Third District Court of Appeal
State of Florida
Opinion filed July 28, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-278
Lower Tribunal No. 18-10623
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Avatar Property and Casualty Insurance Company,
Appellant,
vs.
Maria De Caires,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Kubicki Draper, P.A., and Caryn L. Bellus, Sorraya M. Solages-Jones,
and Barbara E. Fox, for appellant.
Louis Law Group, LLC, and Thomas A. Katranis and Pierre A. Louis
(Miramar), for appellee.
Before EMAS, HENDON and MILLER, JJ.
EMAS, J.
Avatar Property and Casualty Insurance Company, the insurer below,
appeals a final judgment in favor of Maria De Caires, the insured below,
following a jury trial on a first-party property insurance breach-of-contract
claim. After De Caires presented her case to the jury and rested, Avatar
moved for a directed verdict based upon De Caires’ failure to introduce into
evidence the insurance policy. The trial court denied Avatar’s motion.
Thereafter, Avatar rested without calling any witnesses or presenting
evidence, and the trial court directed a verdict in favor of De Caires on her
breach of contract claim and on the amount of damages. The trial court
entered final judgment in favor of De Caires in the amount of $80,830.16.
This appeal followed.
We affirm the trial court’s denial of Avatar’s motion for directed verdict,
which was based on the failure of De Caires to introduce the insurance policy
into evidence. The record below establishes unequivocally that Avatar did
not contest the existence of a valid insurance policy, or the existence of a
covered loss suffered by De Caires. Indeed, following jury selection and
before opening statements were made, the trial judge provided the jury with
the following introductory instruction, describing the issues they would
decide:
So, let me first tell you that this is a breach of contract case in
which Maria De Caires claims that the Defendant breached this
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contract of insurance by refusing to pay the full amount of
insurance proceeds due to Maria De Caires, notwithstanding
having acknowledged coverage for the loss, and that the
breach resulted in damages to Maria De Caires.
Avatar Property & Casualty Insurance Company denies it
refused to pay the full amount of insurance proceeds due to
Maria De Caires. Avatar Property & Casualty Insurance
Company claims that its payment of $607 fully satisfies its
obligations under the policy.
(Emphasis added.) 1
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Relatedly, De Caires timely submitted her set of proposed jury instructions
to the trial court, while Avatar did not provide any proposed jury instructions.
The relevant proposed instruction, entitled “Breach of Contract—
Introduction” (as modified from Fla. Std. J. Inst. (Civ.) 416.1) provided:
The existence of the valid policy of insurance is not at issue
in this case. Maria de Caires entered into a contract of
insurance with Avatar Property & Casualty Insurance Company
for homeowner’s insurance that provided “All Risk” coverage for
her home.... Maria De Caires’ property was damaged by
Hurricane Irma in September 2017.
Maria De Caires claims that Defendant breached this contract of
insurance by refusing to pay the full amount of insurance
proceeds due to Maria De Caires notwithstanding having
acknowledged coverage for the loss, and that the breach
resulted in damages to Maria De Caires.
Avatar Property & Casualty Insurance Company denies it
refused to pay the full amount of insurance proceeds due to
Maria De Caires. Avatar Property & Casualty Insurance
Company claims that its payment of $607.00 fully satisfies its
obligations under the policy.
(Emphasis added.)
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Avatar lodged no objection to this introductory instruction given by the
court to the jury. Nor could it reasonably do so, as Avatar’s pleadings and
pretrial discovery acknowledged coverage for the loss alleged in the
complaint; acknowledged that Avatar paid insurance benefits to De Caires
for the loss alleged in the complaint; and narrowed the issue in dispute to
whether De Caires was entitled to any insurance benefits beyond that which
Avatar had already paid on the claim.
Importantly, the policy at issue is an “all-risk” policy. After De Caires
established she suffered a covered loss while the all-risk policy was in effect,
“the burden then shift[ed] to the insurer to prove that the cause of the loss
was excluded from coverage under the policy’s terms.” See Deshazior v.
Safepoint Ins. Co., 305 So. 3d 752, 755 (Fla. 3d DCA 2020) (quoting Jones
v. Federated Nat’l Ins. Co., 235 So. 3d 936, 941 (Fla. 4th DCA 2018)).
Under these circumstances, De Caires’ failure to introduce into evidence the
all-risk policy was not fatal to her claim, given the issue to be tried. By its
own pretrial pleadings and discovery responses, and by its failure to object
to the trial court’s introductory instruction to the jury, Avatar waived this
claim. See Robins v. Colombo, 253 So. 3d 94 (Fla. 3d DCA 2018)
(recognizing: “As a general rule, the failure to make a contemporaneous
objection constitutes a waiver of a claim on appeal, absent fundamental
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error”); Liberty Mut. Ins. Co. v. Dilenge, 312 So. 2d 251 (Fla. 3d DCA 1975)
(noting that a party who fails to make timely objection is deemed to have
waived it by acquiescence). In light of the foregoing discussion, and in light
of the evidence presented at trial by De Caires and Avatar’s failure to present
witnesses, the trial court correctly directed a verdict in favor of De Caires on
her establishment of a breach of contract. Applying a de novo standard of
review, and viewing all evidence and inferences in a light most favorable to
Avatar, we conclude that “no proper view of the evidence could sustain a
verdict in favor of the nonmoving party.” Owens v. Publix Supermarkets, Inc.,
802 So. 2d 315, 329 (Fla. 2001).
By contrast, however, Avatar did vigorously contest the amount of
damages claimed to have been suffered by De Caires. While it is true that
Avatar did not present its own expert witness on the amount of damages, it
is likewise true that, on cross-examination, Avatar elicited significant
conflicting testimony from De Caires’ own witnesses regarding the amount
of damages suffered. Viewing the evidence and inferences therefrom in a
light most favorable to Avatar, see City of Hialeah v. Rehm, 455 So. 2d
458 (Fla. 3d DCA 1984), there was sufficient conflicting testimony on the
amount of damages suffered so as to permit the jury to reach different,
reasonable inferences from the evidence. See Day v. Le-Jo Enters., Inc.,
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521 So. 2d 175, 177 (Fla. 3d DCA1988) (holding: “Only where the record
is devoid of any evidence from which a jury of reasonable men could
find liability, may a judgment based on a directed verdict stand. It is
axiomatic that directed verdicts should not be entered if the evidence is
conflicting and permits different, reasonable inferences. Even if a
preponderance of the evidence favors the movant, a directed verdict
is an encroachment on the province of the jury. The ultimate question
then is whether there was any evidence upon which a jury could have
lawfully found a verdict for the defendants”) (additional quotations and
citations omitted). See also Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla.
2011) (holding: "A jury is free to weigh the opinion testimony of expert
witnesses, and either accept, reject or give that testimony such weight as it
deserves considering the witnesses' qualifications, the reasons given by the
witness for the opinion expressed, and all the other evidence in the case,
including lay testimony"); Fla. Std. J. Instr. (Civ.) 601.2b. We hold the trial
court erred in directing a verdict in favor of De Caires on the issue of
damages and in entering a final judgment in the amount of $80,830.16.
We therefore affirm the trial court’s order denying Avatar’s motion for
directed verdict, as well as the trial court’s order granting a directed verdict
in favor of De Caires on the establishment of a breach of contract. However,
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we reverse the trial court’s order directing a verdict in favor of De Caires on
damages and the entry of a final judgment for damages in the amount of
$80,830.16. We vacate the final judgment and remand for a new trial on
damages. 2
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We find no merit, and affirm without discussion, the other issues raised by
Avatar on appeal.
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