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Filing # 52196252 E-Filed 02/07/2017 06:52:11 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
DEBRA HINES
Plaintiff,
CASE NO.: CACE-14-016655
vs. DIVISION: 02
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC.
a Florida Corporation
Defendant.
/
PLAINTIFE’S NOTICE OF FILING
COMES NOW the Plaintiff, DEBRA HINES, by and through the undersigned counsel,
herein files the following in Support of Plaintiff's Response to Defendant’s Motion on Burden of
Proof and Order of Trial:
1, Opinion by District Court of Appeal of Florida, Second District in Donald H.
Hudson vy. Prudential Property and Casualty Insurance Company Case No. 83-1237.
2. Opinion by District Court of Appeal of Florida, Second District in Alfredo Mejia
v. Citizens Property Insurance Corporation Case No. 2D13-2248.
3. Opinion by District Court of Appeal of Florida, Second District in Citizens
Property Insurance Corporation v. Hector Munoz Case No. 2D 13-3899.
4, Opinion by District Court of Appeal of Florida, Fifth District in Tower Hill Prime
Insurance Company v. Douglas Newell and Renee Newell Case No. 5D14-1363.
5. Opinion by District Court of Appeal of Florida, Second District in Michael
Warfel v. Universal Insurance Company of North America Case No. 2D08-3134.
6. Order on Plaintiff's Motion for Reconsideration Regarding the Burden of Proof as
to Structural Damage by Rex M. Barbas, Circuit Court Judge in Astride Foucault v. Citizens
Property Insurance Corporation Case No. 14-CA-011555.
7. Order on Defendant’s Motion to Determine Burden of Proof by Lisa Herndon,
Circuit Court Judge in Maria A. Ortiz a/k/a Maria De Los Angeles Lopez v. Universal Insurance
Company of North America Case No. 42-2014-2386-CA-B.
*4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/7/2017 6:52:10 PM.****8. Order on Defendant’s Motion for Bifurcation and to Establish Order of Proof by
Heidi Davis, Circuit Court Judge in George and Aloha Rosario v. Tower Hill Select Insurance
Company Case No. 13-CA-3055.
9. Opinion by District Court of Appeal of Florida, Second District in Citizens
Property Insurance Corporation v. Ariety Amat and Briceida Leon Case No. 2D14-4274.
10. Opinion by District Court of Appeal of Florida, Second District in Citizens
Property Insurance Corporation v. German Alvarez and Luz Marroquin Case No. 2D 13-5125.
IT IS HEREBY CERTIFIED that this filing is necessary for discovery and trial and/or
other hearings or proceedings in this cause.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
electronically filed with the Clerk of Court using the Florida Courts E-Filing Portal and served
via Florida Courts E-Filing Portal Electronic Mail to: Ryan Sherman, Esq.; Co-Counsel for
Plaintiff, Ryanshermanfl@gmail.com ; Sherman Law, P.A., 4000 Hollywood Blvd, #265-S,
Hollywood, Florida 33021 and Jonathan T. Hall, Esq., ; Counsel for Defendant,
grobinson@gspalaw.com and gstcourtdocs@gspalaw.com, Groelle & Salmon, PA, 7650
Courtney Campbell Cswy., Ste. 800, Tampa, FL 33067 on this 7th day of February 2017.
CORLESS BARFIELD TRIAL GROUP, LLC
/s/ Morgan Barfield
Morgan Barfield, Esq.
Florida Bar Number: 0605761
6812 West Linebaugh Avenue
Tampa, Florida 33625
(813) 258-4998
(813) 258-4988 — Facsimile
MBarfield@CorlessBarfield.com
Co-Counsel for PlaintiffWestlaw.
450 So.2d 565
(Cite as: 450 So.2d 565)
c
District Court of Appeal of Florida,
Second District.
Donald H. HUDSON and Mary Hudson, his wife,
Appellants,
v.
PRUDENTIAL PROPERTY AND CASUALTY
INSURANCE COMPANY, Appellee.
No. 83-1237.
May 9, 1984.
Insureds brought action under homeowners poli-
cy to recover for damage sustained by their home due
to sudden collapse of earth supporting it. The Circuit
Court, Polk County, William K. Love, J., entered
judgment on jury verdict in favor of insurer, and in-
sureds appealed. The District Court of Appeal,
Scheb, Acting C.J., held that once insureds estab-
lished that damage was caused by collapse of their
building, insurer had burden of proving that damage
was caused by earth sinking, rising or shifting which
were not covered under policy and was not caused by
sinkhole collapse which was covered pursuant to
statutory mandate.
Reversed and remanded for new trial.
West Headnotes
[| Insurance 217 ©2140
217 Insurance
217XVL Coverage—Property Insurance
217XVICA) In General
217k2139 Risks or Losses Covered and
Exclusions
Page 1
217k2140 k. In General. Most Cited
Cases
(Formerly 217k417.5(1))
Recovery under “all risks” policy generally ex-
tends to all losses not resulting from misconduct or
fraud unless policy contains specific provision ex-
pressly excluding loss from coverage.
[2| Insurance 217 71823
217 Insurance
21 7XII| Contracts and Policies
21 7X111(G) Rules of Construction
217k1823 k. Exceptions, Exclusions or
Limitations. Most Cited Cases
(Formerly 217k146.6)
Insurance 217 ©1829
217 Insurance
217X111 Contracts and Policies
21 7XJ11(G) Rules of Construction
217k1829 k. Liberal or Strict Construction.
Most Cited Cases
(Formerly 217k146.6)
Insurance coverage must be construed broadly
and exclusions narrowly.
[3| Insurance 217 ©2199
217 Insurance
217XVI Coverage—Property Insurance
217XVI(A) In General
217k2196 Evidence
99 k. Burden of Proof. Most
Cited Cases
(Formerly 217k429.1(1))
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565
(Cite as: 450 So.2d 565)
Plaintiff seeking to recover under all risks policy
has burden of proving that, while policy was in force,
loss occurred to insured’s property; once insured es-
tablishes loss apparently within terms of all risks pol-
icy, burden shifts to insurer to prove that loss arose
from cause which is excepted
[4] Insurance 217 <="2199
217 Insurance
21 7X VI Coverage—Property Insurance
21 7XVI(A) In General
2172196 Evidence
217k2199 k. Burden of Proof. Most
Cited Cases
(Formerly 217k429.1(1))
In action brought by insureds under all risks pol-
icy to recover for damage to home caused by sudden
collapse of earth supporting it, insureds had burden of
establishing that they sustained damage by collapse
of their home; insured was then required to prove
damage was caused or aggravated by “earth sinking”
which was excepted from coverage and not by sink-
hole collapse which was covered pursuant to law.
West's F.S.A. § 627.706.
*566 Andrew R. Reilly of Reilly & Lasseigne,
Haines City, and D.A. Troiano, Lakeland, for appel-
lants.
Roy B. Dalton, Jr., Orlando, for appellee.
SCHEB, Acting Chief Judge.
This appeal addresses the question of which par-
ty has the burden of proof in an insureds action under
a homeowners insurance policy. The focus of our
opinion is directed to the sinkhole coverage mandated
by Florida law.
In 1976 Donald and Mary Hudson purchased a
Page 2
homeowners insurance policy from Prudential Prop-
erty and Casualty Insurance Company. The policy
insured them “against all risks of physical loss to the
property covered ... except as otherwise excluded or
limited” but contained a standard exclusion for any
loss caused by earth movement or sinking. The policy
included a mandatory endorsement for sinkhole col-
lapse coverage pursuant to section 627.706, Florida
Statutes (1981). The endorsement covered direct loss
to the Hudsons' property caused by sinkhole collapse
and stipulated that: “Any provision in this policy
which excludes loss by ‘earth sinking’ is amended to
exclude loss by ‘earth sinking other than sinkhole
collapse.’ ”
In May 1981, while their policy with Prudential
was in force, the Hudsons’ home was damaged by a
sudden collapse of the earth supporting it. They filed
a claim with Prudential asserting that the damage was
caused by a sinkhole. Prudential denied coverage on
the basis that the damage was attributable to earth
settlement.
On May 7, 1982, the Hudsons filed suit against
Prudential for breach of contract. Prudential an-
swered and asserted an affirmative defense that the
damages sustained by the Hudsons were not the re-
sult of a sinkhole. A jury trial was held in April 1983.
With sinkholes being an included peril in the policy
and earth sinking being expressly excluded, the jury
was essentially required to resolve conflicts in the
testimony between experts presented by both sides on
the question of whether the *567 settlement under-
neath the home had been caused by sinkhole activity.
At the close of the evidence the Hudsons re-
quested the following jury instruction:
The burden of proof is on the Hudson's to estab-
lish they have sustained damages by the collapse of
their building or any part thereof not caused by set-
tling, cracking, shrinkage, bulging or expansion.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565
(Cite as: 450 So.2d 565)
When plaintiffs have established this, they are enti-
tled to recover for the damage unless PRUDEN-
TIAL proves that the damage was caused or aggra-
vated by earth movement, including but not limited
to earthquake, volcanic eruption, landslides, mud-
flow, earth sinking, rising or shifting but excluding
earth sinking other than sinkhole collapse.
The trial court, however, denied this request and
gave the jury the following instructions requested by
Prudenti
The issue that you will be called upon to deter-
mine in this matter on the breach of contract claim
brought by Donald and Mary Hudson against Pru-
dential Property and Casualty Insurance Company
is whether Donald and Mary Hudson sustained
damage to their property as a result of soil settle-
ment caused by sinkhole activity below the proper-
ty; and, if so, the extent of the damages sustained
as a result of such settlement of the property.
Now sinkhole activity is defined by law and by
the contract in this case as follows: Actual, physi-
cal damage arising out of or caused by the sudden
settlement or collapse of the earth's supporting
property and only when such settlement or collapse
results from subterranean voids created by the ac-
tion of [water] on limerock or similar rock for-
mations. If the greater weight of the evidence does
not support the claim of Donald and Mary Hudson
in this regard, then your verdict should be for Pru-
dential Property and Casualty Insurance Company.
However, if the greater weight of the evidence does
support the claim of Donald and Mary Hudson,
then your verdict should be for Donald and Mary
Hudson and against Prudential Property and Casu-
alty Insurance Company.
By greater weight of the evidence, we mean the
more persuasive and convincing force and effect of
the entire evidence in the case.
Page 3
After the jury retired to consider the case, it be-
came apparent they were having difficulty in apply-
ing the instructions as given. After two hours of de-
liberation, they requested answers to the following
two questions:
1. Do we have to decide whether or not the damage
was attributable to the sinkhole activity?
2. Do we have to decide if the attorney for the
Plaintiff was convincing enough to tip the scales to
insure that sinkhole activity caused the damage?
The court responded to question 1 by saying: “I'll
insert the word only, you may allow only damages
caused by sinkhole activity.” In response to question
2 the court said: “[N]o, it's the evidence which must
convince you.”
Shortly thereafter, the jury sent out three ques-
tions to be answered by the court:
1. Do we have to determine whether a sinkhole or
sinkhole activity caused the settlement (a yes or no,
answer)?
2. Do we have to decide if the attorney for the
Plaintiff was convincing enough to tip the scales to
insure that sinkhole activity caused the settlement?
3. Which of the above questions should we use to
base our decision?
The court responded as follows:
1. If the greater weight of the evidence convinces
you that the damage was caused by sinkhole activi-
ty as defined ... you should find a verdict for the
Plaintiffs; if not you should find for the Defendant.
2. No. Your verdict must be based upon the evi-
dence. Argument of the attorneys is made to aid or
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565
(Cite as: 450 So.2d 565)
persuade you—it is not evidence.
*568 3. Consider the above answers.
The jury subsequently returned a verdict in favor
of Prudential, finding that the damages the Hudsons
complained of were not attributable to sinkhole activ-
ity as defined by the insuring agreement. The trial
court entered final judgment in favor of Prudential
and subsequently denied the Hudsons’ motion for
new trial. The Hudsons then filed this appeal.
The narrow issue we reach is whether the trial
court properly instructed the jury as to which party
had the burden of proof to establish the cause of the
damage to the Hudsons' home.
1) To determine the burden of proof on the par-
ties, we must examine the policy issued by Pruden-
tial, We first note that the policy is not a specific peril
policy, such as a policy of fire and lightning insur-
ance, where the policy insures only against certain
named risks. Rather, the policy insured against “all
risks” except as otherwise excluded. Recovery under
such an “all risks” policy generally extends to all
losses not resulting from misconduct or fraud unless
the policy contains a specific provision expressly
excluding the loss from coverage. Phoeniy insiwance
Co. v. Branch, 234 So.2d 396 (Ula. 4th DCA 1970);
13A G. Couch, Cyclopedia of Insurance Law 2d §
48:141 (rev. ed. 1982).
Page 4
We hold that the trial court erred in denying the
instruction requested by the Hudsons as it correctly
stated the applicable law for this case. Accordingly,
we reverse the final judgment and award the Hudsons
a new trial.
CAMPBELL and SCHOONOVER, JJ., concur.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5
450 So.2d 565
(Cite as: 450 So.2d 565)
Fla.App. 2 Dist.,1984.
Hudson v. Prudential Property and Cas. Ins. Co.
450 So.2d 565
END OF DOCUMENT
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.Westlaw.
014 WL 6675717 (Fla.App. 2 Dist.))
NOTICE: THIS OPINION HAS NOT BEEN RE-
LEASED FOR PUBLICATION IN THE PERMA-
NENT LAW REPORTS. UNTIL RELEASED, IT IS
SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida,
Second District
Alfredo MEJIA, Appellant,
v.
CITIZENS PROPERTY INSURANCE CORP., Ap-
pellee.
No. 2D13-2248.
Nov. 26, 2014.
Background: Insured brought action against proper-
ty insurer seeking benefits for alleged sinkhole dam-
age to his home. The Circuit Court, Pasco County,
Linda Babb, J., entered judgment on a jury verdict in
favor of insurer, Insured appealed,
Holdings: The District Court of Appeal, Northeutt,
J., held that:
(|) trial court improperly placed the burden of proof
on insured to show that the damage was caused by
sinkhole activity during the policy period, and
(2) evidence that insurer paid approximately $9.5
million in the previous three years to engineering
firm that employed its expert witnesses was relevant
and admissible.
Reversed and remanded.
\ltenbernd, J., filed concurring opinion.
West Headnotes
© 2015 Thomson Reuters.
Page 1
--, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla, L. Weekly D2471
|1| Insurance 217 ©2199
217 Insurance
217XV1 Coverage—Property Insurance
2) IXVI(A) In General
217k2196 Evidence
21 7k2199 k, Burden of proof. Most
Cited Cases
Trial court improperly placed the burden of proof,
on insured who sought benefits from property insurer
for alleged sinkhole damage to his home to show that
the damage was caused by sinkhole activity during
the policy period; insured’s policy was an “all risks”
policy providing coverage for all losses not excluded,
and accordingly insured had the burden only of prov-
ing that the property suffered a loss while the policy
was in effect, after which the burden shifted to the
insurer to prove that the loss was excluded. West's
E.S.A. 8 627.706(1).
|2| Insurance 217 ©2117
217 Insurance
217 XV Coverage—in General
217k21 14 Evidence
2\7k2117 k. Burden of proof. Most Cited
Cases
Insurance 217 ©3575
2\7 Insurance
217XXX1 Civil Practice and Procedure
21 7k3572 Evidence
217k3575 k. Burden of proof. Most Cited
In litigation involving an insurance claim, the
No Claim to Orig. US Gov. Works.Page 2
--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471
(Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.))
burden of proof is assigned according to the nature of
the policy.
[3] Insurance 217 2140
Insurance
< VI Coverage—Property Insurance
VI(A) In General
217k2139 Risks or Losses Covered and
Exclusions
217k2140 k. In general. Most Cited
Cases
An all-isks 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.
[4] Insurance 217 2199
217 Insurance
VI Coverage—Property Insurance
21 7XVI(A) In General
217k2196 Evidence
217k2199 k. Burden of proof. Most
Cited Cases
An insured claiming under an all-risks policy has
the burden of proving that the insured property suf-
fered a loss while the policy was in effect; the burden
then shifts to the insurer to prove that the cause of the
loss was excluded from coverage under the policy's
terms.
[5] Insurance 217 ©2199
217 Insurance
217XVI Coverage—Property Insurance
217XVI(A) In General
217k2196 Evidence
217k2199 k. Burden of proof. Most
Cited Cases
Fact that insured's
inkhole coverage was pro-
vided in an endorsement to his underlying property
insurance policy did not change the “all risks” nature
of the underlying policy, so as to place the burden of
proof on insured to demonstrate that damage to his
home was caused by sinkhole activity; endorsement
merely narrowed the policy's earth sinking exclusion.
[6] Evidence 157 560
Evidence
157X1) Opinion Evidence
57X11() Examination of Experts
157k560 k. Contradiction and impeach-
ment. Most Cited Cases
Evidence that property insurer paid approximate-
ly $9.5 million in the previous three years to engi-
neering firm that employed its expert witnesses was
relevant and admissible in insured’s action seeking
benefits for alleged sinkhole damage to his home;
evidence was relevant to show the potential bias of
the expert witnesses.
Raymond T. klligett, Jv, of Buell & Elligett, P.A.,
Tampa; Michael | aurato and Laura Datz of Austin &
Laurato, P.A., Tampa; and ‘Thomas W. Lhompson
Je, and A. Lee Smith of The Thompson Trial Group,
P.A., Tampa, for Appellant.
Kara Berard Rockenbach of Methe & Rockenbach,
P.A., West Palm Beach, for Appellee.
NORTHCUTT, Judge.
*1 Alfredo Mejia appeals a final judgment in fa-
vor of Citizens Property Insurance Corp. following a
jury trial on his insurance claim for damages to his
home allegedly caused by sinkhole activity. The trial
court erred in allocating the burden of proof between
the parties, and it erred in excluding evidence that
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 3
--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471
(Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.))
tended to impeach the credibility of an expert witness
who testified for Citizens. Accordingly, we reverse
and remand for a new trial.
Mejia owned a home that was insured under a
policy issued by Citizens. '*' The standard policy
insured against risk of direct physical loss to the
property. It excluded, among other things, coverage
for loss caused by earth movement and settlement
and loss caused by sinkholes. Mejia, however, had
paid an additional premium for a Sinkhole Loss
Coverage endorsement.’ This endorsement added
sinkhole loss as a covered peril, and it stated that the
earth movement and sinkhole exclusions did not ap-
ply.
During the policy term, Mejia reported a claim
for damage to his home. Citizens retained BCI, an
engineering firm, to evaluate the property for sink-
hole activity. BCI investigated and concluded that the
damage was not caused by sinkhole activity, and
Citizens denied Mejia's claim. At trial on Mejia's
breach-of-contract claim, Citizens relied on testimo-
ny from experts, including an engineer from BCT, to
argue that there was no sinkhole activity and no
structural damage to the property. Mejia presented
his own expert evidence that his home had suffered
structural damage due to sinkhole activity.
Prior to trial, the court ruled that Mejia had the
burden of showing that the damage was caused by
sinkhole activity during the policy period. This was
contrary to the jury instructions requested by Mejia,
which required him to show only that his home was
damaged while the insurance policy was in force and
then shifted to Citizens the burden to show that the
cause of the damage was not covered by the policy.
Instructed otherwise pursuant to the pretrial ruling,
the jury found that Mejia had not established by the
greater weight of the evidence that his home had suf-
fered physical damage caused by a sinkhole. Final
judgment was thereafter entered in favor of Citizens,
and this appeal followed.
{1J[2)[3)|4) Mejia argues on appeal, and we
agree, that the trial court erred in allocating the bur-
den of proof. In litigation involving an insurance
claim, the burden of proof is assigned according to
the nature of the policy. Without dispute, the insur-
ance policy at issue here is an “all risks” policy. 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.” /adson v. P
Cas. ins. Co.. 450 So.2d 565, 568 (Fla, 2d DCA
1984) (contrasting an all-risks policy from a specific
lential Prop. &
peril policy which insures only against named risks).
Consistent with the jury instruction requested by
Mejia in this case, an insured claiming under an all-
risks policy has the burden of proving that the insured
property suffered a loss while the policy was in ef-
fect. The burden then shifts to the insurer to prove
that the cause of the loss was excluded from coverage
under the policy's terms. /d.
*2 [5] As we held in Hudson, it makes no differ-
ence that the sinkhole coverage at issue was provided
in an endorsement to the underlying policy. In Hud-
son, as here, the homeowner had an all-risks policy
with a sinkhole endorsement. This court held that the
“endorsement did not change the ‘all risks' nature of
the underlying policy; it merely narrowed the earth
sinking exclusion.” /d. at 568. And in that case, as
here, the jury instructions “had the effect of improp-
erly placing the burden on the Hudsons to prove that
their home was damaged by a sinkhole.” /d. Based
on that error, we reversed and remanded for a new
trial.
Neither does it matter that the sinkhole en-
dorsement in Hudson was obtained under an earlier
version of the applicable insurance statute. In Hud-
son, the statute provided that every property insurer
in Florida “shall make available coverage for insura-
ble sinkhole losses on any structure.” § 627.706(1).
Ila. Stat. (1981). The version of the statute applicable
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 4
--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471
(Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.))
to Mejia's policy was substantially identical save for
specifying that every property insurer in Florida
“shall make available, for an appropriate additional
premium, coverage for sinkhole losses.” §
627.706(1). Hla, Stat, (2009) (emphasis added). Sig-
nificantly, in both versions of the statute the insurer
was required to make available coverage for sinkhole
losses “to the extent provided” in the form to which
the sinkhole coverage attaches. Compare §
627.706(1), Ula. Stat. (1981), with § 627.706(1), Vla.
Stat, (2009), In both cases, the form to which the
endorsement was attached was an all-risks insurance
policy.
The trial court erred in allocating the burden of
proof between Mejia and Citizens. We reverse and
remand for a new trial in which the jury must be
properly instructed on the burden of proof consistent
with the foregoing.
[6] Because we are remanding for retrial, we
must also address an evidentiary issue. Mejia argues
that the trial court erred by excluding evidence that
over the previous three years Citizens had paid ap-
proximately $9.5 million in fees to BCI, the engineer-
ing firm that employed Citizens' expert witnesses.
Mejia argued that the evidence was relevant to show
bias, while Citizens argued that it was not relevant.
We conclude that the evidence was relevant and ad-
missible.
In Allstate isuranee Co. v. Bowe 733 So.2d
993, 997 (I'la.1999), the supreme court held that a
plaintiff was allowed to discover the amount of fees
paid, over the preceding three years, by his uninsured
motorist carrier to its expert in accident reconstruc-
tion and injury causation. The court stated that “[t]he
more extensive the financial relationship between a
party and a witness, the more it is likely that the wit-
ness has a vested interest in that financially beneficial
relationship continuing.” Id.
Citizens maintains that Boecher addre:
the discovery of such information and not its admis-
sion at trial and that the opinion is mere dicta outside
the context of discovery. Although it is true that Boe-
cher involved a discovery dispute, this argument
s the mark. Even though Boecher addressed
discovery rather than admissibility at trial, we have
previously observed that “dictum of the highest court
mi
of this State, in the absence of a contrary decision by
that court, should be given persuasive weight in this
court.” Vf, nav. State. 177 So.2d 75, 76 (Ula. 2d
DCA 196:
*3 In Boecher, the supreme court observed that
the information sought from Allstate “does not just
lead to the discovery of admissible information. The
information requested is directly relevant to a party's
efforts to demonstrate to the jury the witness's bias.”
733 So.2d at 997 (emphasis added).
A jury is entitled to know the extent of the financial
connection between the party and the witness, and
the cumulative amount a party has paid an expert
during their relationship. A party is entitled to ar-
gue to the jury that a witness might be more likely
to testify favorably on behalf of the party because
of the witness's financial incentive to continue the
financially advantageous relationship.
Id. at 997 98 (emphasis added). The supreme
court echoed the Fourth District's assessment that the
“information would be ‘indisputably relevant and
meaningful.’ ” Jc, at 998 (quoting Al/stare Ins. Co. \
Boccher, 103 $0.2d 106, 107 (Fla. 4th DCA 1998),
approved, 733 So.2d 993).
We have previously cited Boecher to support our
conclusion that evidence of a doctor's financial inter-
est in a case, by way of a letter of protection, was
properly admitted to attack the doctor's credibility as
a witness. Carnival Corp. v. Jimenez, 112 So.3d 513
520 (Ila. 2d DCA 2013) (analyzing admissibility of
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5
--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471
(Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.))
evidence to determine propriety of closing argument).
We reject Citizens’ attempt to limit Carnival Corp. to
an inquiry into the witness's financial interest only in
the present case. See Ilo
787 So.2d 955, 959 (Fla, 3d DCA 2001) (“The in-
quiry extends not just to the compensation arrange-
ments for the current case but also allows inquiry into
the expert's work in other cases.” (citations omitted).
» Miami Dade Cnty
Similarly, the Fourth District relied on Boecher
when affirming an order permitting the plaintiff to
ask defense experts about sums paid to them in the
previous three years by the defendants’ insurer, the
twist in that case being that the insurance company
was not identified as such. /Jerrerw y. Moustafir, 96
So.3d 1020, 1021 (la. 4th DCA 2012). Here, we
conclude that the trial court abused its discretion by
precluding Mejia from cross-examining §Citize
expert witnesses about the $9.5 million their compa-
ny had been paid by Citizens over the previous three
years.
Reversed and remanded for a new trial.
SLUT, J., Concurs.
ALTUNBERND, J., Concurs with opinion.
ALTENBLRND, Judge, Concurring.
I concur in this opinion, but I would do so even
if the policy were not treated as an “all risks” policy.
It is likely that the HO-3 insurance policy issued by
Prudential Property and Casualty Insurance Company
to the Hudsons insuring their home in 1981 was sig-
nificantly different from the policy issued by Citizens
in 2011 to Mr. Mejia. See Judson v. Prudential Prop
& Cas. Ins, Co., 450 So.2d $65 (Fla. 2d DCA 1984).
When that standard policy was introduced by the
Insurance Services Office in the early 1970s, it was a
relatively simple policy that insured the dwelling on
an all-risks basis and personal property on a named
peril basis.
*4 Over time, for reasons that are not important
to this case, the policy evolved into a “special form”
policy, At least to this judge, the policy is oddly
structured because the “Section I—Perils Insured
Against” begins with an all-risks type insuring
agreement for the dwelling. That all-risks language is
immediately followed by a statement that “we do not
insure, however, for loss: ...” This “however” clause
is followed by a long list of excluded risks. Several
pages later, the policy in more traditional fashion
provides “Exclusions” to the Section | coverage. In
other words, the policy essentially adds exclusions in
both the insuring agreement and in the standard sec-
tion for exclusions.
The HO-policy may never have been an “all
risks” policy if one defines “all risks” literally. But
with the addition of the named excluded perils within
the insuring agreement, it has become an amalgam
that is neither an all risks nor a named peril form.
In the case of sinkhole risks in Florida, the statu-
torily authorized sinkhole endorsement is intended to
eliminate the sinkhole exclusion from the policy. It is
written, however, in language that appears to be cov-
erage for an added named peril and not merely an
elimination of the authorized exclusion. But when
litigated, the homeowner maintains that damage has
occurred to the home that falls within the sinkhole
coverage. The insurance company maintains that the
damage is not caused by a sinkhole and is actually
damage that is excluded under the main policy's ex-
clusion for earth movement and settlement.
There is no controversy that an insurance com-
pany has the burden of proof as to an exclusion like
the earth movement and settlement exclusion. Given
the overall complexity of these claims, where sink-
hole damage is excluded in the main policy, revived
in the endorsement, and then litigated as a matter that
is either covered sinkhole damage or excluded earth
movement damage, it seems to me that the only prac-
tical solution as to the specific issues raised in sink-
hole litigation is to place the burden of proof on the
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471
(Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.))
insurance company once the insured has established
the requisite physical damage to the insured dwelling
during the term of the policy.
UNI. The form of insurance was CIT HO-3
07 08.
V2. Form CIT 23 94 07 08
Fla.App. 2 Dist.,2014.
Mejia v. Citizens Property Ins. Corp.
--- $0.3d —---, 2014 WL 6675717 (Fla.App. 2 Dist.),
39 Fla. L. Weekly D2471
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6Westlaw.
014 WL 7331095 (Fla.App. 2 Dist.))
NOTICE: THIS OPINION HAS NOT BEEN RE-
LEASED FOR PUBLICATION IN THE PERMA-
NENT LAW REPORTS. UNTIL RELEASED, IT IS
SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida,
Second District
CITIZENS PROPERTY INSURANCE CORPORA-
TION, Appellant,
v.
Hector MUNOZ and Alba Munoz, Appellees.
No. 2D13-3899,
Dec. 24, 2014.
Background: Insureds brought action against their
homeowners insurer, seeking coverage for property
damage allegedly caused by a sinkhole. Following
jury trial, the Circuit Court, Hillsborough County,
Paul L.. uey, J., entered judgment in insureds’ favor,
and insurer appealed.
Holdings: The District Court of Appeal of Florida,
Khouzam, J., held that:
(1) insureds had no obligation to provide contrary
report regarding cause of damage before filing suit,
and
(2) sinkhole endorsement did not change “all risks”
policy into “named perils” policy, and thus insureds
had burden of proving loss occurred during policy
period, while insurer had burden of showing that loss
resulted from excluded cause.
Affirmed.
West Headnotes
|1| Insurance 217 ©2140
Page 1
--, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64
217 Insurance
217X VI Coverage—Property Insurance
21 7XVI(A) In General
217k2139 Risks or Losses Covered and
Exclusions
217k2140 k. In General. Most Cited
Cases
An “all risks policy” protects against all direct
losses except those explicitly excluded from the poli-
cy; conversely, a “named perils policy” only protects
against perils explicitly named as included in the pol-
icy.
|2| Insurance 217 ©3546
217 Insurance
217XX XI Civil Practice and Procedure
2(7k3544 Conditions Precedent
3546 k. Notice and Proof of Loss.
Most Cited Cases
Insureds had no obligation to provide report,
which contradicted homeowners insurer's engineer's
report concluding that property damage was not
caused by a sinkhole, to insurer before filing suit for
breach of contract based on insurer's denial of sink-
hole damages claim under homeowners policy, which
contained endorsement for sinkhole loss coverage;
statutory presumption in favor of insurer's engineer's
report did not foreclose litigation over fact of sink-
hole damage, valid dispute about the existence of a
covered loss under the policy arose at the time insurer
denied coverage, thereby triggering cause of action,
and policy did not require insureds to give insurer a
contrary report prior to filing suit, West's /.S.A. §
627.707(2), (4).
{3| Insurance 217 3543
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 2
--- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64
(Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.))
217 Insurance
217X
217k3543 k, Grounds of Action, Most Cited
{ Civil Practice and Procedure
Cases
In regard to insurance contracts, a specific re-
fusal to pay a claim is the breach which triggers the
cause of action
[4] Insurance 217 2140
217 Insurance
217X
I Coverage—Property Insurance
XVICA) In General
217k2139 Risks or Losses Covered and
Exclusions
217k2140 k. In General. Most Cited
Cases
Insurance 217 ©2199
217 Insurance
21 7XV| Coverage—Property Insurance
217XVI(A) In General
217k2196 Evidence
217k2199 k. Burden of Proof. Most
Cited Cases
Sinkhole endorsement to an “all risks” home-
owners insurance policy did not change underlying
policy into a “named perils” policy, and thus, in-
sureds had burden of establishing that loss occurred
during the policy period and, if insureds met that
burden, insurer then had burden of proving that loss
resulted from an excluded cause.
[5] Insurance 217 ©2117
217 Insurance
2|7XV Coverage—in General
217k2114 Evidence
2) 7k2117 k. Burden of Proof. Most Cited
Generally, an insured seeking coverage pursuant
to an “all risks” policy must prove that a loss oc-
curred to the property during the policy period; if the
insured meets this initial burden, the burden shifts to
the insurer to show that the loss resulted from an ex-
cluded cause, and the insured does not need to dis-
prove any excluded causes.
Appeal from the Circuit Court for Hillsborough
County; Paul [.. Mucy, Judge.Kara Berard Rocken
bach of Methe & Rockenbach, P.A., West Palm
Beach, for Appellant.
Raymond T. Elligett, Jr, and Amy S. Varrior of Buell
& Elligett, P.A., Tampa; and Michael | aurato and
rin Dunnavant of Austin & Laurato, P.A., Tampa,
for Appellees.
KIOUZAM, Judge.
*1 We affirm the decision below and write to
address two issues: an insurance company's reliance
on its engineer's report and the burden of proof in a
suit involving an endorsement to an “all risks” insur-
ance policy.
In December 2009, Hector and Alba Munoz no-
ticed numerous cracks in the walls of their home. At
the time, the residence was insured by a policy issued
by Citizens Property Insurance Corp. The policy
(form CIT HO-3 07 08) insured against the risk of
direct, physical losses to the property unless specifi-
cally excluded. The policy contained an exclusion for
loss caused by sinkholes, but the parties had added an
endorsement for sinkhole loss coverage (form CIT 23
94 07 08). The Munozes reported the damage to Citi-
zens in January 2010, and Citizens engaged Madrid
Engineering Group to complete a sinkhole evalua-
tion. When the firm determined that the damage was
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 3
--- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64
(Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.))
not caused by a sinkhole, Citizens denied the Munoz-
es' claim. The Munozes hired SDII Global Corpora-
tion to evaluate the damage, and SDII determined
that the damage was caused by a sinkhole. Without
informing Citizens of SDII's report, the Munozes
filed suit for coverage in May 2011. A jury trial was
held.
The Munozes presented evidence in support of
their position that the damage to their property had
been caused by a sinkhole. After the Munozes rested
their case, Citizens moved for directed verdict, argu-
ing that it could not have breached the insurance con-
tract when its engineer completed a statutorily com-
pliant report finding no sinkhole activity and it did
not receive a contrary professional opinion before the
complaint was filed. The Munozes responded that
they were under no obligation to provide a contrary
report prior to filing suit. The trial court denied Citi-
zens' motion for directed verdict, and Citizens pre-
sented evidence in support of their position that the
damage to the Munozes' property had not been
caused by a sinkhole but instead by excluded causes.
[|| At the charge conference, there was a dispute
over the burden of proof, an issue that hinges on the
nature of the policy—specifically, whether it is an
“all risks” or “named perils” policy.’ *! The parties
agreed that the original policy was an “all risks” poli-
cy. But Citizens argued that the sinkhole endorse-
ment transformed the sinkhole coverage into “named
perils” coverage. The Munozes, on the other hand,
contended that the endorsement did not change the
underlying “all risks” nature of the policy. The trial
court agreed with the Munozes and instructed the
jury on the burden of proof accordingly.
The jury returned a verdict in favor of the
Munozes, and a final judgment was entered. Citizens
timely appealed. We affirm, writing to address Citi-
zens' claims that the trial court erred in denying the
motion for directed verdict and instructing the jury on
the burden of proof. We affirm as to the remaining
issue without comment.
I. MOTION FOR DIRECTED VERDICT
[2] The trial court properly denied Citizens’ mo-
tion for directed verdict because the Munozes were
under no obligation to provide a contrary report to
Citizens before filing suit. It is true that Citizens was
required by statute to hire an engineer or geologist to
conduct testing and issue a report. See § 627.707(2).
(4), Via, Stat. (2010), And section 627.7073(1)\(c)
does provide that this report “shall be presumed cor-
rect.” But this statutory scheme was “designed to
provide a framework for insurance companies to fol-
low when encountering specific types of claims, in
this case claims involving sinkhole damage. The ap-
plication of a specific provision within that scheme
[such as the presumption in section 627.7073(1)(c) ]
to the evidentiary context is both misguided and in-
appropriate.” Universal Ins, Co. of N. Am. v. Warfel,
82 So.3d 57 (la.2012). Indeed, as this court has
recently noted, “ ‘the [s]ection 627.707(c) presump-
tion in favor of the insurer's engineer's report neither
alters the fact of sinkhole damage nor forecloses liti-
gation that attempts to discover the fact of sinkhole
damage.’ “ Herrera v. Tower Hill Pre
39 Fla. L. Weekly 12257, 2258 n, 2 (Fla, 2d DCA
Oct.29, 2014) (alteration in original) (quoting Swrrer
v, Hirst Liberty Ins. Co., No. 811 cv 60 1 23MAP.
2011 WI, 3879815, at *2 (M.1.Vla. Sept.2, 2011).
‘ed Ins. Co.
*2 [3] * “In regard to insurance contracts, a spe-
cific refusal to pay a claim is the breach which trig-
gers the cause of action...” “ Adse Ullstate fas. Co. v
Kaklamanos, 843 So.2d 885, 892 (la.2003) (quoting
Donovan v, State Furm Fire & Cas. Co 4 S0.2d
285, 286 (la. 2d DCA 1991). Here, a valid dispute
about the existence of a covered loss under the insur-
ance policy arose at the time Citizens denied cover-
age. See Tower [ill Select Ins. Co. v. McKee. 39 Fla
L. Weekly DI756. DI756 (Fla. 2d DCA Aug.20,
2014). And Citizens has failed to point to any legal
authority or any portion of the policy requiring the
Munozes to have given Citizens a contrary report
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 4
--- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64
(Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.))
prior to filing suit.”
Il. BURDEN OF PROOF
[4] The trial court properly allocated the burden
of proof. This court's opinion in //adson v. Prien
alty Insurance Co.. 450 So.2d 565
Property & Cas
(Fla, 2d DCA 1984), is controlling here. The Hud-
sons had purchased a policy that insured their resi-
dence against all risks of physical loss except as oth-
erwise excluded, /d. at 566. The policy contained an
exclusion for loss caused by earth movement or sink-
ing, but an endorsement had been added to provide
coverage for sinkhole loss. /d. This court held that
“[t]hat endorsement did not change the ‘all risks’ na-
ture of the underlying policy; it merely narrowed the
earth sinking exclusion.” /d/, at 568. In so holding,
this court relied on Sirubble v. United Service Auto-
mobile Ass'n, in which California's Second District
Court of Appeal noted:
[E]arthquake coverage provided by the policy
arose from a special endorsement thereto. Un-
doubtedly earthquake itself is a specific peril. But
the coverage of a liability insurance policy must be
construed broadly and its exclusions narrowly. We,
therefore, regard the earthquake endorsement as
merely narrowing the earth movement exclusion
and as not changing the ‘all-risks' nature of the un-
derlying policy. To hold otherwise would be a case
of the tail wagging the dog.
35 Cal.App.3d 498, 110 Cal. Rptr. 828, 832 n. 6
(Cal.Dist.Ct.App.1973) (citation omitted). Similarly,
the sinkhole endorsement in this case does not
change the nature of the underlying “all risks” policy.
{5| Generally, an insured seeking coverage pur-
suant to an “all risks” policy must prove that a loss
occurred to the property during the policy period.
Judson, 450 So.2d at 568. If the insured meets this
initial burden, the burden shifts to the insurer to show
that the loss resulted from an excluded cause. /d. The
insured does not need to disprove any excluded caus-
es. /d. Here, the trial court correctly determined that
the policy at issue was an “all risks” policy and allo-
cated the burden of proof consistently with this find-
ing.
Affirmed.
VILLANTI and WALLACE, JJ., Concur.
UNI. An “all risks” policy protects against
all direct losses except those explicitly ex-
cluded from the policy; conversely, a
“named perils” policy only protects against
perils explicitly named as included in the
policy, See Fisher vy. Certain Interested Un-
derwriters at Lloyds Subscribing to Contract
No. 242/99, 930 So.2d 756, 758 (Fla. 4th
DCA 2006).
'N2. The cases of Omega Insurance Co. y.
Johnson, 39 Fla. I Weekly D1911
DI912-13 (Fla. Sth DCA Sept.5, 2014), and
Siate Farm Florida Insurance Co. \
Colella, 95 So.3d 891, 894 (Fla. 2d DCA
2012), on which Citizens relies, are distin-
guishable from the instant case. The issue in
those cases was whether the insurance com-
pany had wrongyilly or unreasonably caused
the insured to resort to litigation, whereas
here the issue is whether a covered loss ex-
isted. Indeed, in both of those cases the in-
surance companies had already paid the in-
sureds' claims. Omega, 39 Fla. 1.. Week-
ly at D1912; Colella, 95S at 894,
Fla.App. 2 Dist.,2014.
Citizens Property Ins. Corp. v. Munoz
=~ So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.),
40 Fla. L. Weekly D64
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5
--- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64
(Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.))
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
TOWER HILL PRIME INSURANCE
COMPANY,
Appellant,
v. Case No. 5D14-1363
DOUGLAS NEWELL AND RENEE
NEWELL,
Appellees.
Opinion filed January 22, 2016
Appeal from the Circuit Court
for Orange County,
Donald E. Grincewicz, Judge.
Kara Berard Rockenbach and David A.
Noel, of Methe & Rockenbach, P.A., West
Palm Beach, for Appellant.
Mark A. Nation and Paul W. Pritchard, of
The Nation Law Firm, Longwood, for
Appellees.
PER CURIAM.
AFFIRMED. See Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d 671 (Fla. 2d DCA
2014) (holding that sinkhole endorsement to “all risks” homeowners insurance policy did
not change underlying policy into “named perils” policy, and thus, insureds had burden of
establishing that loss occurred during policy period, and if insured’s met that burden,insurer then had burden of proving that loss resulted from excluded cause), review
denied, SC15-414 (Fla. 2015); Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576, 578
(Fla. 2d DCA 2014) (explaining that fact that insured’s sinkhole coverage was provided in
endorsement to underlying homeowner's insurance policy did not change “all risks” nature
of underlying policy; endorsement merely narrowed policy's earth movement exclusion;
insurer had burden of proof to show that cause of property loss was excluded from
coverage under policy’s terms).
TORPY and EVANDER, JJ. concur.
BERGER, J., concurs in result only.Westlaw.
36 So.3d 136, 35 Fla. L. Weekly D1048
(Cite as: 36 So.3d 136)
District Court of Appeal of Florida,
Second District
Michael WARFEL, Appellant,
v.
UNIVERSAL INSURANCE COMPANY OF
NORTH AMERICA, Appellee.
No. 2D08-3134.
May 12, 2010.
Background: Insured under an all-tisks homeowners’
policy brought action against insurer arising out of
insurer’s denial of his claim for sinkhole loss. The
Circuit Court, Pasco County, W. lowell Bray, Jr, J.
entered judgment after a jury trial in favor of insurer.
Insured appealed.
Holding: On motion for rehearing en bane, the Dis-
trict Court of Appeal, |.akose, J., held that statute
establishing a presumption of correctness for the
findings of insurer's engineer and geologist did not
shift the burden of proof to insured.
Reversed and remanded; question of great public
importance certified; motion denied.
Villanti, J. filed dissenting opinion.
West Headnotes
|1| Appeal and Error 30 © 11775)
30 Appeal and Error
30 VII Determination and Disposition of Cause
30X VIL(D) Reversal
30k 1177 Necessity of New Trial
Page 1
30k1177(5) k. Errors in rulings and
instructions at trial. Most Cited Cases
Insurance 217 ©2198
217 Insurance
217XVI Coverage--Property Insurance
217XVI(A) In General
217k2196 Evidence
217k2198 k. Presumptions. Most Cited
Cases
Trial 388 205
388 Trial
388VII Instructions to Jury
388VII(I3) Necessity and Subject-Matter
388k205 k. Presumptions and burden of
proof. Most Cited Cases
Statute establishing a presumption of correctness
for the findings of the engineer and geologist retained
by an insurer in cases of alleged sinkhole loss did not
shift the burden of proof to the insured under an all-
risks homeowners’ policy to disprove the findings of
insurer's engineers and geologists that damage to
home was not caused by a sinkhole, and thus trial
court's giving of jury instruction that shifted the bur-
den of proof to insured entitled him to new trial in his
action against insurer; presumption was not related to
public policy, but rather was a vanishing presumption
that affected only insured’s burden of producing evi-
dence and was not to be communicated to the jury.
West's F.S.A. § 90.304; F.8.2005, § 627.7073(1)(c).
(2| Trial 388 205
388 Trial
38811 Instructions to Jury
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.36 So.3d 136, 35 Fla. L. Weekly D1048
(Cite as: 36 So.3d 136)
388VII(13) Necessity and Subject-Matter
388k205 k. Presumptions and burden of
proof. Most Cited Cases
The jury is not told of a vanishing presumption
affecting only the burden of production of evidence.
*136 Nancy A. Lauten and Gicorge A. Vaka of Vaka,
Larson & Johnson, P.L., Tampa; and Jonathan Lal,
Joshua L, Burnett, and Marshall Thomas Burnett,
Tampa, for Appellant.
Alicia Lopez and Karl Forrest of Groelle & Salmon,
P.A., Tampa, for Appellee.
LaROSE, Judge.
Michael Warfel appeals a final judgment entered
in favor of Universal Insurance Company of North
America in a sinkhole insurance coverage case. Mr.
Warfel is entitled to a new trial because the trial court
should not have instructed the jury on an evidentiary
presumption that impermissibly shifted the burden of
proof to him. Accordingly, we reverse.
In March 2005, Universal issued an all-risks
homeowners’ insurance po
Preview
Filing # 52196252 E-Filed 02/07/2017 06:52:11 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION DEBRA HINES Plaintiff, CASE NO.: CACE-14-016655 vs. DIVISION: 02 HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. a Florida Corporation Defendant. / PLAINTIFE’S NOTICE OF FILING COMES NOW the Plaintiff, DEBRA HINES, by and through the undersigned counsel, herein files the following in Support of Plaintiff's Response to Defendant’s Motion on Burden of Proof and Order of Trial: 1, Opinion by District Court of Appeal of Florida, Second District in Donald H. Hudson vy. Prudential Property and Casualty Insurance Company Case No. 83-1237. 2. Opinion by District Court of Appeal of Florida, Second District in Alfredo Mejia v. Citizens Property Insurance Corporation Case No. 2D13-2248. 3. Opinion by District Court of Appeal of Florida, Second District in Citizens Property Insurance Corporation v. Hector Munoz Case No. 2D 13-3899. 4, Opinion by District Court of Appeal of Florida, Fifth District in Tower Hill Prime Insurance Company v. Douglas Newell and Renee Newell Case No. 5D14-1363. 5. Opinion by District Court of Appeal of Florida, Second District in Michael Warfel v. Universal Insurance Company of North America Case No. 2D08-3134. 6. Order on Plaintiff's Motion for Reconsideration Regarding the Burden of Proof as to Structural Damage by Rex M. Barbas, Circuit Court Judge in Astride Foucault v. Citizens Property Insurance Corporation Case No. 14-CA-011555. 7. Order on Defendant’s Motion to Determine Burden of Proof by Lisa Herndon, Circuit Court Judge in Maria A. Ortiz a/k/a Maria De Los Angeles Lopez v. Universal Insurance Company of North America Case No. 42-2014-2386-CA-B. *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/7/2017 6:52:10 PM.****8. Order on Defendant’s Motion for Bifurcation and to Establish Order of Proof by Heidi Davis, Circuit Court Judge in George and Aloha Rosario v. Tower Hill Select Insurance Company Case No. 13-CA-3055. 9. Opinion by District Court of Appeal of Florida, Second District in Citizens Property Insurance Corporation v. Ariety Amat and Briceida Leon Case No. 2D14-4274. 10. Opinion by District Court of Appeal of Florida, Second District in Citizens Property Insurance Corporation v. German Alvarez and Luz Marroquin Case No. 2D 13-5125. IT IS HEREBY CERTIFIED that this filing is necessary for discovery and trial and/or other hearings or proceedings in this cause. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been electronically filed with the Clerk of Court using the Florida Courts E-Filing Portal and served via Florida Courts E-Filing Portal Electronic Mail to: Ryan Sherman, Esq.; Co-Counsel for Plaintiff, Ryanshermanfl@gmail.com ; Sherman Law, P.A., 4000 Hollywood Blvd, #265-S, Hollywood, Florida 33021 and Jonathan T. Hall, Esq., ; Counsel for Defendant, grobinson@gspalaw.com and gstcourtdocs@gspalaw.com, Groelle & Salmon, PA, 7650 Courtney Campbell Cswy., Ste. 800, Tampa, FL 33067 on this 7th day of February 2017. CORLESS BARFIELD TRIAL GROUP, LLC /s/ Morgan Barfield Morgan Barfield, Esq. Florida Bar Number: 0605761 6812 West Linebaugh Avenue Tampa, Florida 33625 (813) 258-4998 (813) 258-4988 — Facsimile MBarfield@CorlessBarfield.com Co-Counsel for PlaintiffWestlaw. 450 So.2d 565 (Cite as: 450 So.2d 565) c District Court of Appeal of Florida, Second District. Donald H. HUDSON and Mary Hudson, his wife, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. No. 83-1237. May 9, 1984. Insureds brought action under homeowners poli- cy to recover for damage sustained by their home due to sudden collapse of earth supporting it. The Circuit Court, Polk County, William K. Love, J., entered judgment on jury verdict in favor of insurer, and in- sureds appealed. The District Court of Appeal, Scheb, Acting C.J., held that once insureds estab- lished that damage was caused by collapse of their building, insurer had burden of proving that damage was caused by earth sinking, rising or shifting which were not covered under policy and was not caused by sinkhole collapse which was covered pursuant to statutory mandate. Reversed and remanded for new trial. West Headnotes [| Insurance 217 ©2140 217 Insurance 217XVL Coverage—Property Insurance 217XVICA) In General 217k2139 Risks or Losses Covered and Exclusions Page 1 217k2140 k. In General. Most Cited Cases (Formerly 217k417.5(1)) Recovery under “all risks” policy generally ex- tends to all losses not resulting from misconduct or fraud unless policy contains specific provision ex- pressly excluding loss from coverage. [2| Insurance 217 71823 217 Insurance 21 7XII| Contracts and Policies 21 7X111(G) Rules of Construction 217k1823 k. Exceptions, Exclusions or Limitations. Most Cited Cases (Formerly 217k146.6) Insurance 217 ©1829 217 Insurance 217X111 Contracts and Policies 21 7XJ11(G) Rules of Construction 217k1829 k. Liberal or Strict Construction. Most Cited Cases (Formerly 217k146.6) Insurance coverage must be construed broadly and exclusions narrowly. [3| Insurance 217 ©2199 217 Insurance 217XVI Coverage—Property Insurance 217XVI(A) In General 217k2196 Evidence 99 k. Burden of Proof. Most Cited Cases (Formerly 217k429.1(1)) © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565 (Cite as: 450 So.2d 565) Plaintiff seeking to recover under all risks policy has burden of proving that, while policy was in force, loss occurred to insured’s property; once insured es- tablishes loss apparently within terms of all risks pol- icy, burden shifts to insurer to prove that loss arose from cause which is excepted [4] Insurance 217 <="2199 217 Insurance 21 7X VI Coverage—Property Insurance 21 7XVI(A) In General 2172196 Evidence 217k2199 k. Burden of Proof. Most Cited Cases (Formerly 217k429.1(1)) In action brought by insureds under all risks pol- icy to recover for damage to home caused by sudden collapse of earth supporting it, insureds had burden of establishing that they sustained damage by collapse of their home; insured was then required to prove damage was caused or aggravated by “earth sinking” which was excepted from coverage and not by sink- hole collapse which was covered pursuant to law. West's F.S.A. § 627.706. *566 Andrew R. Reilly of Reilly & Lasseigne, Haines City, and D.A. Troiano, Lakeland, for appel- lants. Roy B. Dalton, Jr., Orlando, for appellee. SCHEB, Acting Chief Judge. This appeal addresses the question of which par- ty has the burden of proof in an insureds action under a homeowners insurance policy. The focus of our opinion is directed to the sinkhole coverage mandated by Florida law. In 1976 Donald and Mary Hudson purchased a Page 2 homeowners insurance policy from Prudential Prop- erty and Casualty Insurance Company. The policy insured them “against all risks of physical loss to the property covered ... except as otherwise excluded or limited” but contained a standard exclusion for any loss caused by earth movement or sinking. The policy included a mandatory endorsement for sinkhole col- lapse coverage pursuant to section 627.706, Florida Statutes (1981). The endorsement covered direct loss to the Hudsons' property caused by sinkhole collapse and stipulated that: “Any provision in this policy which excludes loss by ‘earth sinking’ is amended to exclude loss by ‘earth sinking other than sinkhole collapse.’ ” In May 1981, while their policy with Prudential was in force, the Hudsons’ home was damaged by a sudden collapse of the earth supporting it. They filed a claim with Prudential asserting that the damage was caused by a sinkhole. Prudential denied coverage on the basis that the damage was attributable to earth settlement. On May 7, 1982, the Hudsons filed suit against Prudential for breach of contract. Prudential an- swered and asserted an affirmative defense that the damages sustained by the Hudsons were not the re- sult of a sinkhole. A jury trial was held in April 1983. With sinkholes being an included peril in the policy and earth sinking being expressly excluded, the jury was essentially required to resolve conflicts in the testimony between experts presented by both sides on the question of whether the *567 settlement under- neath the home had been caused by sinkhole activity. At the close of the evidence the Hudsons re- quested the following jury instruction: The burden of proof is on the Hudson's to estab- lish they have sustained damages by the collapse of their building or any part thereof not caused by set- tling, cracking, shrinkage, bulging or expansion. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565 (Cite as: 450 So.2d 565) When plaintiffs have established this, they are enti- tled to recover for the damage unless PRUDEN- TIAL proves that the damage was caused or aggra- vated by earth movement, including but not limited to earthquake, volcanic eruption, landslides, mud- flow, earth sinking, rising or shifting but excluding earth sinking other than sinkhole collapse. The trial court, however, denied this request and gave the jury the following instructions requested by Prudenti The issue that you will be called upon to deter- mine in this matter on the breach of contract claim brought by Donald and Mary Hudson against Pru- dential Property and Casualty Insurance Company is whether Donald and Mary Hudson sustained damage to their property as a result of soil settle- ment caused by sinkhole activity below the proper- ty; and, if so, the extent of the damages sustained as a result of such settlement of the property. Now sinkhole activity is defined by law and by the contract in this case as follows: Actual, physi- cal damage arising out of or caused by the sudden settlement or collapse of the earth's supporting property and only when such settlement or collapse results from subterranean voids created by the ac- tion of [water] on limerock or similar rock for- mations. If the greater weight of the evidence does not support the claim of Donald and Mary Hudson in this regard, then your verdict should be for Pru- dential Property and Casualty Insurance Company. However, if the greater weight of the evidence does support the claim of Donald and Mary Hudson, then your verdict should be for Donald and Mary Hudson and against Prudential Property and Casu- alty Insurance Company. By greater weight of the evidence, we mean the more persuasive and convincing force and effect of the entire evidence in the case. Page 3 After the jury retired to consider the case, it be- came apparent they were having difficulty in apply- ing the instructions as given. After two hours of de- liberation, they requested answers to the following two questions: 1. Do we have to decide whether or not the damage was attributable to the sinkhole activity? 2. Do we have to decide if the attorney for the Plaintiff was convincing enough to tip the scales to insure that sinkhole activity caused the damage? The court responded to question 1 by saying: “I'll insert the word only, you may allow only damages caused by sinkhole activity.” In response to question 2 the court said: “[N]o, it's the evidence which must convince you.” Shortly thereafter, the jury sent out three ques- tions to be answered by the court: 1. Do we have to determine whether a sinkhole or sinkhole activity caused the settlement (a yes or no, answer)? 2. Do we have to decide if the attorney for the Plaintiff was convincing enough to tip the scales to insure that sinkhole activity caused the settlement? 3. Which of the above questions should we use to base our decision? The court responded as follows: 1. If the greater weight of the evidence convinces you that the damage was caused by sinkhole activi- ty as defined ... you should find a verdict for the Plaintiffs; if not you should find for the Defendant. 2. No. Your verdict must be based upon the evi- dence. Argument of the attorneys is made to aid or © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.450 So.2d 565 (Cite as: 450 So.2d 565) persuade you—it is not evidence. *568 3. Consider the above answers. The jury subsequently returned a verdict in favor of Prudential, finding that the damages the Hudsons complained of were not attributable to sinkhole activ- ity as defined by the insuring agreement. The trial court entered final judgment in favor of Prudential and subsequently denied the Hudsons’ motion for new trial. The Hudsons then filed this appeal. The narrow issue we reach is whether the trial court properly instructed the jury as to which party had the burden of proof to establish the cause of the damage to the Hudsons' home. 1) To determine the burden of proof on the par- ties, we must examine the policy issued by Pruden- tial, We first note that the policy is not a specific peril policy, such as a policy of fire and lightning insur- ance, where the policy insures only against certain named risks. Rather, the policy insured against “all risks” except as otherwise excluded. Recovery under such an “all risks” policy generally extends to all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage. Phoeniy insiwance Co. v. Branch, 234 So.2d 396 (Ula. 4th DCA 1970); 13A G. Couch, Cyclopedia of Insurance Law 2d § 48:141 (rev. ed. 1982). Page 4 We hold that the trial court erred in denying the instruction requested by the Hudsons as it correctly stated the applicable law for this case. Accordingly, we reverse the final judgment and award the Hudsons a new trial. CAMPBELL and SCHOONOVER, JJ., concur. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5 450 So.2d 565 (Cite as: 450 So.2d 565) Fla.App. 2 Dist.,1984. Hudson v. Prudential Property and Cas. Ins. Co. 450 So.2d 565 END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.Westlaw. 014 WL 6675717 (Fla.App. 2 Dist.)) NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PERMA- NENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. District Court of Appeal of Florida, Second District Alfredo MEJIA, Appellant, v. CITIZENS PROPERTY INSURANCE CORP., Ap- pellee. No. 2D13-2248. Nov. 26, 2014. Background: Insured brought action against proper- ty insurer seeking benefits for alleged sinkhole dam- age to his home. The Circuit Court, Pasco County, Linda Babb, J., entered judgment on a jury verdict in favor of insurer, Insured appealed, Holdings: The District Court of Appeal, Northeutt, J., held that: (|) trial court improperly placed the burden of proof on insured to show that the damage was caused by sinkhole activity during the policy period, and (2) evidence that insurer paid approximately $9.5 million in the previous three years to engineering firm that employed its expert witnesses was relevant and admissible. Reversed and remanded. \ltenbernd, J., filed concurring opinion. West Headnotes © 2015 Thomson Reuters. Page 1 --, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla, L. Weekly D2471 |1| Insurance 217 ©2199 217 Insurance 217XV1 Coverage—Property Insurance 2) IXVI(A) In General 217k2196 Evidence 21 7k2199 k, Burden of proof. Most Cited Cases Trial court improperly placed the burden of proof, on insured who sought benefits from property insurer for alleged sinkhole damage to his home to show that the damage was caused by sinkhole activity during the policy period; insured’s policy was an “all risks” policy providing coverage for all losses not excluded, and accordingly insured had the burden only of prov- ing that the property suffered a loss while the policy was in effect, after which the burden shifted to the insurer to prove that the loss was excluded. West's E.S.A. 8 627.706(1). |2| Insurance 217 ©2117 217 Insurance 217 XV Coverage—in General 217k21 14 Evidence 2\7k2117 k. Burden of proof. Most Cited Cases Insurance 217 ©3575 2\7 Insurance 217XXX1 Civil Practice and Procedure 21 7k3572 Evidence 217k3575 k. Burden of proof. Most Cited In litigation involving an insurance claim, the No Claim to Orig. US Gov. Works.Page 2 --- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 (Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.)) burden of proof is assigned according to the nature of the policy. [3] Insurance 217 2140 Insurance < VI Coverage—Property Insurance VI(A) In General 217k2139 Risks or Losses Covered and Exclusions 217k2140 k. In general. Most Cited Cases An all-isks 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. [4] Insurance 217 2199 217 Insurance VI Coverage—Property Insurance 21 7XVI(A) In General 217k2196 Evidence 217k2199 k. Burden of proof. Most Cited Cases An insured claiming under an all-risks policy has the burden of proving that the insured property suf- fered a loss while the policy was in effect; the burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms. [5] Insurance 217 ©2199 217 Insurance 217XVI Coverage—Property Insurance 217XVI(A) In General 217k2196 Evidence 217k2199 k. Burden of proof. Most Cited Cases Fact that insured's inkhole coverage was pro- vided in an endorsement to his underlying property insurance policy did not change the “all risks” nature of the underlying policy, so as to place the burden of proof on insured to demonstrate that damage to his home was caused by sinkhole activity; endorsement merely narrowed the policy's earth sinking exclusion. [6] Evidence 157 560 Evidence 157X1) Opinion Evidence 57X11() Examination of Experts 157k560 k. Contradiction and impeach- ment. Most Cited Cases Evidence that property insurer paid approximate- ly $9.5 million in the previous three years to engi- neering firm that employed its expert witnesses was relevant and admissible in insured’s action seeking benefits for alleged sinkhole damage to his home; evidence was relevant to show the potential bias of the expert witnesses. Raymond T. klligett, Jv, of Buell & Elligett, P.A., Tampa; Michael | aurato and Laura Datz of Austin & Laurato, P.A., Tampa; and ‘Thomas W. Lhompson Je, and A. Lee Smith of The Thompson Trial Group, P.A., Tampa, for Appellant. Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for Appellee. NORTHCUTT, Judge. *1 Alfredo Mejia appeals a final judgment in fa- vor of Citizens Property Insurance Corp. following a jury trial on his insurance claim for damages to his home allegedly caused by sinkhole activity. The trial court erred in allocating the burden of proof between the parties, and it erred in excluding evidence that © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 3 --- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 (Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.)) tended to impeach the credibility of an expert witness who testified for Citizens. Accordingly, we reverse and remand for a new trial. Mejia owned a home that was insured under a policy issued by Citizens. '*' The standard policy insured against risk of direct physical loss to the property. It excluded, among other things, coverage for loss caused by earth movement and settlement and loss caused by sinkholes. Mejia, however, had paid an additional premium for a Sinkhole Loss Coverage endorsement.’ This endorsement added sinkhole loss as a covered peril, and it stated that the earth movement and sinkhole exclusions did not ap- ply. During the policy term, Mejia reported a claim for damage to his home. Citizens retained BCI, an engineering firm, to evaluate the property for sink- hole activity. BCI investigated and concluded that the damage was not caused by sinkhole activity, and Citizens denied Mejia's claim. At trial on Mejia's breach-of-contract claim, Citizens relied on testimo- ny from experts, including an engineer from BCT, to argue that there was no sinkhole activity and no structural damage to the property. Mejia presented his own expert evidence that his home had suffered structural damage due to sinkhole activity. Prior to trial, the court ruled that Mejia had the burden of showing that the damage was caused by sinkhole activity during the policy period. This was contrary to the jury instructions requested by Mejia, which required him to show only that his home was damaged while the insurance policy was in force and then shifted to Citizens the burden to show that the cause of the damage was not covered by the policy. Instructed otherwise pursuant to the pretrial ruling, the jury found that Mejia had not established by the greater weight of the evidence that his home had suf- fered physical damage caused by a sinkhole. Final judgment was thereafter entered in favor of Citizens, and this appeal followed. {1J[2)[3)|4) Mejia argues on appeal, and we agree, that the trial court erred in allocating the bur- den of proof. In litigation involving an insurance claim, the burden of proof is assigned according to the nature of the policy. Without dispute, the insur- ance policy at issue here is an “all risks” policy. 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.” /adson v. P Cas. ins. Co.. 450 So.2d 565, 568 (Fla, 2d DCA 1984) (contrasting an all-risks policy from a specific lential Prop. & peril policy which insures only against named risks). Consistent with the jury instruction requested by Mejia in this case, an insured claiming under an all- risks policy has the burden of proving that the insured property suffered a loss while the policy was in ef- fect. The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms. /d. *2 [5] As we held in Hudson, it makes no differ- ence that the sinkhole coverage at issue was provided in an endorsement to the underlying policy. In Hud- son, as here, the homeowner had an all-risks policy with a sinkhole endorsement. This court held that the “endorsement did not change the ‘all risks' nature of the underlying policy; it merely narrowed the earth sinking exclusion.” /d. at 568. And in that case, as here, the jury instructions “had the effect of improp- erly placing the burden on the Hudsons to prove that their home was damaged by a sinkhole.” /d. Based on that error, we reversed and remanded for a new trial. Neither does it matter that the sinkhole en- dorsement in Hudson was obtained under an earlier version of the applicable insurance statute. In Hud- son, the statute provided that every property insurer in Florida “shall make available coverage for insura- ble sinkhole losses on any structure.” § 627.706(1). Ila. Stat. (1981). The version of the statute applicable © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 4 --- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 (Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.)) to Mejia's policy was substantially identical save for specifying that every property insurer in Florida “shall make available, for an appropriate additional premium, coverage for sinkhole losses.” § 627.706(1). Hla, Stat, (2009) (emphasis added). Sig- nificantly, in both versions of the statute the insurer was required to make available coverage for sinkhole losses “to the extent provided” in the form to which the sinkhole coverage attaches. Compare § 627.706(1), Ula. Stat. (1981), with § 627.706(1), Vla. Stat, (2009), In both cases, the form to which the endorsement was attached was an all-risks insurance policy. The trial court erred in allocating the burden of proof between Mejia and Citizens. We reverse and remand for a new trial in which the jury must be properly instructed on the burden of proof consistent with the foregoing. [6] Because we are remanding for retrial, we must also address an evidentiary issue. Mejia argues that the trial court erred by excluding evidence that over the previous three years Citizens had paid ap- proximately $9.5 million in fees to BCI, the engineer- ing firm that employed Citizens' expert witnesses. Mejia argued that the evidence was relevant to show bias, while Citizens argued that it was not relevant. We conclude that the evidence was relevant and ad- missible. In Allstate isuranee Co. v. Bowe 733 So.2d 993, 997 (I'la.1999), the supreme court held that a plaintiff was allowed to discover the amount of fees paid, over the preceding three years, by his uninsured motorist carrier to its expert in accident reconstruc- tion and injury causation. The court stated that “[t]he more extensive the financial relationship between a party and a witness, the more it is likely that the wit- ness has a vested interest in that financially beneficial relationship continuing.” Id. Citizens maintains that Boecher addre: the discovery of such information and not its admis- sion at trial and that the opinion is mere dicta outside the context of discovery. Although it is true that Boe- cher involved a discovery dispute, this argument s the mark. Even though Boecher addressed discovery rather than admissibility at trial, we have previously observed that “dictum of the highest court mi of this State, in the absence of a contrary decision by that court, should be given persuasive weight in this court.” Vf, nav. State. 177 So.2d 75, 76 (Ula. 2d DCA 196: *3 In Boecher, the supreme court observed that the information sought from Allstate “does not just lead to the discovery of admissible information. The information requested is directly relevant to a party's efforts to demonstrate to the jury the witness's bias.” 733 So.2d at 997 (emphasis added). A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. A party is entitled to ar- gue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness's financial incentive to continue the financially advantageous relationship. Id. at 997 98 (emphasis added). The supreme court echoed the Fourth District's assessment that the “information would be ‘indisputably relevant and meaningful.’ ” Jc, at 998 (quoting Al/stare Ins. Co. \ Boccher, 103 $0.2d 106, 107 (Fla. 4th DCA 1998), approved, 733 So.2d 993). We have previously cited Boecher to support our conclusion that evidence of a doctor's financial inter- est in a case, by way of a letter of protection, was properly admitted to attack the doctor's credibility as a witness. Carnival Corp. v. Jimenez, 112 So.3d 513 520 (Ila. 2d DCA 2013) (analyzing admissibility of © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5 --- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 (Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.)) evidence to determine propriety of closing argument). We reject Citizens’ attempt to limit Carnival Corp. to an inquiry into the witness's financial interest only in the present case. See Ilo 787 So.2d 955, 959 (Fla, 3d DCA 2001) (“The in- quiry extends not just to the compensation arrange- ments for the current case but also allows inquiry into the expert's work in other cases.” (citations omitted). » Miami Dade Cnty Similarly, the Fourth District relied on Boecher when affirming an order permitting the plaintiff to ask defense experts about sums paid to them in the previous three years by the defendants’ insurer, the twist in that case being that the insurance company was not identified as such. /Jerrerw y. Moustafir, 96 So.3d 1020, 1021 (la. 4th DCA 2012). Here, we conclude that the trial court abused its discretion by precluding Mejia from cross-examining §Citize expert witnesses about the $9.5 million their compa- ny had been paid by Citizens over the previous three years. Reversed and remanded for a new trial. SLUT, J., Concurs. ALTUNBERND, J., Concurs with opinion. ALTENBLRND, Judge, Concurring. I concur in this opinion, but I would do so even if the policy were not treated as an “all risks” policy. It is likely that the HO-3 insurance policy issued by Prudential Property and Casualty Insurance Company to the Hudsons insuring their home in 1981 was sig- nificantly different from the policy issued by Citizens in 2011 to Mr. Mejia. See Judson v. Prudential Prop & Cas. Ins, Co., 450 So.2d $65 (Fla. 2d DCA 1984). When that standard policy was introduced by the Insurance Services Office in the early 1970s, it was a relatively simple policy that insured the dwelling on an all-risks basis and personal property on a named peril basis. *4 Over time, for reasons that are not important to this case, the policy evolved into a “special form” policy, At least to this judge, the policy is oddly structured because the “Section I—Perils Insured Against” begins with an all-risks type insuring agreement for the dwelling. That all-risks language is immediately followed by a statement that “we do not insure, however, for loss: ...” This “however” clause is followed by a long list of excluded risks. Several pages later, the policy in more traditional fashion provides “Exclusions” to the Section | coverage. In other words, the policy essentially adds exclusions in both the insuring agreement and in the standard sec- tion for exclusions. The HO-policy may never have been an “all risks” policy if one defines “all risks” literally. But with the addition of the named excluded perils within the insuring agreement, it has become an amalgam that is neither an all risks nor a named peril form. In the case of sinkhole risks in Florida, the statu- torily authorized sinkhole endorsement is intended to eliminate the sinkhole exclusion from the policy. It is written, however, in language that appears to be cov- erage for an added named peril and not merely an elimination of the authorized exclusion. But when litigated, the homeowner maintains that damage has occurred to the home that falls within the sinkhole coverage. The insurance company maintains that the damage is not caused by a sinkhole and is actually damage that is excluded under the main policy's ex- clusion for earth movement and settlement. There is no controversy that an insurance com- pany has the burden of proof as to an exclusion like the earth movement and settlement exclusion. Given the overall complexity of these claims, where sink- hole damage is excluded in the main policy, revived in the endorsement, and then litigated as a matter that is either covered sinkhole damage or excluded earth movement damage, it seems to me that the only prac- tical solution as to the specific issues raised in sink- hole litigation is to place the burden of proof on the © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.--- So.3d ----, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 (Cite as: 2014 WL 6675717 (Fla.App. 2 Dist.)) insurance company once the insured has established the requisite physical damage to the insured dwelling during the term of the policy. UNI. The form of insurance was CIT HO-3 07 08. V2. Form CIT 23 94 07 08 Fla.App. 2 Dist.,2014. Mejia v. Citizens Property Ins. Corp. --- $0.3d —---, 2014 WL 6675717 (Fla.App. 2 Dist.), 39 Fla. L. Weekly D2471 END OF DOCUMENT © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6Westlaw. 014 WL 7331095 (Fla.App. 2 Dist.)) NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PERMA- NENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. District Court of Appeal of Florida, Second District CITIZENS PROPERTY INSURANCE CORPORA- TION, Appellant, v. Hector MUNOZ and Alba Munoz, Appellees. No. 2D13-3899, Dec. 24, 2014. Background: Insureds brought action against their homeowners insurer, seeking coverage for property damage allegedly caused by a sinkhole. Following jury trial, the Circuit Court, Hillsborough County, Paul L.. uey, J., entered judgment in insureds’ favor, and insurer appealed. Holdings: The District Court of Appeal of Florida, Khouzam, J., held that: (1) insureds had no obligation to provide contrary report regarding cause of damage before filing suit, and (2) sinkhole endorsement did not change “all risks” policy into “named perils” policy, and thus insureds had burden of proving loss occurred during policy period, while insurer had burden of showing that loss resulted from excluded cause. Affirmed. West Headnotes |1| Insurance 217 ©2140 Page 1 --, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 217 Insurance 217X VI Coverage—Property Insurance 21 7XVI(A) In General 217k2139 Risks or Losses Covered and Exclusions 217k2140 k. In General. Most Cited Cases An “all risks policy” protects against all direct losses except those explicitly excluded from the poli- cy; conversely, a “named perils policy” only protects against perils explicitly named as included in the pol- icy. |2| Insurance 217 ©3546 217 Insurance 217XX XI Civil Practice and Procedure 2(7k3544 Conditions Precedent 3546 k. Notice and Proof of Loss. Most Cited Cases Insureds had no obligation to provide report, which contradicted homeowners insurer's engineer's report concluding that property damage was not caused by a sinkhole, to insurer before filing suit for breach of contract based on insurer's denial of sink- hole damages claim under homeowners policy, which contained endorsement for sinkhole loss coverage; statutory presumption in favor of insurer's engineer's report did not foreclose litigation over fact of sink- hole damage, valid dispute about the existence of a covered loss under the policy arose at the time insurer denied coverage, thereby triggering cause of action, and policy did not require insureds to give insurer a contrary report prior to filing suit, West's /.S.A. § 627.707(2), (4). {3| Insurance 217 3543 © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 2 --- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 (Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.)) 217 Insurance 217X 217k3543 k, Grounds of Action, Most Cited { Civil Practice and Procedure Cases In regard to insurance contracts, a specific re- fusal to pay a claim is the breach which triggers the cause of action [4] Insurance 217 2140 217 Insurance 217X I Coverage—Property Insurance XVICA) In General 217k2139 Risks or Losses Covered and Exclusions 217k2140 k. In General. Most Cited Cases Insurance 217 ©2199 217 Insurance 21 7XV| Coverage—Property Insurance 217XVI(A) In General 217k2196 Evidence 217k2199 k. Burden of Proof. Most Cited Cases Sinkhole endorsement to an “all risks” home- owners insurance policy did not change underlying policy into a “named perils” policy, and thus, in- sureds had burden of establishing that loss occurred during the policy period and, if insureds met that burden, insurer then had burden of proving that loss resulted from an excluded cause. [5] Insurance 217 ©2117 217 Insurance 2|7XV Coverage—in General 217k2114 Evidence 2) 7k2117 k. Burden of Proof. Most Cited Generally, an insured seeking coverage pursuant to an “all risks” policy must prove that a loss oc- curred to the property during the policy period; if the insured meets this initial burden, the burden shifts to the insurer to show that the loss resulted from an ex- cluded cause, and the insured does not need to dis- prove any excluded causes. Appeal from the Circuit Court for Hillsborough County; Paul [.. Mucy, Judge.Kara Berard Rocken bach of Methe & Rockenbach, P.A., West Palm Beach, for Appellant. Raymond T. Elligett, Jr, and Amy S. Varrior of Buell & Elligett, P.A., Tampa; and Michael | aurato and rin Dunnavant of Austin & Laurato, P.A., Tampa, for Appellees. KIOUZAM, Judge. *1 We affirm the decision below and write to address two issues: an insurance company's reliance on its engineer's report and the burden of proof in a suit involving an endorsement to an “all risks” insur- ance policy. In December 2009, Hector and Alba Munoz no- ticed numerous cracks in the walls of their home. At the time, the residence was insured by a policy issued by Citizens Property Insurance Corp. The policy (form CIT HO-3 07 08) insured against the risk of direct, physical losses to the property unless specifi- cally excluded. The policy contained an exclusion for loss caused by sinkholes, but the parties had added an endorsement for sinkhole loss coverage (form CIT 23 94 07 08). The Munozes reported the damage to Citi- zens in January 2010, and Citizens engaged Madrid Engineering Group to complete a sinkhole evalua- tion. When the firm determined that the damage was © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 3 --- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 (Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.)) not caused by a sinkhole, Citizens denied the Munoz- es' claim. The Munozes hired SDII Global Corpora- tion to evaluate the damage, and SDII determined that the damage was caused by a sinkhole. Without informing Citizens of SDII's report, the Munozes filed suit for coverage in May 2011. A jury trial was held. The Munozes presented evidence in support of their position that the damage to their property had been caused by a sinkhole. After the Munozes rested their case, Citizens moved for directed verdict, argu- ing that it could not have breached the insurance con- tract when its engineer completed a statutorily com- pliant report finding no sinkhole activity and it did not receive a contrary professional opinion before the complaint was filed. The Munozes responded that they were under no obligation to provide a contrary report prior to filing suit. The trial court denied Citi- zens' motion for directed verdict, and Citizens pre- sented evidence in support of their position that the damage to the Munozes' property had not been caused by a sinkhole but instead by excluded causes. [|| At the charge conference, there was a dispute over the burden of proof, an issue that hinges on the nature of the policy—specifically, whether it is an “all risks” or “named perils” policy.’ *! The parties agreed that the original policy was an “all risks” poli- cy. But Citizens argued that the sinkhole endorse- ment transformed the sinkhole coverage into “named perils” coverage. The Munozes, on the other hand, contended that the endorsement did not change the underlying “all risks” nature of the policy. The trial court agreed with the Munozes and instructed the jury on the burden of proof accordingly. The jury returned a verdict in favor of the Munozes, and a final judgment was entered. Citizens timely appealed. We affirm, writing to address Citi- zens' claims that the trial court erred in denying the motion for directed verdict and instructing the jury on the burden of proof. We affirm as to the remaining issue without comment. I. MOTION FOR DIRECTED VERDICT [2] The trial court properly denied Citizens’ mo- tion for directed verdict because the Munozes were under no obligation to provide a contrary report to Citizens before filing suit. It is true that Citizens was required by statute to hire an engineer or geologist to conduct testing and issue a report. See § 627.707(2). (4), Via, Stat. (2010), And section 627.7073(1)\(c) does provide that this report “shall be presumed cor- rect.” But this statutory scheme was “designed to provide a framework for insurance companies to fol- low when encountering specific types of claims, in this case claims involving sinkhole damage. The ap- plication of a specific provision within that scheme [such as the presumption in section 627.7073(1)(c) ] to the evidentiary context is both misguided and in- appropriate.” Universal Ins, Co. of N. Am. v. Warfel, 82 So.3d 57 (la.2012). Indeed, as this court has recently noted, “ ‘the [s]ection 627.707(c) presump- tion in favor of the insurer's engineer's report neither alters the fact of sinkhole damage nor forecloses liti- gation that attempts to discover the fact of sinkhole damage.’ “ Herrera v. Tower Hill Pre 39 Fla. L. Weekly 12257, 2258 n, 2 (Fla, 2d DCA Oct.29, 2014) (alteration in original) (quoting Swrrer v, Hirst Liberty Ins. Co., No. 811 cv 60 1 23MAP. 2011 WI, 3879815, at *2 (M.1.Vla. Sept.2, 2011). ‘ed Ins. Co. *2 [3] * “In regard to insurance contracts, a spe- cific refusal to pay a claim is the breach which trig- gers the cause of action...” “ Adse Ullstate fas. Co. v Kaklamanos, 843 So.2d 885, 892 (la.2003) (quoting Donovan v, State Furm Fire & Cas. Co 4 S0.2d 285, 286 (la. 2d DCA 1991). Here, a valid dispute about the existence of a covered loss under the insur- ance policy arose at the time Citizens denied cover- age. See Tower [ill Select Ins. Co. v. McKee. 39 Fla L. Weekly DI756. DI756 (Fla. 2d DCA Aug.20, 2014). And Citizens has failed to point to any legal authority or any portion of the policy requiring the Munozes to have given Citizens a contrary report © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 4 --- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 (Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.)) prior to filing suit.” Il. BURDEN OF PROOF [4] The trial court properly allocated the burden of proof. This court's opinion in //adson v. Prien alty Insurance Co.. 450 So.2d 565 Property & Cas (Fla, 2d DCA 1984), is controlling here. The Hud- sons had purchased a policy that insured their resi- dence against all risks of physical loss except as oth- erwise excluded, /d. at 566. The policy contained an exclusion for loss caused by earth movement or sink- ing, but an endorsement had been added to provide coverage for sinkhole loss. /d. This court held that “[t]hat endorsement did not change the ‘all risks’ na- ture of the underlying policy; it merely narrowed the earth sinking exclusion.” /d/, at 568. In so holding, this court relied on Sirubble v. United Service Auto- mobile Ass'n, in which California's Second District Court of Appeal noted: [E]arthquake coverage provided by the policy arose from a special endorsement thereto. Un- doubtedly earthquake itself is a specific peril. But the coverage of a liability insurance policy must be construed broadly and its exclusions narrowly. We, therefore, regard the earthquake endorsement as merely narrowing the earth movement exclusion and as not changing the ‘all-risks' nature of the un- derlying policy. To hold otherwise would be a case of the tail wagging the dog. 35 Cal.App.3d 498, 110 Cal. Rptr. 828, 832 n. 6 (Cal.Dist.Ct.App.1973) (citation omitted). Similarly, the sinkhole endorsement in this case does not change the nature of the underlying “all risks” policy. {5| Generally, an insured seeking coverage pur- suant to an “all risks” policy must prove that a loss occurred to the property during the policy period. Judson, 450 So.2d at 568. If the insured meets this initial burden, the burden shifts to the insurer to show that the loss resulted from an excluded cause. /d. The insured does not need to disprove any excluded caus- es. /d. Here, the trial court correctly determined that the policy at issue was an “all risks” policy and allo- cated the burden of proof consistently with this find- ing. Affirmed. VILLANTI and WALLACE, JJ., Concur. UNI. An “all risks” policy protects against all direct losses except those explicitly ex- cluded from the policy; conversely, a “named perils” policy only protects against perils explicitly named as included in the policy, See Fisher vy. Certain Interested Un- derwriters at Lloyds Subscribing to Contract No. 242/99, 930 So.2d 756, 758 (Fla. 4th DCA 2006). 'N2. The cases of Omega Insurance Co. y. Johnson, 39 Fla. I Weekly D1911 DI912-13 (Fla. Sth DCA Sept.5, 2014), and Siate Farm Florida Insurance Co. \ Colella, 95 So.3d 891, 894 (Fla. 2d DCA 2012), on which Citizens relies, are distin- guishable from the instant case. The issue in those cases was whether the insurance com- pany had wrongyilly or unreasonably caused the insured to resort to litigation, whereas here the issue is whether a covered loss ex- isted. Indeed, in both of those cases the in- surance companies had already paid the in- sureds' claims. Omega, 39 Fla. 1.. Week- ly at D1912; Colella, 95S at 894, Fla.App. 2 Dist.,2014. Citizens Property Ins. Corp. v. Munoz =~ So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 5 --- So.3d ----, 2014 WL 7331095 (Fla.App. 2 Dist.), 40 Fla. L. Weekly D64 (Cite as: 2014 WL 7331095 (Fla.App. 2 Dist.)) END OF DOCUMENT © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED TOWER HILL PRIME INSURANCE COMPANY, Appellant, v. Case No. 5D14-1363 DOUGLAS NEWELL AND RENEE NEWELL, Appellees. Opinion filed January 22, 2016 Appeal from the Circuit Court for Orange County, Donald E. Grincewicz, Judge. Kara Berard Rockenbach and David A. Noel, of Methe & Rockenbach, P.A., West Palm Beach, for Appellant. Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm, Longwood, for Appellees. PER CURIAM. AFFIRMED. See Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2014) (holding that sinkhole endorsement to “all risks” homeowners insurance policy did not change underlying policy into “named perils” policy, and thus, insureds had burden of establishing that loss occurred during policy period, and if insured’s met that burden,insurer then had burden of proving that loss resulted from excluded cause), review denied, SC15-414 (Fla. 2015); Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (explaining that fact that insured’s sinkhole coverage was provided in endorsement to underlying homeowner's insurance policy did not change “all risks” nature of underlying policy; endorsement merely narrowed policy's earth movement exclusion; insurer had burden of proof to show that cause of property loss was excluded from coverage under policy’s terms). TORPY and EVANDER, JJ. concur. BERGER, J., concurs in result only.Westlaw. 36 So.3d 136, 35 Fla. L. Weekly D1048 (Cite as: 36 So.3d 136) District Court of Appeal of Florida, Second District Michael WARFEL, Appellant, v. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Appellee. No. 2D08-3134. May 12, 2010. Background: Insured under an all-tisks homeowners’ policy brought action against insurer arising out of insurer’s denial of his claim for sinkhole loss. The Circuit Court, Pasco County, W. lowell Bray, Jr, J. entered judgment after a jury trial in favor of insurer. Insured appealed. Holding: On motion for rehearing en bane, the Dis- trict Court of Appeal, |.akose, J., held that statute establishing a presumption of correctness for the findings of insurer's engineer and geologist did not shift the burden of proof to insured. Reversed and remanded; question of great public importance certified; motion denied. Villanti, J. filed dissenting opinion. West Headnotes |1| Appeal and Error 30 © 11775) 30 Appeal and Error 30 VII Determination and Disposition of Cause 30X VIL(D) Reversal 30k 1177 Necessity of New Trial Page 1 30k1177(5) k. Errors in rulings and instructions at trial. Most Cited Cases Insurance 217 ©2198 217 Insurance 217XVI Coverage--Property Insurance 217XVI(A) In General 217k2196 Evidence 217k2198 k. Presumptions. Most Cited Cases Trial 388 205 388 Trial 388VII Instructions to Jury 388VII(I3) Necessity and Subject-Matter 388k205 k. Presumptions and burden of proof. Most Cited Cases Statute establishing a presumption of correctness for the findings of the engineer and geologist retained by an insurer in cases of alleged sinkhole loss did not shift the burden of proof to the insured under an all- risks homeowners’ policy to disprove the findings of insurer's engineers and geologists that damage to home was not caused by a sinkhole, and thus trial court's giving of jury instruction that shifted the bur- den of proof to insured entitled him to new trial in his action against insurer; presumption was not related to public policy, but rather was a vanishing presumption that affected only insured’s burden of producing evi- dence and was not to be communicated to the jury. West's F.S.A. § 90.304; F.8.2005, § 627.7073(1)(c). (2| Trial 388 205 388 Trial 38811 Instructions to Jury © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.36 So.3d 136, 35 Fla. L. Weekly D1048 (Cite as: 36 So.3d 136) 388VII(13) Necessity and Subject-Matter 388k205 k. Presumptions and burden of proof. Most Cited Cases The jury is not told of a vanishing presumption affecting only the burden of production of evidence. *136 Nancy A. Lauten and Gicorge A. Vaka of Vaka, Larson & Johnson, P.L., Tampa; and Jonathan Lal, Joshua L, Burnett, and Marshall Thomas Burnett, Tampa, for Appellant. Alicia Lopez and Karl Forrest of Groelle & Salmon, P.A., Tampa, for Appellee. LaROSE, Judge. Michael Warfel appeals a final judgment entered in favor of Universal Insurance Company of North America in a sinkhole insurance coverage case. Mr. Warfel is entitled to a new trial because the trial court should not have instructed the jury on an evidentiary presumption that impermissibly shifted the burden of proof to him. Accordingly, we reverse. In March 2005, Universal issued an all-risks homeowners’ insurance po