Call Today! 800-652-6213
Pekar Law, P.A.
An experienced insurance claims lawyer serving the Tampa Bay area and across Florida

December 2014 Archives

Court Orders New Trial In Sinkhole Damage Lawsuit

What is a homeowner's burden of proof in a property insurance case?

Florida's Second District Court of Appeals in Lakeland, Florida has granted a retrial to the plaintiff in a case against an insurer over sinkhole damage. In its ruling, the court said that the lower court had imposed too high a burden of proof on the insured homeowner.The insured policyholder had purchased an "all-risks" policy from Citizens Property Insurance. The policy excluded coverage for losses caused by earth movement and sinkholes, but the insured paid an additional premium specifically to include sinkhole loss as a covered peril.The insured filed a claim under the policy, but an engineering firm hired by Citizens said that the damage to his property was not caused by a sinkhole, and the insurer refused to pay. The insured homeowner sued the insurance company, but a Pasco County, Florida jury concluded that he hadn't proven by a preponderance of the evidence that a sinkhole caused the damage to his homeIn his appeal, the insured's lawyers argued that the trial court made a reversible error in giving jury instructions that placed the burden of proof on the plaintiff. The appellate court agreed based on prior case law. According to the court, the burden of proof is based on the type of policy in effect. An "all-risks policy" should cover all losses not expressly excluded and not resulting from misconduct or fraud. The homeowner's burden of proof should have been simply to show that a loss occurred while the policy was in effect. It was then the insurer's burden to show that the property damage was in some way excluded by the terms of the policy.On a separate issue, the court also agreed with the plaintiff that the trial court erroneously excluded evidence that might have raised questions about the objectivity of the engineering firm the insurer hired.

Shelton v. Liberty Mutual Fire Insurance Co.

A recent Federal case issued by the 11th Circuit Court has narrowed sinkhole claims immensely in the State of Florida. The facts of the case are as follows.The Sheltons' possessed a homeowner's insurance policy issued by Liberty Mutual Fire Insurance Company. The policy was renewed in July 2011 and the Sheltons' home was subsequently affected by a sinkhole. They filed a claim with Liberty for sinkhole damage in January of 2012. Liberty's inspector went to the property and found cosmetic but not structural damage. The Sheltons' claim was denied under a Florida statute which defined sinkhole loss as "structural damage to the building, including the foundation". The statute has been revised two times in the last ten years. The first revision added the term structural damage and the second defined the term further. According to the latest definition, structural damage means "interior floor displacement", "foundation displacement or defection", "listing, leaning or buckling of exterior load bearing walls", that the structure was "significantly likely to imminently collapse" and/or "substantial structural damage as defined in the Florida Building Code". The insurer found that the damage to the Sheltons' home did not fall within this definition.

Photo1.jpg

Schedule A Free Consultation Today

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy