Miguel Betancourt v. Citizens Property Insurance Corporation

• Court: District Court of Appeal of Florida
• Decided: March 12, 2025
• Docket: 3D2023-0923
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 12, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0923 Lower Tribunal No. 20-11486 ________________

Miguel Betancourt, et al., Appellants,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Giasi Law, P.A., Erin M. Berger and Melissa A. Giasi (Tampa), for appellants.

Williams, Leininger & Cosby, P.A., Carri S. Leininger and Maureen Martinez (North Palm Beach), for appellee.

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

PER CURIAM. Miguel Betancourt and Ana Diaz (“Homeowners”) appeal a final

summary judgment entered in favor of Citizens Property Insurance

Corporation (“Citizens”). We have jurisdiction. Fla. R. App. P.

9.030(b)(1)(A). We reverse.

I.

The Homeowners purchased a residential insurance policy from

Citizens for the period of October 10, 2018 to October 10, 2019. The policy

covered direct physical loss and excluded any damages occurring prior to

the policy’s inception. On July 9, 2019, while the policy was in effect, the

Homeowners discovered water damage in several areas of the property,

including the master bedroom. They contacted a public adjuster for an

inspection and reported the loss to Citizens. Citizens hired an industrial

hygienist who inspected the property and determined that the water damage

resulted from a “historic leak.” As a result, Citizens denied the claim.

The Homeowners then filed the underlying action for breach of

contract. After filing its answer, Citizens moved for summary judgment

arguing no genuine issue of material fact existed as to whether the water

damage preexisted the policy period. In support, Citizens filed the affidavit

of its hygienist, which provided “[t]he water-damaged bedroom west wall was

attributed to a historic leak associated with a pre-existing shower

2 enclosure/bathtub that occurred for a minimum period of two months in

duration before the leak was stopped.” While the hygienist attributed the

master bedroom’s water damage to prior renovations, he did not opine on

whether the water damage preexisted the policy period.

The Homeowners filed a response in opposition. In support, they filed

the affidavit of their engineer, who testified that “it is likely the damages were

first discovered on or about July 9, 2019.” While the engineer found it “likely

the leak occurred before July 9, 2019 unnoticed,” he testified that “there was

an absence of the classic evidence that is to be expected if there was [a]

leak or issue that predated October 2018 such as wet rot, excessive swelling

to the wall board, large mold growth, or mold growth visible even without

removing the baseboards or wall materials.” He added “had this leak and

resulting damage occurred or been ongoing since before October 2018, a

much more prevalent state of wood rot and deterioration would be expected

and observed than what was documented at the [Homeowners’] Property.”

He therefore concluded that “it cannot be said with any reasonable degree

of engineering certainty that these damages occurred prior to October 10,

2018,” the policy start date. The Homeowners’ engineer based this

conclusion on his own inspection of the property, along with other

3 observations and reports from Citizens’ hygienist and the Homeowners’

adjuster and plumber. 1

After a hearing, the trial court granted Citizens’ motion for summary

judgment finding there was no genuine issue of material fact for a jury to

resolve. The trial court relied on Citizens’ hygienist’s testimony and the

plaintiff’s deposition testimony to find the water damage preexisted the policy

period. The court additionally found that the Homeowners’ engineer’s

affidavit was conclusory and did not refute the hygienist’s findings. The

Homeowners filed a motion for rehearing, which was denied. This appeal

followed.

II.

“Our standard of review of an order granting summary judgment is de

novo.” Ottey v. Citizens Prop. Ins. Corp., 299 So. 3d 500, 501 (Fla. 3d DCA

2020) (quoting White v. Ferco Motors Corp., 260 So. 3d 388, 390 (Fla. 3d

DCA 2018)). “The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “The court

shall state on the record the reasons for granting or denying the motion.” Id.

1 The Homeowners initially filed an affidavit from their plumber but later withdrew it, relying primarily on their engineer’s affidavit.

4 “A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by . . . citing to particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations . . . .” Fla. R. Civ. P. 1.510(c)(1)(A). “When seeking

summary judgment, the moving party must identify ‘each claim or defense--

or the part of each claim or defense--on which summary judgment is sought.’”

Romero v. Midland Funding, LLC, 358 So. 3d 806, 808 (Fla. 3d DCA 2023)

(quoting Fla. R. Civ. P. 1.510(a)). “Once the party moving for summary

judgment satisfies this initial burden, the burden then shifts to the nonmoving

party to come forward with evidence demonstrating that a genuine dispute

of material fact exists.” Id.

III.

On appeal, the Homeowners argue the trial court erred in granting

summary judgment because there was a genuine issue of material fact

relating to whether the property sustained water damage during the policy

period.

We agree as we find the Homeowners’ engineer’s affidavit was

sufficient to create a genuine issue of material fact preventing summary

judgment. The competing expert affidavit was appropriately based on the

engineer’s experience in the field, evaluation of all relevant documentation

5 in the case and his own inspection of the property.2 The engineer relied on

sufficient facts in developing the conclusion that the damage could not have

occurred before October 10, 2018, and he sufficiently refuted Citizens’

hygienist’s findings to the contrary. Because a genuine dispute of material

fact remained as to whether the water damage in the master bedroom

preexisted the policy period, we find the trial court’s entry of final summary

judgment in favor of Citizens was premature. We therefore reverse the final

summary judgment under review and remand for further proceedings. 3 See

Chowdhury v. BankUnited, N.A., 366 So. 3d 1130, 1134 (Fla. 3d DCA 2023)

(“Our new summary judgment standard mirrors the standard for a directed

verdict such that the inquiry focuses on ‘whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’” (quoting In re

Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 192 (Fla. 2020)));

Vega v. Safepoint Ins. Co., 326 So. 3d 176, 181 (Fla. 3d DCA 2021)

2 The affidavit explicitly stated that the engineer’s opinion was based on his physical inspection of the property, a review of claim documents, various photographs, reports from Citizens’ hygienist and the Homeowners’ adjuster and other relevant documentation. It therefore cannot be said that the engineer merely relied on the withdrawn affidavit of the plumber in concluding that the water damage could not have preexisted the policy period. 3 Because we reverse on this issue, we need not address the other issues raised.

6 (“[Plaintiff’s] Expert’s conclusions based on his experience and review of the

record in combination with [Plaintiff’s] deposition testimony . . . were sufficient

to create a genuine issue of material fact. Thus, summary judgment was

inappropriate at this juncture of the proceedings.”); Garcia v. First Cmty. Ins.

Co., 241 So. 3d 254, 258 (Fla. 3d DCA 2018) (“Because a genuine issue of

material fact exists . . . entry of final summary judgment in favor of [the

insurance company] was improper.”).

Reversed and remanded.