Third District Court of Appeal
State of Florida
Opinion filed September 29, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-394
Lower Tribunal No. 18-20740
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Odalys Alvarez and Jorge Garcia,
Appellants,
vs.
Citizens Property Insurance Corporation,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellants.
Luks, Santaniello, Petrillo & Cohen, and Lauren J. Smith (Stuart), for
appellee.
Before SCALES, HENDON and MILLER, JJ.
SCALES, J.
Odalys Alvarez and Jorge Garcia (“Insureds”), homeowners who filed
a first-party property insurance claim against their insurer, Citizens Property
Insurance Corporation (“Citizens”), appeal the trial court’s summary final
judgment entered in favor of Citizens. We are compelled to reverse because
it appears from the record that the trial court improperly weighed the
summary judgment evidence.
I. Background
In May 2015, Insureds suffered damage to their residence from a
pressurized supply line water leak. They filed a claim with Citizens for the
loss pursuant to their homeowners’ insurance policy. A Citizens adjuster
inspected the damage and determined, among other things, that five floor
tiles needed replacement. After accounting for Insureds’ deductible, Citizens
made an actual cash value payment to Insureds in the amount of $7,108.47.
Contending that the damage to their tile floor was much more extensive than
Citizens had determined, Insureds filed a supplemental payment claim with
Citizens seeking an additional $111,603.75.
Citizens denied this supplemental claim and, in June 2018, Insureds
sued Citizens for declaratory relief and breach of contract. Citizens moved
for summary judgment, attaching to its motion an affidavit by its corporate
representative which provided a narrative of the dealings between Citizens
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and Insureds. Also attached to Citizens’s motion was the written estimate by
Citizens’s adjuster that referenced the negligible tile damage.
Insureds filed two affidavits in opposition to Citizens’s summary
judgment motion: (i) an affidavit from their public adjuster that disputed
Citizens’s evaluation of the scope and amount of the loss; and (ii) an affidavit
of their engineer whose inspection was the basis of Insureds’ belief that floor
tile was damaged throughout the house. Insureds also filed the deposition
transcript of their engineer.
Insureds’ engineer testified that he conducted a tapping test on the tile
floor from room to room. From this test, which searches for a hollow sound
in tile to establish tile porousness, the engineer concluded that the floor tiles
were almost uniformly debonded,1 requiring replacement. The engineer
concluded that the tile debonding was the direct consequence of water
absorption from the leak.
At the January 29, 2021 summary judgment hearing, Citizens argued
that the engineer’s debonding determination was speculative and
conclusory. Citizens pointed out inconsistencies in both the engineer’s report
1Debonding means that floor tile has separated from the underlying concrete
slab. Water discharge can cause debonding, though there are other potential
causes such as improper installation and extreme temperature rise.
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and deposition.2 The trial court, in an unelaborated order, granted summary
judgment in Citizens’s favor. This appeal ensued.
II. Analysis3
On appeal, Citizens asserts that it is entitled to summary judgment
under our recent case, Gonzalez v. Citizens Property Insurance Corp., 273
So. 3d 1031 (Fla. 3d DCA 2019). In Gonzalez, the insureds suffered interior
water damage due to a roof leak. Citizens moved for summary judgment on
the ground that the roof damage was due to ordinary wear and tear rather
2 These alleged inconsistencies include: (i) an assertion that water-damaged,
debonded tiles tent and crack, though there was no tenting or cracking found
among the tiles in Insureds’ house; (ii) an assertion that debonded tiles lose
functionality and crack when walked on, although Insureds remained living
in the house and walking on the tiles without apparent incident; and (3)
because the tiles were installed atop an existing tile floor, they could not have
separated from the slab, while the engineer’s report provides no information
about installation or the condition of the underlying tile stratum.
3 We review de novo an order granting summary judgment. Siegel v. Tower
Hill Signature Ins. Co., 225 So. 3d 974, 976 (Fla. 3d DCA 2017). We note
that, in its answer brief, Citizens proposes that Florida’s new summary
judgment standard, effective May 1, 2021, should govern this case (though
Citizens argues in the alternative that the former summary judgment
standard also warrants affirmance). Here, the summary judgment hearing
was held on January 29, 2021, the trial court entered summary judgment on
January 30, 2021, and denied rehearing on February 25, 2021;
consequently, the former summary judgment standard applies to this case
under In re: Amendments to Florida Rule of Civil Procedure 1.510, 317 So.
3d 72, 77-78 (Fla. 2021).
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than a result of a windstorm event, only the latter of which was covered under
the insurance policy. Id. at 1034.
Coincidentally, the insureds’ engineer in Gonzalez is the same
engineer in the instant case, Alfredo Brizuela. In Gonzalez, the insureds filed
two affidavits of Brizuela in opposition to summary judgment. In the first
affidavit, Brizuela made the bald assertion that the roof leak was the result
of a windstorm event. At the time of this first affidavit, though, Brizuela had
not inspected the property. In the second affidavit, Brizuela based his
conclusion about windstorm damage on an inspection he made more than a
year after the insureds had replaced the damaged roof. Id. at 1034-35.
Additionally, there was a discrepancy in the affidavits between the dates of
high winds in the area of insureds’ home and the claimed date of loss. Id. at
1035. In affirming summary judgment for Citizens, this Court concluded that
the two Brizuela affidavits were inadmissible because they were based on
conjecture rather than fact-based reasoning. Id. at 1037.
While we recognize in the instant case that there might be
inconsistencies in Brizuela’s affidavit and deposition testimony that
undermine his conclusions, we also recognize that, unlike in Gonzalez, there
is a fact-based rationale to Brizuela’s opinion: the hollow sound from a
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tapping test that might indicate tile porousness and debondment.4 Citizens’s
summary judgment evidence did not address debondment. Citizens attacked
the quality of Insureds’ summary judgment evidence, which placed the
parties’ evidence in conflict and demonstrated a genuine issue of material
fact as to the cause and extent of Insureds’ loss. In granting summary
judgment to Citizens, the trial court appears to have weighed the evidence,
rather than having determined whether a genuine issue of material fact
existed. We, therefore, are compelled to reverse the trial court’s final
summary judgment for Citizens. See Garcia v. First Cmty. Ins. Co., 241 So.
3d 254, 257 (Fla. 3d DCA 2018).
Reversed and remanded for further proceedings.
4 We express no opinion regarding the persuasiveness of either party’s
evidence or the ultimate merits of this case. Further, we express no opinion
as to whether summary judgment would have been appropriate under the
new summary judgment standard.
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