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Fla. L. Weekly D164aTop of Form
Fla. L. Weekly D164aTop of Form
Insurance
— Homeowners — All risk policy — Jury instructions — Cause of damage to
roof of insured home — Efficient proximate cause/concurrent cause — Where
insureds presented evidence that damage to roof was caused by hailstorm, but
insurer presented evidence that wear and tear was the principal cause of
damage, trial court erred in instructing jury that insureds were required to
prove that hailstorm was the most substantial or responsible cause of damage —
It was error for court to apply efficient proximate cause doctrine in jury
instructions without jury first determining whether an efficient proximate
cause could be determined — Where some of the policy exclusions did not
contain anti-concurrent cause provisions, court erred by uniformly applying efficient
proximate cause doctrine in jury instructions — Because policy was all risk
policy, court improperly allocated burden of proof by placing initial burden of
proof on insureds to demonstrate that hailstorm was the most substantial or
responsible cause of damage
— Homeowners — All risk policy — Jury instructions — Cause of damage to
roof of insured home — Efficient proximate cause/concurrent cause — Where
insureds presented evidence that damage to roof was caused by hailstorm, but
insurer presented evidence that wear and tear was the principal cause of
damage, trial court erred in instructing jury that insureds were required to
prove that hailstorm was the most substantial or responsible cause of damage —
It was error for court to apply efficient proximate cause doctrine in jury
instructions without jury first determining whether an efficient proximate
cause could be determined — Where some of the policy exclusions did not
contain anti-concurrent cause provisions, court erred by uniformly applying efficient
proximate cause doctrine in jury instructions — Because policy was all risk
policy, court improperly allocated burden of proof by placing initial burden of
proof on insureds to demonstrate that hailstorm was the most substantial or
responsible cause of damage
RICHARD W. JONES and LOUISE A.
KIERNAN, Appellants, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee. 4th
District. Case No. 4D16-2579. January 17, 2018. Appeal from the Circuit Court
for the Nineteenth Judicial Circuit, Indian River County; Paul B. Kanarek,
Judge; L.T. Case No. 31-2014-CA000302. Counsel: D. John Rhodeback and J. Garry
Rooney of Rooney & Rooney, P.A., Vero Beach, for appellants. Warren
Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort
Lauderdale, for appellee.
KIERNAN, Appellants, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee. 4th
District. Case No. 4D16-2579. January 17, 2018. Appeal from the Circuit Court
for the Nineteenth Judicial Circuit, Indian River County; Paul B. Kanarek,
Judge; L.T. Case No. 31-2014-CA000302. Counsel: D. John Rhodeback and J. Garry
Rooney of Rooney & Rooney, P.A., Vero Beach, for appellants. Warren
Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort
Lauderdale, for appellee.
(FORST, J.) Appellants Richard Jones
and Louise Kiernan (“Homeowners”) appeal a final judgment in favor of appellee
Federated National Insurance Company determining that Insurance Company did not
breach the insurance contract by failing to pay for Homeowners’ damaged roof.
On appeal, Homeowners argue that the court committed various errors in its jury
instructions, including applying the wrong coverage doctrine as well as
improperly shifting the burden of proof. We agree that the court erred in these
two respects, and reverse and remand for a new trial.
and Louise Kiernan (“Homeowners”) appeal a final judgment in favor of appellee
Federated National Insurance Company determining that Insurance Company did not
breach the insurance contract by failing to pay for Homeowners’ damaged roof.
On appeal, Homeowners argue that the court committed various errors in its jury
instructions, including applying the wrong coverage doctrine as well as
improperly shifting the burden of proof. We agree that the court erred in these
two respects, and reverse and remand for a new trial.
Background
Homeowners filed an insurance claim
for their damaged roof, maintaining that the damage was attributable to a
hailstorm one-and-ahalf years prior to the claim. Insurance Company denied the
claim based on specified insurance policy exclusions. Subsequently, Homeowners
filed a complaint for breach of contract seeking the cost to replace their
roof. Attached to the complaint was an “all-risk” insurance contract in which
Insurance Company expressly agreed to cover all direct physical losses to the
insured home except those explicitly excluded by the contract.
for their damaged roof, maintaining that the damage was attributable to a
hailstorm one-and-ahalf years prior to the claim. Insurance Company denied the
claim based on specified insurance policy exclusions. Subsequently, Homeowners
filed a complaint for breach of contract seeking the cost to replace their
roof. Attached to the complaint was an “all-risk” insurance contract in which
Insurance Company expressly agreed to cover all direct physical losses to the
insured home except those explicitly excluded by the contract.
Insurance Company agreed that the
insurance contract was in effect at the time of the alleged hailstorm. However,
it pleaded that any damage to the roof qualified as one of the following events
excluded from coverage under the insurance policy: “wear and tear, marring,
deterioration”; “faulty, inadequate or defective design”; “neglect”; “existing
damage”; or “weather conditions.”
insurance contract was in effect at the time of the alleged hailstorm. However,
it pleaded that any damage to the roof qualified as one of the following events
excluded from coverage under the insurance policy: “wear and tear, marring,
deterioration”; “faulty, inadequate or defective design”; “neglect”; “existing
damage”; or “weather conditions.”
At trial, both parties presented
conflicting evidence regarding the cause of the damage. Homeowners presented
evidence that the hailstorm caused damage to the roof. Insurance Company
presented evidence that the hailstorm caused no meaningful damage, and that all
the damage had already existed prior to the hailstorm as wear and tear,
attributable in part to leaks from solar panels in a portion of the roof. In
rebuttal, Homeowners presented evidence that the leaking solar panels could not
have been the only cause of damage, pointing to the presence of hundreds of
divots spread across the roof and various other leaks that were located away
from the solar panels.
conflicting evidence regarding the cause of the damage. Homeowners presented
evidence that the hailstorm caused damage to the roof. Insurance Company
presented evidence that the hailstorm caused no meaningful damage, and that all
the damage had already existed prior to the hailstorm as wear and tear,
attributable in part to leaks from solar panels in a portion of the roof. In
rebuttal, Homeowners presented evidence that the leaking solar panels could not
have been the only cause of damage, pointing to the presence of hundreds of
divots spread across the roof and various other leaks that were located away
from the solar panels.
At the close of evidence, Insurance
Company moved for a directed verdict, arguing that “wear and tear, marring,
deterioration” and leaking solar panels were the principal cause of damage to
the roof. Homeowners responded that there was another cause, the hailstorm, and
that, regardless, the matter was for the jury to decide. The trial court agreed
that the matter was a jury question, and denied the motion.
Company moved for a directed verdict, arguing that “wear and tear, marring,
deterioration” and leaking solar panels were the principal cause of damage to
the roof. Homeowners responded that there was another cause, the hailstorm, and
that, regardless, the matter was for the jury to decide. The trial court agreed
that the matter was a jury question, and denied the motion.
At the charge conference, Homeowners
took issue with the jury instruction that required them to prove that the
hailstorm was the “most substantial or responsible cause” of damage to the
roof. Homeowners explained that the trial court would be wrong to apply the
“efficient proximate cause doctrine” as advanced by American Home Assurance
Co. v. Sebo, 141 So. 3d 195 (Fla. 2d DCA 2013) (Sebo I). They argued
that the contract at hand was an all-risk one, expressly guarding against all
losses except those caused by specifically excluded events. Thus, Homeowners
contended the court should apply the “concurrent cause doctrine” pursuant to Wallach
v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988). Faced with the district
court split, and cognizant that the Florida Supreme Court had recently accepted
certiorari to review Sebo I, the trial court opted to apply the
efficient proximate cause doctrine: “And I think I agree with the policies that
are set out in [Sebo I], that the correct rule to follow is that where
there are multiple, possible causes, it is the efficient proximate cause, the
one that is most likely the actual cause . . . of the damage . . . that
controls . . . .” Thus, the trial court denied Homeowners’ request to amend the
proposed jury instruction, explaining “because the complaint alleges that the
damage was caused by hail[, t]hat’s what the whole case is about.”
took issue with the jury instruction that required them to prove that the
hailstorm was the “most substantial or responsible cause” of damage to the
roof. Homeowners explained that the trial court would be wrong to apply the
“efficient proximate cause doctrine” as advanced by American Home Assurance
Co. v. Sebo, 141 So. 3d 195 (Fla. 2d DCA 2013) (Sebo I). They argued
that the contract at hand was an all-risk one, expressly guarding against all
losses except those caused by specifically excluded events. Thus, Homeowners
contended the court should apply the “concurrent cause doctrine” pursuant to Wallach
v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988). Faced with the district
court split, and cognizant that the Florida Supreme Court had recently accepted
certiorari to review Sebo I, the trial court opted to apply the
efficient proximate cause doctrine: “And I think I agree with the policies that
are set out in [Sebo I], that the correct rule to follow is that where
there are multiple, possible causes, it is the efficient proximate cause, the
one that is most likely the actual cause . . . of the damage . . . that
controls . . . .” Thus, the trial court denied Homeowners’ request to amend the
proposed jury instruction, explaining “because the complaint alleges that the
damage was caused by hail[, t]hat’s what the whole case is about.”
The jury ultimately determined that
Homeowners could not satisfy their burden of proof, as set forth in the jury
instruction discussed above and below. Thus, the trial court entered a final
judgment in favor of Insurance Company, awarding Homeowners no damages.
Homeowners could not satisfy their burden of proof, as set forth in the jury
instruction discussed above and below. Thus, the trial court entered a final
judgment in favor of Insurance Company, awarding Homeowners no damages.
Analysis
A. Application of the Concurrent
Cause Doctrine
Cause Doctrine
We review de novo whether the trial
court applied the correct coverage doctrine in its jury instructions. Sebo
v. Am. Home Assurance Co., 208 So. 3d 694, 696 (Fla. 2016) (Sebo II).
court applied the correct coverage doctrine in its jury instructions. Sebo
v. Am. Home Assurance Co., 208 So. 3d 694, 696 (Fla. 2016) (Sebo II).
Homeowners first argue that the
trial court applied the wrong coverage doctrine in the following jury
instruction:
trial court applied the wrong coverage doctrine in the following jury
instruction:
Did the
Plaintiffs, Richard Jones and Louise Kiernan, prove by the greater weight of
the evidence that they sustained a direct physical loss to their roof as a
result of the hailstorm on April 20, 2012 which was the most substantial or
responsible cause of the damage to the roof?
Plaintiffs, Richard Jones and Louise Kiernan, prove by the greater weight of
the evidence that they sustained a direct physical loss to their roof as a
result of the hailstorm on April 20, 2012 which was the most substantial or
responsible cause of the damage to the roof?
Homeowners contend that by requiring
the jury to determine if the hailstorm was “the most substantial or responsible
cause of the damage to the roof,” the trial court inappropriately applied the
efficient proximate cause doctrine. This doctrine “provides that where there is
a concurrence of different perils, the efficient cause — the one that set the
other in motion — is the cause to which the loss is attributable.” Sebo II,
208 So. 3d at 697 (citing Sabella v. Nat’l Union Fire Ins. Co., 377 P.2d
889, 895 (Cal. 1963)). The concurrent cause doctrine, on the other hand,
“provides that coverage may exist where an insured risk constitutes a
concurrent cause of the loss even when it is not the prime or efficient cause.”
Id. at 698.
the jury to determine if the hailstorm was “the most substantial or responsible
cause of the damage to the roof,” the trial court inappropriately applied the
efficient proximate cause doctrine. This doctrine “provides that where there is
a concurrence of different perils, the efficient cause — the one that set the
other in motion — is the cause to which the loss is attributable.” Sebo II,
208 So. 3d at 697 (citing Sabella v. Nat’l Union Fire Ins. Co., 377 P.2d
889, 895 (Cal. 1963)). The concurrent cause doctrine, on the other hand,
“provides that coverage may exist where an insured risk constitutes a
concurrent cause of the loss even when it is not the prime or efficient cause.”
Id. at 698.
The question presented in Sebo II
was whether the Supreme Court would apply the efficient proximate cause
doctrine (pursuant to Sebo I) or the concurrent cause doctrine (as
discussed in Wallach) when multiple perils converged to cause a loss to
the insured property, and at least one of those perils was excluded under the
contract, and one of those perils was covered by the contract. Sebo II,
208 So. 3d at 697. In that case, evidence was presented that rainstorms,
hurricanes, and leakage caused by major design and construction defects
combined to damage the homeowner’s residence. Id. at 696. Under the
all-risk insurance contract, only the leakage from the design and construction
defects was excluded. Id. at 700. Ultimately, having determined “there
is no reasonable way to distinguish the proximate cause of [the] property
loss,” id., the Court applied the concurrent cause doctrine, stating,
“[w]here weather perils combine with human negligence to cause a loss, it seems
logical and reasonable to find the loss covered by an all-risk policy even if
one of the causes is excluded from coverage.” Id. (alteration in
original) (quoting Wallach, 527 So. 2d at 1388).
was whether the Supreme Court would apply the efficient proximate cause
doctrine (pursuant to Sebo I) or the concurrent cause doctrine (as
discussed in Wallach) when multiple perils converged to cause a loss to
the insured property, and at least one of those perils was excluded under the
contract, and one of those perils was covered by the contract. Sebo II,
208 So. 3d at 697. In that case, evidence was presented that rainstorms,
hurricanes, and leakage caused by major design and construction defects
combined to damage the homeowner’s residence. Id. at 696. Under the
all-risk insurance contract, only the leakage from the design and construction
defects was excluded. Id. at 700. Ultimately, having determined “there
is no reasonable way to distinguish the proximate cause of [the] property
loss,” id., the Court applied the concurrent cause doctrine, stating,
“[w]here weather perils combine with human negligence to cause a loss, it seems
logical and reasonable to find the loss covered by an all-risk policy even if
one of the causes is excluded from coverage.” Id. (alteration in
original) (quoting Wallach, 527 So. 2d at 1388).
Applying Sebo II to the
instant case, we conclude that the trial court erred with respect to the jury
instruction, which applied the efficient proximate cause doctrine without the
jury first determining whether an efficient proximate cause could be
determined. The jury instruction was crafted in such a way that the jury never
decided whether there was an efficient cause. Proper jury instructions would
have required the jury to first determine whether one efficient proximate cause
could be identified and, if the answer was negative, a follow-up instruction would
have applied the concurrent cause doctrine. Applying this causal doctrine, the
jury would then decide if at least one of the concurrent causes was covered
(i.e., not excluded from coverage) under the insurance policy.
instant case, we conclude that the trial court erred with respect to the jury
instruction, which applied the efficient proximate cause doctrine without the
jury first determining whether an efficient proximate cause could be
determined. The jury instruction was crafted in such a way that the jury never
decided whether there was an efficient cause. Proper jury instructions would
have required the jury to first determine whether one efficient proximate cause
could be identified and, if the answer was negative, a follow-up instruction would
have applied the concurrent cause doctrine. Applying this causal doctrine, the
jury would then decide if at least one of the concurrent causes was covered
(i.e., not excluded from coverage) under the insurance policy.
Insurance Company argues in the alternative
that the concurrent cause doctrine was inapplicable given that there were
various anti-concurrent cause provisions in the insurance contract. “An
anti-concurrent cause provision is a provision in a first-party insurance
policy that provides that when a covered cause and noncovered cause combine to
cause a loss, all losses directly and indirectly caused by those events are
excluded from coverage.” Liberty Mut. Fire Ins. Co. v. Martinez, 157 So.
3d 486, 487 n.1 (Fla. 5th DCA 2015). Admittedly, the Florida Supreme Court in Sebo
II contemplated that it would have applied the efficient proximate cause
doctrine had there been anti-concurrent cause provisions in the insurance
contract. Sebo II, 208 So. 3d at 700. However, as Insurance Company
concedes, in the instant case only three out of the five exclusions in the
insurance contract contained anti-concurrent cause provisions: “neglect,”
“existing damage,” and “weather conditions.” The other two, “faulty, inadequate
or defective design” and “wear and tear, marring, deterioration” did not. Thus,
since some of the exclusions did not contain anti-concurrent cause
provisions, the trial court erred by uniformly applying the efficient proximate
cause doctrine in its jury instruction. The jury could very well have decided
that the hailstorm damage occurred in conjunction with, rather than was set in
motion by, “faulty, inadequate or defective design,” or “wear and tear,
marring, deterioration,” which would merit application of the concurrent cause
doctrine.
that the concurrent cause doctrine was inapplicable given that there were
various anti-concurrent cause provisions in the insurance contract. “An
anti-concurrent cause provision is a provision in a first-party insurance
policy that provides that when a covered cause and noncovered cause combine to
cause a loss, all losses directly and indirectly caused by those events are
excluded from coverage.” Liberty Mut. Fire Ins. Co. v. Martinez, 157 So.
3d 486, 487 n.1 (Fla. 5th DCA 2015). Admittedly, the Florida Supreme Court in Sebo
II contemplated that it would have applied the efficient proximate cause
doctrine had there been anti-concurrent cause provisions in the insurance
contract. Sebo II, 208 So. 3d at 700. However, as Insurance Company
concedes, in the instant case only three out of the five exclusions in the
insurance contract contained anti-concurrent cause provisions: “neglect,”
“existing damage,” and “weather conditions.” The other two, “faulty, inadequate
or defective design” and “wear and tear, marring, deterioration” did not. Thus,
since some of the exclusions did not contain anti-concurrent cause
provisions, the trial court erred by uniformly applying the efficient proximate
cause doctrine in its jury instruction. The jury could very well have decided
that the hailstorm damage occurred in conjunction with, rather than was set in
motion by, “faulty, inadequate or defective design,” or “wear and tear,
marring, deterioration,” which would merit application of the concurrent cause
doctrine.
B. Allocation of the Burden of Proof
in the Jury Instruction
in the Jury Instruction
We review de novo whether the trial
court applied the correct burden of proof in its jury instructions. See
Daniels v. State, 121 So. 3d 409, 413 (Fla. 2013) (reviewing de novo a
question of law in a jury instruction).
court applied the correct burden of proof in its jury instructions. See
Daniels v. State, 121 So. 3d 409, 413 (Fla. 2013) (reviewing de novo a
question of law in a jury instruction).
Homeowners argue that the trial
court erred by requiring them to first prove that the hailstorm was the
efficient cause of damage to the roof. We agree with Homeowners’ argument.
court erred by requiring them to first prove that the hailstorm was the
efficient cause of damage to the roof. We agree with Homeowners’ argument.
There is no dispute that the
insurance policy at hand is, as in Sebo II, an all-risk policy. The
policy here initially states that “[w]e insure against risk of direct loss to
property described in Coverages A and B only if that loss is a physical loss to
property.” Coverage A specifically covers “[t]he dwelling on the ‘residence
premises’ shown in the Declarations, including structures attached to the
dwelling.” After explaining that Insurance Company would cover all direct
physical losses to the dwelling, the contract lists the specific types of
exclusions to that coverage. See Phoenix Ins. Co. v. Branch, 234 So. 2d
396, 397-98 (Fla. 4th DCA 1970) (holding that a similarly worded agreement was
an all-risk policy).
insurance policy at hand is, as in Sebo II, an all-risk policy. The
policy here initially states that “[w]e insure against risk of direct loss to
property described in Coverages A and B only if that loss is a physical loss to
property.” Coverage A specifically covers “[t]he dwelling on the ‘residence
premises’ shown in the Declarations, including structures attached to the
dwelling.” After explaining that Insurance Company would cover all direct
physical losses to the dwelling, the contract lists the specific types of
exclusions to that coverage. See Phoenix Ins. Co. v. Branch, 234 So. 2d
396, 397-98 (Fla. 4th DCA 1970) (holding that a similarly worded agreement was
an all-risk policy).
Because the policy is an all-risk
one, we find error in the allocation of proof in the jury instruction, as the
trial court placed the initial burden of proof on Homeowners to demonstrate
that the hailstorm was “the most substantial or responsible cause of the damage
to the roof.” Under an all-risk insurance policy, “the rule is that once the
insured establishes a loss apparently within the terms of the policy, the
burden is upon the insurer to prove that the loss arose from a cause which is
excepted.” Branch, 234 So. 2d at 398. Our allocation of this preliminary
burden of proof is consistent with the general notion that an all-risk
insurance policy guards against all risks except those explicitly excluded by
the policy. See W. Best, Inc. v. Underwriters at Lloyds, London, 655 So.
2d 1213, 1214 (Fla. 4th DCA 1995) (“Since in the instant case it was undisputed
that the loss of the ring apparently fell within the terms of the all-risk
policy, appellee bore the burden as insurer to establish that the circumstances
of the loss fell within an exclusionary provision.”).
one, we find error in the allocation of proof in the jury instruction, as the
trial court placed the initial burden of proof on Homeowners to demonstrate
that the hailstorm was “the most substantial or responsible cause of the damage
to the roof.” Under an all-risk insurance policy, “the rule is that once the
insured establishes a loss apparently within the terms of the policy, the
burden is upon the insurer to prove that the loss arose from a cause which is
excepted.” Branch, 234 So. 2d at 398. Our allocation of this preliminary
burden of proof is consistent with the general notion that an all-risk
insurance policy guards against all risks except those explicitly excluded by
the policy. See W. Best, Inc. v. Underwriters at Lloyds, London, 655 So.
2d 1213, 1214 (Fla. 4th DCA 1995) (“Since in the instant case it was undisputed
that the loss of the ring apparently fell within the terms of the all-risk
policy, appellee bore the burden as insurer to establish that the circumstances
of the loss fell within an exclusionary provision.”).
In Mejia v. Citizens Property
Insurance Corp., 161 So. 3d 576 (Fla. 2d DCA 2014), a case nearly analogous
to the instant one, the Second District Court of Appeal reversed the trial
court for requiring a homeowner to first prove that a specific cause, a
sinkhole, damaged his home. Id. at 578. The court explained: “an 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.” Id.; see also Citizens Prop. Ins. Corp. v.
Munoz, 158 So. 3d 671, 674 (Fla. 2d DCA 2014) (allocating the burden of
proof in a manner consistent with Mejia); Wallach, 527 So. 2d at
1387 (affirming a jury instruction requiring the insurance company to prove
that the cause of the loss was an excluded one under the insurance contract); Hudson
v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA
1984) (similar).
Insurance Corp., 161 So. 3d 576 (Fla. 2d DCA 2014), a case nearly analogous
to the instant one, the Second District Court of Appeal reversed the trial
court for requiring a homeowner to first prove that a specific cause, a
sinkhole, damaged his home. Id. at 578. The court explained: “an 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.” Id.; see also Citizens Prop. Ins. Corp. v.
Munoz, 158 So. 3d 671, 674 (Fla. 2d DCA 2014) (allocating the burden of
proof in a manner consistent with Mejia); Wallach, 527 So. 2d at
1387 (affirming a jury instruction requiring the insurance company to prove
that the cause of the loss was an excluded one under the insurance contract); Hudson
v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA
1984) (similar).
Since there was a genuine dispute
regarding the cause of the damage to the roof, “the trial court’s allocation of
the burden of proof on the issue of [the insurance company’s] liability became
of critical importance.” Hudson, 450 So. 2d at 568. It was not
Homeowners’ responsibility, in the context of an all-risk insurance contract,
to prove by a preponderance of the evidence that a non-excluded peril was “the
most substantial or responsible cause of the damage to the roof.” Instead, the
proper allocation of the shifting burden of proof in a case of this type,
involving an all-risk insurance contract where more than one potential cause of
damage was raised by the parties, is as follows:
regarding the cause of the damage to the roof, “the trial court’s allocation of
the burden of proof on the issue of [the insurance company’s] liability became
of critical importance.” Hudson, 450 So. 2d at 568. It was not
Homeowners’ responsibility, in the context of an all-risk insurance contract,
to prove by a preponderance of the evidence that a non-excluded peril was “the
most substantial or responsible cause of the damage to the roof.” Instead, the
proper allocation of the shifting burden of proof in a case of this type,
involving an all-risk insurance contract where more than one potential cause of
damage was raised by the parties, is as follows:
1. The
insured has the initial burden of proof to establish that the damage at issue
occurred during a period in which the damaged property had insurance coverage.
If the insured fails to meet this burden, judgment shall be entered in favor of
the insurer.
insured has the initial burden of proof to establish that the damage at issue
occurred during a period in which the damaged property had insurance coverage.
If the insured fails to meet this burden, judgment shall be entered in favor of
the insurer.
2. If the
insured’s initial burden is met, the burden of proof shifts to the insurer to
establish that (a) there was a sole cause of the loss, or (b) in cases where
there was more than one cause, there was an “efficient proximate cause” of the
loss.
insured’s initial burden is met, the burden of proof shifts to the insurer to
establish that (a) there was a sole cause of the loss, or (b) in cases where
there was more than one cause, there was an “efficient proximate cause” of the
loss.
3. If the
insurer meets the burden of proof under either 2.(a) or 2.(b), it must then
establish that this sole or efficient proximate cause was excluded from
coverage by the terms of the insurance policy. If the insurer does so, then
judgment shall be entered in its favor. If the insurer establishes that there
was a sole or efficient proximate cause, but fails to prove that this cause was
excluded by the all-risk insurance policy, then judgment shall be entered in
favor of the insured.
insurer meets the burden of proof under either 2.(a) or 2.(b), it must then
establish that this sole or efficient proximate cause was excluded from
coverage by the terms of the insurance policy. If the insurer does so, then
judgment shall be entered in its favor. If the insurer establishes that there
was a sole or efficient proximate cause, but fails to prove that this cause was
excluded by the all-risk insurance policy, then judgment shall be entered in
favor of the insured.
4. If the
insurer fails to establish either a sole or efficient proximate cause, and
there are no applicable anti-concurrent cause provisions, then the concurrent
cause doctrine must be utilized. Applying the concurrent cause doctrine, the
insurer has the initial burden of production to present evidence that an
excluded risk was a contributing cause of the damage.1 If it fails to satisfy this burden of
production, judgment shall be entered in favor of the insured.
insurer fails to establish either a sole or efficient proximate cause, and
there are no applicable anti-concurrent cause provisions, then the concurrent
cause doctrine must be utilized. Applying the concurrent cause doctrine, the
insurer has the initial burden of production to present evidence that an
excluded risk was a contributing cause of the damage.1 If it fails to satisfy this burden of
production, judgment shall be entered in favor of the insured.
5. If the
insurer does produce evidence that an excluded risk was a concurrent cause of
the loss, then the burden of production shifts to the insured to present
evidence that an allegedly covered risk was a concurrent cause of the loss at issue.
If the insured fails to satisfy this burden of production, judgment shall be
entered in favor of the insurer.
insurer does produce evidence that an excluded risk was a concurrent cause of
the loss, then the burden of production shifts to the insured to present
evidence that an allegedly covered risk was a concurrent cause of the loss at issue.
If the insured fails to satisfy this burden of production, judgment shall be
entered in favor of the insurer.
6. If the
insured produces evidence of a covered concurrent cause, the insurer bears the
burden of proof to establish that the insured’s purported concurrent cause was
either (a) not a concurrent cause (i.e., it had no (or a de minimis)
causal role in the loss), or (b) excluded from coverage by the insurance
policy. If the insurer fails to satisfy this burden of proof, judgment shall be
entered in favor of the insured.
insured produces evidence of a covered concurrent cause, the insurer bears the
burden of proof to establish that the insured’s purported concurrent cause was
either (a) not a concurrent cause (i.e., it had no (or a de minimis)
causal role in the loss), or (b) excluded from coverage by the insurance
policy. If the insurer fails to satisfy this burden of proof, judgment shall be
entered in favor of the insured.
Conclusion
Because the jury instruction given
below was erroneous, we reverse and remand for a new trial. See Salkey v.
Citizens Prop. Ins. Corp., 42 Fla. L. Weekly S751 (Fla. June 23, 2017)
(reversing the DCA in light of Sebo II and remanding for application of
the concurrent cause doctrine).
below was erroneous, we reverse and remand for a new trial. See Salkey v.
Citizens Prop. Ins. Corp., 42 Fla. L. Weekly S751 (Fla. June 23, 2017)
(reversing the DCA in light of Sebo II and remanding for application of
the concurrent cause doctrine).
Reversed and remanded. (DAMOORGIAN and CONNER, JJ., concur.)
__________________
1See B
& S Assocs., Inc. v. Indem. Cas. & Prop., Ltd., 641 So. 2d 436, 437 (Fla. 4th DCA 1994) (finding that because
the cause of the damage was unknown, and the instant contract was an all-risk
insurance policy, the damage was covered under the default terms of the
contract).
& S Assocs., Inc. v. Indem. Cas. & Prop., Ltd., 641 So. 2d 436, 437 (Fla. 4th DCA 1994) (finding that because
the cause of the damage was unknown, and the instant contract was an all-risk
insurance policy, the damage was covered under the default terms of the
contract).
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