Construction Case Law Update - March 2015 #2

FLORIDA FEDERAL CASES

• Sinkholes; “Structural Damage” – When undefined in a homeowner’s insurance policy, “structural damage” caused by a sinkhole is best defined as “damage that impairs the structural integrity of the building.” Homeowners argued that their insurer improperly denied their claim for a “sinkhole loss,” which their homeowner’s insurance policy defined as “structural damage to the building, including the foundation, caused by sinkhole activity.” However, the term “structural damage” was defined in neither the policy nor the applicable Florida statute. On appeal from the district court’s grant of the insured’s motion for summary judgment, the Eleventh Circuit reversed, holding that the district court erred in adopting a broad definition of “structural damage” as “damage to the structure.” The Eleventh Circuit concluded that a more appropriate definition is “damage that impairs the structural integrity of the building.” Furthermore, the court declined to adopt the Florida Building Code’s definition of “structural damage,” urged by the insurer, finding it improper for the insurer to decline to define the term in the policy and then insist upon a restrictive interpretation of coverage. Hegel v. The First Liberty Insurance Corp., No. 14-10549, 2015 WL 821146 (11th Cir. Feb. 27, 2015).

FLORIDA STATE CASES

• Sinkholes; Right to Appraisal – Homeowners were not entitled to appraisal of their sinkhole claim and had waived their appraisal rights by thoroughly litigating same. Homeowners, who were unsatisfied with repairs made pursuant to a sinkhole claim, disputed the sufficiency of the insurer’s repairs, sued the insurer, failed to mention appraisal in their complaint, continued the suit after the completion of a neutral evaluation, and demanded that the Florida Insurance Guaranty Association (FIGA) pay for the disputed repairs after the insurer become insolvent and went into receivership. This behavior amounted to a waiver of the right to appraisal. Furthermore, disputes over the “method of repair” were not subject to appraisal, and under the homeowner’s policy and Florida Statute § 631.54(3), appraisal was unavailable to determine the amount of loss. The Second District Court of Appeal certified two questions to the Florida Supreme Court on the issue. Florida Ins. Guar. Ass’n, Inc. v. Hunnewell, No. 2D14-397, 2015 WL 1088469 (Fla. 2d DCA March 13, 2015) (Note: This opinion has not yet been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
• Utility Construction; Dangerous Instrumentality; Punitive Damages – Whether a “dangerous instrumentality” existed that would thus nullify a contractor’s affirmative defenses of comparative fault and contributory negligence and render contractor entirely liable for its subcontractor’s work erecting roadside power-line poles, a collision with which had killed a motorist, was a question for the jury and therefore improperly decided on summary judgment. The trial court had also erred by denying contractor’s motion for directed verdict opposing punitive damages, as no view of the evidence demonstrated that the contractor’s conduct was of “gross or flagrant character,” demonstrating reckless disregard of human life. The collision was an open and obvious danger, the pole, though laying on a flatbed, was out of the road, evidence indicated that some warning signs/cones were placed around the truck, a traffic plan was in place, and the accident was largely caused by a speeding driver, who collided with decedent. L.E. Myers Co. v. Young, No. 2D13-6203, 2015 WL 848200 (Fla. 2d DCA Feb. 27, 2015) (Note: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).