CASE LAW UPDATE

THIRD DCA UPHOLDS SUMMARY JUDGMENT RULING IN FAVOR OF CARRIER BASED ON EVIDENCE OF LONG TERM SEEPAGE OR LEAKAGE OF WATER

 Meghan Wilson, Partner – West Palm Beach, East Office

In the case of Deshazior v. Safepoint Insurance Company the Third District Court of Appeal affirmed summary judgment in favor of the carrier based on the policy provision excluding coverage for long term seepage or leakage of water. No. 2D18-2414, LEXIS 6835 (Fla. 3d DCA May 20, 2020).

The insureds reported water damage in a bathroom in 2015. They hired a restoration company to complete mitigation services prior to contacting Safepoint, and they discarded portions of the damaged property before the carrier was able to conduct an inspection. After receiving notice of the loss, Safepoint assigned two independent adjusters and an engineer to evaluate the claimed damage. Based on the property damage observed, the engineer concluded that the damage was caused by long-term seepage and exposure to water, as well as failure to maintain the plumbing where the leak occurred. Thereafter, Safepoint denied the claim based on the long term leakage or seepage exclusion in the policy.

The insureds then filed suit for breach of contract. Safepoint moved for summary judgment on the basis that there was a long-term leak, and the policy exclusion applied. Safepoint’s engineer provided an affidavit in support of the motion for summary judgment attesting that the leak had occurred over a period of several months. The insureds maintained that the damage was caused by a sudden and accidental water discharge event, and they retained engineer Rafael Leyva to support this notion.

Safepoint’s attorneys deposed Mr. Leyva, who testified that he was not an expert in evaluating duration and he could not determine how long the leak had been active. Mr. Leyva also admitted that he inspected the insured property more than 2 years after the loss occurred, and that he relied on photographs taken by the independent adjuster hired by the insurance company. Nevertheless, approximately 6 months later, Mr. Leyva provided an affidavit contradicting the testimony he provided at his deposition. Specifically, in his affidavit, Mr. Leyva stated that he determined the damage was from a one-time sudden and accidental event. This directly contradicted his deposition testimony, in which he was unable to comment on how long the leak had been active.

The trial court struck Mr. Leyva’s affidavit, finding that he could not contradict or disavow prior sworn testimony when confronted with an adverse motion for summary judgment. The court relied on case law finding that Mr. Leyva should not be able to contradict prior testimony he provided solely to create an issue of fact in order to overcome a motion for summary judgment. The insureds did not present any evidence showing there was a genuine issue of material fact that the leak was not long term in nature. Thus, the trial court relied on the affidavit by Safepoint’s engineer, as well as argument of counsel, and entered summary judgment in favor of the carrier. The Third District Court of Appeal upheld this ruling.