Universal Property & Casualty Insurance Company v. Scott Liberatore and Cathy Knoblock

• Court: District Court of Appeal of Florida
• Decided: April 2, 2026
• Docket: 6D2024-1283
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2024-1283 Lower Tribunal No. 2020CA-001832 _____________________________

UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,

Appellant/Cross-Appellee,

v.

SCOTT LIBERATORE and CATHY KNOBLOCK,

Appellees/Cross-Appellants. _____________________________

Appeal from the Circuit Court for Polk County. Ellen S. Masters, Judge.

April 2, 2026

BROWNLEE, J.

Universal Property & Casualty Insurance Company appeals a final judgment

in favor of its insureds, Appellees/Cross-Appellants Scott Liberatore and Cathy

Knoblock (“the insureds”), after a jury trial in this first-party insurance dispute

arising from property damage after a plumbing leak. On appeal, Universal argues

the trial court erred in instructing the jury that structural fill under the home was

“part of the dwelling and/or a material used in the construction of the home.”

Universal argues the instruction was erroneous both because it amounted to an unnoticed mid-trial summary judgment, and because it invaded the province of the

jury on a disputed issue of fact concerning the nature of structural fill.

We cannot reach the merits of this issue and affirm on preservation grounds

because Universal never made these arguments to the trial court. See Aills v. Boemi,

29 So. 3d 1105, 1109 (Fla. 2010) (“[T]o be preserved for appeal, ‘the specific legal

ground upon which a claim is based must be raised at trial and a claim different than

that will not be heard on appeal.’” (quoting Chamberlain v. State, 881 So. 2d 1087,

1100 (Fla. 2004))).

First, Universal argues the trial court erred in instructing the jury that the

structural fill was part of the dwelling and/or a material used in its construction,

because it contends this was the equivalent of an unnoticed mid-trial summary

judgment ruling in the insured’s favor. But Universal never objected to the lower

court’s considering the issue at that particular stage of the proceedings, nor did it

ever argue that choosing the insured’s proposed instruction concerning the structural

fill amounted to an unnoticed summary judgment. Even when the trial court itself

later characterized the ruling as akin to a summary judgment, thereby potentially

alerting the parties to that issue, Universal never objected to the instruction on that

basis. Thus, this argument is not preserved for our review. See Aills, 29 So. 3d at

1109.

2 Second, Universal argues on appeal that the nature of the structural fill was a

factual dispute for the jury, rather than an issue that could be resolved by the trial

court. It argues this issue should have come down to a battle of the experts as to

whether the structural fill was part of the dwelling and/or a construction material that

was covered under the policy, or whether the fill was merely “dirt” that the jury

could conclude was “land” and therefore not covered. 1 But the trial court identified

this issue before it ruled and asked the parties directly whether this was a factual

issue to be resolved by the jury. And when it did so, Universal stood silent. The trial

court then sought clarification as to whether this was an issue of law, but again,

Universal said nothing. The insureds, however, urged the trial court that it was

indeed an issue of law. Thus, Universal neither objected nor tried to correct the trial

court’s understanding of the issue. Having failed to do so, it did not preserve this

contention for our review. See, e.g., Klein v. Manville, 363 So. 3d 1163, 1170 (Fla.

6th DCA 2023) (“[T]o preserve an issue for appeal, the issue ‘must be presented to

the lower court and the specific legal argument or grounds to be argued on appeal

must be part of that presentation.’” (quoting Bryant v. State, 901 So. 2d 810, 822

(Fla. 2005))).

1 Curiously, Universal does not argue that the structural fill was in fact land and therefore not covered by the policy. That is, Universal does not argue the trial court’s finding that the structural fill was part of the dwelling was erroneous. 3 Apparently recognizing that the arguments raised on appeal were never raised

below, Universal also argues the trial court’s jury-instruction ruling constitutes

fundamental error. See Ortiz v. Sangalang, 425 So. 3d 793, 793 (Fla. 6th DCA 2025)

(quoting Aills, 29 So. 3d at 1109 (“Except in cases of fundamental error, an appellate

court cannot consider any ground for objection not presented to the trial court.”)).

But our “discretion concerning fundamental error” is to be exercised “very

guardedly.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970). We find an error

fundamental only when it “goes to the foundation of the case or the merits of the

cause of action,” id., or when it “involves an egregious deprivation of a constitutional

right,” Terant v. Beltway Cap., LLC, 147 So. 3d 1103, 1105 (Fla. 3d DCA 2014).

On this record, we find no fundamental error. Accordingly, we affirm.

Finally, we dismiss the insureds’ cross-appeal concerning their entitlement to

the replacement cost value, rather than actual cost value, of their loss. Because they

expressly conditioned their cross-appeal on reversal of the final judgment, which we

affirm, the cross-appeal is dismissed. See Universal Prop. & Cas. Ins. Co. v.

Montgomery, 51 Fla. L. Weekly D427, D427 (Fla. 6th DCA Mar. 6, 2026) (citing

R.J. Reynolds Tobacco Co. v. Brown, 286 So. 3d 877 (Fla. 5th DCA 2019)).

AFFIRMED; CROSS-APPEAL DISMISSED.

NARDELLA and GANNAM, JJ., concur.

4 David A. Noel, Kara Rockenbach Link, and Daniel M. Schwarz, of Link & Rockenbach, P.A., West Palm Beach, for Appellant/Cross-Appellee.

Mark A. Nation, of The Nation Law Firm, Longwood, for Appellees/Cross- Appellants.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED