JAMES WIDDOWS, APPELLANT,
v.
STATE FARM FLORIDA INSURANCE COMPANY, APPELLEE

Fla. 5th DCA | 2006-02-03
No. 5D05-1052
SHARP, W., and LAWSON, JJ., concur.
920 So. 2d 149 Florida District Court of Appeal, Fifth District (2006) Positive Treatment
Cited by 5 cases

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Synopsis

In this insurance contract dispute, the Florida appellate court reversed a trial court's order dismissing an insured's claim for coverage of a plumbing defect. The court held that the abnormality in the drain pipe itself constituted a covered 'physical loss' under the policy, and that the insurer had the burden of proving the applicability of an earth movement exclusion.


Holding

The abnormality in the pipe itself constitutes a covered 'physical loss' under the policy language, and the insurer must prove applicability of any exclusions rather than the insured proving its entitlement to coverage. Because multiple possible causes existed for the backpitched pipe—not all of which would be excluded under the earth movement provision—dismissal at the close of the insured's case was premature.


Headnotes

[1] An abnormality in a plumbing pipe itself can constitute "accidental direct physical loss" under an insurance policy, without requiring proof of resulting damage.

[2] In an insurance contract dispute, the burden of proof rests on the insurer to establish that an exclusion applies.

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Key Quotes

“Under this standard of review, we conclude that the trial court erred when it granted the dismissal.”

The court established that applying de novo review to an involuntary dismissal, the trial court's order was erroneous.

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Facts & Procedural History

Widdows discovered a backed-up toilet and called a plumber who found that the drain pipe connecting the toilet to the sewer had become 'backpitched,' …

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Opinion of the Court
TORPY, J.

TORPY, J.

In this insurance contract dispute, we are asked to review the propriety of the lower court’s order that granted an involuntary dismissal, and final judgment thereon, at the close of Appellant’s case. Due to the procedural posture of the case at dismissal, our review is de novo, and we must view the evidence and all reasonable inferences therefrom in the light most favorable to Appellant. Under this standard of review, we conclude that the trial court erred when it granted the dismissal.

The issue in this case is whether Appel-lee has an obligation to repair a plumbing abnormality under a provision in the insurance policy that covers “accidental direct physical loss” to the property. The evidence established that Appellant called a plumber to repair a baeked-up toilet. During his investigation of the cause of the problem, the plumber discovered that the drain pipe connecting the toilet to the sewer pipe had become “backpitched,” thereby impeding the flow of water. Because the pipe was beneath the slab and had not been excavated at the time of trial, the plumber could not determine the exact cause of the abnormality. Among the possible causes advanced by the plumber, however, were settlement under the pipe, erosion or a sinkhole. The plumber concluded that the condition was neither a construction defect nor the result of erosion caused by a leak in the plumbing system.

At the conclusion of Plaintiffs case, the trial judge granted an involuntary dismissal for two reasons: First, because there was no evidence of damage from the obstructed toilet, the court concluded that there was not a “physical loss” to the property. Second, the court concluded that, even if a “physical loss” were sufficiently proven, the policy exclusion for earth movement applied. We disagree with both conclusions.

As to the issue of whether evidence was adduced of a “physical loss,” we conclude that the abnormality in the pipe itself was such a “loss.” Under the language of the policy, it was not necessary for Appellant to establish any resulting damage from this condition.1

The second basis for the involuntary dismissal, the earth movement exclusion, was likewise erroneous at this juncture of the trial because the burden of proof was on Appellee to establish that the exclusion applied. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245 (Fla.1986). The evidence adduced by Appellant offered several possible causes for the backpitched pipe, not all of which would have been excluded under the earth movement provision.2 Because the burden was on Appellee to establish that the exclusion applied, the dismissal was premature.

Based on the forgoing, we reverse and remand this cause for a new trial.

REVERSED AND REMANDED.

SHARP, W., and LAWSON, JJ., concur. . On appeal, Appellee argues that insufficient proof was adduced to show that the loss was “accidental,” in that no testimony was offered to show that the condition was sudden and unexpected. See Braley v. American Home Assurance Co., 354 So. 2d 904, 905 (Fla. 2d DCA 1978) ("accident” is "[a]n event which takes place without one's foresight or expectation; an undesigned, sudden and unexpected event”). Although not the basis on which the trial court ruled, Appellee did briefly advance this argument below. Nevertheless, we decline to affirm the trial court on this basis. We think that the reasonable inferences from the evidence on this point are sufficient to overcome involuntary dismissal.

. A loss due to a "sinkhole,” for example, is expressly excluded under die definition of earth movement. See § 627.706, Fla. Stat. (2002).


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Citator

Cited By

  • …any breach of any duty. The Brundages appeal the final judgment. We review a judgment entered on a trial court’s decision to grant a motion for involuntary dismissal at the close of the plaintiffs case de novo. Widdows v. State Farm Fla. Ins. Co., 920 So. 2d 149, 150 (Fla. 5th DCA 2006). “An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving partys claim.”…
  • Luciani v. Nealon, 181 So. 3d 1200 (Fla. 5th DCA 2015)
    …red on a trial court’s decision to grant a motion for involuntary dismissal at the close of the plaintiffs case [is reviewed] de novo.” Brundage v. Bank of America, 996 So. 2d 877, 881 (Fla. 4th DCA 2008) (citing Widdows v. State Farm, Fla. Ins. Co„ 920 So. 2d 149, 150 (Fla. 5th DCA 2006)). In making a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b), “the movant admits the truth of all facts in evidence and every reasonable conclusion or inference” that can be drawn from…
  • Sec. First Alarm, Inc. v. Celenza (9th Cir. Ct. App. Div. 2013)
    …ce of appeal from the final judgment. The central issue in this case is whether the trial court erred in granting a directed verdict for the Celenzas. The standard of review for a directed verdict is de novo. Widdows v. State Farm Florida Ins. Co., 920 So. 2d 149, 150 (Fla. 5th DCA 2006). Accordingly, this Court “must view the evidence and all reasonable inferences therefrom in the light most favorable to Appellant.” Id. On appeal, Security First makes three arguments: 1) that the trial court erred in gran…

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