Second DCA Finds Florida Peninsula Does Not Have to Provide Sinkhole Coverage under Policy Without Sinkhole Coverage
In a sinkhole case where I handled the underlying litigation for Florida Peninsula, the Second DCA determined Florida Peninsula was not required to provide sinkhole coverage to an insured who did not have sinkhole coverage.
I know how funny that headline may sound to you; however, the Plaintiff’s attorney argued that the policy was ambiguous for the following reasons:
- the policy’s “Checklist of Coverage” had a “Y” next to the word “Sinkhole;”
- the insurance agent testified she selected sinkhole coverage;
- Florida Peninsula allegedly did not comply with certain notice requirements for excluding sinkhole loss; and
- part of the policy discussed the Neutral Evaluation process.
If you want to know more about each of these arguments, please review the order embedded at the end of this post.
The Plaintiff’s law firm, Thompson Trial Group, did such a good job at the trial stage that they convinced the trial court that, as a matter of law, the Plaintiff had sinkhole coverage. At the trial court level, I explained to the trial court that all of Plaintiff’s argument fail as a matter of law. The Second DCA’s rationale set forth in the opinion reflects exactly what our arguments were at the trial stage. In short, statutes and case law clearly negated the Plaintiff’s arguments for coverage, and the exclusions were clear … to say the least. Nevertheless, the trial court reasoned that the Neutral Evaluation provision created an ambiguity.
Some other “fact” arguments in Florida Peninsula’s favor included:
- Plaintiff did not pay the premium for “sinkhole loss;” and
- Plaintiff did not even remember if she tried to obtain sinkhole coverage.
Not only did I set forth all of the legal principles outlining why Plaintiff’s counterarguments failed as a matter of law; I actually obtained raw computer data showing that the Plaintiff’s agent did not select sinkhole coverage. To try to save the costs of having to prove this matter at the appellate level, we wanted to cover all of our bases in the unlikely event that a fact issue remained.
Unlike the trial court, the Second DCA acknowledged my arguments (through other appellate counsel) that all of the Plaintiff’s legal arguments were not sufficient under Florida law. Although the trial court granted summary judgment for the Plaintiff, the Second DCA (1) reversed the trial court’s summary judgment for Plaintiff AND (2) remanded it to the trial court to enter judgment for Florida Peninsula.
After waiting years for this decision, I am very pleased and happy that Florida Peninsula trusted us to take the risks of pursuing this matter all the way through its conclusion.
* Of course, the ruling is not final until time for a rehearing has passed, and Plaintiff is free to appeal this matter to the Florida Supreme Court.
Here is the complete order:
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