09-4128 CITIZENS PROPERTY INSURANCE CORPORATION, v. WILLIAM T. HAMILTON AND CYNTHIA L. HAMILTON

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Laws-info.com » Cases » Florida » Florida First District Court » 2010 » 09-4128 CITIZENS PROPERTY INSURANCE CORPORATION, v. WILLIAM T. HAMILTON AND CYNTHIA L. HAMILTON

State: Florida

Court: Florida First District Court

Docket No: 09-4128

Case Date: 07/07/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. CASE NO. 1D09-4128 WILLIAM T. HAMILTON AND CYNTHIA L. HAMILTON, Appellees. _____________________________/ Opinion filed July 7, 2010. An appeal from the Circuit Court for Santa Rosa County. R. V. Swanson, Judge. Elizabeth McArthur and David A. Yon of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellant. James F. McKenzie of McKenzie & Hall, P.A., Pensacola, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

KAHN, J. In this wind insurance claim case, a jury awarded policy limits to the Hamiltons, whose mobile home was destroyed by Hurricane Ivan. Appellant

Citizens Property Insurance Corp. (Citizens) raises numerous points; we focus upon the following: (1) the exclusion of evidence that flooding caused the total loss of the insured properties, including evidence that the Hamiltons also had a

flood insurance policy from which they recovered policy limits; (2) the admission into evidence of the county's "substantial damage" determination; (3) the trial court's failure to give appellant's proposed jury instructions, including the contention that the court erred in failing to instruct the jury on the total loss recovery rule; and (4) an award of prejudgment interest on unpaid damages from the date of the loss. We affirm in part and reverse in part. FACTUAL AND PROCEDURAL BACKGROUND As of September 2004, appellees William and Cynthia Hamilton lived in a mobile home on Blackwater Bay, in Milton, Florida. Owing to the home's

location in a flood zone, appellees obtained an insurance policy from the National Flood Insurance Program (NFIP), insuring the residence and its contents against flood loss. The Hamiltons also purchased an insurance policy from Citizens, a statutorily created insurer of last resort authorized to write insurance in Florida. The Citizens policy insured the home, its contents, and other on-site properties against loss caused by certain named perils, including windstorm. Conversely, the Citizens policy excluded coverage for losses caused by water damage, such as resulting from flood, waves, tidal water, and overflow. An anti-concurrent cause (ACC) clause in the policy stated that loss caused directly or indirectly by an excluded peril "is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss." 2

On September 16, 2004, storm surge and wave action from Hurricane Ivan washed away the Hamiltons' home, as well as out buildings described as a rabbit coop and metal garage. After appellees submitted a claim under the flood policy, adjusters inspected the property to make payment recommendations to the NFIP, set forth in a Flood Narrative and Final Report. In conjunction with the claim, NFIP provided the Hamiltons with a contents form, which listed separate columns for damage caused by flood or, alternatively, by wind. Appellees prepared and submitted the form, listing all items as damaged by flood. Mr. Hamilton also returned a sworn proof-of-loss, swearing that he was claiming under the policy for the full value of the home and its contents, based on the "flood loss" of September 2004. NFIP accepted the adjusters' recommendation to pay full policy limits for the loss, issuing to the Hamiltons checks of $63,700 (dwelling coverage) and $31,000 (contents). The Santa Rosa County Building Inspection Department issued to appellees a notice of determination of "substantial damage," stating that the Hamiltons' dwelling had sustained damages exceeding 50 percent of its pre-damage value "as the result of the flooding related to Hurricane Ivan." Rather than undergo the expense to rebuild the home in compliance with floodplain regulations requiring elevation of the lowest floor to or above the 100-year flood elevation, appellees instead placed the land up for sale. 3

The Hamiltons thereafter presented a claim for total loss of their home under the windstorm policy issued by Citizens. Like NFIP, appellant sent an adjuster to inspect the property and determine the extent of the insurer's liability. The

adjuster concluded that only tree damage to the roof of the garage had been caused by wind. A supplement to the resulting report recommended payment of $6,370 for wind damage, which Citizens subsequently paid to appellees. The Hamiltons then filed suit against Citizens, seeking to recover full policy limits. The complaint alleged that the Hamiltons' dwelling was insured against losses caused by windstorm by a "valued policy" subject to section 627.702, Florida Statutes (2004). Appellees advanced the claim on the strength of Mierzwa v. Florida Windstorm Underwriting Association, which (incorrectly) interpreted the Valued Policy Law (VPL), section 627.702, Florida Statutes (2004), to allow an insured whose dwelling sustained a total loss by combination of wind and flood to recover the entire policy limits under a wind-only policy if the insured could prove that any part of the total loss was attributable to wind. See 877 So. 2d 774 (Fla. 4th DCA 2004), superseded by statute,

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