25 Fla. L. Weekly Fed. C949a
1. The insurance policy and Florida’s sinkhole-insurance statute
For purposes of this code, “structural” shall mean any part, material or assembly of a building or structure which affects the safety of such building or structure and/or which supports any dead or designed live load and the removal of which part, material or assembly could cause, or be expected to cause, all or any portion to collapse or fail.
(2)(k) “Structural damage” means a covered building, regardless of the date of its construction, [that] has experienced the following:
1. Interior floor displacement or deflection in excess of acceptable variances as defined in ACI 117-90 or the Florida Building Code, which results in settlement related damage to the interior such that the interior building structure or members become unfit for service or represents a safety hazard as defined within the Florida Building Code;
2. Foundation displacement or deflection in excess of acceptable variances as defined in ACI 318-95 or the Florida Building Code, which results in settlement related damage to the primary structural members or primary structural systems that prevents those members or systems from supporting the loads and forces they were designed to support to the extent that stresses in those primary structural members or primary structural systems exceeds one and one-third the nominal strength allowed under the Florida Building Code for new buildings of similar structure, purpose, or location;
3. Damage that results in listing, leaning, or buckling of the exterior load-bearing walls or other vertical primary structural members to such an extent that a plumb line passing through the center of gravity does not fall inside the middle one-third of the base as defined within the Florida Building Code;
4. Damage that results in the building, or any portion of the building containing primary structural members or primary structural systems, being significantly likely to imminently collapse because of the movement or instability of the ground within the influence zone of the supporting ground within the sheer plane necessary for the purpose of supporting such building as defined within the Florida Building Code; or
5. Damage occurring on or after October 15, 2005, that qualifies as “substantial structural damage” as defined in the Florida Building Code.
1. The plain meaning of the term “structural damage” as used in the context of the insurance policy cannot be any “damage to the structure”
Florida courts start with the plain language of the policy as bargained for by the parties. If that language is unambiguous, it governs. If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous, and must be interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy.
2. “Structural damage” as used in the 2005 version of Florida’s sinkhole-insurance statute does not mean “damage to the structure”
Both parties acknowledge that the 2005 version of Florida Statutes § 627.706 applies to the Hegels’ insurance policy. Although that version does not define the term “structural damage,” the legislative history behind its enactment is fully consistent with our determination regarding the plain meaning of the term. Recall that, in 2005, the Florida legislature changed the definition of “sinkhole loss” from “actual physical damage to the property covered” to “structural damage to the building.” Ch. 2005-111, § 17, Laws of Fla. In making the 2005 revision, the legislature’s intention was “generally to reduce the number of sinkhole claims and related disputes arising under prior law.” Ch. 2011-39, § 21, Laws of Fla. This statement strongly implies that “structural damage” is different from — and more restrictive than — “actual physical damage.”
3. Definitions from other sources are not relevant in determining the plain meaning of the term “structural damage” as used in the Hegels’ insurance policy
First Liberty urges us to incorporate into the insurance policy the relatively narrow definitions of “structural” as set forth in the Florida Building Code (2004) and “structural damage” as “clarified” by the 2011 amendment to Florida Statutes § 627.706. But we must determine the plain meaning of the term “structural damage” utilizing the procedure required by Florida law. See Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291-92 (Fla. 2007) (stating that insurance contracts are construed according to their plain meaning and that, when doing so, courts may consult dictionary definitions). “[C]ourts may not rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) [24 Fla. L. Weekly Fed. C1230a] (quoting Taurus Holdings, Inc. v. U.S. Fidelity and Guar. Co., 913 So. 2d 529, 532 (Fla. 2005) [30 Fla. L. Weekly S633a]) (internal quotation marks omitted). And an insurer cannot, “by failing to define the terms [in a policy] . . . , insist upon a narrow, restrictive interpretation of the coverage provided.” Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993) (internal quotation marks omitted). We therefore decline to incorporate these specific definitions into the Hegels’ insurance policy.
*Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by designation.
1In keeping with Eleventh Circuit Internal Operating Procedure 10 under Federal Rule of Appellate Procedure 36, ‘Citation to Internet Materials in an Opinion,’ a copy of the internet materials cited in this opinion is available at this Court’s Clerk’s Office.
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