Under a named perils property insurance policy, the insured bears the burden of proof to prove that the peril, a covered loss, caused the asserted damage.  See Citizens Property Ins. Corp. v. Kings Creek South Condo, Inc., 45 Fla. L. Weekly D597a (Fla. 3d DCA 2020).   If an insurer is relying on a policy exclusion to deny coverage, the exclusion must be plead as an affirmative defense.  See id.

This is not an uncommon occurrence: the insured claims a peril caused the loss (damage) and the insurer disputes causation, denying coverage.   Sometimes the insurer relies on a policy exclusion to deny coverage.  Sometimes it disputes causation.  Most times it does both.

In Kings Creek South Condo, a condominium association had a named perils property insurance policy to cover the perils of wind and hail.   The policy was in effect between September 2005 through September 2006.   The association included fifteen buildings and nine separate roofs.

Hurricane Wilma hit Florida in October 2005, during the policy period.  Three-plus years later, the association claimed that one of the building’s roofs had been damaged by Hurricane Wilma.  The association later claimed all nine roofs were damaged by Hurricane Wilma with a replacement cost value in excess of $3.9 Million.  The property insurer denied coverage for numerous reasons including the argument that the roofs were not damaged by Hurricane Wilma but due to improper installation and maintenance.  The insurer challenged causation.

During trial, the trial court prevented the insurer from putting on evidence from an expert establishing that the roofs were damaged due to improper installation.  Based on the argument from the association (insured), the trial court maintained that because the roofs were installed prior to the policy period, the insurer was arguing under the Existing Damage exclusion in the property insurance policy.  However, the insurer never raised the Existing Damage exclusion as an affirmative defense. Hence, the insurer could not rely on this exclusion at trial.  As a result, the trial court granted a directed verdict as to liability against the insurer and the jury returned a sizeable damages verdict in favor of the insured.  The insurer moved for a new trial which was denied.

The appellate court reversed the directed verdict on liability and remanded the case for a new trial. The appellate court held the insurer did not need to rely on the Existing Damage exclusion to argue (or dispute causation) that the improper installation of the roof caused the association’s loss.  The insurer was simply presenting evidence as to a non-wind related loss (non-covered loss) as a basis to challenge the insured’s evidence that the roof loss was caused by Hurricane Wilma.  The evidence goes directly to causation:

[T]he trial court incorrectly found that evidence of the faulty roof installation, occurring prior to the policy, was subsumed by the Existing Damage Exclusion. Whether the faulty installations occurred prior to or during the policy period is irrelevant for purposes of challenging causation in a wind-only policy. Technically, the Exclusion would bar coverage of any prior damage from causes pre-dating the policy like the roof installation, but this is secondary to the fact that a faulty roof installation is a non-wind related cause that does not fall under the named peril of wind.

Kings Creek South Condo, Inc., supra.

If you are involved in a property insurance coverage dispute, it is important to work with counsel that understands the coverage issues and the insured’s burden of proof.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.