Florida Windstorm Underwriting v. Gajwani

934 So. 2d 501, 2005 Fla. App. LEXIS 6782, 2005 WL 1109465
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 2005
Docket3D04-1392
StatusPublished
Cited by18 cases

This text of 934 So. 2d 501 (Florida Windstorm Underwriting v. Gajwani) 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 Windstorm Underwriting v. Gajwani, 934 So. 2d 501, 2005 Fla. App. LEXIS 6782, 2005 WL 1109465 (Fla. Ct. App. 2005).

Opinion

934 So.2d 501 (2005)

FLORIDA WINDSTORM UNDERWRITING, etc., Appellant,
v.
Anil GAJWANI, et al., Appellees.

No. 3D04-1392.

District Court of Appeal of Florida, Third District.

May 11, 2005.

*502 Colodny, Fass, Talenfeld, Karlinsky & Abate, Maria Elena Abate, Fort Lauderdale, and Sandy P. Fay, for appellant.

Mintz, Truppman, Clein & Higer, and Keith Truppman, Miami; Conroy Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for appellees.

Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

Appellant, Florida Windstorm Underwriting Association (FWUA), appeals a final summary judgment entered against it in favor of plaintiffs, Anil Gajwani and Suresh Gajwani. The Gajwanis cross appeal a final summary judgment entered against them in favor of Lexington Insurance Company (Lexington). We reverse the summary judgment entered against FWUA and dismiss the cross appeal.

Anil Gajwani and Suresh Gajwani each owned a house and maintained a homeowner's insurance policy through Lexington and a windstorm insurance policy through FWUA. The houses were located next door to each other, and both suffered "wind-driven rain" damage when Hurricane Irene struck South Florida in 1999. In the instant case, the evidence presented indicated that rain entered the respective homes through window and sliding glass door openings, and by seeping through second floor patio tiles and cracks in the stucco. The Gajwanis filed claims with both FWUA and Lexington, each of which denied their claims. FWUA denied coverage based on the wind-driven rain exclusion of its policy. Lexington denied coverage *503 based on an exclusion in its policy which stated that it did not insure for loss caused directly or indirectly by a windstorm.

On February 1, 2000, after the incidents in question, the Florida Department of Insurance issued a bulletin regarding wind exclusion endorsements, stating, in part:

While individual policy language would have to be considered in context, the Department's approval of wind exclusion endorsements has been predicated on the premise that the only coverage that can properly be excluded under the endorsement is that which is provided by the Florida Windstorm Underwriting Association.
The misapplication of the wind exclusion endorsement and denial of claims for structural damage caused by rain that enters a structure through an opening not created directly or indirectly by wind, appears to present an unfair trade practice, violative of Part IX of Chapter 626 of the Insurance Code, subjecting insurers to administrative fines and other appropriate administrative actions.

On August 24, 2000, FWUA issued an announcement that it would begin covering wind-driven rain damage, effective August 21, 2001. It noted that "Prior to the endorsement, the FWUA provided coverage that required the direct force of wind to cause an opening before coverage was provided. This endorsement will provide coverage to the interior portion of a building. . . in the absence of damage to the exterior of the building that creates an opening."

After FWUA and Lexington denied coverage, the Gajwanis each filed an action for damages against Lexington, and then amended their complaints, adding a claim for declaratory relief, and adding FWUA as a defendant. Pursuant to an agreed order, a neutral umpire was appointed to appraise the damages to the homes. The order specifically stated that by agreeing to the appraisal, the parties did not waive any coverage defenses. The lower court subsequently entered an order confirming the appraisals. Each party then filed a motion for summary judgment. The lower court held a hearing at which it concluded that FWUA was responsible for coverage because (1) it tacitly admitted by the later amendment of its policy that its wind-driven rain exclusion was inappropriate; (2) FWUA participated in the appraisal process; and (3) the exclusion is void as against public policy.

On April 28, 2004, the court entered a written order and final summary judgment in favor of the Gajwanis against FWUA, as well as an order and final summary judgment in favor of Lexington against the Gajwanis. The orders and final summary judgments were combined into one document, titled:

ORDER AND FINAL SUMMARY JUDGMENT IN FAVOR OF ANIL GAJWANI AND SURESH GAJWANI AGAINST FLORIDA WINDSTORM UNDERWRITING ASSOCIATION

and

ORDER AND FINAL SUMMARY JUDGMENT IN FAVOR OF LEXINGTON INSURANCE COMPANY AND AGAINST ANIL GAJWANI, SURESH GAJWANI AND FLORIDA WINDSTORM UNDERWRITING ASSOCIATION.

FWUA timely filed its notice of appeal on May 27, 2004. The Gajwanis did not file a notice of appeal, but instead, filed a notice of cross-appeal on October 5, 2004.

As a preliminary matter, we must examine the validity of the cross-appeal. The cross-appeal seeks to reverse the summary judgment entered in favor of Lexington *504 against the Gajwanis, asserting that if this court determines that the Gajwanis' damages are not covered under the FWUA policy, then they must be covered under the Lexington policies. Lexington has moved to dismiss the cross-appeal, arguing that it is, in fact, not a cross-appeal, but rather an untimely appeal from a separate and different judgment than that appealed by FWUA. We agree with Lexington, based on our decisions in Breakstone v. Baron's of Surfside, Inc., 528 So.2d 437 (Fla. 3d DCA 1988) and Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058 (Fla. 3d DCA 1981).

In Webb, Webb, PDM Hyrdrostorage, and Federal Insurance Company were co-defendants in a lawsuit. Id. at 1059. Webb cross-claimed against PDM and Federal alleging breach of contract, and PDM and Federal cross-claimed against Webb seeking indemnification for legal costs incurred in defending the suit against the plaintiff. Id. The trial court entered a final summary judgment against Webb in favor of PDM and Federal on the breach of contract claim. On the same day, the trial court entered a final judgment in favor of PDM and Federal against Webb on their indemnity claim. Id. Webb timely appealed the judgment entered against it. Id. After the time for filing an appeal had passed, PDM and Federal filed a notice of cross-appeal seeking review of the judgment entered against them. Webb moved to dismiss the cross-appeal, and we granted the motion. We explained:

The rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken. . . . The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which the appellee believes itself entitled. It is not the function of a cross-appeal to seek review of a distinct and separate judgment, albeit rendered in the same case below, favorable to the appellant.

Id. at 1059-60.

In Breakstone, two defendants appealed a final judgment entered against them, and the plaintiff attempted to cross-appeal an order denying its motion for attorney's fees. 528 So.2d at 438. We granted the defendants' motion to dismiss the cross-appeal, quoting the above statement from Webb, and further explaining:

This court's jurisdiction to entertain an appeal is invoked solely by the notice of appeal which must timely seek review of an appealable trial court order or orders....

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Bluebook (online)
934 So. 2d 501, 2005 Fla. App. LEXIS 6782, 2005 WL 1109465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-windstorm-underwriting-v-gajwani-fladistctapp-2005.