MIGUEL PENA MONTES DE OCA AND PATRICIA OJEDA v. CITIZENS PROPERTY INSURANCE CORPORATION

• Court: District Court of Appeal of Florida
• Decided: January 19, 2022
• Docket: 20-0860
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 19, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0860 Lower Tribunal No. 17-28717 ________________

Miguel Pena Montes de Oca and Patricia Ojeda, Appellants,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.

Alexander Appellate Law P.A., and Samuel Alexander (DeLand), for appellants.

Paul R. Pearcy, P.A., and Maureen G. Pearcy, for appellee.

Before LOGUE, LINDSEY, and LOBREE, JJ.

LINDSEY, J. Appellants Miguel Pena Montes de Oca and Patricia Ojeda, the

insured homeowners, appeal from a final judgment, following a jury trial, in

favor of Appellee Citizens Property Insurance Corp. Based on the record

before us, we find no reversible error and affirm. See Empire Pro

Restoration, Inc. v. Citizens Prop. Ins. Corp., 322 So. 3d 96, 98 (Fla. 4th

DCA 2021) (“‘[A]n insured claiming under an all-risks policy has the burden

of proving that the insured property suffered a loss while the policy was in

effect. The burden then shifts to the insurer to prove that the cause of the

loss was excluded from coverage under the policy’s terms.’ [Kokhan v. Auto

Club Ins. Co. of Florida, 297 So. 3d 570, 572 (Fla. 4th DCA 2020)] (alteration

in original) (quoting Jones v. Federated Nat’l Ins. Co., 235 So. 3d 936, 941

(Fla. 4th DCA 2018)). ‘If there is an exception to the exclusion, the burden

once again is placed on the insured to demonstrate the exception to the

exclusion.’ E. Florida Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678

(Fla. 3d DCA 2005) . . . .”). Given the specific facts in this case, any alleged

error with the jury instructions is harmless. See § 59.041, Fla. Stat. (2021)

(“No judgment shall be set aside or reversed, or new trial granted by any

court of the state in any cause, civil or criminal, on the ground of misdirection

of the jury . . . unless in the opinion of the court to which application is made,

after an examination of the entire case it shall appear that the error

2 complained of has resulted in a miscarriage of justice. This section shall be

liberally construed.”).

Affirmed.