IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
LARRY S. WHITELY and SHERRI C. WHITELY,
Appellants,
v. Case No. 5D16-3719
AMERICAN INTEGRITY INSURANCE
COMPANY OF FLORIDA,
Appellee.
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Opinion filed June 29, 2018
Appeal from the Circuit Court
for Marion County,
Lisa D. Herndon, Judge.
Earl I. Higgs, Jr, of Higgs Law, P.A.,
Orlando, for Appellant.
Gina S. Glasgow and Andrew P. Rock, of
The Rock Law Group, P.A., Maitland, for
Appellee.
PER CURIAM.
In this breach of contract suit, Larry and Sherri Whitely (“the Whitelys”) appeal a
final summary judgment entered in favor of American Integrity Insurance Company of
Florida (“AIIC”). The Whitelys contend that the trial court erred in entering summary
judgment because material issues of fact remained. We agree, and therefore reverse and
remand for further proceedings.
The Whitelys purchased an all-risks home insurance policy for their vacation
property providing coverage from January 27, 2012, through January 27, 2013. On
November 7, 2012, the Whitelys reported a claim for coverage to AIIC for water damage
to the property that occurred sometime between October 5 and November 7, 2012. AIIC
sent an expert to determine the cause, origin, and duration of the water damage. AIIC’s
expert determined that a “water release event” in one of the bathrooms exposed the
property to water for approximately thirty days. AIIC then denied the Whitelys’ claim
pursuant to the following exclusionary provision in the Whitelys’ policy: “[W]e do not insure
. . . loss . . . caused by . . . constant or repeated seepage or leakage of water . . . over a
period of 14 or more days from within a plumbing . . . system.”
The Whitelys filed suit for breach of contract, and AIIC moved for summary
judgment, arguing that the policy unambiguously excluded the Whitelys’ claimed loss
based on the undisputed fact that the water exposure occurred for over fourteen days. At
the summary judgment hearing, the Whitelys argued in part that the exclusionary
provision was ambiguous because it did not clearly address whether the policy covered
a loss occurring within the first fourteen days of exposure. 1 The trial court granted
summary judgment in favor of AIIC, finding the exclusionary provision to be unambiguous,
and subsequently entered final judgment in favor of AIIC.
This Court recently addressed an analogous situation involving the same
exclusionary provision. Hicks v. Amer. Integrity Ins. Co. of Fla., 241 So. 3d 925 (Fla. 5th
DCA 2018). In Hicks, we held that “an insurance policy excluding losses caused by
1The Whitelys also presented deposition testimony from their own expert; the
expert opined that the loss originated from a “sudden and accidental plumbing leak” that
occurred for less than twenty-six days but more than fourteen days.
2
constant or repeated leakage or seepage over a period of fourteen days or more does
not unambiguously exclude losses caused by leakage or seepage over a period of
thirteen days or less.” Id. at 927. We concluded that “[i]n an all-risks policy, once the
insured establishes a loss within the terms of a policy, the burden shifts to the insurer to
prove that a particular loss arose from an excluded cause. Whether such a determination
is possible is a genuine issue of material fact precluding summary judgment.” Id. at 928
(citation omitted).
Here, both parties recognize that the Whitelys established a loss to the property
and that the property was exposed to water for over fourteen days. However, AIIC bore
the burden of establishing that the policy excluded coverage for the loss as one “caused
by constant or repeated seepage or leakage of water . . . over a period of 14 or more
days.” See id. at 927‒28. The evidence at the summary judgment stage established that
the loss was “caused by . . . leakage of water,” 2 but failed to establish that the loss did
not occur within the first fourteen days. The undisputed fact that the property was exposed
to water for more than fourteen days did not establish that the loss occurred on the
fourteenth or later day of exposure pursuant to the exclusionary provision. As in Hicks,
“[w]hether such a determination is possible is a genuine issue of material fact precluding
summary judgment.” Id. at 928. Accordingly, we reverse and remand for further
proceedings.
We also write to address the supplemental authority AIIC filed the day before oral
argument, which referenced a per curiam affirmance in Zimmerman v. American Integrity
2We reject the Whitelys’ ambiguity arguments pertaining to this clause of the
exclusionary provision.
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Insurance, 212 So. 3d 376 (Fla. 5th DCA 2015) (table decision). AIIC, who was also the
appellee in Hicks, filed a motion for rehearing and certification in Hicks also citing
Zimmerman. AIIC attached the appellate briefs from Zimmerman to its motion in Hicks,
although it has not filed the briefs again here. In those briefs, AIIC forcefully argued that
the plaintiff in Zimmerman had not raised entitlement to damages for the first thirteen days
of leakage to the trial court and therefore failed to preserve the issue for appellate review.
Our opinion denying AIIC’s motion in Hicks cogently sets forth why relying on a per
curiam affirmance for precedential value is generally inappropriate. See Hicks v. Amer.
Ins. Co. of Fla., No. 5D17-1282, 2018 WL 2277119 (Fla. 5th DCA May 18, 2018). This
Court issues per curiam affirmance opinions for many reasons. Failure to preserve error
is just one, but it demonstrates why per curiam affirmances are rarely, if ever, of any
precedential value.
The opinion denying rehearing in Hicks also demonstrates why AIIC’s argument
based on Zimmerman was improper. See id. AIIC’s position that Zimmerman mandated
a different result in Hicks was undermined by its argument in Zimmerman that the
dispositive issue was not preserved for review. Here, AIIC’s reliance on Zimmerman as
supplemental authority, knowing that it had argued that an issue central to this case had
not been preserved for review, is likewise inappropriate and disingenuous.
REVERSED and REMANDED
COHEN, C.J., TORPY and EISNAUGLE, JJ., concur.
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