Congratulations are in order for UPC Insurance after the Second District Court of Appeal issued a Per Curium Affirmed ruling of an Order granting a Motion for Summary Judgment.

In SAMUEL OQUENDO V. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Case No. 2D14-4263, the claim originated as a water loss with minimal to no visible damage, a similar fact pattern to so many water claims today. The homeowner maintained that the entire plumbing system needed to be replaced, along with the kitchen, bathroom, and tile flooring throughout the dwelling.

During deposition, the insured testified that there was seepage of water occurring in the kitchen, a smell emanated from the sink, and toilets were not flushing properly. He also testified that rust had developed on the refrigerator and there were water stained baseboards. The homeowner testified these conditions were ongoing for years, that he noticed the damage had occurred, and that he never contacted a plumber or the insurance company until recently.

UPC moved for summary judgment on the Continued or Repeated Seepage or Leakage exclusion. We argued that the policy provided that there was no coverage for leakage or seepage of water which occurs over the course of weeks, months or years, unless the water and damage is unknown to all insureds and hidden beneath the walls and floors of the residence. On the eve of the hearing, Plaintiff filed an Affidavit contradicting his prior testimony at deposition and stated his testimony was made with the “benefit of hindsight” and that he was not aware of the water and resulting water damage for four years. Manatee County Circuit Court Judge Dunnigan ruled that Florida law does not allow a party to contradict prior testimony with an affidavit. Therefore, the affidavit did not create a question of fact as to the Plaintiff’s knowledge of the leaking over the course of weeks months or years.

The Second DCA certainly understood the argument made by UPC. At oral argument, Judge Morris asked the Plaintiff’s attorney whether he agreed that this is the exact scenario that insurance companies wanted to avoid, and thus excluded in their policies: an insured who watches a problem worsen. In this regard, the Court did not give credence to the Plaintiff’s argument that the exclusion was ambiguous. The Court further affirmed the rule that one cannot provide an affidavit directly contradicting prior deposition testimony. The Court acknowledged that the deposition of the Plaintiff was peppered with references to damages which were ongoing for a number of years.

Vanessa Ross of the Sarasota Office conducted the deposition of the Plaintiff, and Erica Arend argued the motion.