Third District Court of Appeal
State of Florida
Opinion filed August 18, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-2214
Lower Tribunal No. 16-9441
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Carlos Vega,
Appellant,
vs.
Safepoint Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.
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
1
Vega testified to this and other facts at his deposition.
2
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.
2
Vega’s Public Adjuster testified to this at his deposition.
3
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
4
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
5
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.
6
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).
7
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
3
Gonzalez quoted from and applied a prior version of Rule 1.510. We note
that the standard for motions for summary judgment has since been
amended. That amendment, however, applies to motions pending as of and
considered after the change became effective on May 1, 2021. See United
Auto. Ins. Co. v. Progressive Rehab. & Orthopedic Servs., LLC, No. 3D21-
0108, 2021 WL 3072936, at *2 n.4 (Fla. 3d DCA July 21, 2021). This case,
like Gonzalez, is governed by the prior version of the Rule.
8
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 roof that had
been damaged by the wind event. Id. In contrast, in this case, Vega’s
Expert’s opinion, as set forth in his report, was not based solely on his
inspection after the roof’s replacement. Rather, it was predicated upon his
review of photographs taken during Safepoint’s inspection of the roof—taken
by Safepoint’s Expert—as well as Safepoint’s Expert’s report and other
relevant documentation.
Vega’s Expert’s opinion was appropriately based on his experience in
the field, together with his review of the relevant documentation in this case
9
and his own inspection of the property. See, e.g., United Auto. Ins. Co. v.
Progressive Rehab. & Orthopedic Servs., LLC, No. 3D21-0108, 2021 WL
3072936, at *4 (Fla. 3d DCA July 21, 2021) (citing § 90.702, Fla. Stat.
(2020)). Vega’s Expert specifically pointed to one of the photographs 4 in
Safepoint’s Expert’s report as support for his conclusion that there was a
condition on the roof that had been created by a windstorm. This photograph
showed, as Safepoint’s Expert himself described the image, that the roof tile
was detached and cracked. This tile was already detached and cracked
when Safepoint’s Expert lifted it to further examine and photograph it. We
find this photograph to be sufficient evidence—provided, no less, by
Safepoint’s own Expert—to rebut Safepoint’s assertion that there was no
opening in Vega’s roof.
We also note that Vega’s Expert opined it was clear from this
photograph that the roof’s membrane was in good condition. Vega’s Expert
observed that the membrane clearly still had granulation, and that the portion
of granulation that was missing was due to forced physical damage from the
4
While the dissent notes that the only photo Vega’s Expert used was one of
a roof tile being moved, that photo is but one of several he reviewed and
considered in order to form his opinions. It is axiomatic that an expert may
rely on any facts or data “perceived by, or made known to, the expert at or
before the trial” in order to form his opinions. § 90.704, Fla. Stat. (2020).
10
wind that ripped the tile off, not deterioration. 5 This, again, is different from
Gonzalez, where it was undisputed that the membrane was well worn and
cracked, and there were portions that were unsealed, allowing water to leak
into the property. Gonzalez, 273 So. 3d at 1034 n.1.
The dissent would require Vega to prove his case, but that is not proper
at this stage of the proceedings. The opposing party is required only to
demonstrate that a genuine issue of material fact remains, leaving questions
for the trier of fact. See id. at 1035 (“Summary judgment is not intended to
weigh and resolve genuine issues of material fact, but only identify whether
such issues exist.” (citation omitted)). Vega’s Expert’s conclusions based on
his experience and review of the record in combination with Vega’s
deposition testimony regarding the date of loss were sufficient to create a
5
The dissent posits, “[i]f the membrane was in ‘good condition,’ where was
the opening caused by the windstorm event?” The good condition of the
membrane, however, is a pure rebuttal of Safepoint’s position that the roof
had long-term deterioration and Vega had been allowing seepage into the
property over time. This unresolved issue is precisely the type of question
properly left for a trier of fact to weigh the evidence presented and assess
the credibility of those testifying at trial.
11
genuine issue of material fact. Thus, summary judgment was inappropriate
at this juncture of the proceedings. 6
Reversed and remanded.
LOBREE, J., concurs.
6
Nothing in this opinion shall prevent either party from seeking summary
judgment at a future date, with a fully developed record, under the new
summary judgment standard.
12
Vega v. Safepoint Ins. Co.
Case No. 3D19-2214
LOGUE, J., dissenting.
Under the insurance policy and pleadings at issue, the claim of Mr.
Vega (the insured), against Safepoint Insurance Company, (his insurer), fails
unless Vega can prove the property damages at issue resulted from a July
3, 2015 windstorm that caused “an opening in a roof or wall.” After discovery,
the Insurer moved for summary judgment on the basis that there was no
evidence upon which a jury could make such a finding.
The summary judgment record reveals the following. The Insurer’s
experts inspected the roof three months after the incident and found
considerable wear and tear and prior repairs, but no opening in the roof. The
Insured never inspected the roof. The Insured’s public adjustor inspected the
property in 2015, but, strangely, did not inspect the roof. 7 The Insured’s
expert inspected the roof, but only in 2019—four years after the roof was
replaced.
7
The Insured’s public adjustor testified he could not remember whether the
Insured told him of a windstorm that damaged the roof at the time, but he
would normally have inspected the roof and included an estimate of damage
to the roof if the Insured had told him of a windstorm event.
13
The Insured’s expert’s entire opinion is based on his analysis of only
one of the photographs taken by the opposing expert in 2015 before the roof
was replaced. The photograph shows a small part of the roof where the
Insurer’s expert had removed a cracked tile. While the Insured’s expert
observes that the photograph shows “part of the mortar [that attaches the tile
to the roof] had been ripped off,” he attributes this to “some type of wind
event” (rather than the action of the photographer in removing the tile) in
consideration that “this could be the same condition in other section[s] of the
roof” (emphasis added). This language strikes me as inconclusive and
indeterminant.
At the same time, from the same photograph, the Insured’s expert
opines the “granulation” of the roof’s membrane where the tile was removed
is a “sign that the membrane is in good condition.” These observations and
opinions do not appear to support any inference that there was an opening
in the roof underneath that tile. Indeed, it would seem to suggest the
opposite. If the membrane was in “good condition,” where was the opening
caused by the windstorm event? The absence of any explanation or chain of
reasoning in this regard is dispositive of this case. An expert’s supposition or
belief is not sufficient to create a genuine issue of material fact. Gonzalez v.
14
Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1037 (Fla. 3d DCA 2019), rev.
denied, 2019 WL 6249341 (Fla. Nov. 22, 2019).
Given this record, the trial court was eminently correct to grant
summary judgment. See The Fla. Bar v. Greene, 926 So. 2d 1195, 1200
(Fla. 2006). (“Summary judgment is designed to test the sufficiency of the
evidence to determine if there is sufficient evidence at issue to justify a trial
or formal hearing on the issues raised in the pleadings.”); Harvey Bldg., Inc.
v. Haley, 175 So. 2d 780, 782–83 (Fla. 1965) (“If the moving party presents
evidence to support the claimed non-existence of a material issue, he will be
entitled to a summary judgment unless the opposing party comes forward
with some evidence which will change the result—that is, evidence sufficient
to generate an issue on a material fact.”). For these reasons, I respectfully
dissent.
15