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Court Orders New Trial in Sinkhole Damage Lawsuit

Pekar Law, P.A. Dec. 29, 2014

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 home

In 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.

This case is important to all insureds in Florida because it further confirms the long established standard that an insurance company has to burden to prove that a loss is excluded or otherwise not covered under an “all-risk policy.” This is true even for insurance cases involving sinkhole losses.

Insurance litigation can be an uphill battle, regardless of whether you have a sinkhole problem or other damage. Still, skilled counsel can help you make your case and get the coverage you paid for. Experienced, Tampa, Florida-based property insurance attorney Jeff Pekar has achieved results for clients with all types of property damage claims. For a free initial consultation, call us today.