47 Fla. L. Weekly D1591b
ANGELO PANETTIERI, Appellant, v. PEOPLE’S TRUST INSURANCE COMPANY, Appellee. 4th District. Case No. 4D20-2624. July 27, 2022. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE-20-005074. Counsel: Mark A. Nation of The Nation Law Firm, LLP, Longwood, for appellant. Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, and Brett Frankel, Jonathan Sabghir and Jake A. Tover of People’s Trust Insurance Company, Deerfield Beach, for appellee.ON MOTION FOR A WRITTEN OPINIONOR FOR CERTIFICATION[Original Opinion at 47 Fla. L. Weekly D931c]
(CONNER, J.) We grant the appellee’s motion for written opinion, deny the motion for certification, withdraw our opinion dated April 20, 2022, and issue the following in its place:
Angelo Panettieri (“Insured”) appeals the final summary judgment in favor of People’s Trust Insurance Company (“People’s Trust”). Insured argues that the trial court erred in entering its final summary judgment determining: (1) that the water damage exclusion endorsement (“WDE Endorsement”) to the operative homeowner’s insurance policy applied to Insured’s claim; and (2) Insured’s entire claim, including tear out costs, was limited to $10,000 in coverage under the policy’s limited water damage coverage endorsement (“LWD Endorsement”). Our recent opinion in Dodge v. People’s Trust Insurance Co., 321 So. 3d 831 (Fla. 4th DCA 2021), controls the determination of Insured’s first argument, based on the same type of loss and substantially the same policy language. Therefore, we affirm Insured’s first argument on appeal based on our analysis in Dodge. However, because we did not expressly resolve the Insured’s argument regarding tear out costs in Dodge, we write here to explain why we affirm as to this second argument as well.Background
Insured obtained a homeowner’s all-risk insurance policy issued by People’s Trust. While the policy was in full force and effect, Insured suffered water damage caused by wear and tear, deterioration, and corrosion of the plumbing system under Insured’s home. After Insured submitted a claim to People’s Trust, People’s Trust accepted coverage of the claim. However, People’s Trust maintained that the policy limited coverage of the claim to $10,000 and issued payment in that amount. Insured disagreed with the payment amount and filed suit against People’s Trust for breach of contract.
People’s Trust moved for summary judgment maintaining its position that coverage was limited to $10,000 under the LWD Endorsement. Insured filed a competing motion for summary judgment, arguing in part that the LWD Endorsement limited only the portion of the claim seeking payment for direct losses due to water damage to $10,000, but did not limit the portion of the claim seeking payment for the cost of tearing out and repairing the portion of Insured’s property needed for access to repair the plumbing system. In other words, Insured contended that even if the portion of the claim seeking payment for water damage was limited to $10,000 under the LWD Endorsement, the limit did not apply to the portion of the claim seeking payment for tear out costs.
After the trial court granted People’s Trust’s summary judgment motion, denied Insured’s competing motion, and entered final summary judgment in favor of People’s Trust, Insured gave notice of appeal.Appellate Analysis
“Because it is a legal question, a trial court’s grant of summary judgment is reviewed de novo.” Sunshine State Ins. Co. v. Jones, 77 So. 3d 254, 257 (Fla. 4th DCA 2012) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)). Similarly, interpretation of an insurance contract is a legal question reviewed de novo. Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197 (Fla. 4th DCA 2006).
“[I]nsurance contracts are interpreted according to the plain language of the policy except ‘when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.’ ” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986)). Importantly, “a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, or riders.” Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., 95 So. 3d 290, 292 (Fla. 3d DCA 2012) (quoting State Farm Mut. Auto. Ins. Co. v. Mashburn, 15 So. 3d 701, 704 (Fla. 1st DCA 2009)). Moreover, “[t]he law in Florida is clear that to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls.” Allstate Fire & Cas. Ins. Co. v. Hradecky, 208 So. 3d 184, 187 (Fla. 3d DCA 2016) (citing Fam. Care Ctr., P.A. v. Truck Ins. Exch., 875 So. 2d 750, 752 (Fla. 4th DCA 2004)).
The policy in this case is an all-risks policy. “An all-risks policy provides coverage for all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage.” Kokhan v. Auto Club Ins. Co. of Fla., 297 So. 3d 570, 572 (Fla. 4th DCA 2020) (emphasis added) (quoting Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014)). “[U]nder an all-risk policy, an exclusion applies if the loss clearly and unambiguously fits within its provisions.” Liebel v. Nationwide Ins. Co. of Fla., 22 So. 3d 111, 115 (Fla. 4th DCA 2009). “Ambiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured.” Id. at 115 (quoting Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1086 (Fla. 2005)). “In reviewing the insurance policy, we begin with the principle that an insurance contract is construed ‘in accordance with its plain language as bargained for by the parties.’ ” State Farm Fire & Cas. Ins. Co. v. Wilson, 330 So. 3d 67, 72 (Fla. 2d DCA 2021) (quoting State Farm Auto. Ins. Co. v. Lyde, 267 So. 3d 453, 458 (Fla. 2d DCA 2018)).
Like the situation in Dodge, the policy in this case contained a Section I-Exclusions provision that excluded coverage for loss caused by certain categories of water damage. The policy also contained the WDE Endorsement, as follows:
Under SECTION I-EXCLUSIONS item 3. Water is replaced by the following:
3. Water, meaning:
[six lettered paragraphs describing various water sources]
caused by or resulting from human or animal forces or any act of nature.
(emphasis added). After excluding coverage for water damage through the Section I-Exclusions provision, as modified by the WDE Endorsement, the policy then added limited coverage through the LWD Endorsement, as follows:
“We” will provide the insurance described in the endorsement in return for the additional premium paid by “you” and “your” compliance with all applicable provisions of this policy.
The policy is endorsed to provide the following:
Sudden and accidental direct physical loss to covered property by discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance.
LIMIT OF LIABILITY:
The Property Coverage limit for liability for all covered property provided by this endorsement is shown on “your” Declaration Page, per occurrence.
. . . .
All other provisions of your policy that are not affected by this endorsement remain unchanged.
On appeal, Insured argues that there are two separate coverage portions to the claim: (1) for water damage; and (2) for tear out costs. He asserts that even if coverage for water damage is limited to $10,000 under the LWD Endorsement, tear out costs are neither covered nor limited under the LWD Endorsement. Instead, Insured argues that tear out coverage is expressly provided for in a different section of the policy, or at the least, coverage is ambiguous and thus should be construed in his favor.
We agree with the first portion of Insured’s argument — the LWD Endorsement does not address coverage for, or limit, tear out costs. The endorsement’s plain language extends coverage only for direct physical loss.1 However, we disagree with Insured’s contention that tear out coverage is provided for in a different section of the policy.
Insured points to the “Perils Insured Against” provision of the policy and argues that the provision provides coverage for tear out costs. This provision states:
SECTION I — PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other Structures
1. We insure against direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
a. Excluded under Section I — Exclusions
b. Involving collapse . . . or
c. Caused by:
. . . .
(5) Any of the following:
(a) Wear and tear, marring, deterioration;
. . . .
(c) Smog, rust or other corrosion. . . .
(emphasis added). However, the policy also contains an exception to A.2.c.5:
Exception to c. (5)
Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a:
. . . .
ii. Plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the “residence premises”. This includes the cost to tear out and replace any part of a building, or other structure, on the “residence premises”, but only when necessary to repair the system or appliance. However, such tear out and replacement coverage only applies to other structures if the water or steam causes actual damage to a building on the “residence premises”.
A plain reading of the exception to c. (5) indicates that tear out coverage is included as part of the loss to property unless the loss is excluded. Therefore, no separate and distinct coverage exists for tear out costs apart from water damage, as Insured argues. The Perils Insured Against provision simply defines tear out coverage as included as part of covered loss to property, but excluded when the loss is excluded.2
As noted above, based on our analysis in Dodge, we find that the loss caused by water damage is excluded by the WDE Endorsement. See 321 So. 3d at 835. Hence, the loss, including tear out costs, is otherwise excluded in the policy, and thus, the exception to c. (5) does not provide coverage for tear out costs here. As a result, no ambiguity or conflict exists within these provisions of the policy. The loss is left expressly excluded under the WDE Endorsement.
In addition to rejecting Insured’s interpretation of tear out costs as a separate and distinct coverage, we conclude his reliance on Liebel is misplaced. There, we determined that an ambiguity existed in a homeowner’s insurance policy regarding tear out and replacement costs. 22 So. 3d at 117. Insured argues that the same ambiguity exists in the instant policy, and thus, the ambiguity should be strictly construed against People’s Trust.
However, the operative policy language in Liebel is different than the policy here. In Liebel, two policy provisions discussed the cost of tearing out and replacing any part of the building necessary to repair or replace the plumbing system. In one subsection, the tear out and replacement provision clearly stated coverage was applicable “[i]f loss caused by water . . . is not otherwise excluded.” Id. at 113. In another subsection, a sentence stating “we cover loss caused by the water not otherwise excluded” was immediately followed by the sentence: “We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance.” Id. at 114 (emphasis added). We concluded that the difference in language created an ambiguity as to whether tear out and repair costs were covered because the policy language had two reasonable interpretations:
[O]ne may interpret the “otherwise excluded” language to preclude coverage for all damages caused by a matter otherwise excluded, including the cost of tearing out and replacing any part of [the insured’s] home necessary to repair the ruptured water line. In contrast, a reasonable person could interpret the [p]olicy to exclude from coverage the damage caused by earth movement, but include the cost of repairing the water line that caused the loss, as it is a plumbing system that caused water damage due to its deterioration from wear and tear.
Id. at 117 (emphasis added). Thus, the same ambiguity does not exist in the policy here, and the difference in the policy language highlights our holding in the instant case. In Liebel, the policy could be interpreted as coverage independent from a loss “otherwise excluded,” whereas here, the policy language is clear that tear out costs are “include[d]” as part of a covered loss “[u]nless the loss is otherwise excluded.” (emphasis added). Again, under the WDE Endorsement in this case, the loss is excluded.
Likewise, Insured’s reliance on the recent opinion in Security First Insurance Co. v. Vazquez, 336 So. 3d 350 (Fla. 5th DCA 2022), is not persuasive. In Vazquez, the Fifth District held that a tear out coverage provision was ambiguous, and therefore, tear out costs were not limited to $10,000 under a limited water damage coverage endorsement. Id. at 353. However, in Vazquez, the parties stipulated that the operative policy’s limited water damage coverage endorsement provided coverage for tear out costs, and the question presented to the Fifth District was whether the $10,000 sub-limit applied to tear out costs. Id. at 352. Here, no such stipulation occurred, and even more, as mentioned above, Insured’s argument on appeal is based on his contention that the LWD Endorsement in the instant case “does not provide coverage for Tear Out.” (emphasis added). Therefore, the facts and ultimate issue in Vazquez distinguish it from the instant case.Conclusion
Having determined that the tear out costs associated with the loss are expressly excluded under the policy, we affirm the trial court’s decision that Insured was not entitled to tear out costs in excess of the $10,000 limit in the LWD Endorsement. Accordingly, we affirm the final summary judgment in favor of People’s Trust.
Affirmed. (FORST and ARTAU, JJ., concur.)
1We note that in one of our recent opinions, Herrington v. Certain Underwriters At Lloyd’s London, No. 4D21-1669, 2022 WL 2335065 (Fla. 4th DCA June 29, 2022), we also discussed tear out coverage. However, in that case, we were not tasked with determining whether tear out coverage was otherwise excluded in the policy, and we did not address a water damage exclusion endorsement.
2We recently interpreted this “including” language similarly in Herrington. See No. 4D21-1669, 2022 WL 2335065 at *2 (“The policy language covers ‘loss caused by the water including the cost of tearing out’ parts of the structure to repair the system which leaked. ‘Tear out’ costs are thus part of the water damage loss.”) (emphasis added).* * *