Third District Court of Appeal
State of Florida
Opinion filed March 28, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-968
Lower Tribunal No. 15-19192
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Rita D. Garcia,
Appellant,
vs.
First Community Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Lopez & Best, and Virginia M. Best and Johanna M. Menendez, for
appellant.
Klein Glasser Park & Lowe, P.L., and Joseph H. Lowe, Andrew M.
Feldman, and Nicole M. Reid, for appellee.
Before SUAREZ, LAGOA, and LINDSEY, JJ.
LAGOA, J.
Rita D. Garcia (“Garcia”) appeals from a final summary judgment entered in
favor of First Community Insurance Company (“First Community”). Because
genuine issues of material fact exist as to the cause of the loss, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
Garcia owns property located at 3730 S.W. 84th Avenue in Miami (the
“property”). The property was insured under a homeowner’s policy assigned to
First Community. The relevant provision of the policy at issue provides:
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.
....
We do not insure, however, for loss:
....
2. Caused by:
....
h. 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.
i. Any of the following:
(1) Wear and tear, marring, deterioration;
On or about March 29, 2014, Garcia discovered water damage within the property,
allegedly due to a roof leak. Garcia gave notice of the loss to First Community.
First Community retained forensic engineer, Ivette Acosta (“Acosta”), to inspect
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the property. Acosta inspected the property on June 10, 2014. Following an
investigation, which included the findings of Acosta’s inspection of the property,
First Community denied coverage.
On August 19, 2015, Garcia filed a complaint against First Community
alleging breach of contract. Garcia subsequently filed an amended complaint on
August 4, 2016, adding her husband, Abelardo Alvare (“Alvare”), as a plaintiff.
The amended complaint alleged that “[o]n or about, March 29, 2014, Plaintiffs
discovered water damage within the insured property due to a roof leak, which is a
covered loss under the insurance policy.” Garcia and Alvare alleged that they
provided First Community with a damage estimate in the amount of $22,986.66.
They further alleged that the policy “provides coverage for direct physical loss to
the Plaintiffs’s [sic] property due to roof leak mentioned herein.”
First Community filed an answer and affirmative defenses to the amended
complaint. As its sixth affirmative defense, First Community alleged that the
damages, if any, were caused by the “age and wear and tear of the roof.”
First Community filed a motion for summary judgment and argued that the
claimed damages were not subject to coverage under the policy. First Community
relied on Acosta’s conclusions in her report that “[t]he cause of the water intrusion
through the roof [was] a result of a combination of age-related deterioration, tree
branch abrasions, and construction defects” and Acosta’s conclusions that “[t]he
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face nails observed on the shingles create[d] a direct path for water to penetrate the
structure[, which] is considered a construction defect.”
In opposition to First Community’s motion for summary judgment, Garcia
and Alvare filed the affidavit and report of a professional engineer, Alfredo
Brizuela (“Brizuela”), who inspected the property on March 28, 2017, and also
reviewed Acosta’s report. Brizuela attested that “there is insufficient evidence to
rule out that the damages were caused by hail impact or wind uplift damage caused
by a one-time occurrence.” He further attested that based on his own findings and
inspection, “there is no evidence to support any contention that the damages
reported by the insured in this claim are age-related or long term in nature.” In
Brizuela’s report, which was attached to his affidavit, Brizuela concluded that “the
damages observed are systematic of high rain and/or wind events that occurred in
the days leading up to and on the D.O.L. The dynamic force of the winds caused
an opening in the roofing system by uplifting and debonding the shingles (causing
damage to the underlayment) through which rain water was able to enter, causing
water damage to the interior of the building.”
Following a hearing on First Community’s motion for summary judgment,
the trial court subsequently granted First Community’s motion and entered final
judgment in favor of First Community. This timely appeal ensued.
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II. STANDARD OF REVIEW
The standard of review for a summary judgment is de novo. Volusia County
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Moreover,
in reviewing a summary judgment, this Court must view the evidence in the light
most favorable to the non-moving party. Tropical Glass & Const. Co. v. Gitlin, 13
So. 3d 156, 158 (Fla. 3d DCA 2009); see also Bldg. Educ. Corp. v. Ocean Bank,
982 So. 2d 37, 40 (Fla. 3d DCA 2008); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla.
3d DCA 2000).
III. ANALYSIS
“Summary judgment is proper if no genuine issue of material fact exists and
if the moving party is entitled to a judgment as a matter of law.” Tropical Glass,
13 So. 3d at 158; see also Vander Voort v. Universal Prop. & Cas. Ins. Co., 127
So. 3d 536, 538 (Fla. 4th DCA 2012) (“Summary judgment may be granted only
where the facts are so crystallized that nothing remains but questions of law.”);
Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So. 3d 789, 790 (Fla. 3d
DCA 2010) (“A trial court may enter a summary judgment when (1) there are no
genuine issues of material fact, and (2) the moving party is entitled to judgment as
a matter of law.”). “It is well established that on a motion for summary judgment,
the movant has the burden ‘to demonstrate that the facts show that the party moved
against cannot prevail.’” Afre Marble Corp. v. Twin Stone Designs &
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Installations, Inc., 44 So. 3d 193, 194 (Fla. 3d DCA 2010) (quoting Fla. E. Coast
Ry. Co. v. Metro. Dade County, 438 So. 2d 978, 980 (Fla. 3d DCA 1983)). Once
the movant establishes that there are no genuine issues of material fact, “‘the
opposing party must come forward with counterevidence sufficient to reveal a
genuine issue. It is not enough for the opposing party merely to assert that an issue
does exist.’” R. Plants, Inc. v. Dome Enters., Inc., 221 So. 3d 752, 754 (Fla. 3d
DCA 2017) (quoting Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979)); see also
McNabb v. Taylor Elevator Corp., 203 So. 3d 184, 185 (Fla. 2d DCA 2016)
(“Once a movant meets his or her initial burden, the burden shifts to the opposing
party to come forward with evidence to the contrary.”).
Of particular relevance here, “[i]n ruling on a motion for summary
judgment, the court may neither adjudge the credibility of the witnesses nor weigh
the evidence.” Sierra, 767 So. 2d at 525; see also Hernandez v. United Auto. Ins.
Co., 730 So. 2d 344, 345 (Fla. 3d DCA1999) (“In ruling on a motion for summary
judgment, it is well-established that the court may neither adjudge the credibility of
the witnesses nor weigh the evidence.”); Pita v. State St. Bank & Tr. Co., 666 So.
2d 268, 268 (Fla. 3d DCA 1996) (“On a motion for summary judgment, it is settled
that a trial court is not permitted to weigh material conflicting evidence or pass
upon the credibility of the witnesses.”). Furthermore, “[i]f the record reflects the
existence of any genuine issue of material fact or the possibility of any issue, or if
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the record raises even the slightest doubt that an issue might exist, summary
judgment is improper.” Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA
1991); see also Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138,
1140 (Fla. 2d DCA 2000) (“[T]he merest possibility of the existence of a genuine
issue of material fact precludes the entry of final summary judgment.”).
We agree with Garcia that the trial court erred in granting summary
judgment in favor of First Community where the conflicting reports of the parties’
experts established that there was a genuine issue of material fact as to the cause of
the loss. In its motion for summary judgment, First Community argued that the
claimed damages were not subject to coverage under the policy because there was
no evidence of any openings in the roof, and because coverage for the loss was
equally excluded under the policy’s “wear and tear” exclusion. In support of its
motion for summary judgment, First Community relied upon the report produced
by its engineer, Acosta, in which she concluded that “[t]he cause of the water
intrusion through the roof is a result of a combination of age-related deterioration,
tree branch abrasions, and construction defects.”
In response to First Community’s motion, Garcia filed the affidavit and
report of her engineer, Brizuela. In his report, Brizuela opined that “the damages
observed are systematic of high rain and/or wind events that occurred in the days
leading up to and on the D.O.L. The dynamic force of the winds caused an
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opening in the roofing system by uplifting and debonding the shingles (causing
damage to the underlayment) through which rain water was able to enter, causing
water damage to the interior of the building.”
The conclusions reached by the opposing engineers are clearly at odds.
Given this conflict in the material evidence as to the cause of loss, the trial court
erred in entering final judgment in favor of First Community. See Moore v.
Morris, 475 So. 2d 666, 668 (Fla. 1985) (“If the evidence raises any issue of
material fact, if it is conflicting, if it will permit different reasonable inferences, or
if it tends to prove the issues, it should be submitted to the jury as a question of fact
to be determined by it.”); Sierra, 767 So. 2d at 525 (“If the ‘slightest doubt’ exists,
then summary judgment must be reversed.”).
First Community asserts that Brizuela’s opinion was properly rejected by the
trial court, as Brizuela’s inspection of the property occurred three years after the
date of the loss, whereas First Community’s expert inspected the property less than
three months after the date of loss. The consideration of the timing of Brizuela’s
inspection of the property in relation to that of First Community’s engineer,
however, goes to the credibility and weight of Brizuela’s opinion regarding the
cause of loss. It is well-established that issues of credibility and weight of the
evidence are not appropriate in a summary judgment determination. See Byrd v.
BT Foods, Inc., 948 So. 2d 921, 923 (Fla. 4th DCA 2007) (“Where credibility
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issues impact the determination of material facts, summary judgment is not
appropriate.”). Indeed, a “trial court may not determine factual issues nor consider
either the weight of the conflicting evidence or the credibility of witnesses in
determining whether a genuine issue of material fact exists in a summary judgment
proceeding.” Juno Indus., Inc. v. Heery Int’l, 646 So. 2d 818, 822 (Fla. 5th DCA
1994).
IV. CONCLUSION
Because a genuine issue of material fact exists as to the cause of the loss to
the property, entry of final summary judgment in favor of First Community was
improper. Accordingly, we reverse the final summary judgment entered in favor
of First Community and remand the cause to the trial court for further proceedings.
Reversed and remanded.
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