Mario Izquierdo v. Universal Insurance Company of North America

• Court: District Court of Appeal of Florida
• Decided: March 4, 2026
• Docket: 3D2024-1956
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 4, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1956 Lower Tribunal No. 19-31512-CA-01 ________________

Mario Izquierdo, Appellant,

vs.

Universal Insurance Company of North America, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Vivianne del Rio, Judge.

The Nation Law Firm, and Mark A. Nation and Paul W. Pritchard (Longwood), for appellant.

Traub Lieberman Straus & Shrewsberry, LLP, and David T. Burr and C. Ryan Jones (St. Petersburg), for appellee.

Before SCALES, C.J., and EMAS and LOGUE, JJ.

SCALES, C.J. In this first-party insurance case, appellant Mario Izquierdo, the plaintiff

below, appeals a September 15, 2022 final summary judgment for the

defendant below, appellee Universal Insurance Company of North America

(“Universal”). In the challenged judgment, the trial court found that, as a

matter of law, the cracking damage to Izquierdo’s home was excluded from

coverage under the subject policy’s earth movement and existing damage

exclusions. Because genuine disputes of material fact remain as to whether

the policy exclusions apply here, we reverse the challenged judgment and

remand for further proceedings.

The trial court’s final summary judgment is subject to a de novo

standard of review. See Valer v. Citizens Prop. Ins. Corp., 404 So. 3d 570,

576 (Fla. 3d DCA 2025). The parties’ burdens at summary judgment were

framed by their respective burdens at trial. Izquierdo’s Homeowner’s HO-3 –

Special Form Policy with Universal was an all-risk policy that generally

covered all losses unless specifically excluded therein. Id. at 578. As such,

Izquierdo bore the initial burden of proving only that his home “suffered a

loss while the policy was in effect.” Id. The burden then shifted to Universal

to show that the loss fell under an exclusion set forth in the policy. Id. If

Universal presented competent evidence that a policy exclusion applied, the

burden then shifted back to Izquierdo to show there was a genuine dispute

2 of material fact as to the exclusion’s application. See Deshazior v. Safepoint

Ins. Co., 305 So. 3d 752, 755 (Fla. 3d DCA 2020).

Izquierdo met his initial burden of proving that his home was damaged

during the policy period. Izquierdo testified at his deposition and attested in

his affidavit that, during the policy period, his home shook from blasting at a

nearby rock quarry following which he noticed extensive cracks to the home’s

interior flooring and exterior walls. Having met his initial burden, the burden

then shifted to Universal to show that a policy exclusion applied.

A. The Earth Movement Exclusion

Universal’s summary judgment motion argued that the cracking

damage was excluded from coverage by the policy’s earth movement

exclusion.1 As support, Universal submitted an engineering report that

1 This policy exclusion provides, in relevant part:

SECTION I – EXCLUSIONS

A. 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. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.

....

2. Earth Movement

3 determined blasting vibrations from the rock quarry had caused soil

displacement around the home that resulted in the cracking damage to the

home.

In opposition to Universal’s summary judgment motion, Izquierdo

provided the expert affidavit of engineer Sonny Gulati. In his affidavit, Gulati

attested that the rock quarry’s blasting activities released land shock waves

that reached and physically struck Izquierdo’s home and caused the home

to shake, resulting in the cracking damage. Importantly, Gulati stated that the

cracking damage was not caused directly or indirectly by any earth

movement, including soil movement resulting from blasting.

Gulati’s expert affidavit was sufficient to create a genuine factual

dispute over the cause of the cracking damage. As this Court held in Tower

Hill Prime Insurance Co. v. Bermudez, 388 So. 3d 165, 169-70 n.3 (Fla. 3d

Earth Movement means:

a. Earthquake, including land shock waves or tremors before, during or after a volcanic eruption; b. Landslide, mudslide or mudflow; c. Subsidence or sinkhole; or d. Any other earth movement including earth sinking, rising or shifting;

Caused by or resulting from human or animal forces or any act of nature unless direct loss by fire or explosion ensues and then we will pay only for the ensuing loss.

4 DCA 2023), when it construed a sufficiently similar policy exclusion, cracking

damage caused by land shock waves, without attendant earth movement, is

not excluded from coverage by an all-risk policy. See also Carrascal v.

Scottsdale Ins. Co., 557 F. Supp. 3d 1247, 1250 (S.D. Fla. 2021) (finding

that an all-risk policy’s identical earth movement exclusion did not apply to

damage caused by land shock waves after rock quarry blasting). Hence, if

the jury finds, as a factual matter, that the cracking damage was caused by

land shock waves, without attendant earth movement, then the subject earth

movement exclusion will not apply.

B. The Existing Damage Exclusion

Universal’s summary judgment motion also argued that the cracking

damage was excluded from coverage by the policy’s existing damage

exclusion.2 As support, Universal relied upon (i) evidence that purported to

2 This provision provides, in relevant part:

EXISTING DAMAGE EXCLUSION ENDORSEMENT

It is understood and agreed that this policy is not intended to and does not provide coverage for any damages which occurred prior to policy inception.

It is also understood and agreed that this policy is not intended to and does not provide coverage for any claims or damages arising out of workmanship, repairs and/or lack of repairs arising from damage which occurred prior to the policy inception.

5 show that rock quarry blasting had occurred before the policy’s November

23, 2016 effective date, and (ii) Izquierdo’s affidavit, wherein Izquierdo

stated: “I noticed a very small crack in the dining room floor tile when I

purchased the property in November 2016, and a small crack in the garage

floor. That is the only cracking damage I noticed when I purchased the

home.”

In opposition to Universal’s summary judgment motion, Izquierdo relied

upon his deposition, wherein Izquierdo plainly testified that, during the policy

period and following the blasting activities, he witnessed numerous new

cracks throughout his home. Thus, genuine factual disputes remain as to

whether the damage was preexisting and whether this policy exclusion

applies.

Accordingly, we reverse the challenged final summary judgment and

remand the case for further proceedings.

Reversed and remanded.