Danny Kapson v. Homeowners Choice Property & Casualty Insurance Company, Inc.

• Court: District Court of Appeal of Florida
• Decided: January 14, 2026
• Docket: 3D2024-0363
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 14, 2026. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0363 Lower Tribunal No. 18-CA-1089-K ________________

Danny Kapson and Rose Noelle, Appellants,

vs.

Homeowners Choice Property & Casualty Insurance Company, Inc., Appellee.

An Appeal from the Circuit Court for Monroe County, Mark Wilson, Judge.

Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellants.

Kelley Kronenberg, and Andrew A. Labbe (Fort Lauderdale), for appellee.

Before SCALES, C.J., and GORDO and GOODEN, JJ.

GOODEN, J., After Hurricane Irma destroyed their home, Appellants Danny Kapson

and Rose Noelle sought coverage under several policies—a standard

hazard policy, a flood policy, and a named-peril (wind only) policy issued by

Appellee Homeowners Choice Property & Casualty Insurance Company.

The Appellants collected $222,800.00 from the flood carrier without dispute.

Homeowners Choice acknowledged that some damage, specifically the roof

and trusses, fell within its coverage. It sent payments totaling $38,122.67. 1

Thereafter, Kapson and Noelle filed suit against Homeowners Choice

for breach of contract. They asserted that wind destroyed the home before

flooding or storm surge occurred, and therefore, all damages were covered.

Yet Homeowners Choice asserted that the remaining damages were from

flooding and storm surge, which are not covered. The policy contained anti-

concurrence cause language. At trial, evidence was admitted that Kapson

and Noelle submitted claims, which were paid, to the flood carrier. But the

amount of the benefits received was excluded.

Ultimately, the jury found that Kapson and Noelle did not prove by the

greater weight of the evidence that the loss was caused by wind and entered

1 Kapson and Noelle have rebuilt their home. It is 345 square feet smaller than their previous home. They paid $310,054.18 for the cost of the structure.

2 verdict for Homeowners Choice. After post-trial motions were denied, a final

judgment was rendered in favor of Homeowners Choice.

On appeal, Kapson and Noelle assert several arguments. Finding

none of them meritorious, we affirm in all respects. See Murphy v. Int’l

Robotic Sys., Inc., 766 So. 2d 1010, 1031 (Fla. 2000) (“[B]efore a

complaining party may receive a new trial based on unobjected-to closing

argument, the party must establish that the argument being challenged was

improper, harmful, incurable, and so damaged the fairness of the trial that

the public’s interest in our system of justice requires a new trial.”); Citizens

Prop. Ins. Corp. v. Kings Creek S. Condo, Inc., 300 So. 3d 763, 766 (Fla. 3d

DCA 2020) (“Moreover, this is a named perils policy, with wind being the

covered cause of loss. After the insured presents evidence of wind related

damage, the insurer has the right to challenge that evidence with evidence

of non-wind related causes.”).

We write briefly to address one issue—admission of evidence

regarding the flood claim. In a named-peril policy dispute, the jury can

consider evidence that the policyholder made a claim to and received

benefits from a different insurer for a peril specifically excluded by the current

policy. It is relevant to show that the loss was caused by an excluded peril

rather than a covered one. See § 90.401, Fla. Stat. (2022); § 90.402, Fla.

3 Stat. (2022); Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645, 652–53 (Fla.

1st DCA 2010) (“Evidence that such flood insurance benefits were received

was relevant to the issue of whether flood or wind caused the total loss of

the home, and the trial court abused its discretion in excluding such

evidence. Where Ashe now claims that his house was totally destroyed by

wind, the jury can and should be allowed to hear evidence that he sought

and accepted payment from his flood insurer, which by contract only

provided compensation in the event of losses from a flood peril.”). It directly

rebutted Kapson’s and Noelle’s all-or-nothing theory of the case.

Section 90.408, Florida Statutes, does not foreclose this evidence. §

90.408, Fla. Stat. (2022). The record does not show that this was a

settlement or compromise of a claim “which was disputed as to validity or

amount.” Id. It appears the flood carrier compensated Kapson and Noelle

without issue and the flood carrier simply fulfilled its contractual duty. See

Ashe, 50 So. 3d at 655 (“For this court to accept his argument here, every

payment of insurance benefits would constitute a settlement rather than

simply fulfilling a contractual duty.”); Charles W. Erhardt, et. al., Florida

Evidence § 408.1 (2025 ed.) (“If there is no dispute as to either validity or

amount, the section 90.408 prohibition does not apply because there is no

compromise;”). Further, the evidence was offered to prove causation—not

4 liability or value. § 90.408, Fla. Stat.; Bankers Tr. Co. v. Basciano, 960 So.

2d 773, 780 (Fla. 5th DCA 2007) (“If the evidence is offered for another

purpose, the evidence is not barred by section 90.408 . . . .”).

Lastly, the common law collateral source evidentiary rule does not bar

this evidence.2 “The collateral source rule does not, however, bar the

admission of evidence of collateral source payments where such evidence

is relevant to liability or rebuts a party’s theory of the case, or where the

plaintiff’s evidence may mislead the jury about the plaintiff’s present financial

circumstances.” Russo v. Lorenzo, 67 So. 3d 1165, 1167–68 (Fla. 4th DCA

2011) (internal citations omitted). See also Ashe, 50 So. 3d at 654; Rease

v. Anheuser-Busch, Inc., 644 So. 2d 1383, 1387 (Fla. 1st DCA 1994). In any

event, the evidence of the amount of payment was excluded. See Citizens

Prop. Ins. Corp. v. Hamilton, 43 So. 3d 746, 751–52 (Fla. 1st DCA 2010).

In the end, the trial court did not abuse its discretion in admitting

evidence of the flood claim and receipt of benefits. So, we affirm.

Affirmed.

2 We are aware of the district split concerning whether the collateral source evidentiary rule applies to contract actions. Contrast City of Miami Beach v. Carner, 579 So. 2d 248, 253–54 (Fla. 3d DCA 1991), Trs. of Cameron-Brown Inv. Grp. v. Tavormina, 385 So. 2d 728, 729 (Fla. 3d DCA 1980), with Hamilton, 43 So. 3d at 751. However, we do not need to address or resolve that issue here as there are additional reasons why this would not fall within the collateral source evidentiary rule. 5