Vega v. Safepoint Ins. Co.

326 So.3d 176

Carlos VEGA, Appellant,

v.SAFEPOINT INSURANCE COMPANY, Appellee.

No. 3D19-2214

District Court of Appeal of Florida, Third District.

Opinion filed August 18, 2021

Giasi Law, P.A., Melissa A. Giasi and Erin M. Berger (Tampa), for appellant.

Cole Scott & Kissane, P.A., and Alexandra Valdes, for appellee.

Before LOGUE, GORDO and LOBREE, JJ.

GORDO, J.

Carlos Vega appeals the trial court's order granting Safepoint Insurance Co.’s motion for summary judgment and subsequent entry of final judgment. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Vega argues his expert's affidavit in opposition to summary judgment and other record evidence were sufficient to create a genuine issue of material fact as to the cause of the property damage, precluding the entry of summary judgment. We agree, reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Vega purchased the subject property in 2005. Prior to moving into the property in 2007, he renovated it, which included painting, replacing doors, installing impact windows, and redoing the kitchen and a bathroom. At that time, the roof was in good condition.

On July 3, 2015, Vega's home experienced a windstorm, which knocked down a large tree in front of his home. As a result of this windstorm, water came pouring in through the ceilings and walls of several rooms in his house from the roof. Prior to this windstorm, he had never experienced any water coming into his property or issues with his roof.¹

The day after the windstorm, Vega called a remediation company that came out to the property, cleaned up, dried out the water, and placed a tarp on the roof. He also contacted a public adjusting company, Contender Claims ("Vega's Public Adjuster"), which sent someone out to assess the damage and prepare an estimate. Vega's Public Adjuster inspected the inside of the property and did not actually climb on to the roof at any point. He also did not know whether there had been any wind damage to the roof or a wind event preceding the loss because he had not performed an inspection of the roof and had not been there on the date of loss. Based on his inspection of the property, Vega's Public Adjuster determined that the "interior water damage ... was indicative of water coming from the outside onto the inside."²

The property was insured by Safepoint from April 28, 2015, to April 28, 2016. As such, Vega filed a claim with Safepoint and provided his Public Adjuster's estimate of damages. Safepoint inspected the property and denied coverage based on its determination that there was no opening in the roof caused by a covered peril, and the damage was the result of long-term repeated seepage due to wear and tear and deferred maintenance.

Following the denial of coverage, Vega filed suit for breach of contract, claiming the damage was the result of a one-time windstorm and covered under the policy. Safepoint answered, asserting various affirmative defenses, including that the policy did not afford coverage based a provision stating, in relevant part, as follows:

PERILS INSURED AGAINST COVERAGE A – DWELLING and COVERAGE B – OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. This includes the peril of "catastrophic ground cover collapse" as provided in Part A. below. However, we do not insure loss:

...

2. Caused by:

...

i. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.

j. (1) wear and tear, marring deterioration.

That provision goes on to state a covered loss is any loss "not excluded or otherwise excepted."

Safepoint eventually filed a motion for summary judgment, arguing that the alleged damage was excluded from coverage.

In support of its motion, Safepoint filed several documents and affidavits. One such affidavit was of Neil A. Greenspoon, P.E., of Rimkus Consulting Group, Inc. ("Safepoint's Expert"), which prepared a report based on its evaluation of the property. Safepoint's Expert opined that the loss was not covered because it was the result of natural age-related material expansion and long-term exposure to moisture, and that there had been no significant wind events in the months prior to and on July 3, 2015. Safepoint also designated Vega's deposition testimony and Vega's Public Adjuster's deposition testimony as summary judgment evidence.

Vega opposed the motion, contending there was a genuine issue of material fact as to whether the loss to Vega's property was caused by a one-time windstorm event resulting in an opening in the roof or was the result of a long-term, age-related exposure to moisture. He filed an affidavit and report from his expert, Rafael Leyva ("Vega's Expert"), in support of his position. Vega's Expert obtained a bachelor's in architecture in 1993 and has worked in construction, in various capacities, since then. He is presently a licensed general, roofing, and plumbing contractor, as well as an independent insurance adjuster.

He inspected Vega's property on September 23, 2019, after the roof had already been replaced and after some of the interior repairs had taken place. Thus, to form his opinions regarding the property's condition closer to the time of the incident, Vega's Expert examined numerous photographs of the roof taken and relied on by Safepoint's Expert. Specifically, one of the photographs taken by Safepoint's Expert had a notation that the roof tile was detached and cracked. Vega's Expert also reviewed Safepoint's denial letter, the engineer's report, and the water mitigation package.

Based on his review of those items and his twenty-six years of experience at the time, Vega's Expert opined "that the damages [were] a result of [a] one-time event which permitted water to compromise the roofing material and damage the interior of the home." He reached this conclusion based on several things, including the condition of the roof membrane near the time of the incident, the lack of fungal growth, and the signs of forced physical damage. More particularly, he stated that moisture could not have been coming in for several months because there would have been extensive fungal growth, which was not present. He also opined that the wind data relied on by Safepoint's Expert was not from the subject property, could not explain what was happening there and failed to account for many other variables that could have affected the roof. Finally, he stated that nothing in Safepoint's Expert's photographs showed that the roof's membrane was deteriorated in any way, which would be expected had the membrane been repeatedly exposed to moisture.

The trial court granted Safepoint's motion and entered judgment in its favor, finding no genuine issue of material fact as to whether a windstorm damaged Vega's home by causing an opening in the roof.

LEGAL ANALYSIS

"[A] motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist." Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035 (Fla. 3d DCA 2019) (quoting Perez-Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017) ). "If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Id. (quoting Perez-Gurri Corp., 238 So. 3d at 350 ). It is well-established that the party moving for summary judgment has the initial burden to present evidence supporting "the claimed non-existence of a material issue." Id. at 1036 (quoting Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 783 (Fla. 1965) ). The burden then shifts to the opposing party to "come[ ] forward with some evidence which will change the result—that is, evidence sufficient to generate an issue on a material fact." Id. (quoting Harvey Bldg., Inc., 175 So. 2d at 783 ).

To demonstrate the existence of such an issue, the affidavits filed in opposition "must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein." Id. (quoting Fla. R. Civ. P. 1.510(e) ).³ If the affidavits "show evidence of a nature that would be admissible at trial ... any questions regarding relative credibility or weight of that evidence compared to other evidence cannot be resolved on summary judgment but must be left for the trier of fact." Id. (citation omitted).

Upon review of the competing expert affidavits, their respective reports and Vega's sworn testimony, we conclude that a genuine issue of material fact remains as to what damaged Vega's roof and whether an opening in the roof was created by a covered peril—a windstorm. Safepoint and Vega filed competing expert affidavits and reports as to whether the loss to Vega's property was a one-time event that caused an opening in the roof. Safepoint's Expert's report specifically stated that the damage was due to age-related natural material expansion and "the result of multiple exposures to moisture over a period of at least several years," and Vega's Expert's report directly contradicted that by stating the loss resulted from a one-time windstorm, "which permitted water to compromise the roofing material and damage the interior of the home."

In Gonzalez, this Court affirmed the trial court's grant of summary judgment based on its conclusion that the homeowner's expert's affidavit failed to create a genuine issue of material fact. Gonzalez, 273 So. 3d at 1038. The homeowner's expert in that case stated only that his opinion was based on his own inspection of the property, which took place a year after the damaged roof had been replaced. Id. at 1034–35, 1037. Based on that inspection alone, he averred that he observed the areas of the...