State Farm Florida Insurance Company v. Richard Moody, Roberta Moody and Robert Denney

180 So. 3d 1165, 2015 Fla. App. LEXIS 18405
CourtDistrict Court of Appeal of Florida
DecidedDecember 9, 2015
Docket4D13-3377, 4D14-273 and 4D14-274
StatusPublished

This text of 180 So. 3d 1165 (State Farm Florida Insurance Company v. Richard Moody, Roberta Moody and Robert Denney) 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
State Farm Florida Insurance Company v. Richard Moody, Roberta Moody and Robert Denney, 180 So. 3d 1165, 2015 Fla. App. LEXIS 18405 (Fla. Ct. App. 2015).

Opinion

MAY, J.

Aristotle once said: “The whole is greater than the sum of all its parts.” This appeal gives us an opportunity to reflect on this statement as an insurer appeals a final judgment for “Additional Living Expenses” that were incurred as a result of Hurricane Jeanne. The insurer argues that two separate trial courts erred in entering summary judgment for the insureds in these consolidated cases. 1 We agree with the insurer and reverse.

In 2004, the National Hurricane Center issued a Tropical Cyclone Report naming an upcoming storm Hurricane Jeanne. On September 24, 25, and 26, the National *1166 Hurricane Center issued hurricane warnings for Hurricane Jeanne for South Florida. On the night of September 25 and the morning of September 26, Hurricane Jeanne hit South Florida.- During Hurricane Jeanne, the insureds’ condominiums were severely damaged and became uninhabitable.

The insureds held separate condominium policies with the same insurer, including building property, personal property, and' additional living expense coverages. Before section one in both policies, a notice read “Hurricane Notice — You may have no coverage or you may have limited coverage for damage caused by hurricane.” Section one listed the protection for the dwelling (Coverage A), personal property (Coverage B), loss of use (Coverage C), and loss assessment (Coverage D). “Section 1 ... Losses Insured,” listed familiar perils the policy protected against, but had a section stating, “Windstorm, hail — See special hurricane coverage that follows.”

The policies also contained a Hurricane Coverage Endorsement, which stated:

There is no coverage for loss caused by a hurricane under Section I of the policy to which this endorsement is attached. No coverage is provided for' accidental direct physical loss to the property described in the policy caused by a hurricane other than that which is provided in this endorsement. The provisions of this endorsement apply only in respect to loss caused by hurricane.

The Hurricane Coverage Endorsement contained “Section I — Coverages,” which replaced Coverages A, B, C, and D. “Coverage C — Loss of Use,” read, in part:

1. Additional Living Expense. When a hurricane causes the covered dwelling to become uninhabitable, we will cover the necessary increase in cost you incur to maintain your standard of living for up to 12 months. Our payment is limited to incurred costs for the shortest of: (a) the time required- to repair or replace the covered dwelling; (b) the time required for your household to settle elsewhere; or (c) 12 months.
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Our payment will not exceed an amount equal to' 10% of the Coverage B limit applicable at the time of loss.

The Hurricane Coverage Endorsement also contained the definition of “hurricane.”

When used in this endorsement:

“hurricane” means a storm system that has been declared to be a hurricane by the National Hurricane Center of the National Weather Service. The duration of the hurricane includes the time period, in Florida:
a. beginning at the time a hurricane watch or hurricane warning is issued for any part of Florida by the National Hurricane Center of the National Weather Service;
b. continuing for the time period during which the hurricane conditions exist anywhere in Florida; and
c. ending 72 hours following the termination of the last hurricane watch or hurricane warning for any part of Florida by the National Hurricane Center of the National Weather Service.

The insurer paid the insureds then.-full coverage amounts on the building property and personal property coverages. Based on the Hurricane Coverage Endorsement, the insurer paid the insureds their additional living expenses, -which were limited to 10% of the Coverage B (personal property coverage) limit.

In June 2006, the insureds, Richard and Roberta Moody, filed a two-count complaint against the insurer; and in March 2007, another insured, Robert Denney, *1167 filed suit. The insureds alleged in count one that the insurer breached its contract with them by providing additional living expenses coverage, under the Hurricane Coverage Endorsement rather than under the general policy provisions because “the loss of use was caused by a peril other than a hurricane.”

They alleged their loss was caused by a tornado or microburst,. not a hurricane.They alleged their policies’ Hurricane Coverage Endorsement was ambiguous and coverage should not be limited-to 10% of the Coverage B (personal property coverage) limit. The Moodys requested $11,245.00 and Denney : requested $10,059.10 in additional living expenses.

The insurer answered both complaints and asserted affirmative defenses. Jn its first affirmative defense; the insurer as-r serted that “[t]he [insureds’] actions [were] barred or limited by the Hurricane Coverage Endorsement of the policy^’ Tn its third affirmative defense, the insurer asserted that “[t]he [insureds] [were] barred from recovery because the tornado which allegedly caused [the] loss occurred during and was therefore part of Hurricane Jeanne which affected [the] property on or about September 26,2004.”

The insureds and insurer all moved for summary judgment. Denney argued a tornado, not a hurricane, caused damage to his condominium so the ten percent addi- • tional living expenses- limitation under Coverage C of the Hurricane Coverage Endorsement should not apply. He also argued the definition of hurricane in the Hurricane Coverage Endorsement “is limited to a hurricane, and does not include other meteorological events, such as a'tornado.” If the insurer “wanted to exclude tornado as part of its .hurricane exclusion, it could and should have said so,” and that “a hurricane can occur without á tornado, and a tornado can occur without a hurricane.”. He asserted that hurricanes and tornados are not synonymous’ as understood by an everyday person.

The Moodys made similar arguments. They also argued the insurer used only the definition-of hurricane found in section 627.4025(2)(c), Florida Statutes, and not the definitions' of hurricane coverage and windstorm in sections (2)(a) and (2)(b). They asserted that if the insurer used all thre'e -statutory sections in the policy, the Hurricane Coverage Endorsement would have included tornados. The Moodys attached a Citizens windstorm policy, which included all three statutory sections. They argued the insurer’s choice to include only one section should be construed against it. They filed an affidavit from their daughter attesting that the attached Citizens policy was hers.'

The insurer argued that its policy was unambiguous and should be given its plain and ordinary meaning. It argued the definition of . hurricane was clear and damage resulting, from the storm system was covered, under the Hurricane Coverage Endorsement. To the insurer, the real issue was whether the tornado occurred during the storm system.

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Cite This Page — Counsel Stack

Bluebook (online)
180 So. 3d 1165, 2015 Fla. App. LEXIS 18405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-florida-insurance-company-v-richard-moody-roberta-moody-and-fladistctapp-2015.