Citizens Prop. Ins., Corp. v. Salkey

Citizens Prop. Ins., Corp. v. Salkey

Opinion

 [*372]  CRENSHAW, Judge.

Upon remand from the Florida Supreme Court, we reconsider our prior decision² in light of the subsequent opinion in Sebo v. American Home Assurance Co. (Sebo II), 208 So. 3d 694 (Fla. 2016). In Sebo II, the supreme court clarified that ] the concurrent-cause  [*373]  doctrine, not the efficient-proximate-cause doctrine, is the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. Id. at 697.

In Salkey, we concluded that the trial court improperly instructed the jury on the concurrent-cause doctrine and that it should have instructed the jury on the efficient-proximate-cause doctrine. Citizens Prop. Ins. Corp. v. Salkey, 190 So. 3d 1092, 1094 (Fla. 2d DCA 2016), quashed, 2017 Fla. LEXIS 1373, 42 Fla. L. Weekly S751 (Fla. June 23, 2017). We also concluded that the jury instructions were confusing and may have misled the jury. Id. at 1094-95. Because our determination that the [**2]  jury instructions were confusing and may have misled the jury is not affected by Sebo II, we again reverse and remand for a new trial. We do not reach the issue of the attorneys' fee award.

Background

In 2008, Rona and Trevor Salkey (the Salkeys) purchased an all-risk homeowner's insurance policy from Citizens Property Insurance Corporation (Citizens). The policy insured against the risk of direct physical losses to the property unless expressly excluded. Losses caused by mine subsidence and sinkholes were excluded from the main policy. However, the Salkeys purchased the optional sinkhole loss coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity.

The Salkeys presented a sinkhole claim to Citizens after discovering damage to their property during the policy period. Citizens retained MCD of Central Florida (MCD) to evaluate the property for sinkhole activity. MCD concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the Salkeys' house was built. Citizens denied the Salkeys' sinkhole claim, and the Salkeys filed a breach [**3]  of contract claim against Citizens.

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