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Plaintiff Maintains Initial Burden of Proof to Establish Causation in Hurricane Irma Claims

January 5, 2024
April 13, 2021

Florida Statute §627.70132 allows an insured to make a claim for an alleged hurricane loss within three years of the event. This statute, however, is not a waiver of the insured’s initial burden of proof to establish causation as a condition precedent to coverage.

In any late reported Hurricane Irma claim, the plaintiff’s bar argues that the insureds have no real burden of proof other than to introduce photographs of roof damages. The plaintiff’s bar argues that if the insurance carrier cannot prove that the roof damages are the result of an exception or exclusion to coverage, that the court must find that all of the damages are the result of wind on September 10, 2017 – an event which occurred three years earlier. This assertion is contrary to the controlling case law and common sense.

“An ‘all-risk’ policy is not an ‘all loss’ policy.” See Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1086 (Fla 2005). Under an HO-3 replacement cost policy, the insured still maintains the initial burden of proof to introduce competent admissible evidence to prove that (1) there are damages to the property, (2) which were actually caused by wind on September 10, 2017. See Homeowners Choice Property & Casualty v Maspons, 211 So. 3d 1067 (Fla. 3d DCA 2017).[1]  In Maspons, supra, the court wrote:

“In Florida, the Insured has the burden of proving facts that bring its claim within an insurance policy’s affirmative grant of coverage. [citation omitted]. In order to meet this burden under a policy of property damage insurance, the insured must prove (1) that the property harmed or damaged falls within the ‘insuring clause’ of the policy and (2) the loss claimed falls within a second, ‘covered perils’ provision contained in each policy. [citation omitted]. The property, in this case, is uncontestably insured property under the Homeowner's Choice insurance policy. Thus, the first prong of the coverage analysis is satisfied. It is the second coverage prong that produces the question for resolution in this case, whether the Maspons suffered a loss that also falls within the ‘covered perils’ provision of the insurance policy. Only then might compensation be due, and then only if there is no applicable exclusion from coverage that might apply.” Id. At 1068-1069.

The Third District made clear that the insured is required to prove that there are (1) damages and (2) which were actually caused by a peril insured against. In Maspons, supra, the insured was able to prove only one of the two necessary predicate elements for causation. The Third District, therefore, concluded that the insured could not recover. This same legal analysis regarding the insured’s initial burden of proof applies in all insurance property claims, including hurricane claims.

Under Maspons, supra, the insurance carrier is not required to prove that damages were caused by any exception or exclusion of the policy as an initial matter. On the contrary, if the insured cannot meet its initial burden of proof on the threshold issue of coverage, the burden never shifts to the insurance carrier.[2]  

An HO-3 replacement cost policy does contain an exception for damages that are the result of wear, tear and deterioration. This exception, however, does not change the insured’s initial burden of proof. Every day a property (e.g., roof, interior, exterior) will age as a result of normal wear, tear and deterioration. These impacts include, but are not limited to, thermal expansion and contraction of the materials used in the construction of these areas. The damages created by wear, tear and deterioration are simply not covered under the policy. As such, this exception to coverage applies to all damages which were not actually damaged by a peril insured against. Based on Maspons, supra, if the insured is unable to meet its initial burden of proof, then the burden never shifts to the insurance carrier and the court is compelled to conclude that the damages are not covered.

When a Hurricane Irma claim is first reported in 2020, at best, the insured can only produce an expert report based on an inspection in the year 2020 or 2021. Any such report will be limited to a description of the current damage and the conclusion that there has been no comparable wind event since September 10, 2017. It is not enough for a report to (1) identify the damages to the roof and (2) assert that there has been “no comparable windstorm event” since Hurricane Irma. These types of reports have already been rejected by the Fourth District. See Soronson v. State Farm Florida Insurance Company, 96 So. 3d 949, 953 (Fla. 4th DCA 2012). In Soronson, supra, the peril was Hurricane Wilma which occurred on October 24, 2005. The insured first reported the claim in February 2009. An inspection occurred. The claim was denied. Suit was filed. State Farm raised late notice as a defense and filed a motion for summary judgment. The insured produced an engineer’s report in response. The trial court granted summary judgment in favor of State Farm. On appeal, the Fourth District noted that the insured's evidence consisted of their own affidavit and an engineer’s report. The report identified the damages and asserted: “no comparable windstorm events occurred after Hurricane Wilma.” The Fourth District concluded: “Here, the insureds failed to come forward with counterevidence sufficient to reveal a genuine issue of material fact . . . Their affidavit does not present sufficient counterevidence to overcome the presumption of prejudice.” Id. at 953.

Any plaintiff expert report produced three years after the purported event will be legally insufficient to create a question of fact on causation. The law in Florida is clear. The plaintiff may not offer conclusory self-serving statements, which are framed in terms of conclusions of law to create a question of fact as to the issue of causation. See Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012)(“However, conclusory self-serving statements which are framed in terms of conclusions of law are not sufficient to either raise a question of material fact or prove the non-existence of a genuine issue of material fact.”)  If the insured cannot create a question of fact as to the issue of causation, then it only follows that the insured cannot meet its initial burden of proof on causation – a necessary condition precedent to coverage.

Effective May 1, 2021, Florida state courts will follow the summary judgment standard articulated by the United States Supreme Court. See In re Amendments to Fla. Rule of Cov. Procedure 1.510, 2020 Fla. LEXIS 2148 (Fla. Sup. Ct. December 21, 2020). Under the new standard, a party opposing summary judgment will have to do more than simply produce an expert report and claim a question of fact on the issue of causation.[3] With that said, even without the heightened standard, the trial courts are well within their discretion to grant summary judgment in favor of the insurance carriers relying on Soronson, supra, and Progressive Exp. Ins. Co., supra.

[1] In Maspons, supra, the plaintiff furnished a video showing a "break" in the drain line (i.e., the origin of the alleged damage and a peril insured against).  The insurance carrier retained a plumbing company that confirmed a “large hole” in the drain line. The trial court entered summary judgment in favor of the insureds.  Id. at 1068. On appeal the Third District noted that there “was no evidence that [any] water exiting the pipe had caused any damage to its surrounding.” Id. at 1070. The Third District confirmed that there was no evidence of any actual damages. The plaintiff was only able to prove one of the two necessary predicate elements for causation.  As such, the Third District directed the trial court to enter summary judgment in favor of Homeowner’s Choice.

[2] This conclusion is consistent with other courts. See also Lafarge Corporation v. Travelers Indemnity Co., 118 F.3d 1511 (11th Cir. 1997)(“Florida law places on the insured the burden of proving that a claim against it is covered by the insurance policy.”); Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576 (Fla. 2d DCA 2014)(“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 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.”); Citizens Prop. Ins. Corp v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2014)(“Generally, an insured seeking coverage pursuant to an ‘all-risks’ policy must prove that a loss occurred to the property during the policy period. [citation omitted] If the insured meets this initial burden, the burden shifts to the insurer . . .”.)

[3] The plaintiff's bar typically cites to Garcia v. First Cmty. Ins. Co., 241 So. 3d 254, 257 (Fla. 3d DCA 2018)(“The merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.”).  See also Archer v. Tower Hill Signature Ins. Co., 2021 WL 1115386 (Fla. 4th DCA March 24, 2021)(Plaintiff furnished three affidavits in support of a Hurricane Irma claim: two roof repairmen and a public adjuster. The court wrote: “The insured failed to meet her burden [of proof] because her affidavits and depositions were conclusory.”) citing favorably to Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012). Under the pre-May 1, 2021, summary judgment standard, the Fourth District in Archer, supra, confirmed that a trial court can examine an affidavit, report or both, to determine if either offers more than just "conclusory statements" – and that this examination is not the same as "weighing the evidence" and/or "adjudging the credibility of a witness." This is consistent with what the Third District did in Garcia in determining whether a genuine issue of material fact existed.