Voort v. Universal Property & Casualty Insurance Co.

127 So. 3d 536, 2012 WL 5349379, 2012 Fla. App. LEXIS 18964
CourtDistrict Court of Appeal of Florida
DecidedOctober 31, 2012
DocketNo. 4D11-3361
StatusPublished
Cited by11 cases

This text of 127 So. 3d 536 (Voort v. Universal Property & Casualty Insurance Co.) 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
Voort v. Universal Property & Casualty Insurance Co., 127 So. 3d 536, 2012 WL 5349379, 2012 Fla. App. LEXIS 18964 (Fla. Ct. App. 2012).

Opinion

WARNER, J.

The insureds appeal a final summary judgment in favor of their insurance company upholding the insurer’s denial of cov[537]*537erage. The trial court determined that the insurance company was entitled to summary judgment because the insureds could not prove that the damage and loss occurred during the policy term. We conclude, however, taking all inferences from the facts most favorably to the insureds, that disputed issues of fact remain. We therefore reverse.

The insureds, the Vander Voorts, made arrangements to store their furniture between moving out of one home and moving into a new home. They hired Weston Moving & Storage to pick up their household belongings on July 6, 2009. Weston stored them in safekeeping until April 2010, when the Vander Voorts were ready to move into their new home. Anticipating their move into the new home, the Vander Voorts purchased homeowners insurance from Universal on March 15, 2010. That insurance provided coverage for damage and loss to home furnishings, but only for such damage and loss occurring within the policy period. The policy period ran from March 15, 2010, to March 15, 2011.

When Weston delivered the furniture to the Vander Voorts’ home on April 10, 2010, several pieces were missing and several others were damaged. The Vander Voorts filed a claim for damage and loss to home furnishings with Universal, which denied the claim. The company contended that the loss and damage did not occur during the policy period, as it could have occurred earlier than March 15, 2010. The Vander Voorts then filed suit for breach of contract.

During discovery, the depositions of the Vander Voorts, as well as the manager of Weston, Brian McGary, were taken. McGary explained that the company packed up the Vander Voort furnishings at their home in July 2009. Weston employees then drove them to the storage facility. The items were not unpacked, but rather, placed into three vaults. The vaults were stacked in the warehouse with a forklift. Without a forklift, the vaults were inaccessible. McGary carried the only key to the forklift. Upon returning the Vander Voorts’ property in April 2010, Weston removed the vaults from their storage place with the forklift. There were no signs that they had been tampered with, as the clips placed on the outside of the vault were still in place. On April 9, 2010, Weston loaded the furnishings onto two trucks. The trucks remained in an unsecured yard outside the warehouse overnight. McGary did not know if the trucks were locked.

Weston delivered the furnishings to the Vander Voort home on April 10, 2010. After observing damage to some of their property as well as noticing some items missing, the Vander Voorts called McGary. Both McGary and Garcia, the employee in charge of the move, went to the home and noticed damage to several pieces of furniture. Garcia maintained that he had not seen the damage when the pieces were loaded onto the truck the day before.

In their depositions, the Vander Voorts both testified that they did not know the exact date their furniture was lost or damaged. Both stated that they did not know if it occurred prior to March 15, 2010. Based upon this testimony, Universal moved for summary judgment on the ground that the insureds could not prove that the loss occurred during the policy period.

In opposition to the motion, the Vander Voorts filed several affidavits of Weston employees. First, Holbrook, the employee who packed and transported the furniture from the old Vander Voort home to the warehouse storage facility, attested that “[a]ll the items that were packed and moved from [the Vander Voorts’] home were put on the truck operated by me and were delivered to Weston’s warehouse [538]*538without any loss or damage, other than, I believe, a glass table which broke at the warehouse.” He placed all the items in vaults, where they remained untouched, to Holbrook’s knowledge. Holbrook stopped working for Weston several months later. Papke, the employee who removed the furnishings from the vault and packed them in the moving truck on April 9, 2010, also furnished an affidavit. Papke swore that he did not “recall any signs that the Vaults had been tampered with nor broken into, and had contained only the Vander Voorts’ goods.” He said he believed he would have recalled the kind of damage described to him by the manager had the goods been in such a condition while loading them onto the trucks. Finally, Garcia, who was in charge of the move, swore in his affidavit that only he and the manager, McGary, had access to the vault where the Vander Voorts’ furnishings had been stored, and no signs of tampering on the vault were evident. Moving the furnishings from the vault to the truck occurred without incident. The loaded truck, however, was parked in an unsecured area. In his final paragraph, Garcia stated that he did not believe that the furniture was damaged when it was loaded onto the truck, which he had told McGary.

Universal contended that the affidavits were insufficient to provide evidence of a disputed issue of fact, particularly in light of the testimony of the Vander Voorts that they did not know when the damage occurred. The trial court agreed and granted summary judgment. This appeal follows.

The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). An appellate court must examine the record in the light most favorable to the non-moving party. Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012).

Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011). Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law. Id. It is the moving party’s burden to conclusively prove the non-existence of a material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). Further, the court must draw every possible inference arising from the evidence in favor of the nonmoving party. See Schooner Oaks Ltd. Co. v. Schooner Oaks Condo. Ass’n, Inc., 776 So.2d 304, 306 (Fla. 4th DCA 2000); Cont’l Concrete, Inc. v. Lakes at La Paz III Ltd. P’ship, 758 So.2d 1214, 1217 (Fla. 4th DCA 2000); McDonald v. Fla. Dep’t of Transp., 655 So.2d 1164, 1168 (Fla. 4th DCA 1995) (“If the evidence raises any issues of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by the jury.”).

In its brief, Universal contends that the insured has the burden of proving that the loss occurred within the policy period. Because the insureds could not determine when the loss occurred, they failed in meeting their burden. While it is certainly true that the insured must prove the essential elements of its cause of action at trial, on a motion for summary judgment, it is Universal’s burden to prove the nonexistence of a material fact. In this case, it was Universal’s burden to conclusively prove that the loss did not occur during the policy period. Taking all rea[539]*539sonable inferences from the evidence, Universal failed to carry its burden.

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Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 536, 2012 WL 5349379, 2012 Fla. App. LEXIS 18964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/voort-v-universal-property-casualty-insurance-co-fladistctapp-2012.