATION ("Citizens"),by
and through its undersigned counsel and pursuant to Florida Rule of Civil Procedure
1.510, hereby Moves for Summary Judgment, and in support thereof states:
INTRODUCTION
The evidence of record establishes that the damage at issue in this lawsuit was
caused by repeated plumbing backups and a long-term plumbing issue that were
allowed to continue by Plaintiff, Armin Mihandoust's ("Plaintiff'),failure to take any
reasonable action that would remedy the issue. This suit is a breach of contract action
in which Plaintiff alleges Citizens breached the subject insurance policy by failing to
provide coverage for an alleged loss. Plaintiffs deposition revealed that he had been
aware of a plumbing issue at the insured property essentially since he moved in, and
after this issue caused multiple sewage backups Plaintiff retained a professional who (a)
recommended that all the cast-iron plumbing at the Property be replaced and (b)
provided a proposal to do so. Despite clear instructions that backups and interior
1
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*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/28/2022 03:31:37 PM.****
damage would occur if Plaintiff did not replace the cast-iron plumbing at the Property,
he failed to take such action, allowing long-term water damage to develop.
The subject homeowners' insurance policy contains exclusions for damage
caused by long-term leakage of water, neglect to use all means to protect the Property
from damage, and inadequate maintenance. There is no evidence of record showing
that damage at the insured property was caused by something other than the repeated
water overflows at the Property. Indeed, any such evidence would directly contradict
Plaintiffs deposition testimony. Plaintiffs plumber's testimony also confirms that
Plaintiff had the opportunity to take the necessary action which would have prevented
damage from developing, and his failure to act is what ultimately allowed the damage
at issue to occur. The subject insurance policy is not a maintenance policy, and if an
insured does not adequately maintain his property or otherwise take reasonable action
to protect his property from damage, resulting damage is simply not covered. This is
precisely one of those scenarios. Thus, there is no issue of fact that the damage at issue
in this suit is excluded under the policy, and Citizens is entitled to summary judgment
in its favor.
UNDISPUTED FACTS
1. Citizens and Plaintiff entered into a homeowner's insurance policy contract
bearing policy number 02627818 2 (the "Policy"),with a coverage period of October 23,
-
2018 through October 23, 2019, for the property located at 2599 NW 62nd Ter, Margate,
Florida 33063 (the "Property").
1
1
See the Policy, attached hereto as Exhibit "1."
2
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2. Plaintiff alleges that on or about August 2, 2019, he suffered a covered loss
due to water damage (the "Loss").2
3. The Policy states at "SECTION I - PERILS INSURED AGAINST" "Coverage
A -
Dwelling And Coverage B - Other Structures" § A. 1., that Citizens insures
against
risk of direct loss to property, only if that loss is a physical loss to covered property. The
property coverages under the Policy are (1) the main dwelling, (2) additional structures,
(3) personal property, and (4)loss of use.
3
4. The Policy states at"SECTION I - EXCLUSIONS," §A. 12.,andat "SECTION
I - PERILS INSURED AGAINST," § A.2.b. (6)(c),that Citizens does not insure for loss
caused by "constant or repeated seepage or leakage of water or steam or the presence
or condensation of humidity, moisture or vapor, over a period ofweeks, months or years,
unless such seepage or leakage of water or steam or the presence or condensation of
humidity, moisture or vapor and the resulting damage is unknown to all 'insureds' and
is hidden within the walls or ceilings or beneath the floors or above the ceilings of a
structure ... "4
5. The Policy states at "SECTION I - EXCLUSIONS" § A.5, that Citizens does
not provide coverage for loss caused directly or indirectly by "[nleglect,meaning neglect of
any 'insured' to use all reasonable means to save and preserve property at and after the
time of a loss."5
2 See Plaintiffs Complaint, at ll 10.
Exhibit 1, at pgs. 4, 5, and 7 of 37, "Section I
-
Property Coverages," §§ A., B., D., and E.
4 See Exhibit 1, at pg. 14 of 37 "SECTION I - PERILS INSURED AGAINST," § A.2.b.(6)(c),and at
p. 19 of 37 "SECTION I
- EXCLUSIONS," § A. 12.
5
See Exhibit 1, at pg. 19 of 37, "SECTION I - EXCLUSIONS," § A. 5.
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6. The Policy states at "SECTION I - EXCLUSIONS," § B.3., that Citizens does
not insure for loss caused by faulty, inadequate, or defective maintenance.6
7. Plaintiff reported the alleged Loss to Citizens on August 2, 2019. The Loss
was initiallyreported as a hole in front of the Property, and Plaintiff reported that there
was no damage to the interior of the Property. 7
8. Citizens investigated the Loss and ultimately determined that it was not a
Loss to covered property under the Policy, but even if it was, it was the result of multiple
excluded causes, including long-term seepage or leakage of water and faulty, inadequate,
or defective maintenance.8
9. Plaintiff Filed suit on June 17, 2021.
10. Plaintiff sat for deposition on January 24,2022.9
11. Plaintiff testified that there were multiple major plumbing backups at the
Property, with the first backup occurring just one month after he moved in:
Q. Okay. Hold on. So, we talked about a July 2018, either a March, April
2018 backup -- or March, April 2019 backup. Any other backups at the
property?
A. When I first moved in, about one month after. So, I moved in in August,
so about towards the end of September, was the first time the plumbing
had a backup. At which point, the real estate company said, we have
warranty on any, you know, roofing and plumbing and anything you have
on the house.
So, they sent out their own plumber. And all he did, was come out and
snake the lines out. He didn't check anything. He just snaked the lines
out. And that was that. 10
6 See Exhibit 1, at pg. 20 of 37, "SECTION I - EXCLUSIONS," § B.3.
7 See Affidavit of Citizens' Corporate Representative, attached hereto as Exhibit "2," at 11 6.
8 See Denial Correspondence attached to Exhibit 2 as Exhibit A.
9
See Select Portions of Plaintiff's Deposition Transcript, attached hereto as Exhibit "3."
10 See Exhibit 3, at pg. 26:3-15.
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12. Plaintiff also discussed the backup that occurred in either June or July of
2018, which leaked water all over the floors in multiple rooms and caused him to call
Better Days Plumbing:
Q. Okay. And what did Better Days Plumbing do when they came to the
property on or around July of 2018?
A. They came in and snaked the plumbing, the sewage lines, out.
Q. Okay. And you said you called them because of a backup?
A. Yes.
Q. Can you tell me a little bit about that backup?
A. The sewage started to flow out from underneath both toilets and also
started to backup into my bathtub. So, basically, I had raw sewage leaking
out from under the toilets and bathtub. And partially from the master
bedroom -- bathroom, that sewage leaked out into the bedroom itself as
well.
Q. Okay. So, sewage leaked out of the toilets in both bathrooms?
A. Yes.
Q. Okay. And so, there was sewage water -- leaked onto the floors in both
bathrooms and the master bedroom?
A. Yes.
Q. So, how long was water actively leaking onto the bathroom floors?
A. For under minutes. Basically, after the water was turned on, for
five
instance, the toilet being flushed, all of that discharged water from the
toilet would backup through the plumbing. So, once that worked its way
through, it would stop.
11
13. Approximately 8 months later, in March or April of 2019, Plaintiff
experienced another major backup and called Better Days Plumbing, who suggested
11 See Exhibit 3, atpg. 19:9-20:18.
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that they could run a camera through the plumbing lines to determine what could be
causing the problem. 12
14. Plaintiff testified that Better Days Plumbing conducted the camera
inspection and found numerous issues with the pipes under the Property, including
cracks and holes, that were causing the backups at the Property:
Q. Okay. And did he run the camera through the sewage lines?
A. Yes.
Q. Okay. Do you know what he found?
A.He showed me the video. saw cracks in the pipe. And I
It showed -- I
saw holes in the pipe where looked like a crack got to the point where
it
an actual piece fell out of the pipe. And you can clearly see water -- when
he would turn the water on, you could see the water running out through
the holes and cracks.
Q. Okay. So, if water is falling out of the pipes, how is that causing the
backups?
A.What he explained to me is that debris gets stuck in the pipes and holes
and builds up like a dam. I'm not a plumber, so I don't know, you know,
any of the intricate details or workings. But what he explained to me is
that the cracks offer --
spots for debris to gather.
13
15. Plaintiff confirmed that Better Days Plumbing recommended that all the
cast-iron plumbing at the Property be replaced, and they provided Plaintiff with a
proposal to perform the work for approximately $ 15,000.14
16. Plaintiff testified that he reached out to a friend of his who was a plumber
in order to evaluate the proposal and determine if he had any other options. 15
12 See Exhibit 3, at pg. 22:3-23: 15.
13 See Exhibit 3, pg. 23:16-24:9.
14 See Exhibit 3, at pg. 24:10-17
15 See Exhibit 3, pg. 28:16-29:7.
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17. Plaintiff considered other potential fixes, but ultimately determined that
replacing the plumbing underneath the Property was the only permanent solution which
would resolve his issues. 16
18. Plaintiff stated that he had not observed any interior damage when he first
learned that he needed to replace the plumbing in April or May of 2019:
Q. Okay. And at the time when this first happened, it was really just to fix
the plumbing. Is that correct?
A. The first time it happened, it was just to get the plumbing working, yes.
Q. Okay. So, these repairs you were considering in April or May of 2019,
there hadn't been any damage at the property yet and you were just
looking to fix the plumbing. Is that accurate?
A. Correct.
Q. And when I say no damage, I'm speaking of no interior damage. Is that
accurate?
A. Right. At the time, I saw no interior damage. 17
19. Plaintiff testified that he made the insurance claim once the backed-up
plumbing started to cause damage to the interior after the fourth major backup:
Q. No, I appreciate your honesty very much. All right. So, what happened
to the property that caused you to make the insurance claim with Citizens?
A. The backed-up plumbing was starting to soak into the baseboards and
drywall inside the house, inside the bathrooms. So, the walls are starting
to bubble up. And the insides of the drywall, the gypsum, or whatever it is
on their insides, is starting to push out. It's bubbled up and pushing out
through the paint.
Q. Okay. So, I appreciate your answer. So, I'm talking specifically back
when this insurance claim was first made. So, your answer is basically the
backups had gotten to the point where the baseboards and the drywall in
the bathrooms were being affected. And at that point, you made the
insurance claim. Is that correct?
16 See Exhibit 3, pg. 29:19-30:7.
17 See Exhibit 3, pg. 30:14-31:2.
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A. That was when I started to make the insurance claim. Beforehand, I
wasn't even really certain about using insurance for anything, because
this is my first home. And so, friends and family said you need to get your
insurance involved.
Q. Okay. And do you remember the approximate timeframe of when that
happened?
A. Again, I would say it was somewhere on or just before the beginning of
August of 2019.18
Q. And was there another backup incident that occurred around
so,
August? Because, you know, why would water be approaching the walls
on that date?
A. I believe in that early August, end of July time, there was a backup, and
that's what caused me to get to my garden hose. Because after I vacuumed
everything up, was going to rinse my shop vac out. And that's when I
I
found -- that's when the hole happened, when I went to turn the hose on
to clean the shop vac.
Q. Okay. So, is it true there's been four major plumbing backups then?
One --
A. Yes.
Q. Okay. So, we have a backup about one month after you purchased the
property, you know, late 2017. One, July of 2018. One, April 2019. And
then again, either late July, early August 2019?
A. Yes.
Q. Okay. And so, for that, you know, late July or early August 2019
backup, was it a similar event to the prior backups?
A. Yes.
Q. So, basically, sewage is leaking onto the bathroom floor from
underneath the toilets, leaking into the tub, and the main bedroom at the
property. And this leak lasted for around five minutes or so?
A. Yes. 19
18
See Exhibit 3, pg. 32:16-33:16
19 See Exhibit 3, pg. 37:15-38:16
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20. On May 6th, 2022, Ronald Eggan sat for deposition as the Corporate
Representative of Better Days Plumbing. Mr. Eggan is the owner of Better Days
Plumbing, and he has 30 years of plumbing experience.20
21. Mr. Eggan confirmed that he personally visited the Property, cleared a
stoppage, ran a video camera down the plumbing line, and presented his findings to
Plaintiff. 21
22. Mr. Eggan testified that (1) he remembers the Property having cast-iron
plumbing lines which were "split"in a section of the house and (2) he provided Plaintiff
with a proposal to replace the cast-iron plumbing at the Property:
Q. Do you remember what you found when you carnerad the line?
A. I remember the line being cast iron, and, I think, I remember the line
being splitin a section of the house.
Q. What does that mean, split in a section of the house?
A. Cast iron, over time, degenerates and splits on the bottom of a pipe due
to wear and tear, acids, and everything else that run down the center of a
cast iron pipe and it would just degenerate and split right at the bottom.
And, therefore, we did a proposal to replace all cast iron in the house. 22
23. Mr. Eggan explained that "splitting" can cause backups precisely like what
was occurring at the Property, so he advised Plaintiff the cast-iron plumbing needed to
be replaced:
Q. When this splitting to a cast iron pipe occurs, what are some negative
consequence that could happen?
A. Stoppages, backups, sewage, raw sewage coming back into your unit,
into your house.
20See Select portions of the deposition transcript of Ronald Eggan, Corporate Representative of
Better Days Plumbing, attached hereto as Exhibit "4," at pgs. 1,9:25-12:16.
21 See Exhibit 4, at pg. 18:2-23.
22 See Exhibit 4, at pg. 19:4-15
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Q. So how does a split
-- how does a split cause a stoppage?
A. Well, once it's split, that water and that sewer starts to go into the
ground underneath your house, starts to create a sinkhole underneath
your house. Therefore, sand and other debris will start to fill up in that
area. Therefore, it will create a stoppage. Therefore, allowing no more water
to flow and everything just backs up As you try to flush, it is going nowhere
but underneath your house and back up into your house.
Q. Okay. So it was your opinion that the property needed to be, that cast
iron piping needed to be replaced?
A. In my opinion would the cast iron -- that section of cast iron would have
needed to be replaced due to the age of it,yes.
Q. And would you have advised Mr. Mihandoust that he should get those
pipes replaced?
A. Yes.23
24. Mr. Eggan confirmed that he prepared a proposal for the plumbing repairs
to the Property and sent the proposal to Plaintiff, but Plaintiff did not accept the
24
proposal.
25. The proposal is dated May 2, 2019, and it contemplates that Better Days
Plumbing will trench various locations in the floor to (1) access and remove the existing
cast-iron piping, (2) supply and install all new PVC plumbing and fixtures, and (3) tie
into existing city tap. The total contract price $14,985.00.25
26. Mr. Eggan was emphatic that he instructed Plaintiff about the necessity of
taking action:
Q. I just wanted to ask you, sir, did you specifically advise Mr. Mihandoust
that he needed to get his pipes replaced when you had visited his property?
A. Yes,mean, any time I deal with a cast iron stoppage and then a camera
I
where we find actual something under there, we always tell the customer
23
See Exhibit 4, pgs. 19:21-20:22.
24 See Exhibit 4, pgs. 21:13-22:21, and the Proposal, attached hereto as Exhibit "5."
25 See Exhibit 5.
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they need to take action or do something to create a resolve or it will
continue to happen again.
That's why we do not warrant these stoppages.26
27. There is no evidence of record which would create an issue of fact as to
whether the damage was caused by repeated water leaks allowed to continue by
Plaintiffs failure to take action and adequately maintain his Property.
SUMMARY JUDGMENT STANDARD
"The 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." Fla. R. Civ. P. 1.510 (April30, 2021). On December 31, 2020, the Florida
Supreme Court issued In Re: Amendments to Florida Rule of Civil Procedure 1.510, 309
So. 3d 192 (Fla.2020), which adopted the summary judgment standard articulated by
the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986),
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). Under the In Re: Amendments opinion,
the new summary judgment standard became effective on May 1,2021.
u.
Florida courts previously required ;the moving party conclusively 'to disprove the
nonmovant's theory of the case in order to eliminate any issue of fact.'
"'
Id. at 193. The
In Re: Amendments opinion acknowledged the expansive understanding of what
constituted a genuine issue of fact under the old standard, noting that the existence of
any competent evidence creating an issue of fact, however credible or incredible,
substantial or trivial, precluded summary judgment. Id. The newly-adopted standard,
on the other hand, mirrors the standard for directed verdict. Id. at 192. A motion for
directed verdict should be granted when the court, after viewing the evidence and
26 See Exhibit 4, pg. 24:20-25:3.
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testimony in the light most favorable to the nonmoving party, determines that no
reasonable jury could render a verdict for the nonmoving party. Miller v. CUY of
Jacksonville, 603 So. 2d 1310, 1311-12 (Fla. 1st DCA 1992). If the evidence in
opposition to summary judgment is merely colorable, or is not significantly probative,
summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505
(citations omitted). A party opposing summary judgment "must do more than simply
show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586, 106 S. Ct. 1348. Further, summary judgment evidence cannot be based
on mere supposition or belief. See Gonzalez v. Citizens Property Insurance Corporation,
273 So. 3d 1031, 1036 (Fla. 3d DCA 2019). Evidence opposing summary judgment
must identify admissible evidence based on personal knowledge that creates a genuine
issue of material fact. Id.
SUMMARY OF THE ARGUMENT
The undisputed facts show that (1) Plaintiff was aware of issues with his
plumbing beginning one month after he purchased the Property, (2) Better Days
Plumbing advised Plaintiff that he needed to replace the cast-iron plumbing at his
property before any interior damage had occurred, (3) Plaintiff did not take anx action
to remedy the long-term plumbing issue, and (4) after the fourth major plumbing
overflow-three months after Plaintiff was advised he needed to perform significant
plumbing repairs-Plaintiff observed interior water damage in his Property and made an
insurance claim. The Policy contains exclusions for water damage caused by repeated
leaks, as well as exclusions for damage caused by (a) the neglect of an insured to use
all reasonable means to protect covered property from further damage after loss and (b)
inadequate maintenance. Both the terms of the Policy and common sense dictate that
Citizens is not responsible for this Loss, as Plaintiff was fully aware that he needed to
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take action to prevent damage, but he failed to do. Accordingly, the Policy
unambiguously excludes coverage for Plaintiffs loss. Citizens is therefore entitled to
summary judgment.
ARGUMENT
Interpretation of an insurance contract is a pure question of law that can be
appropriately determined by the Court on summary judgment. See U. S. Fire Ins. Co. u.
J. S. U.B., Inc., 979 So. 2d 871,877 (Fla.2007). When interpreting an insurance contract,
"courts should read each policy as a whole, endeavoring to give every provision its full
meaning and operative effect." Id. (citingAuto-Owners Ins. Co. v. Anderson, 756 So. 2d
29, 34 (Fla. 2000)). "Where the language of 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. u. Ruderrnan,
117 So. 3d 943, 948 (Fla. 2013). Thus, "a court cannot rewrite an insurance contract
to extend coverage beyond what is clearly set forth in the contractual language." Fla.
Residential Prop. & Cas. Joint Underwriting Ass'n v. Kron, 721 So. 2d 825, 826 (Fla. 3rd
DCA 1998).
I.The Subject Insurance Policy Unambiguously Excludes Coverage for
the Loss Because It Was Caused by Repeated Exposure to Water
Here, the Policy excludes coverage for damage caused by the presence of moisture
which over a period of weeks, months, or years, unless it is hidden within the walls or
above the ceiling. Several courts have held that nearly identical policy exclusions are
unambiguous and enforceable. See Hoey v. State Farm, 988 So.2d 99 (Fla. 4th DCA
2008) (holding that there is no merit to the argument that the exclusionary language for
long-term leakage and seepage is ambiguous); see also Firth u. State Farm Ins. Co., 2014
WL 1253542 (D.N.J. Mar. 25, 2014) (holding that "over a period of time" in exclusionary
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language for long-term leakage and seepage is unambiguous and should be given its
plain meaning); Square at Keu BiscaUne Condo. Assoc., Inc. u. Scottsdale Ins. Co., 2014
WL 11946882 (S.D. Fla. 2014). In Hoey, the policy excluded loss "caused by or resulting
from continuous or repeated seepage or leakage of water or steam which occurs over a
period of time and results in deterioration, corrosion, rust, mold, or wet or dry rot." 988
So.2d at 100. The insureds in Hoey suffered water damage due to a leaking toilet supply
line in the bathroom. Id. The insurer's professional engineer determined that the leak
was caused by a failed toilet supply line, which gradually increased over time. Further,
the insurer's professional engineer determined that the water damage to the property,
including rotted fittings and mold in the nearby drywall, was consistent with leaks over
a period longer than a few weeks. Id. at 101. The trial court agreed, and appellate court
affirmed, that the water damage was clearly precluded under the policy's continuous or
repeated seepage or leakage exclusion. Id.
Similarly, in Firth, the policy excluded losses caused by "continuous or repeated
seepage or leakage ofwater or steam from a . . .
plumbing system . . . which occurs over
a period of time." 2014 WL 1253542 at *4. There, the insurer retained a professional
engineer who inspected the subject property and determined that the loss was the result
of a small leak that sprayed water and that the damage caused by the leak occurred
over a period of at least one month. Id. In opposition to the insurer's motion for
summary judgment, the insureds argued that the policy language was ambiguous and
should be construed against the insurer. Id. The District Court rejected the insureds'
argument, and found that the term "over a period of time" was unambiguous and should
be given its plain meaning:
Here, the phrase "over a period of time" is undefined. The plain meaning
of"period" is "a length of time during which a series of events or an action
takes place or is completed." The plain meaning of"time" is "the thing that
n
is measured as seconds, minutes, hours, days, years, etc.
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Based on the definition of these words, a time period of one month would
fitthe description. Moreover, in the context of this case, uncontroverted
evidence showing that the leak occurred over at least one month would
support a finding that, applying the ordinary, plain and usual meaning of
the phrase and its terms, the seepage occurred "over a period of time."
Id. at 5.
Plaintiffs own testimony establishes that the alleged damage was the result of
repeated toilet backups which occurred four times over a period of years and twice
within a few months of the loss. Plaintiff confirmed that water overflowed from the
toilets and bathtub at the Property on multiple occasions, and after the fourth overflow
damage started to develop: "The backed-up plumbing was starting to soak into the
baseboards and drywall inside the house, inside the bathrooms. So, the walls are
starting to bubble up. And the insides of the drywall, the gypsum, or whatever it is on
their insides, is starting to push out. It's bubbled up and pushing out through the
paint."27 The record is devoid of evidence showing a one-time, accidental water leak out
of a plumbing fixture that Plaintiff can point to as a cause of damage. Accordingly, the
alleged Loss is excluded under the Policy.
II. Plaintiffs Failure to Adequately Maintain his Property and Protect
it from Damage Precludes Coverage for the Loss
The Policy excludes damage caused by neglect, meaning the failure "to use all
reasonable means to save and preserve property at and after the time of a loss." Florida
courts and courts of other states alike have held that "where the insured fails to satisfY
his or her post-loss dutv to protect property from further damage, the insured is not
entitled to coverage." Royal Indemnity Company v. Andrews, 2006 WL 8439576 at *9
(M.D. Fla. 2006) (emphasis added) (citing Lumpkin v. Alabama Farm Bureau Mut.
27 See Exhibit 3, pg. 32:16-25.
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Casualty Ins. Co., 343 So.2d 1238, 1239-40 (Ct. App. Ala. 1977); Benson v. Fireman's
Fund Insurance Co. ofNew Jersey, 234 S.W. 628, 629 (Ark. 1921)). In Royal Indemnity,
the homeowners' insurance policy contained (1) a nearly identical "neglect exclusion" to
that contained in Plaintiffs Policy, as well as (2)a provision imposing a contractual duty
to "make reasonable and necessary repairs to protect the property." Id. at *8. The
insureds in Royal Indemnity filed an insurance claim based on a moldy odor in the
laundry room of their home. Id. at *2. After the insurer inspected the insured property,
it became clear that water was actively leaking into the home through the roof and walls
due to multiple design defects. Id at *3. The insurer advised the insureds that they
would need to repair the structural issues prior to commencing mold remediation. Id.
However, the insureds indicated that they had no intent to repair the roof of their
property and that they did not believe they were responsible to "engage in the clean-up
process." Id. at *8. The Royal Indemnity court entered summary judgment in favor of
the insurer based on the insureds failure to comply with their post-loss duties and
otherwise protect the property from further damage, noting that the insured (1) left their
home exposed to continued water damage and mold growth by refusing to repair their
roof and (2) refused to engage in remediation. Id.
Here, just like the insureds in Royal Indemnity, Plaintiff did not undertake
reasonable measures to protect his property from damage. Plaintiff testified that he
suffered a plumbing backup in April of 2019, and the plumber he called to resolve the
backup informed him that he needed to replace the cast-iron plumbing under the
28
Property. Better Days Plumbing corroborated Plaintiffs testimony, explaining that
they informed Plaintiff the backups would continue if he did not replace the cast-iron
28 See Exhibit 3, at pg. 24:10-17.
Preview
Filing# 152353542 E-Filed 06/28/2022 03:31:38 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-011944 ARMIN MIHANDOUST, Plaintiff, V. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. I DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, CITIZENS PROPERTY INSURANCE CORPORATION ("Citizens"),by and through its undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.510, hereby Moves for Summary Judgment, and in support thereof states: INTRODUCTION The evidence of record establishes that the damage at issue in this lawsuit was caused by repeated plumbing backups and a long-term plumbing issue that were allowed to continue by Plaintiff, Armin Mihandoust's ("Plaintiff'),failure to take any reasonable action that would remedy the issue. This suit is a breach of contract action in which Plaintiff alleges Citizens breached the subject insurance policy by failing to provide coverage for an alleged loss. Plaintiffs deposition revealed that he had been aware of a plumbing issue at the insured property essentially since he moved in, and after this issue caused multiple sewage backups Plaintiff retained a professional who (a) recommended that all the cast-iron plumbing at the Property be replaced and (b) provided a proposal to do so. Despite clear instructions that backups and interior 1 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/28/2022 03:31:37 PM.**** damage would occur if Plaintiff did not replace the cast-iron plumbing at the Property, he failed to take such action, allowing long-term water damage to develop. The subject homeowners' insurance policy contains exclusions for damage caused by long-term leakage of water, neglect to use all means to protect the Property from damage, and inadequate maintenance. There is no evidence of record showing that damage at the insured property was caused by something other than the repeated water overflows at the Property. Indeed, any such evidence would directly contradict Plaintiffs deposition testimony. Plaintiffs plumber's testimony also confirms that Plaintiff had the opportunity to take the necessary action which would have prevented damage from developing, and his failure to act is what ultimately allowed the damage at issue to occur. The subject insurance policy is not a maintenance policy, and if an insured does not adequately maintain his property or otherwise take reasonable action to protect his property from damage, resulting damage is simply not covered. This is precisely one of those scenarios. Thus, there is no issue of fact that the damage at issue in this suit is excluded under the policy, and Citizens is entitled to summary judgment in its favor. UNDISPUTED FACTS 1. Citizens and Plaintiff entered into a homeowner's insurance policy contract bearing policy number 02627818 2 (the "Policy"),with a coverage period of October 23, - 2018 through October 23, 2019, for the property located at 2599 NW 62nd Ter, Margate, Florida 33063 (the "Property"). 1 1 See the Policy, attached hereto as Exhibit "1." 2 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com 2. Plaintiff alleges that on or about August 2, 2019, he suffered a covered loss due to water damage (the "Loss").2 3. The Policy states at "SECTION I - PERILS INSURED AGAINST" "Coverage A - Dwelling And Coverage B - Other Structures" § A. 1., that Citizens insures against risk of direct loss to property, only if that loss is a physical loss to covered property. The property coverages under the Policy are (1) the main dwelling, (2) additional structures, (3) personal property, and (4)loss of use. 3 4. The Policy states at"SECTION I - EXCLUSIONS," §A. 12.,andat "SECTION I - PERILS INSURED AGAINST," § A.2.b. (6)(c),that Citizens does not insure for loss caused by "constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor, over a period ofweeks, months or years, unless such seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor and the resulting damage is unknown to all 'insureds' and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure ... "4 5. The Policy states at "SECTION I - EXCLUSIONS" § A.5, that Citizens does not provide coverage for loss caused directly or indirectly by "[nleglect,meaning neglect of any 'insured' to use all reasonable means to save and preserve property at and after the time of a loss."5 2 See Plaintiffs Complaint, at ll 10. Exhibit 1, at pgs. 4, 5, and 7 of 37, "Section I - Property Coverages," §§ A., B., D., and E. 4 See Exhibit 1, at pg. 14 of 37 "SECTION I - PERILS INSURED AGAINST," § A.2.b.(6)(c),and at p. 19 of 37 "SECTION I - EXCLUSIONS," § A. 12. 5 See Exhibit 1, at pg. 19 of 37, "SECTION I - EXCLUSIONS," § A. 5. 3 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com 6. The Policy states at "SECTION I - EXCLUSIONS," § B.3., that Citizens does not insure for loss caused by faulty, inadequate, or defective maintenance.6 7. Plaintiff reported the alleged Loss to Citizens on August 2, 2019. The Loss was initiallyreported as a hole in front of the Property, and Plaintiff reported that there was no damage to the interior of the Property. 7 8. Citizens investigated the Loss and ultimately determined that it was not a Loss to covered property under the Policy, but even if it was, it was the result of multiple excluded causes, including long-term seepage or leakage of water and faulty, inadequate, or defective maintenance.8 9. Plaintiff Filed suit on June 17, 2021. 10. Plaintiff sat for deposition on January 24,2022.9 11. Plaintiff testified that there were multiple major plumbing backups at the Property, with the first backup occurring just one month after he moved in: Q. Okay. Hold on. So, we talked about a July 2018, either a March, April 2018 backup -- or March, April 2019 backup. Any other backups at the property? A. When I first moved in, about one month after. So, I moved in in August, so about towards the end of September, was the first time the plumbing had a backup. At which point, the real estate company said, we have warranty on any, you know, roofing and plumbing and anything you have on the house. So, they sent out their own plumber. And all he did, was come out and snake the lines out. He didn't check anything. He just snaked the lines out. And that was that. 10 6 See Exhibit 1, at pg. 20 of 37, "SECTION I - EXCLUSIONS," § B.3. 7 See Affidavit of Citizens' Corporate Representative, attached hereto as Exhibit "2," at 11 6. 8 See Denial Correspondence attached to Exhibit 2 as Exhibit A. 9 See Select Portions of Plaintiff's Deposition Transcript, attached hereto as Exhibit "3." 10 See Exhibit 3, at pg. 26:3-15. 4 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com 12. Plaintiff also discussed the backup that occurred in either June or July of 2018, which leaked water all over the floors in multiple rooms and caused him to call Better Days Plumbing: Q. Okay. And what did Better Days Plumbing do when they came to the property on or around July of 2018? A. They came in and snaked the plumbing, the sewage lines, out. Q. Okay. And you said you called them because of a backup? A. Yes. Q. Can you tell me a little bit about that backup? A. The sewage started to flow out from underneath both toilets and also started to backup into my bathtub. So, basically, I had raw sewage leaking out from under the toilets and bathtub. And partially from the master bedroom -- bathroom, that sewage leaked out into the bedroom itself as well. Q. Okay. So, sewage leaked out of the toilets in both bathrooms? A. Yes. Q. Okay. And so, there was sewage water -- leaked onto the floors in both bathrooms and the master bedroom? A. Yes. Q. So, how long was water actively leaking onto the bathroom floors? A. For under minutes. Basically, after the water was turned on, for five instance, the toilet being flushed, all of that discharged water from the toilet would backup through the plumbing. So, once that worked its way through, it would stop. 11 13. Approximately 8 months later, in March or April of 2019, Plaintiff experienced another major backup and called Better Days Plumbing, who suggested 11 See Exhibit 3, atpg. 19:9-20:18. 5 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com that they could run a camera through the plumbing lines to determine what could be causing the problem. 12 14. Plaintiff testified that Better Days Plumbing conducted the camera inspection and found numerous issues with the pipes under the Property, including cracks and holes, that were causing the backups at the Property: Q. Okay. And did he run the camera through the sewage lines? A. Yes. Q. Okay. Do you know what he found? A.He showed me the video. saw cracks in the pipe. And I It showed -- I saw holes in the pipe where looked like a crack got to the point where it an actual piece fell out of the pipe. And you can clearly see water -- when he would turn the water on, you could see the water running out through the holes and cracks. Q. Okay. So, if water is falling out of the pipes, how is that causing the backups? A.What he explained to me is that debris gets stuck in the pipes and holes and builds up like a dam. I'm not a plumber, so I don't know, you know, any of the intricate details or workings. But what he explained to me is that the cracks offer -- spots for debris to gather. 13 15. Plaintiff confirmed that Better Days Plumbing recommended that all the cast-iron plumbing at the Property be replaced, and they provided Plaintiff with a proposal to perform the work for approximately $ 15,000.14 16. Plaintiff testified that he reached out to a friend of his who was a plumber in order to evaluate the proposal and determine if he had any other options. 15 12 See Exhibit 3, at pg. 22:3-23: 15. 13 See Exhibit 3, pg. 23:16-24:9. 14 See Exhibit 3, at pg. 24:10-17 15 See Exhibit 3, pg. 28:16-29:7. 6 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com 17. Plaintiff considered other potential fixes, but ultimately determined that replacing the plumbing underneath the Property was the only permanent solution which would resolve his issues. 16 18. Plaintiff stated that he had not observed any interior damage when he first learned that he needed to replace the plumbing in April or May of 2019: Q. Okay. And at the time when this first happened, it was really just to fix the plumbing. Is that correct? A. The first time it happened, it was just to get the plumbing working, yes. Q. Okay. So, these repairs you were considering in April or May of 2019, there hadn't been any damage at the property yet and you were just looking to fix the plumbing. Is that accurate? A. Correct. Q. And when I say no damage, I'm speaking of no interior damage. Is that accurate? A. Right. At the time, I saw no interior damage. 17 19. Plaintiff testified that he made the insurance claim once the backed-up plumbing started to cause damage to the interior after the fourth major backup: Q. No, I appreciate your honesty very much. All right. So, what happened to the property that caused you to make the insurance claim with Citizens? A. The backed-up plumbing was starting to soak into the baseboards and drywall inside the house, inside the bathrooms. So, the walls are starting to bubble up. And the insides of the drywall, the gypsum, or whatever it is on their insides, is starting to push out. It's bubbled up and pushing out through the paint. Q. Okay. So, I appreciate your answer. So, I'm talking specifically back when this insurance claim was first made. So, your answer is basically the backups had gotten to the point where the baseboards and the drywall in the bathrooms were being affected. And at that point, you made the insurance claim. Is that correct? 16 See Exhibit 3, pg. 29:19-30:7. 17 See Exhibit 3, pg. 30:14-31:2. 7 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com A. That was when I started to make the insurance claim. Beforehand, I wasn't even really certain about using insurance for anything, because this is my first home. And so, friends and family said you need to get your insurance involved. Q. Okay. And do you remember the approximate timeframe of when that happened? A. Again, I would say it was somewhere on or just before the beginning of August of 2019.18 Q. And was there another backup incident that occurred around so, August? Because, you know, why would water be approaching the walls on that date? A. I believe in that early August, end of July time, there was a backup, and that's what caused me to get to my garden hose. Because after I vacuumed everything up, was going to rinse my shop vac out. And that's when I I found -- that's when the hole happened, when I went to turn the hose on to clean the shop vac. Q. Okay. So, is it true there's been four major plumbing backups then? One -- A. Yes. Q. Okay. So, we have a backup about one month after you purchased the property, you know, late 2017. One, July of 2018. One, April 2019. And then again, either late July, early August 2019? A. Yes. Q. Okay. And so, for that, you know, late July or early August 2019 backup, was it a similar event to the prior backups? A. Yes. Q. So, basically, sewage is leaking onto the bathroom floor from underneath the toilets, leaking into the tub, and the main bedroom at the property. And this leak lasted for around five minutes or so? A. Yes. 19 18 See Exhibit 3, pg. 32:16-33:16 19 See Exhibit 3, pg. 37:15-38:16 8 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com 20. On May 6th, 2022, Ronald Eggan sat for deposition as the Corporate Representative of Better Days Plumbing. Mr. Eggan is the owner of Better Days Plumbing, and he has 30 years of plumbing experience.20 21. Mr. Eggan confirmed that he personally visited the Property, cleared a stoppage, ran a video camera down the plumbing line, and presented his findings to Plaintiff. 21 22. Mr. Eggan testified that (1) he remembers the Property having cast-iron plumbing lines which were "split"in a section of the house and (2) he provided Plaintiff with a proposal to replace the cast-iron plumbing at the Property: Q. Do you remember what you found when you carnerad the line? A. I remember the line being cast iron, and, I think, I remember the line being splitin a section of the house. Q. What does that mean, split in a section of the house? A. Cast iron, over time, degenerates and splits on the bottom of a pipe due to wear and tear, acids, and everything else that run down the center of a cast iron pipe and it would just degenerate and split right at the bottom. And, therefore, we did a proposal to replace all cast iron in the house. 22 23. Mr. Eggan explained that "splitting" can cause backups precisely like what was occurring at the Property, so he advised Plaintiff the cast-iron plumbing needed to be replaced: Q. When this splitting to a cast iron pipe occurs, what are some negative consequence that could happen? A. Stoppages, backups, sewage, raw sewage coming back into your unit, into your house. 20See Select portions of the deposition transcript of Ronald Eggan, Corporate Representative of Better Days Plumbing, attached hereto as Exhibit "4," at pgs. 1,9:25-12:16. 21 See Exhibit 4, at pg. 18:2-23. 22 See Exhibit 4, at pg. 19:4-15 9 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com Q. So how does a split -- how does a split cause a stoppage? A. Well, once it's split, that water and that sewer starts to go into the ground underneath your house, starts to create a sinkhole underneath your house. Therefore, sand and other debris will start to fill up in that area. Therefore, it will create a stoppage. Therefore, allowing no more water to flow and everything just backs up As you try to flush, it is going nowhere but underneath your house and back up into your house. Q. Okay. So it was your opinion that the property needed to be, that cast iron piping needed to be replaced? A. In my opinion would the cast iron -- that section of cast iron would have needed to be replaced due to the age of it,yes. Q. And would you have advised Mr. Mihandoust that he should get those pipes replaced? A. Yes.23 24. Mr. Eggan confirmed that he prepared a proposal for the plumbing repairs to the Property and sent the proposal to Plaintiff, but Plaintiff did not accept the 24 proposal. 25. The proposal is dated May 2, 2019, and it contemplates that Better Days Plumbing will trench various locations in the floor to (1) access and remove the existing cast-iron piping, (2) supply and install all new PVC plumbing and fixtures, and (3) tie into existing city tap. The total contract price $14,985.00.25 26. Mr. Eggan was emphatic that he instructed Plaintiff about the necessity of taking action: Q. I just wanted to ask you, sir, did you specifically advise Mr. Mihandoust that he needed to get his pipes replaced when you had visited his property? A. Yes,mean, any time I deal with a cast iron stoppage and then a camera I where we find actual something under there, we always tell the customer 23 See Exhibit 4, pgs. 19:21-20:22. 24 See Exhibit 4, pgs. 21:13-22:21, and the Proposal, attached hereto as Exhibit "5." 25 See Exhibit 5. 10 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com they need to take action or do something to create a resolve or it will continue to happen again. That's why we do not warrant these stoppages.26 27. There is no evidence of record which would create an issue of fact as to whether the damage was caused by repeated water leaks allowed to continue by Plaintiffs failure to take action and adequately maintain his Property. SUMMARY JUDGMENT STANDARD "The 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." Fla. R. Civ. P. 1.510 (April30, 2021). On December 31, 2020, the Florida Supreme Court issued In Re: Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla.2020), which adopted the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). Under the In Re: Amendments opinion, the new summary judgment standard became effective on May 1,2021. u. Florida courts previously required ;the moving party conclusively 'to disprove the nonmovant's theory of the case in order to eliminate any issue of fact.' "' Id. at 193. The In Re: Amendments opinion acknowledged the expansive understanding of what constituted a genuine issue of fact under the old standard, noting that the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, precluded summary judgment. Id. The newly-adopted standard, on the other hand, mirrors the standard for directed verdict. Id. at 192. A motion for directed verdict should be granted when the court, after viewing the evidence and 26 See Exhibit 4, pg. 24:20-25:3. 11 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com testimony in the light most favorable to the nonmoving party, determines that no reasonable jury could render a verdict for the nonmoving party. Miller v. CUY of Jacksonville, 603 So. 2d 1310, 1311-12 (Fla. 1st DCA 1992). If the evidence in opposition to summary judgment is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. 1348. Further, summary judgment evidence cannot be based on mere supposition or belief. See Gonzalez v. Citizens Property Insurance Corporation, 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019). Evidence opposing summary judgment must identify admissible evidence based on personal knowledge that creates a genuine issue of material fact. Id. SUMMARY OF THE ARGUMENT The undisputed facts show that (1) Plaintiff was aware of issues with his plumbing beginning one month after he purchased the Property, (2) Better Days Plumbing advised Plaintiff that he needed to replace the cast-iron plumbing at his property before any interior damage had occurred, (3) Plaintiff did not take anx action to remedy the long-term plumbing issue, and (4) after the fourth major plumbing overflow-three months after Plaintiff was advised he needed to perform significant plumbing repairs-Plaintiff observed interior water damage in his Property and made an insurance claim. The Policy contains exclusions for water damage caused by repeated leaks, as well as exclusions for damage caused by (a) the neglect of an insured to use all reasonable means to protect covered property from further damage after loss and (b) inadequate maintenance. Both the terms of the Policy and common sense dictate that Citizens is not responsible for this Loss, as Plaintiff was fully aware that he needed to 12 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com take action to prevent damage, but he failed to do. Accordingly, the Policy unambiguously excludes coverage for Plaintiffs loss. Citizens is therefore entitled to summary judgment. ARGUMENT Interpretation of an insurance contract is a pure question of law that can be appropriately determined by the Court on summary judgment. See U. S. Fire Ins. Co. u. J. S. U.B., Inc., 979 So. 2d 871,877 (Fla.2007). When interpreting an insurance contract, "courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect." Id. (citingAuto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). "Where the language of 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. u. Ruderrnan, 117 So. 3d 943, 948 (Fla. 2013). Thus, "a court cannot rewrite an insurance contract to extend coverage beyond what is clearly set forth in the contractual language." Fla. Residential Prop. & Cas. Joint Underwriting Ass'n v. Kron, 721 So. 2d 825, 826 (Fla. 3rd DCA 1998). I.The Subject Insurance Policy Unambiguously Excludes Coverage for the Loss Because It Was Caused by Repeated Exposure to Water Here, the Policy excludes coverage for damage caused by the presence of moisture which over a period of weeks, months, or years, unless it is hidden within the walls or above the ceiling. Several courts have held that nearly identical policy exclusions are unambiguous and enforceable. See Hoey v. State Farm, 988 So.2d 99 (Fla. 4th DCA 2008) (holding that there is no merit to the argument that the exclusionary language for long-term leakage and seepage is ambiguous); see also Firth u. State Farm Ins. Co., 2014 WL 1253542 (D.N.J. Mar. 25, 2014) (holding that "over a period of time" in exclusionary 13 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com language for long-term leakage and seepage is unambiguous and should be given its plain meaning); Square at Keu BiscaUne Condo. Assoc., Inc. u. Scottsdale Ins. Co., 2014 WL 11946882 (S.D. Fla. 2014). In Hoey, the policy excluded loss "caused by or resulting from continuous or repeated seepage or leakage of water or steam which occurs over a period of time and results in deterioration, corrosion, rust, mold, or wet or dry rot." 988 So.2d at 100. The insureds in Hoey suffered water damage due to a leaking toilet supply line in the bathroom. Id. The insurer's professional engineer determined that the leak was caused by a failed toilet supply line, which gradually increased over time. Further, the insurer's professional engineer determined that the water damage to the property, including rotted fittings and mold in the nearby drywall, was consistent with leaks over a period longer than a few weeks. Id. at 101. The trial court agreed, and appellate court affirmed, that the water damage was clearly precluded under the policy's continuous or repeated seepage or leakage exclusion. Id. Similarly, in Firth, the policy excluded losses caused by "continuous or repeated seepage or leakage ofwater or steam from a . . . plumbing system . . . which occurs over a period of time." 2014 WL 1253542 at *4. There, the insurer retained a professional engineer who inspected the subject property and determined that the loss was the result of a small leak that sprayed water and that the damage caused by the leak occurred over a period of at least one month. Id. In opposition to the insurer's motion for summary judgment, the insureds argued that the policy language was ambiguous and should be construed against the insurer. Id. The District Court rejected the insureds' argument, and found that the term "over a period of time" was unambiguous and should be given its plain meaning: Here, the phrase "over a period of time" is undefined. The plain meaning of"period" is "a length of time during which a series of events or an action takes place or is completed." The plain meaning of"time" is "the thing that n is measured as seconds, minutes, hours, days, years, etc. 14 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com Based on the definition of these words, a time period of one month would fitthe description. Moreover, in the context of this case, uncontroverted evidence showing that the leak occurred over at least one month would support a finding that, applying the ordinary, plain and usual meaning of the phrase and its terms, the seepage occurred "over a period of time." Id. at 5. Plaintiffs own testimony establishes that the alleged damage was the result of repeated toilet backups which occurred four times over a period of years and twice within a few months of the loss. Plaintiff confirmed that water overflowed from the toilets and bathtub at the Property on multiple occasions, and after the fourth overflow damage started to develop: "The backed-up plumbing was starting to soak into the baseboards and drywall inside the house, inside the bathrooms. So, the walls are starting to bubble up. And the insides of the drywall, the gypsum, or whatever it is on their insides, is starting to push out. It's bubbled up and pushing out through the paint."27 The record is devoid of evidence showing a one-time, accidental water leak out of a plumbing fixture that Plaintiff can point to as a cause of damage. Accordingly, the alleged Loss is excluded under the Policy. II. Plaintiffs Failure to Adequately Maintain his Property and Protect it from Damage Precludes Coverage for the Loss The Policy excludes damage caused by neglect, meaning the failure "to use all reasonable means to save and preserve property at and after the time of a loss." Florida courts and courts of other states alike have held that "where the insured fails to satisfY his or her post-loss dutv to protect property from further damage, the insured is not entitled to coverage." Royal Indemnity Company v. Andrews, 2006 WL 8439576 at *9 (M.D. Fla. 2006) (emphasis added) (citing Lumpkin v. Alabama Farm Bureau Mut. 27 See Exhibit 3, pg. 32:16-25. 15 CHEPENIK ?TRUSHIN LLP 12550 Biscayne Boulevard, Suite 805 o Miami, Florida 33181 o Tel 305.981.8889 o eFax 305.405.7979 www.ctllp.com Casualty Ins. Co., 343 So.2d 1238, 1239-40 (Ct. App. Ala. 1977); Benson v. Fireman's Fund Insurance Co. ofNew Jersey, 234 S.W. 628, 629 (Ark. 1921)). In Royal Indemnity, the homeowners' insurance policy contained (1) a nearly identical "neglect exclusion" to that contained in Plaintiffs Policy, as well as (2)a provision imposing a contractual duty to "make reasonable and necessary repairs to protect the property." Id. at *8. The insureds in Royal Indemnity filed an insurance claim based on a moldy odor in the laundry room of their home. Id. at *2. After the insurer inspected the insured property, it became clear that water was actively leaking into the home through the roof and walls due to multiple design defects. Id at *3. The insurer advised the insureds that they would need to repair the structural issues prior to commencing mold remediation. Id. However, the insureds indicated that they had no intent to repair the roof of their property and that they did not believe they were responsible to "engage in the clean-up process." Id. at *8. The Royal Indemnity court entered summary judgment in favor of the insurer based on the insureds failure to comply with their post-loss duties and otherwise protect the property from further damage, noting that the insured (1) left their home exposed to continued water damage and mold growth by refusing to repair their roof and (2) refused to engage in remediation. Id. Here, just like the insureds in Royal Indemnity, Plaintiff did not undertake reasonable measures to protect his property from damage. Plaintiff testified that he suffered a plumbing backup in April of 2019, and the plumber he called to resolve the backup informed him that he needed to replace the cast-iron plumbing under the 28 Property. Better Days Plumbing corroborated Plaintiffs testimony, explaining that they informed Plaintiff the backups would continue if he did not replace the cast-iron 28 See Exhibit 3, at pg. 24:10-17.