CASE LAW UPDATE

 THE THIRD DISTRICT FINDS THAT THERE IS NO COVERAGE FOR DAMAGE CAUSED BY BLASTING UNDER THE UNAMBIGUOUS EARTH MOVEMENT EXCLUSION

 In a recent ruling in Hernandez v. Citizens Property Insurance Corporation, the Third District Court of Appeal affirmed the trial court’s decision granting Citizens’ Motion for Summary Judgment, finding that there was no ambiguity in the policy’s Earth Movement exclusion.  2020 Fla. App. LEXIS 6831 (May 20, 2020).  Citizens moved for summary judgment asserting that the Policy did not cover damages to the Insured’s home that involved cracking in the walls and flooring as a result of vibrations caused by off-site blasting explosions.

The Insured argued that the earth movement exclusion should not apply because the cause of loss (blasting) was not listed within the nine causes specified under the provision. This argument was previously discussed in State Farm Fire and Cas. Co. v. Castillo, where the appellate court concluded that when the policy includes a lead-in provision such as containing language “regardless of the cause of the excluded event” or “whether caused by natural or man-made activities,” it expanded the scope of the exclusions to exclude coverage from any loss resulting from earth movement regardless of the cause of the earth movement. 829 So. 2d 242 (Fla. 3d DCA 2002).

In the appellate briefs, the Insured argued that blasting was not a specified cause of loss under the earth movement exclusion, and that it could have been easily included by the policy writers. Additionally, the Insured’s attorney attempted to reconstruct the earth movement provision related to “direct loss by fire or explosions ensues,” arguing that the language limits the scope of earth movement exclusion so that it does not apply when a loss that ensues from an explosion. The appellate court disagreed and agreed with Citizens argument that the clause must be interpreted so that it only applies if the explosion ensued from earth movement.  The Appellate court concluded that the policy terms excluding “earth sinking, rising or shifting,” “settling, cracking of expansions of the foundation,” “whether caused by natural or man-made activities,” unambiguously precludes coverage for damage resulting from blasting under the Policy, and thus, the trial court properly granted Citizens’ motion for summary judgment.