Florida Farm Bureau Ins. Co. v. Birge

659 So. 2d 310, 1994 Fla. App. LEXIS 12600, 1994 WL 714976
CourtDistrict Court of Appeal of Florida
DecidedDecember 28, 1994
Docket93-03737
StatusPublished
Cited by19 cases

This text of 659 So. 2d 310 (Florida Farm Bureau Ins. Co. v. Birge) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Farm Bureau Ins. Co. v. Birge, 659 So. 2d 310, 1994 Fla. App. LEXIS 12600, 1994 WL 714976 (Fla. Ct. App. 1994).

Opinion

659 So.2d 310 (1994)

FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant,
v.
J. Timothy BIRGE and Margaret Birge, Appellees.

No. 93-03737.

District Court of Appeal of Florida, Second District.

December 28, 1994.

George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.

C. Kenneth Stuart, Jr., Lakeland, for appellee.

PER CURIAM.

Florida Farm Bureau Insurance Company appeals a $100,000 final judgment entered in favor of the Birges. We affirm because we agree the homeowners' insurance contract did not unambiguously exclude from coverage *311 damage to the Birges' home caused by a sewer malfunction.

On July 11, 1991, J. Timothy and Margaret Birge returned home, opened the front door, and were met by raw sewage filling their house and flowing out the doorway. The Birges filed an insurance claim for the damage. Farm Bureau denied coverage based on two provisions in the insurance contract that excluded damage resulting from "water" or from "pollutants and contaminants."

The trial judge found the insurance contract was ambiguous and allowed the jury to determine the damages. If the language of an insurance contract is ambiguous, the policy must be construed in favor of the insured. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245 (Fla. 1986); Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla. 1965); Shelby Mut. Ins. Co. v. Lamarche, 371 So.2d 198 (Fla. 2d DCA 1979), approved, 390 So.2d 325 (Fla. 1980). Exclusionary clauses are construed more strictly than coverage clauses. Triano v. State Farm Mut. Auto. Ins. Co., 565 So.2d 748 (Fla. 3d DCA 1990).

We agree with the trial judge that the policy was ambiguous. The average homeowner's examination of the insurance contract would not reveal the applicability of these exclusions to this type of disaster. Our conclusion is supported by the availability of clear and unambiguous language that the insurance company could have used to exclude damage resulting from a backup of raw sewage.

Accordingly, we affirm.

BLUE and FULMER, JJ., concur.

PARKER, A.C.J., dissents with opinion.

PARKER, Acting Chief Judge, dissenting.

Because I conclude that the trial court erred in denying Farm Bureau's motion for directed verdict, I respectfully dissent. Accordingly, I would reverse the $100,000 judgment in favor of the Birges and remand for entry of directed verdict in favor of Farm Bureau.

This case arises from Farm Bureau's denial of the Birges' claim for homeowner's insurance coverage. The Birges filed a homeowner's insurance coverage claim for damage caused to their home as a result of sewage backup from a nearby sewage station. Farm Bureau denied coverage contending that the loss was excluded by either the pollution clause or the water damage exclusion in the policy. The Birges filed suit against Farm Bureau, and the case proceeded to trial.

The material facts presented at trial were undisputed. Lightning struck a transformer causing a power failure at the City of Eagle Lake pump station. As a result of the electrical failure, Eagle Lake's electrical generating pumps could not operate and sewage which had collected in the main well began to fill up to the point where it backed up into residences along the line. The Birges' residence was at the end of the sewer line and gravity caused the raw sewage to back up from outside the Birges' property into their residence. Mr. Birge came home from work to discover that water and raw sewage effluent was flowing from all of the toilets and bath drains in all three of his bathrooms. The entire residence contained two to three inches of flowing sewage. For the fifteen months the Birges had lived in the home, there had never been a problem with the sewer system.

At the close of the evidence, Farm Bureau moved for a directed verdict on the basis that raw sewage is a contaminant or pollutant and the damage was excluded from coverage. Farm Bureau also argued that it was undisputed that the damage to the Birges' home was caused by water and something else, whether it be untreated sewage, effluent, or whatever. Farm Bureau argued that unless the trial court ruled that the policy was ambiguous, as long as water contributed to the damage, the entire damage was excluded.

The trial court denied Farm Bureau's motion for directed verdict and allowed the case to be submitted to the jury for determination without expressly ruling that the policy was ambiguous. The jury returned a verdict in favor of the Birges, and Farm Bureau appealed.

*312 On appeal, Farm Bureau argues that the trial court erred as a matter of law in denying its motion for directed verdict on the question of coverage. Farm Bureau contends that two provisions in the policy preclude coverage in this case. The first clause to which Farm Bureau points is the pollution clause in the policy which does not provide coverage for loss to property caused by the release, discharge, or dispersal of pollutants. The second provision Farm Bureau argues precludes coverage is the water damage exclusion which excludes coverage for loss caused directly or indirectly by water damage.

The policy issued by Farm Bureau was a Homeowners 3 Special Form Policy which provided both property coverage and liability insurance. The policy stated in part:

COVERAGE A — DWELLING and COVERAGE B — OTHER STRUCTURES
We insure against risks of direct loss to property described in Coverages A and B only if that loss is a physical loss to property; however, we do not insure loss:
2. caused by:
f. (5) release, discharge or dispersal of contaminants or pollutants;
if any of these cause water damage not otherwise excluded, from a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance, we cover loss caused by the water including the cost of tearing out and replacing any part of a building necessary to repair the system or appliance. We do not cover loss to the system or appliance from which this water escaped.

(Referred to as the pollution clause).

The policy also contained the following pertinent exclusion which provides as follows:

1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
c. Water Damage, meaning:
(2) water, which backs up through sewers or drains or which overflows from a sump; ...

(Referred to as the water damage exclusion).

Farm Bureau correctly argues that the question of the extent of coverage is generally a question of law for the court. See Jones v. Utica Mut. Ins. Co., 463 So.2d 1153 (Fla. 1985); Marr Investments, Inc. v. Greco, 621 So.2d 447 (Fla. 4th DCA 1993). If the language of a policy is ambiguous, the policy must be construed to provide coverage. Old Dominion Ins. Co. v. Elysee, Inc., 601 So.2d 1243 (Fla. 1st DCA 1992). However, where language in a policy is plain and unambiguous, there is no special construction or interpretation required, and the plain language in the contract is to be given the meaning which it clearly expresses. Jefferson Ins. Co. of New York v. Sea World of Florida, Inc., 586 So.2d 95 (Fla. 5th DCA 1991); United States Liability Ins. Co. v. Bove, 347 So.2d 678 (Fla. 3d DCA 1977).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maxum Indem. Co. v. 3rd Generation Plumbing, Inc.
342 F. Supp. 3d 1292 (S.D. Florida, 2018)
Evanston Insurance v. Haven South Beach, LLC
152 F. Supp. 3d 1370 (S.D. Florida, 2015)
North Pointe Casualty Insurance Co. v. M & S Tractor Services., Inc.
62 So. 3d 1281 (District Court of Appeal of Florida, 2011)
Westport Ins. Corp. v. VN HOTEL GROUP, LLC
761 F. Supp. 2d 1337 (M.D. Florida, 2010)
Andres v. Oklahoma Farm Bureau Mutual Insurance Co.
2009 OK CIV APP 97 (Court of Civil Appeals of Oklahoma, 2009)
Ernie Haire Ford, Inc. v. Universal Underwriters Insurance
541 F. Supp. 2d 1295 (M.D. Florida, 2008)
Nova Casualty Co. v. Waserstein
424 F. Supp. 2d 1325 (S.D. Florida, 2006)
Citrano v. Hingham Mutual Fire Insurance
788 N.E.2d 975 (Massachusetts Appeals Court, 2003)
BLUE CROSS AND BLUE SHIELD OF FLA. v. Steck
778 So. 2d 374 (District Court of Appeal of Florida, 2001)
Newberg v. Commercial Union Insurance Co.
619 N.W.2d 757 (Court of Appeals of Minnesota, 2000)
Capelouto v. Valley Forge Insurance
990 P.2d 414 (Court of Appeals of Washington, 1999)
PURRELL v. State Farm Fire and Cas. Co.
698 So. 2d 618 (District Court of Appeal of Florida, 1997)
Kopelowitz v. Home Insurance
977 F. Supp. 1179 (S.D. Florida, 1997)
State Farm Fire & Cas. v. Deni Assoc.
678 So. 2d 397 (District Court of Appeal of Florida, 1996)
West American Insurance v. Band & Desenberg
925 F. Supp. 758 (M.D. Florida, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
659 So. 2d 310, 1994 Fla. App. LEXIS 12600, 1994 WL 714976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-farm-bureau-ins-co-v-birge-fladistctapp-1994.