Hicks v. Am. Integrity Ins. Co. of Fla.
Hicks v. Am. Integrity Ins. Co. of Fla.
Opinion of the Court
Hugh Hicks appeals the summary final judgment granted in favor of American Integrity Insurance Company of Florida ("AIIC") in his suit for breach of contract. Hicks contends that the trial court misapplied his insurance policy's provision excluding damages caused by "[c]onstant or repeated seepage or leakage of water ... over a period of 14 or more days." For the following reasons, we agree and reverse.
Hicks purchased an "all risks" policy from AIIC, which covered his home from May 31, 2012, until May 31, 2013.
Hicks sued for breach of contract, and AIIC pleaded in an affirmative defense that this provision excluded Hicks's loss. AIIC then filed a motion for summary judgment, arguing that because the leak occurred over a period of more than fourteen days, the provision unambiguously excluded coverage for all of Hicks's losses. Hicks filed his own motion for summary *927judgment, on three issues: that Hicks sustained a physical loss during the policy period, that all losses occurring within the first thirteen days were covered, and that Hicks was entitled to $40,926.77 for losses occurring within the first thirteen days of the leak. Hicks attached to his motion an extensive report from a forensic general contractor, which attempted to calculate the amount of damage to Hicks's home within the first thirteen days of the leak. At a hearing on the motions, the trial court told Hicks, "Basically, you're asking [this court] to say whether the policy covered the loss in the first 13 days .... It might, but I'm not so sure that the time frame of these particular facts would allow for that determination." The trial court then granted summary judgment in AIIC's favor.
On appeal, Hicks contends that the exclusion applies only to losses "caused by water on day 14 and onward." Hicks relies on Wheeler v. Allstate Insurance,
In light of the general principle that insurance policy provisions susceptible to more than one interpretation should be construed liberally in favor of the insured and strictly against an insurer, and that exclusionary clauses should be read even more narrowly, we hold that an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of fourteen days or more does not unambiguously exclude losses caused by leakage or seepage over a period of thirteen days or less. See Container Corp. of Am. v. Md. Cas. Co.,
Moreover, the trial court's express reasoning for granting summary judgment in AIIC's favor-that the policy "might" cover "the loss in the first 13 days," but that the trial court was nevertheless *928"not so sure that the time frame of these particular facts would allow for that determination"-was flawed. In an all-risks policy, once the insured establishes a loss within the terms of a policy, the burden shifts to the insurer to prove that a particular loss arose from an excluded cause. Mejia v. Citizens Prop. Ins.,
We therefore reverse the summary judgment entered in favor of AIIC and remand this case to the trial court to enter partial summary judgment in Hicks's favor on the sole issue of coverage within the first thirteen days of the leak, the extent of the losses to be determined at trial. As for losses occurring after the first thirteen days, the burden will be on AIIC to prove that a particular loss was sustained after the thirteenth day and is therefore not covered under the language of the exclusion provision.
REVERSED and REMANDED.
ON MOTION FOR REHEARING AND CERTIFICATION
American Integrity Insurance Company of Florida ("AIIC") has filed a motion for rehearing and certification. AIIC has also filed a motion for rehearing en banc, which will be the subject of a separate order by this court. In his Response to these motions, Hugh Hicks contends, among other things, that AIIC improperly reargues the issue decided by this court. Hicks further contends that AIIC's arguments regarding the per curiam affirmed decision without written opinion in Zimmerman v. American Integrity Insurance,
Hicks is correct that the motion for rehearing reargues the issue already decided by this court. It has been a fundamental rule for quite some time that such argument is prohibited. As we explained in Boardwalk at Daytona Development, LLC v. Paspalakis:
Appellees' "motion does what [Florida Rule of Appellate Procedure] 9.330(a) proscribes; it re-argues the merits of the case." Lawyers Title Ins. Corp. v. Reitzes,631 So. 2d 1100 , 1100 (Fla. 4th DCA 1993) (citations omitted). "It appears that counsel are utilizing the motion for rehearing and/or clarification as a last resort to persuade this court to change its mind or to express their displeasure with this court's conclusion."Id. at 1101 . "This is not the purpose of [r]ule 9.330. It should be noted that the filing of [r]ule 9.330 motions should be done under very limited circumstances, it is the exception to the norm."Id. (footnote omitted). "Motions for rehearing are strictly limited to calling an appellate court's attention-without argument-to something the court has overlooked or misapprehended. 'The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.' " Cleveland v. State,887 So. 2d 362 , 364 (Fla. 5th DCA 2004) (quoting Goter v. Brown,682 So. 2d 155 , 158 (Fla. 4th DCA 1996) ).
Turning to the Zimmerman decision, AIIC makes it a feature of its motion for rehearing en banc. AIIC filed an appendix containing the briefs filed in Zimmerman in an attempt to support its argument that this court affirmed the same coverage issue and "seemingly reached the opposite conclusion" in a case with a similar fact pattern. Those briefs clearly reveal that Hicks is correct-not only does Zimmerman have no precedential value for the purpose of granting a motion for rehearing *929en banc, the arguments made by AIIC regarding that decision are improper.
In the opinion rendered in the current appeal, the issue we resolved is whether the policy exclusion applies to exclude coverage for loss that occurs during the first thirteen days of water seepage or leakage. For the reasons explained in the opinion, we held that the exclusion does not apply to that time period. The briefs in the Zimmerman appeal reveal that, while the insured attempted to raise this issue in that case, AIIC argued that the issue was waived and not reviewable.
AIIC's motion exemplifies the wisdom of the rule that such per curiam affirmed decisions without a written opinion have no precedential value and should only be relied upon to establish res judicata. Dep't of Legal Affairs v. Dist. Ct. of Appeal, 5th Dist.,
The Florida Supreme Court in Department of Legal Affairs addressed the propriety of citing a per curiam decision without an opinion in appellate briefs and oral arguments.
AIIC was a party in the Zimmerman appeal, and it cited to that decision in the motion it filed in the instant appeal to show that this court decided the same issue differently in each case, knowing full well that it argued in Zimmerman that the issue was waived. In light of its waiver argument, we fail to see how AIIC can find it "troubling when a court affirms a coverage issue without explanation and then *930reaches essentially the opposite decision a short time later," when AIIC believed that the issue was not reviewable in Zimmerman.
The motion for rehearing and certification is denied.
DENIED.
SAWAYA, EVANDER and LAMBERT, JJ., concur.
An all-risks insurance policy covers "all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage." Hudson v. Prudential Prop. & Cas. Ins.,
But even that issue differs from the issue in the instant case because, in Zimmerman, the only argument regarding whether coverage applied to the first thirteen days was based on the lack of a "lead-in provision" related to the "sequence of the loss."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.