CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY NUMBER M12226, APPELLANT,
v.
CHABAD LUBAVITCH OF GREATER FT. LAUDERDALE, INC., APPELLEE

Fla. 4th DCA | 2011-06-08
No. 4D10-762
GROSS, C.J., concurs., POLEN, J., dissents with opinion.
65 So. 3d 67 Florida District Court of Appeal, Fourth District (2011) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Lloyd's appealed the trial court's grant of summary judgment to Chabad Lubavitch on an insurance coverage dispute involving an 'all risk' policy with a windstorm exclusion. The court reversed, holding that the windstorm exclusion and its 'Ensuing Loss' exception were unambiguous, but remanded for factual determination of whether wind was the direct cause of the crane damage.


Holding

The windstorm exclusion is unambiguous. The 'Ensuing Loss' exception means that if a windstorm sets in motion another intervening cause (not otherwise excluded) that results in a covered loss, the windstorm exclusion does not apply and the loss is covered. However, because the parties did not stipulate to whether wind was the direct cause of the crane falling, the case is remanded to determine this essential factual issue.


Headnotes

[1] An "all risk" insurance policy's windstorm exclusion is unambiguous when its plain language clearly excludes damage caused directly or indirectly by windstorm, regardless…

[2] An "ensuing loss" provision in an insurance policy's exclusion allows coverage for a loss if a covered peril, other than rain, snow, sand, or dust, is set in motion by a…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“if the Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss.”

The 'Ensuing Loss' exception to the windstorm exclusion, which is central to the court's interpretation that intervening covered causes resulting from windstorm are covered.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Chabad's building was damaged when a crane landed on it during Tropical Storm Barry. Chabad held two policies: a wind damage policy from which it reco…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

Certain Interested Underwriters at Lloyd’s, London, appeals the trial court’s denial of its motion for summary judgment and granting of Chabad Lubavitch’s motion for summary judgment.1 We reverse.

The following is a recitation of the undisputed material facts. A building owned by Chabad was damaged when a crane landed on it during Tropical Storm Barry. At the time, Chabad had two policies on the damaged building. The first, which is the subject of this appeal, was an “all risk” policy issued by Lloyd’s. It contained the following “Windstorm or Hail Exclusion” (“windstorm exclusion”) provision:

We will not pay for loss or damage:

1. Caused directly or indirectly by Windstorm or Hail, regardless of any other cause or event that contributes concurrently or in any sequence to the loss or damage; or
2. Caused by rain, snow, sand or dust, whether driven by wind or not, if that loss or damage would not have occurred but for the Windstorm or Hail.
But if Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss. For *69example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

The other policy was a policy covering wind damage (“the wind policy”). Prior to making a claim under the all risk policy, Chabad had made a claim under the wind policy for the storm damage. Chabad received the policy limits under the wind policy.

Chabad then made a claim under the all risk policy for the same storm damage. Lloyd’s responded by filing a complaint for declaratory judgment seeking a determination that the all risk policy’s windstorm exclusion provision excluded from coverage the damage caused by the wind generated during the storm. Chabad counterclaimed for breach of contract because of Lloyd’s failure to pay the claim filed under the subject policy. Both parties moved for summary judgment. Lloyd’s’ argument before the trial court was based on the theory that Chabad’s submission of the claim under the wind policy constituted an admission that the loss was caused by wind. Therefore, the damage to the building would not be covered under the windstorm exclusion in the all risk policy.

Chabad countered that the crane striking the building was the cause of damage, not wind. Chabad’s argument focused on the exception within the windstorm exclusion provision (referred to by Lloyd’s as an “Ensuing Loss” provision), which stated that “if the Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss.” The crane striking the building was “a cause of loss other than rain, snow, sand or dust,” resulting from ■wind.

The trial court concluded that the windstorm exclusion was ambiguous and therefore should be construed strictly against Lloyd’s to cover the damage to Chabad’s building. This appeal follows.

Our standard of review of the entry of a summary judgment is de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

The issue before us is whether the trial court erred in its determination that the windstorm exclusion in the parties’ contract of insurance was ambiguous and, therefore, should be construed against Lloyd’s. We conclude that the windstorm exclusion is unambiguous and that the trial court erred by concluding otherwise.

Interpreting insurance contracts requires the application of the following rules of interpretation: (1) construction of an insurance contract provision must be based on the policy’s plain language; (2) if the provision is ambiguous, it must be construed in favor of the insured; and (3) if more than one meaning can be assigned to a provision, one which favors coverage and another which does not, the provision is ambiguous. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). Additionally, when working through the interpretive process, “ ‘courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.’ ” Id. at 166 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)).

At the heart of the dispute in this case is the meaning of the “Ensuing Loss” provision which is an exception to the windstorm exclusion. The windstorm exclusion unambiguously provides that if a loss or damage is caused by a windstorm, the loss is not covered, regardless of any other cause or event that contributes to the loss. Contained within the exclusion is *70the “Ensuing Loss” provision which provides that if a windstorm “results in a cause of loss other than rain, snow sand or dust, and that resulting cause of loss is a Covered Cause of Loss,” the loss will be covered. Lloyd’s argues, and we agree, that the plain language of the “Ensuing Loss” provision means that if a windstorm sets in motion another cause, which is not excluded by the policy, and that intervening cause results in a covered loss, the windstorm exception does not apply and the loss would be covered by the policy. See Swire Pac., 845 So.2d at 165.

We find support for this interpretation in the factual scenario appearing at the end of the “Ensuing Loss” provision, to wit: “if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.” In the example, a windstorm damages the heating system. The damage to the heating system would not be a covered loss under the exclusion. However, if the damage to the heating system causes a fire to erupt which results in damage attributable to the fire, the damage caused by the fire would be covered under the policy. In the example, the “cause of loss” is not the windstorm, but the intervening fire. Watkins v. Am. Sec. Ins. Co., 129 Ga.App. 566, 200 S.E.2d 304, 305 (1973) (“[WJhere it appears that a peril ... has set in motion other forces which, directly and without intervention of any other causative factor, works the damage, such force is responsible for the loss.”) Our reading gives each provision its full meaning and operative effect, and the exclusion can be clearly determined and understood as required by Florida law. Swire Pac., 845 So.2d at 166.

However, our determination does not fully resolve this matter because Lloyd’s also assigns error to the trial court’s apparent factual determination that the wind was not a direct cause of the damage. The record reflects that the parties did not stipulate to the cause of the crane falling. This factual determination is essential because the exclusion would only apply if the crane fell from its perch because of the force of the wind, aided only by gravity and not some other intervening cause. See Watkins, 200 S.E.2d at 305. For this reason, we are compelled to remand the case for resolution of this factual issue.

Reversed and Remanded.

GROSS, C.J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. I would hold that the trial court correctly found an ambiguity in the insurance policy. That ambiguity arises from the language:

But if Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss. For example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

A crane falling on Chabad’s building is “a cause of loss other than rain, snow, sand or dust.” I would affirm summary judgment for appellee.

Dissent
POLEN, J.,

POLEN, J.,

dissenting.

I respectfully dissent. I would hold that the trial court correctly found an ambiguity in the insurance policy. That ambiguity arises from the language:

But if Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss. For example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

A crane falling on Chabad’s building is “a cause of loss other than rain, snow, sand or dust.” I would affirm summary judgment for appellee.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Misha Enters. v. GAR Enters., LLC, 117 So. 3d 850 (Fla. 4th DCA 2013)
    …summary judgment because GAR’s affidavit did not negate Misha’s affirmative defenses. The standard of review of an order on summary judgment is de novo. Certain Interested Underwriters at Lloyd’s v. Chabad Lubavitch of Greater Ft. Lauderdale, Inc., 65 So. 3d 67, 69 (Fla. 4th DCA 2011). Summary judgment can only be granted if “the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw