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Whitely v. Am. Integrity Ins. Co.

Court of Appeal of Florida, Fifth District

June 29, 2018, Opinion Filed

Case No. 5D16-3719


 [*1313]  PER CURIAM.

In this breach of contract suit, Larry and Sherri Whitely ("the Whitelys") appeal a final summary judgment entered in favor of American Integrity Insurance Company of Florida ("AIIC"). The Whitelys contend that the trial court erred in entering summary judgment because material issues of fact remained. We agree, and therefore reverse and remand for further proceedings.

The Whitelys purchased an all-risks home insurance policy for their vacation property providing coverage from January 27, 2012, through January 27, 2013. On November 7, 2012, the Whitelys reported a claim for coverage to AIIC for water damage to the property that occurred sometime between October 5 and November 7, 2012. AIIC sent an expert to determine the cause, origin, and duration of the water damage. AIIC's expert determined that a "water release event" in one of the bathrooms exposed the property to water for approximately thirty days. AIIC [**2]  then denied the Whitelys' claim pursuant to the following exclusionary provision in the Whitelys' policy: "[W]e do not insure . . . loss . . . caused by . . . constant or repeated seepage or leakage of water . . . over a period of 14 or more days from within a plumbing . . . system."

The Whitelys filed suit for breach of contract, and AIIC moved for summary judgment, arguing that the policy unambiguously excluded the Whitelys' claimed loss based on the undisputed fact that the water exposure occurred for over fourteen days. At the summary judgment hearing, the Whitelys argued in part that the exclusionary provision was ambiguous because it did not clearly address whether the policy covered a loss occurring within the first fourteen days of exposure.1 The trial court granted summary judgment in favor of AIIC, finding the exclusionary provision to be unambiguous, and subsequently entered final judgment in favor of AIIC.

This Court recently addressed an analogous situation involving the same exclusionary provision. Hicks v. Amer. Integrity Ins. Co. of Fla., 241 So. 3d 925 (Fla. 5th DCA 2018). In Hicks, we held that "an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of fourteen days or more does not unambiguously [**3]  exclude losses caused by leakage or seepage over a period of thirteen days or less." Id. at 927. We concluded that ] "[i]n an all-risks policy, once the insured establishes a loss within the terms of a policy, the burden shifts to the insurer to prove that a particular loss arose from an excluded cause. Whether such a determination is possible is a genuine issue of material fact precluding summary judgment." Id. at 928 (citation omitted).

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249 So. 3d 1312 *; 2018 Fla. App. LEXIS 9204 **; 43 Fla. L. Weekly D 1503


Prior History:  [**1] Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.


fourteen days, exclusionary provision, summary judgment, leakage, per curiam, affirmance, seepage, trial court, unambiguously, constant, coverage, exposure, repeated, exposed, insure, genuine issue of material fact, further proceedings, precedential value, water damage, inappropriate, demonstrates, supplemental, precluding, undisputed, all-risks, ambiguity, preserved, plumbing, losses

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Insurance Law, Property Insurance, Coverage, All Risks, Evidence, Burdens of Proof, Burden Shifting, Types of Insurance, Exclusions, Initial Burden of Persuasion, Governments, Courts, Judicial Precedent