Plaintiff Maintains Initial Burden of Proof to Establish Causation in Hurricane Irma Claims

Florida Statute §627.70132 allows an insured to make a claim for an alleged hurricane loss within three years of the event. This statute, however, is not a waiver of the insured’s initial burden of proof to establish causation as a condition precedent to coverage.

In any late reported Hurricane Irma claim, the plaintiff’s bar argues that the insureds have no real burden of proof other than to introduce photographs of roof damages. The plaintiff’s bar argues that if the insurance carrier cannot prove that the roof damages are the result of an exception or exclusion to coverage, that the court must find that all of the damages are the result of wind on September 10, 2017 – an event which occurred three years earlier. This assertion is contrary to the controlling case law and common sense.

“An ‘all-risk’ policy is not an ‘all loss’ policy.” See Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1086 (Fla 2005). Under an HO-3 replacement cost policy, the insured still maintains the initial burden of proof to introduce competent admissible evidence to prove that (1) there are damages to the property, (2) which were actually caused by wind on September 10, 2017. See Homeowners Choice Property & Casualty v Maspons, 211 So. 3d 1067 (Fla. 3d DCA 2017).[1]  In Maspons, supra, the court wrote:

“In Florida, the Insured has the burden of proving facts that bring its claim within an insurance policy’s affirmative grant of coverage. [citation omitted]. In order to meet this burden under a policy of property damage insurance, the insured must prove (1) that the property harmed or damaged falls within the ‘insuring clause’ of the policy and (2) the loss claimed falls within a second, ‘covered perils’ provision contained in each policy. [citation omitted]. The property, in this case, is uncontestably insured property under the Homeowner's Choice insurance policy. Thus, the first prong of the coverage analysis is satisfied. It is the second coverage prong that produces the question for resolution in this case, whether the Maspons suffered a loss that also falls within the ‘covered perils’ provision of the insurance policy. Only then might compensation be due, and then only if there is no applicable exclusion from coverage that might apply.” Id. At 1068-1069.

The Third District made clear that the insured is required to prove that there are (1) damages and (2) which were actually caused by a peril insured against. In Maspons, supra, the insured was able to prove only one of the two necessary predicate elements for causation. The Third District, therefore, concluded that the insured could not recover. This same legal analysis regarding the insured’s initial burden of proof applies in all insurance property claims, including hurricane claims.

Under Maspons, supra, the insurance carrier is not required to prove that damages were caused by any exception or exclusion of the policy as an initial matter. On the contrary, if the insured cannot meet its initial burden of proof on the threshold issue of coverage, the burden never shifts to the insurance carrier.[2]  

An HO-3 replacement cost policy does contain an exception for damages that are the result of wear, tear and deterioration. This exception, however, does not change the insured’s initial burden of proof. Every day a property (e.g., roof, interior, exterior) will age as a result of normal wear, tear and deterioration. These impacts include, but are not limited to, thermal expansion and contraction of the materials used in the construction of these areas. The damages created by wear, tear and deterioration are simply not covered under the policy. As such, this exception to coverage applies to all damages which were not actually damaged by a peril insured against. Based on Maspons, supra, if the insured is unable to meet its initial burden of proof, then the burden never shifts to the insurance carrier and the court is compelled to conclude that the damages are not covered.

When a Hurricane Irma claim is first reported in 2020, at best, the insured can only produce an expert report based on an inspection in the year 2020 or 2021. Any such report will be limited to a description of the current damage and the conclusion that there has been no comparable wind event since September 10, 2017. It is not enough for a report to (1) identify the damages to the roof and (2) assert that there has been “no comparable windstorm event” since Hurricane Irma. These types of reports have already been rejected by the Fourth District. See Soronson v. State Farm Florida Insurance Company, 96 So. 3d 949, 953 (Fla. 4th DCA 2012). In Soronson, supra, the peril was Hurricane Wilma which occurred on October 24, 2005. The insured first reported the claim in February 2009. An inspection occurred. The claim was denied. Suit was filed. State Farm raised late notice as a defense and filed a motion for summary judgment. The insured produced an engineer’s report in response. The trial court granted summary judgment in favor of State Farm. On appeal, the Fourth District noted that the insured's evidence consisted of their own affidavit and an engineer’s report. The report identified the damages and asserted: “no comparable windstorm events occurred after Hurricane Wilma.” The Fourth District concluded: “Here, the insureds failed to come forward with counterevidence sufficient to reveal a genuine issue of material fact . . . Their affidavit does not present sufficient counterevidence to overcome the presumption of prejudice.” Id. at 953.

Any plaintiff expert report produced three years after the purported event will be legally insufficient to create a question of fact on causation. The law in Florida is clear. The plaintiff may not offer conclusory self-serving statements, which are framed in terms of conclusions of law to create a question of fact as to the issue of causation. See Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012)(“However, conclusory self-serving statements which are framed in terms of conclusions of law are not sufficient to either raise a question of material fact or prove the non-existence of a genuine issue of material fact.”)  If the insured cannot create a question of fact as to the issue of causation, then it only follows that the insured cannot meet its initial burden of proof on causation – a necessary condition precedent to coverage.

Effective May 1, 2021, Florida state courts will follow the summary judgment standard articulated by the United States Supreme Court. See In re Amendments to Fla. Rule of Cov. Procedure 1.510, 2020 Fla. LEXIS 2148 (Fla. Sup. Ct. December 21, 2020). Under the new standard, a party opposing summary judgment will have to do more than simply produce an expert report and claim a question of fact on the issue of causation.[3] With that said, even without the heightened standard, the trial courts are well within their discretion to grant summary judgment in favor of the insurance carriers relying on Soronson, supra, and Progressive Exp. Ins. Co., supra.