Thursday, July 20, 2017

Wrongful death -- Action based on incident in which severely intoxicated driver's car swerved from roadway, traveled across sidewalk and through bushes, and collided with hotel's pool cabana with enough force to cause collapse of cabana's steel-reinforced concrete columns and death of hotel guest who was in cabana -- Trial court erred in denying hotel's motion for directed verdict on issue of negligence -- Duty of care


42 Fla. L. Weekly D1605aTop of Form

Wrongful death -- Action based on incident in which severely intoxicated driver's car swerved from roadway, traveled across sidewalk and through bushes, and collided with hotel's pool cabana with enough force to cause collapse of cabana's steel-reinforced concrete columns and death of hotel guest who was in cabana -- Trial court erred in denying hotel's motion for directed verdict on issue of negligence -- Duty of care -- Evidence that hotel was aware of roadway's slight curve and that some speeding occurred on the road was legally insufficient to establish that hotel knew or should have known that dangerous condition existed on its own premises -- Even if, due to placement of cabana, dangerous condition existed on hotel's premises of which it knew or should have known, thereby creating affirmative duty to protect users of pool cabana from these dangers, hotel did not breach that duty -- Proximate cause -- Finally, even if hotel breached duty of care, death was unequivocally attributable only to “an improbable freak” accident

THE LAS OLAS HOLDING COMPANY, d/b/a RIVERSIDE HOTEL, a foreign corporation, Appellant, v. MICHAEL DEMELLA, a/p/r of the Estate of ALANA DEMELLA, Appellee. 4th District. Case No. 4D16-231. July 19, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE12028526 (13). Counsel: Hinda Klein of Conroy Simberg, Hollywood, for appellant. Gary M. Farmer, Sr., Gary M. Farmer, Jr., and Bradley J. Edwards of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, and Daniel W. Cotter of The Maher Law Firm, Winter Park, for appellee.

(FORST, J.) The Las Olas Holding Company d/b/a Riverside Hotel (“Riverside”) appeals a negligence award in favor of the plaintiff, Michael Demella, as personal representative of the estate of his late wife, Alana Demella. The plaintiff sued Riverside for negligence related to a tragic incident in which an intoxicated driver recklessly drove her car into a wall of Riverside's pool cabana. This caused a collapse of the structure and killed the plaintiff's pregnant wife, who was a guest of Riverside. The jury returned a verdict finding Riverside's negligence was a partial cause of this death. On appeal, Riverside makes several arguments, one being that the trial court should have granted its motion for a directed verdict on the issue of negligence. As set forth below, we agree with this argument and therefore reverse and remand with instruction for the trial court to grant Riverside's motion. This opinion also briefly addresses several impermissible comments made by the plaintiff's counsel during opening and closing arguments.

Background

Shortly after one p.m. on a Sunday, Rosa Rivera Kim (“Kim”) was driving east on SE 4th Street, also known as Sagamore Road (“Sagamore Road”), in Fort Lauderdale. Kim's blood alcohol content at the time of the incident was later determined to be three times the legal limit. As Kim approached a curve in the road, she allegedly failed to turn her steering wheel, failed to move her foot from the gas pedal to the brake pedal, and accelerated straight into Riverside's cabana which was located about fifteen feet away from the road.1 The force of the impact collapsed the walls of the structure, killing Ms. Demella and slightly injuring her husband, the plaintiff. The latter, as personal representative of his wife's estate, sued Kim and Riverside for negligence. The jury ultimately found both Riverside and Kim responsible and awarded total damages of $24,057,283.00. The jury found that Kim's negligence caused eighty-five percent of the damages, and that Riverside's negligence caused the remaining fifteen percent. Accordingly, the plaintiff was awarded $3,608,592.45 in damages from Riverside.

At trial, the plaintiff introduced evidence to support the argument that Riverside's negligence caused the victim's death. The plaintiff introduced several aerial photographs showing that, as Sagamore Road curves, motor vehicles at one point travel straight toward the cabana before turning right. The plaintiff argued that the physical layout of the road created a foreseeable zone of risk encompassing the cabana. To buttress its case, the plaintiff utilized an expert who specialized in barriers and low speed accidents. The expert testified that if Riverside had placed palm trees in front of the cabana, the deadly incident may not have occurred.2 However, per photographs taken of the premises prior to the incident, to reach the outer wall of the cabana -- fifteen feet from the road -- a vehicle would need to “jump” an approximately three-inch curb, cross a sidewalk, drive through a wall of bushes, and avoid hitting both a utility pole and a palm tree.

The plaintiff also sought to show that the road in front of the cabana was dangerous due to speeding. He introduced an email in which Riverside's then-general manager told the City Commissioner in 2011,

Sagamore Street at my hotel seems like a race track. My customers cross this street to get to the pool and the marina. My valet staff crosses the street to get to cars out of valet lots. Numerous times, I have seen cars drive this road at above the speed limit and nearly hit somebody. We need to do something to slow down that traffic and make sure -- and clearly make the two crosswalks. I would love to meet with the traffic engineer to discuss some ideas.

The plaintiff then presented several former Riverside employees who testified that they and Riverside had known about the speeding on Sagamore Road. A former Riverside executive explained that he received “multiple reports from coworkers regarding concerns about speeding on [Sagamore Road],” and a former employee likened the road to I-95. The plaintiff also presented evidence that Riverside had previously erected, on at least two occasions, stop signs to slow traffic. Riverside's witness, who was an engineer for Broward County, later explained that the county removed the signs after conducting a traffic study and finding that the road did not merit them.3 To counter this traffic study, the plaintiff presented a separate study conducted by the county in 2011 which showed that about fifteen percent of vehicles sped on Sagamore Road on the day of observation. However, even though the study recognized that there was speeding, it contained the conclusion of an engineering technician that there were no “sight-distance limitations or other physical conditions that would indicate Southeast 4th [was] operating in an unsafe manner.”

At the conclusion of the plaintiff's case, Riverside moved for a directed verdict. Riverside argued that the plaintiff “failed to sustain the burden of demonstrating that before this accident happened it was reasonably foreseeable that [an incident of this nature] would take place on [Riverside's] premises.” Riverside noted that the cabana had complied with all building codes and zoning regulations since its creation in 1963. Moreover, while conceding that the plaintiff's evidence showed that there was some speeding on the road, Riverside argued that the speeding posed a foreseeable threat only to invitees crossing that road, and not to individuals in the cabana. Riverside also noted that, in the more than forty-nine-years of the road's existence, there had never been an off-road accident.4 The trial court was ultimately unpersuaded, and denied Riverside's motion.

Following the denial of its motion, Riverside presented its own evidence. First, it submitted expert testimony by a professional structural engineer who opined about the structural integrity of the cabana at the time of the incident. The engineer explained that the cabana contained solid concrete columns reinforced with steel and that each column weighed about one thousand pounds. Between the concrete columns was wood siding. Relying primarily on the pictures of the aftermath of the incident, the engineer concluded that when Kim crashed into the cabana, her vehicle mainly struck one of these concrete columns, knocking it back twelve feet. The expert calculated that Kim's car had to generate about 40,000 to 43,000 pounds of force to shear the column off its base and, in order to generate such force with her car, Kim must have been driving about fifty-three to fifty-four miles per hour.

Riverside then presented a second engineer who was an expert in traffic engineering and accident reconstruction. The expert began by noting that Sagamore Road was only three blocks long, situated in a central business district filled with shops, restaurants, and residences. The expert then focused on the road's curve, concluding it was “not a problem.” The road lanes were a standard twelve feet wide. The radius of the road's curve was “right in line with typical curves in urban areas with a 25-mile-per-hour speed limit.” There were also no sight limitations. The pavement was clearly marked, and a driver could tell from 600 feet away that the road would curve. The expert concluded, “And all of the factors: speed, volume, curvature, width, length, you name it, all indicated that this was a roadway that's functioning very well and does not have problems with its curve.”

The same expert then testified that, based on historical data from various city and county documents, there had never been a car crash at or near the curve from 1963 until 2012. The expert then discussed the traffic volume on the road, estimating that about thirty million cars had driven on it from 1963 until 2012. In light of the historical data and volume statistics, the expert concluded that the chances of a car crash happening at the time of the instant drunk driving incident were “statistically as close to zero as you can get in a roadway transportation system.” At the conclusion of the case, once the jury returned a verdict finding Riverside partly responsible, Riverside renewed its motion for a directed verdict, and the trial court again denied it.

Riverside also moved for a mistrial during opening and closing arguments because of various statements made by the plaintiff's counsel. In particular, the plaintiff's counsel stated during opening that, “the reason why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death.” Riverside objected to this statement, and the trial court sustained the objection. Nevertheless, counsel made a similar statement moments later: “They will look at everyone else's conduct but their own. And these are defenses that are just attempts to avoid responsibility.” In closing, when seeking damages for wrongful death, counsel remarked:

What do we put price tags on in our society today? What is it? I mean, if we -- what do we pay LeBron James for the excitement that he brings? . . . We pay $30 million a year for the value that he brings to Miami. We pay a boxer $180 million for 12 rounds of boxing. We pay this expert $500 an hour. If her life is worth what that expert . . . . If her life is worth that type of enjoyment, those are just ways to come about: What is this really worth? . . . .

The two arguments raised by Riverside on appeal which we address are that the trial court erred in denying its motion for a directed verdict on the issue of negligence, and that the court erred in denying its motions for mistrial based on the above-quoted comments by the plaintiff's counsel during opening and closing arguments.

Analysis

A. Riverside's motion for a directed verdict regarding negligence

“The standard for reviewing a trial court's ruling on a motion for directed verdict is de novo.” Schein v. Ernst & Young, LLP, 77 So. 3d 827, 830 (Fla. 4th DCA 2012). “A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the nonmoving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA 2009)).

“A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015) (citing Clay Elec. Co-Op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)). “[A] plaintiff in a premises liability action must allege the defendant's duty to the plaintiff and the defendant's breach of that duty by alleging ultimate facts that show a relationship from which a duty is implied by law, and the acts and omissions that caused the injury, together with the allegation that they were negligently done or omitted. The plaintiff must also plead that the [defendant's negligence] was a proximate cause of the [plaintiff's injury].” Kaid v. Store Cent. Food Mkt., Inc., 668 So. 2d 1110, 1111 (Fla. 3d DCA 1996) (alterations in original) (quoting 41 FLA. JUR. 2D Premises Liability § 96 (1994)). Here, the trial court erred in denying Riverside's motion for a directed verdict based on each of the first three elements (duty, breach, and proximate cause).

1. Duty

The existence of a duty is a “legal requirement for opening the courthouse doors.” McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992) (footnote omitted). In the context of general negligence, those doors open only if the injury was the product of a reasonably foreseeable danger -- one within the foreseeable zone of risk. Id. In a premises liability case, this Court stated that a property owner “is ordinarily under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party's harmful behavior is reasonably foreseeable.” Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010).

The standard jury instructions for premises liability, which were given in this case, frame the issue as follows:

[W]hether (defendant) negligently failed to maintain [its] premises in a reasonably safe condition, or negligently failed to correct a dangerous condition about which (defendant) either knew or should have known, by the use of reasonable care, or negligently failed to warn (claimant) of a dangerous condition about which (defendant) had, or should have had, knowledge greater than that of (claimant); and, if so, whether such negligence was a legal cause of loss, injury, or damage to (claimant, decedent or person for whose injury claim is made).

Fla. Std. Jury Inst. (Civ.) 401.20.

The plaintiff's evidence at trial of Riverside's duty was lacking. First, the plaintiff sought to prove a duty by presenting aerial photographs of the physical layout of Sagamore Road, which showed that, as the road slightly curves, motor vehicles at one point travel straight towards the cabana before turning right to continue on the road. We need not decide in this case whether such a curve in this particular road, with a twenty-five miles per hour speed limit, was a “dangerous condition” to pedestrians on the sidewalk or lawn maintenance workers trimming the bushes. However, we do hold that this curve was not a “dangerous condition” giving rise to a duty with respect to people, like the plaintiff's wife, who were inside Riverside's cabana. Evidence that Riverside was aware of the road's slight curve is legally insufficient to establish that Riverside “knew or should have known” of a dangerous condition on its own premises.5

In fact, not only did the plaintiff fail to present the evidence required, Riverside presented compelling evidence to the contrary. As noted in the Background Section above, Riverside's expert in traffic engineering and accident reconstruction testified, based on his review of city and county documents, that there had never been an off-road accident on Sagamore Road since its creation in 1963. In other words, in more than forty-nine years, a car had never swerved off the road except in the current case involving a severely intoxicated (blood alcohol content three times over the legal limit) and reckless (no indication that she attempted to make the turn or slowdown from her above-the-limit speed) driver. Statistically speaking, the engineer explained, the chances of a crash were “as close to zero as you can get in a roadway transportation system.”6 Though case law has held that an “absence of accidents” statistic does not dispositively relieve a landowner of his or her duty to protect an invitee, in the absence of “constructive knowledge of similar accidents at other similar locations,” such a statistic can certainly still shed light on the difference between whether an accident is merely possible and whether it is reasonably foreseeable. Springtree Props., Inc. v. Hammond, 692 So. 2d 164, 168 (Fla. 1997); see also Lewis v. Sun Time Corp., 47 So. 3d 872, 873 (Fla. 3d DCA 2010) (“It is well recognized that a no-accident history of the location of a premises liability case may be admitted into evidence for a variety of purposes including the central one of showing that the area was not in fact dangerous or defective.”).

We are also unpersuaded that the evidence of “speeding” on Sagamore Road established that the placement of this particular cabana fifteen feet from the road constituted a dangerous condition about which Riverside knew or should have known. The former Riverside employees who testified were concerned with speeding solely in relation to Riverside's invitees crossing the road from one hotel building to the next. None of the plaintiff's witnesses stated or even hinted that they or Riverside's management were afraid that speeding might lead to an accident involving a nearby structure such as the cabana, or even pedestrians on the sidewalk.

Various Florida courts have determined that some accidents are too unusual or extraordinary to be reasonably foreseeable. In Florida Power & Light Co. v. Macias ex rel. Macias, 507 So. 2d 1113 (Fla. 3d DCA 1987), the court held that a utility company did not have a duty to protect drivers from a utility pole it placed six feet away from Okeechobee Road. Id. at 1114-16. The court held that, without more evidence suggesting the road was dangerous, and because “the chance that a vehicle in the ordinary course of travel will deviate from the roadway and collide with a pole is only a remote possibility, under certain circumstances [such a collision] is not a legally foreseeable event.” Id. at 1115. Those “certain circumstances” the court alluded to include evidence that the pole “was not obscured from view, visibility was good, and the speed limit was moderate.” Id. at 1116. The present case is similar. As the county's 2011 speed study showed, there were no “sight-distance limitations or other physical conditions that would indicate Southeast 4th [was] operating in an unsafe manner.” Moreover, the speed limit of the road was “moderate,” arguably even low -- only twenty-five miles per hour. As in Macias, this case presents such a remote possibility of an injury that the placement of this pool cabana in relation to Sagamore Road cannot be found to have created a “dangerous condition” to people in the pool cabana of which Riverside was actually or constructively aware and that further created a duty on the part of Riverside to protect the plaintiff's wife and other invitees from said “danger.”

The case of Graham v. Langley, 683 So. 2d 1147 (Fla. 5th DCA 1996), is also similar to the instant case. There, an intoxicated driver, while attempting to park in a restaurant's parking lot, drove over a curb, across a sidewalk, and through a plate glass window of the restaurant, hitting a customer who then filed a negligence claim against the restaurant owner. Id. at 1148. The plaintiff contended his injuries were attributable, in part, to the height of the parking lot curb, with his expert opining “that the curb at the point of the accident was approximately 3 ½ inches high and that, had it been six inches high, it may have stopped Langley's vehicle.” Id. The Fifth District Court of Appeal first held that, “in order to impose a duty upon [the restaurant], Langley's driving into [the restaurant] must have been reasonably foreseeable, not just possible.” Id. (citing Firestone Tire & Rubber Co. v. Lippincott, 383 So. 2d 1181 (Fla. 5th DCA 1980)). Next, in addressing foreseeability, the court noted that this type of “specific incident” had not occurred “with such frequency that it may be expected to happen again,” and thus there was no “suggest[ion] that the defendant reasonably needed to take steps to avoid or prevent the incident.” Id. In both Graham and the instant case, “the record is clear that no vehicle previously had been driven into that . . . restaurant [or cabana].” Id.

Moreover, in both this case and Graham, there was no evidence presented that there was a construction code violation (in Graham with respect to the height of the curb, in the instant case with respect to the cabana's structure or distance from the road). Finally, the Graham opinion referenced two earlier opinions from the First and Second District Courts of Appeal for the proposition “that although store owners have a duty to exercise ordinary care to maintain their premises in a reasonably safe condition, they have no duty to protect patrons from injuries caused by a vehicle driven through a window and into the store.” Graham, 683 So. 2d at 1148 (citing Jones v. Dowdy, 443 So. 2d 467, 467 (Fla. 2d DCA 1984); Schatz v. 7-Eleven, Inc., 128 So. 2d 901, 904 (Fla. 1st DCA 1961)); see also Food Fair, Inc. v. Gold, 464 So. 2d 1228, 1229-31 (Fla. 3d DCA 1985) (reversing and remanding for the trial court to enter a directed verdict in favor of the defendant store because the store owed no duty to protect its invitee from a car crashing into her in the parking lot).

In sum, the mere fact that some speeding occurred on the slightly-curved Sagamore Road does not mean that a dangerous condition existed at Riverside's premises, of which Riverside was aware or should have been aware, which extended to persons inside the cabana situated fifteen feet back from the road. Sagamore Road had a twenty-five mile per hour speed limit sign, visibility was clear, there was no history of any off-road accidents in the forty-nine year existence of this road and curve, and there were no other physical conditions that would indicate the road was dangerous. “It is incumbent upon the courts to place limits on foreseeability, lest all remote possibilities be interpreted as foreseeable in the legal sense.” Macias, 507 So. 2d at 1115. We do so here, and reverse the trial court with respect to Riverside's motion for directed verdict on the issue of duty.

2. Breach

Even if we were to agree with the trial court that, due to the placement of this pool cabana in relation to Sagamore Road, a dangerous condition existed on Riverside's premises of which it knew or should have known, thus creating an affirmative duty on the part of Riverside to protect the users of its pool cabana from these dangers, we hold that Riverside did not breach that duty.

“In a negligence action, whether a defendant exercised reasonable care under a given set of facts is generally an issue for the jury to decide.” L.A. Fitness Int'l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008) (emphasis added). However, “where the facts are undisputed, or are viewed in the light most favorable to the plaintiff, the question of breach can be decided by a court on . . . a motion for directed verdict.” Langbehn v. Pub. Health Tr. of Miami-Dade Cty., 661 F. Supp. 2d 1326, 1336-37 (S.D. Fla. 2009) (citing L.A. Fitness, 980 So. 2d at 557-62; Franco v. Miami-Dade Cty., 947 So. 2d 512, 517 (Fla. 3d DCA 2006); St. Joseph's Hosp. v. Cowart, 891 So. 2d 1039, 1041-42 (Fla. 2d DCA 2004)).

Even viewing the facts in the light most favorable to the plaintiff, Riverside took sufficiently reasonable precautions to fortify and protect its invitees within the cabana from car accidents such that it did not breach its duty, if one existed, as a matter of law. As already mentioned, Riverside protected its cabana from any danger posed by the road by use of a curb (whether this was placed by Riverside or merely used by it is irrelevant), a palm tree, and various hedges. Then, although the cabana itself was partially comprised of wood siding, it contained thousand-pound solid concrete columns reinforced with steel. The cabana was up-to-code and in a proper location according to the zoning regulations. Finally, Riverside attempted, on multiple occasions, to slow the traffic on Sagamore Road, even going so far as to erect its own stop signs before the county government removed them.

It is easy, in hindsight, to recognize exactly what precautions could have been taken to avoid any specific injury. The fact that Riverside did not erect a palm tree or other barricade in exactly the right spot to prevent a driver from taking this particular path through its defenses is both unfortunate and tragic, but it is not a breach of duty. Assuming Riverside had a duty to take reasonable care to protect its invitees, including the plaintiff's wife, from the dangers of the road, it did so as a matter of law under the specific facts of this case.

3. Proximate Cause

Finally on the issue of the directed verdict, even if Riverside breached a duty of care to the plaintiff's wife, the evidence with respect to proximate causation was sufficiently “unequivocal” to “take this matter from the fact-finder.” McCain v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992); see also Chirillo v. Granicz, 199 So. 3d 246, 252-53 (Fla. 2016) (holding that a court may decide the issue of proximate cause without sending it to the jury if “the evidence supports no more than a single reasonable inference” (quoting McCain, 593 So. 2d at 504)). As our supreme court explained, “[t]he law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.” McCain, 593 So. 2d at 503.

Contrary to the plaintiff's argument below and on appeal, the death of the plaintiff's wife was not caused by Riverside's failure to place additional palm trees between the road and the cabana. Instead, her death was unequivocally attributable only to “an improbable freak [accident].” Id. To recap: Kim (the driver) was intoxicated to more than three times the legal limit and, with no apparent attempt to brake or turn away, drove across an oncoming traffic lane, over a curb, across a pedestrian sidewalk, through a row of bushes, narrowly avoided a palm tree and utility pole, and collided with the steel-reinforced concrete column of the cabana, set back fifteen feet from the road, with enough force to cause it to collapse.

“An intervening cause may relieve the defendant . . . from liability if the intervening cause is completely independent of the defendant's negligence, was not set in motion by the defendant's negligence, and was not foreseeable by the defendant.” Bosket v. Broward Cty. Hous. Auth., 676 So. 2d 72, 74 (Fla. 4th DCA 1996). Here, the jury found that Kim was the primary cause of the plaintiff's damages. We hold but a step further, that under the “freakish and improbable chain of events” involved in this case, “the evidence supports no more than a single reasonable inference.” McCain, 593 So. 2d at 504. That inference is that the plaintiff's wife's death was “unquestionably unforeseeable,” even assuming it was caused by a dangerous condition. Id. at 503.

For the reasons set forth above, we hold that Riverside owed no duty of care to the plaintiff's wife where the cabana's placement near the road did not create a dangerous condition of which Riverside should have been aware. We further hold that, even assuming such a duty, the facts (viewed in the light most favorable to the plaintiff) establish that Riverside met this duty by establishing various barriers to vehicles, meeting all building and zoning codes, and by taking action to minimize the speed at which traffic passed. Finally, we hold that, even assuming a duty and breach had been established, the entirely unforeseeable (“freakish and improbable”) scenario which led to the plaintiff's wife's death in this case removes, as a matter of law, the necessary element of proximate cause connecting any duty and breach on the part of Riverside to the injuries sustained. Accordingly, we reverse the trial court's denial of Riverside's motion for a directed verdict and remand with instructions to grant said motion.

B. Riverside's motions for a mistrial based on opening statements and closing arguments

“A trial court's denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion.” R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA 2016) (quoting Whitney v. Milien, 125 So. 3d 817, 818 (Fla. 4th DCA 2013)).

Riverside argues on appeal that the trial court erred in denying its motion for a mistrial based on the plaintiff's counsel's remarks during opening and closing arguments. “Generally, a mistrial or new trial should be granted only when counsel's arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial.” Bakery Assocs., Ltd. v. Rigaud, 906 So. 2d 366, 367 (Fla. 3d DCA 2005) (quoting Maksad v. Kaskel, 832 So. 2d 788, 793 (Fla. 4th DCA 2002)). When assessing the comments, “[c]ontext is crucial. To determine whether the challenged statements and arguments were in fact prejudicial, the statements cannot be evaluated in isolation but must be placed and evaluated in context.” Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1272 (Fla. 2006).

Though we are not required to address this matter in light of our holding on the directed verdict issue, we express our concern regarding several of the comments made by the plaintiff's counsel during opening and closing arguments, and caution against their future use. The plaintiff's counsel stated during opening that, “the reason why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death.” After the trial court correctly sustained objections to this statement, the plaintiff's lawyer doubled down, stating, “[t]hey will look at everyone else's conduct but their own. And these are defenses that are just attempts to avoid responsibility.”

As the Third District Court of Appeal has declared, “[t]he law is clear that it is improper for an attorney to disparage an opposing party's defense of a case or to suggest that a party should be punished for contesting a claim.” Fasani v. Kowalski, 43 So. 3d 805, 809 (Fla. 3d DCA 2010). We recently reaffirmed this principle. See Calloway, 201 So. 3d at 765. We thus find it inexplicable that counsel would so wantonly make statements opening the door for a mistrial, both in these statements made during opening, as well as in the “value of human life” comments made during closing. See City of Orlando v. Pineiro, 66 So. 3d 1064, 1070 (Fla. 5th DCA 2011) (“It is clearly error to ask a jury to place a monetary value on the life of a decedent because ‘the value of a human life is not an element of damages and is not the proper topic for closing argument.' ” (quoting Wilbur v. Hightower, 778 So. 2d 381, 383 (Fla. 4th DCA 2001))).

Conclusion

The plaintiff and his wife were, unfortunately and through no fault of their own, in the wrong place at the wrong time. However, Riverside was also without fault. Riverside owed no duty of care to invitees within its walls with regard to Sagamore Road, as a danger to the hotel's invitees from the placement of the pool cabana in relation to that road was not one of which Riverside knew or should have known. Additionally, even if a duty was owed, the actions taken to prevent injury were legally sufficient such that there was no breach of this duty. Finally, even assuming a duty and a breach, the collision of the severely intoxicated driver's car with the pool cabana, at such speed and force as to collapse the steel-reinforced concrete columns of the cabana, was an extraordinary and unforeseeable event, making Riverside legally not the proximate cause of any of the injuries suffered in this highly fact-specific case. Thus, we reverse and remand for the trial court to grant Riverside's motion for a directed verdict.7

Reversed and remanded. (WARNER and LEVINE, JJ., concur.)

__________________

1Riverside's expert witness testified that Kim must have been significantly accelerating to reach 58 miles per hour on a 600 feet roadway. He also concluded that Kim did not apply the brakes at any point prior to impact with the building. He based this conclusion on the fact that there were no brake marks on the roadway -- indicating the car did not try to stop -- and based on video footage of the car seconds before impact.

2We need not address whether the expert was qualified for purposes of section 90.702, Florida Statutes, given our reversal on the motion for a directed verdict. However, we do note that the trial court judge expressed “extraordinary, extreme misgivings” about the expert's qualifications and that even the expert himself stated, “I'm not an expert in palm trees.”

3Although this witness testified after Riverside's motion for directed verdict, we are required to consider the evidence both before and after the motion which was denied. McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992).

4Although this argument was later supported by Riverside's own evidence, the expert called by the plaintiff who testified regarding the fifteen percent statistic described above also testified that, again based on a county traffic study, there had in fact been one previous accident on the road. However, the engineer did not provide any specifics about the accident, including whether it was an on-road or off-road accident.

5We note that the plaintiff did not argue that the death in this case was attributable to a design or building flaw with respect to the cabana, from which Riverside may have had a duty to protect the plaintiff and his wife, as opposed to the claim that Riverside should have built a sturdier cabana to protect from the allegedly separate risk posed by the road.

6Even accepting the plaintiff's evidence which indicated that there was one accident of an unknown nature on this road in the past, Riverside's expert's conclusion remains compelling.

7In light of our holding, we need not rule on the trial court's denial of Riverside's motions for mistrial related to the plaintiff's counsel's opening and closing arguments.

* * *

Appeals -- Non-final orders -- Partial final judgment which does not dispose of entire case as to any party or dispose of separate and distinct cause of action that is not interdependent with other pleaded claims is not subject to immediate review


42 Fla. L. Weekly D1625bTop of Form

Appeals -- Non-final orders -- Partial final judgment which does not dispose of entire case as to any party or dispose of separate and distinct cause of action that is not interdependent with other pleaded claims is not subject to immediate review -- Court lacks jurisdiction to review order denying motion to stay and order imposing sanctions and striking pleadings by petition for writ of certiorari where petition was not timely filed within 30 days of rendition of orders

PENSACOLA BEACH, INC., AND DAVID A BRANNEN, Appellants, v. AMERICAN FIDELITY LIFE INSURANCE COMPANY, PENSACOLA BEACH, L.L.C., AND SANTA ROSA ISLAND AUTHORITY, Appellees. 1st District. Case No. 1D17-0714. Opinion filed July 20, 2017. An appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. Counsel: Robert O. Beasley, Phillip A. Pugh, and DeWitt D. Clark of Litvak Beasley Wilson & Ball, LLP, Pensacola, for Appellants. Linda A. Hoffman and Robert S. Rushing of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellees.

(PER CURIAM.) The Court has determined that the Partial Final Judgment in Favor of American Fidelity Life Insurance Company, Santa Rosa Island Authority, and Michael J. Stebbins is not one that disposes of the entire case as to any party or disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. Fla. R. App. P. 9.110(k). Therefore, the order does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k).

The Court declines to grant appellant's request to review the Order Denying Motion to Stay Proceedings and the Order Imposing Sanctions and Striking Pleadings of Pensacola Beach, Inc., and David A. Brannen by petition for writ of certiorari because the Court's jurisdiction to do so was not invoked in a timely manner. In order to invoke the Court's certiorari jurisdiction, a petition must be filed within thirty days of rendition of the order to be reviewed. Fla. R. App. P. 9.100(c)(1). The two orders of which appellant seeks certiorari review were rendered on January 8, 2017. The notice of appeal was filed on February 8, 2017, the thirty-first day following rendition.

The appeal is dismissed for lack of jurisdiction. (ROBERTS, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.)

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Jurisdiction -- Non-residents -- Trial court did not err in denying motion to dismiss for lack of personal jurisdiction upon finding that complaint alleged sufficient jurisdictional facts to satisfy long-arm statute, and that non-resident defendant had sufficient minimum contacts with Florida to satisfy constitutional due process concerns

42 Fla. L. Weekly D1619c


Jurisdiction -- Non-residents -- Trial court did not err in denying motion to dismiss for lack of personal jurisdiction upon finding that complaint alleged sufficient jurisdictional facts to satisfy long-arm statute, and that non-resident defendant had sufficient minimum contacts with Florida to satisfy constitutional due process concerns

FABRICA DE FIDEOS RIVOLI, S.A., Appellant, v. FAMEX INVESTMENTS LIMITED, Appellee. 3rd District. Case No. 3D17-10. L.T. Case No. 16-1333. July 19, 2017. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Rodney Smith, Judge. Counsel: Dorta Law, and Matias R. Dorta, for appellant. Jones & Adams, P.A., and Matthew L. Jones, for appellee.  (Before LAGOA, SCALES and LUCK, JJ.)  (PER CURIAM.) Fabrica de Fideos Rivoli, S.A., the defendant below, appeals a non-final order denying its motion to dismiss the instant action for lack of personal jurisdiction. Concluding that the trial court correctly applied the two-prong test for determining whether personal jurisdiction may be exercised over a nonresident defendant, we affirm. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989) (providing that personal jurisdiction over a nonresident defendant exists where: (1) the complaint alleges sufficient jurisdictional facts to satisfy Florida's long-arm statute, section 48.193 of the Florida Statutes; and (2) the nonresident defendant has sufficient minimum contacts with Florida to satisfy constitutional due process concerns). Affirmed.
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Workers' compensation -- Permanent total disability -- Judge of compensation claims erred in awarding PTD benefits based on claimant's having reached “statutory” maximum medical improvement due to exhaustion of 104 weeks of temporary benefit payments -- Decision in which Florida Supreme Court held that the 104-week limitation on TTD benefits under section 440.15(2)(a) was unconstitutional and quashed the district court opinion on which JCC relied applied retroactively


42 Fla. L. Weekly D1576aTop of Form

Workers' compensation -- Permanent total disability -- Judge of compensation claims erred in awarding PTD benefits based on claimant's having reached “statutory” maximum medical improvement due to exhaustion of 104 weeks of temporary benefit payments -- Decision in which Florida Supreme Court held that the 104-week limitation on TTD benefits under section 440.15(2)(a) was unconstitutional and quashed the district court opinion on which JCC relied applied retroactively -- Statute at issue had not previously been construed by a “court of supreme jurisdiction” -- Further, at all times relevant to instant proceeding, review of district court decision was pending in the supreme court and claims for the requested benefits were filed after supreme court had accepted jurisdiction -- Remand for further proceedings

FT. WALTON BEACH MEDICAL CENTER/ BROADSPIRE, Appellants, v. TARA YOUNG, Appellee. 1st District. Case No. 1D16-2162. July 14, 2017. An appeal from an order of the Judge of Compensation Claims. Nolan S. Winn, Judge. Date of Accident: January 4, 2013. Counsel: Will B. Ramhofer and Jerry M. Hayden of Vernis and Bowling P.A., Miami, for Appellants. Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for Appellee.

(PER CURIAM.) In this workers' compensation appeal, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred on four grounds. We agree with the E/C that the JCC's award of permanent total disability (PTD) benefits is contrary to Westphal v. City of St. Petersburg (Westphal II), 194 So. 3d 311 (Fla. 2016). Accordingly, we reverse on that ground, and need not address the remaining issues on appeal.

I.

In the April 15, 2016, merits order, the JCC found Claimant entitled to PTD benefits, relying on this Court's opinion in Westphal v. City of St. Petersburg (Westphal I), 122 So. 3d 440 (Fla. 1st DCA 2013) (en banc). The JCC denied the alternative claims for temporary benefits based on a finding that Claimant had been paid in excess of 104 weeks of temporary benefits. Further, the JCC found that Claimant was not at maximum medical improvement (MMI) either physically or psychologically, noting that even though she was physically released to work, she was not released for work due to her mental condition. On May 12, 2016, the E/C filed a timely appeal of those portions of the merits order awarding PTD, permanent impairment benefits, and related penalties, interest, costs and attorney fees. No cross-appeal was filed.

On June 9, 2016, the Florida Supreme Court released Westphal II, quashing Westphal I. The supreme court concluded that the 104-week limitation on the payment of temporary total disability (TTD) benefits under paragraph 440.15(2)(a), Florida Statutes (2009), is unconstitutional as it deprives an injured worker, who has not reached MMI, of disability benefit eligibility for an indefinite period of time. Westphal II, 194 So. 3d at 313.

II.

We review de novo whether a JCC utilized the correct legal standard. See Banks v. Allegiant Sec., 122 So. 3d 983, 985 (Fla. 1st DCA 2013) (“Our review of an erroneous application of the law is de novo.”). “An appellate court is generally required to apply the law in effect at the time of its decision.” Fla. Patient's Comp. Fund v. Von Stetina, 474 So. 2d 783, 787 (Fla. 1985).

In Florida Forest and Park Service v. Strickland, 18 So. 2d 251, 253 (Fla. 1944), the Florida Supreme Court addressed the retrospective/prospective application of an appellate decision overruling a former decision, explaining:

Generally speaking, therefore, a judicial construction of a statute will ordinarily be deemed to relate back to the enactment of the statute, much as though the overruling decision had been originally embodied therein. To this rule, however, there is a certain well-recognized exception that where a statute has received a given construction by a court of supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction, such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation.

In Strickland, while the appeal was ongoing, the supreme court “expressly overruled a previous decision of the court . . . wherein we had given to the applicable statutes an entirely different construction.” Id. at 252. Accordingly, the supreme court declined to apply to Mr. Strickland's case the effect of that overruling, determining that it had only prospective application. Id. at 254. Here, however, before Westphal II there had never been a construction of paragraph 440.15(2)(a) by the “court of supreme jurisdiction.” Westphal I was a decision by a court of intermediate appellate jurisdiction. Moreover, at all times relevant to the instant proceeding, review of Westphal I was pending in the supreme court, as the supreme court had accepted jurisdiction by order of December 9, 2013, and the claims for the requested benefits were filed in 2014 and 2015. As such, the holding in Westphal II applies to the facts of this case.

Because the JCC's determination of entitlement to PTD benefits was based on the Claimant reaching “statutory MMI” due to the exhaustion of 104 weeks of temporary benefit payments, the award of those benefits was error. See Westphal II, 194 So. 3d at 320-21. Accordingly, we reverse the order on appeal and remand for proceedings consistent with Westphal II.

REVERSED and REMANDED. (ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.)

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Wrongful death -- Reverse dram shop liability statute -- Error to enter summary judgment for defendant golf club whose employee served alcoholic beverages to golfer who was subsequently involved in automobile accident which resulted in death of decedent


42 Fla. L. Weekly D1593aTop of Form

Wrongful death -- Reverse dram shop liability statute -- Error to enter summary judgment for defendant golf club whose employee served alcoholic beverages to golfer who was subsequently involved in automobile accident which resulted in death of decedent where there was factual issue as to whether intoxicated golfer was habitually addicted to alcohol and, if so, whether golf club knew of his addiction -- Factual issue as to whether vendor of alcoholic beverages had knowledge that purchaser was a habitual drunkard may be created by circumstantial evidence

JORGE GONZALEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BEATRIZ GONZALEZ, Appellant, v. STONEYBROOK WEST GOLF CLUB, LLC, INC., Appellee. 5th District. Case No. 5D16-2680. July 14, 2017. Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge. Counsel: James C. Blecke, of The Haggard Law Firm, P.A., Coral Gables, for Appellant. Kathryn L. Ender, of Cole, Scott & Kissane, P.A., Miami, for Appellee.

( HODGES, R.W., Associate Judge.) Jorge Gonzalez (“Gonzalez”), as personal representative of the Estate of Beatriz Gonzalez (“the Decedent”), appeals from the final summary judgment entered in favor of Stoneybrook West Golf Club, LLC, Inc. (“Stoneybrook”). The standard of review of a trial court's entry of final summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. Because we find the existence of a genuine issue of material fact in this case, we reverse and remand.

Stoneybrook is a golf club whose employees serve alcoholic beverages both inside the clubhouse and on the golf course. Nathan Hartman is a golfer who routinely played golf at Stoneybrook and purchased alcohol from Stoneybrook employees. After playing a round of golf and consuming alcohol, Hartman caused an automobile crash that resulted in the death of the Decedent. At the time of the crash, Hartman had a blood alcohol content of .302. Gonzalez sought damages for the wrongful death of the Decedent against Stoneybrook pursuant to Florida's reverse dram shop liability statute, codified at section 768.125, Florida Statutes (2014). This statute provides, in pertinent part, that a vendor serving alcoholic beverages is not liable for damages resulting from a purchaser's intoxication unless the vendor serves the purchaser knowing that he or she is habitually addicted to alcohol. Id.

Stoneybrook filed a motion for final summary judgment, contending that there was no competent evidence of record that Hartman was habitually addicted to alcohol or, if so, that Stoneybrook had any knowledge of his alleged addiction. The trial court agreed and granted summary judgment.

Gonzalez had responded to the motion for summary judgment by filing the depositions of Hartman, a friend of Hartman named David Ziglar, and the relevant Stoneybrook employees. The depositions established that Hartman had played golf at the club approximately seventy to eighty times over a three-year period prior to the crash. Ziglar testified in his deposition that Hartman was intoxicated virtually each time they played together at Stoneybrook. He added that Hartman normally started the day by drinking two strongly poured whiskey and Cokes in sixteen-ounce Styrofoam cups poured by bartenders who were familiar with Hartman. At the turn at the midpoint of the golf round, Hartman normally went to the Stoneybrook clubhouse and purchased another strongly poured sixteen-ounce whiskey and Coke and would often buy additional drinks from the “cart girl, a Stoneybrook employee.” Ziglar testified that, on the day of the crash, Hartman had four such drinks, including approximately eight ounces of straight alcohol poured by the “cart girl” on the course. In addition, Gonzalez filed an affidavit from Dr. William Hearn, the former Laboratory Director of the Miami-Dade County Medical Examiner's Department, in which he opined that Hartman's blood alcohol content when he left Stoneybrook was over .27.

As this court previously noted in Evans v. McCabe 415, Inc., the Florida Supreme Court has found that under the habitual drunkard exception the plaintiff must present evidence that the vendor knew that the alcohol purchaser was a habitual drunkard. 168 So. 3d 238, 239 (Fla. 5th DCA 2015) (citing Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042, 1048 (Fla. 1991)). This knowledge element may be met by the presentation of sufficient circumstantial evidence. Ellis, 586 So. 2d at 1048-49 (citing Sabo v. Shamrock Commc'ns, Inc., 566 So. 2d 267, 269 (Fla. 5th DCA 1990), approved sub nom. Peoples Rest. v. Sabo, 591 So. 2d 907 (Fla. 1991)). As stated in Ellis, “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Id. at 1048.

Based on our review of the record, we conclude that Gonzalez offered sufficient evidence to raise a factual dispute not resolvable by summary judgment as to whether Hartman was habitually addicted to alcohol and, if so, whether Stoneybrook knew of his addiction. Therefore, we reverse the summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED. (ORFINGER and LAMBERT, JJ., concur.)

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Insurance -- Homeowners -- Trial court also erred in entering summary judgment for insurer on insured's claim for damages to the roof itself on the ground that the roof damage was excluded by the “wear and tear” exclusion


42 Fla. L. Weekly D1565aTop of Form

Insurance -- Homeowners -- Trial court erred in entering summary judgment for insurer on insured's breach of contract action claiming that insurer's payments for rainwater damage to home's interior caused by roof leaks were less than the actual cash value of the damage where widely divergent estimates of covered repair costs created a genuine issue of material fact -- Exclusions -- Trial court also erred in entering summary judgment for insurer on insured's claim for damages to the roof itself on the ground that the roof damage was excluded by the “wear and tear” exclusion in the policy where insured has not yet presented a proper claim to insurer for processing, so that questions regarding both coverage and extent of loss have not yet crystallized for assertion as a cause of action for breach

LATONYA FRANCIS, Appellant, vs. TOWER HILL PRIME INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D16-2114. L.T. Case No. 15-23315. Opinion filed July 12, 2017. An Appeal from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge. Counsel: The Mineo Salcedo Law Firm, P.A., and Nathan Teplitsky (Davie); Fox & Loquasto and Gray Proctor (Orlando), for appellant. Rumberger, Kirk & Caldwell and Nicole Sieb Smith and Allan J. Rotlewicz, for appellee.

(Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.)

(SALTER, J.) Latonya Francis appeals a final summary judgment in favor of her insurer (Tower Hill Prime Insurance Company, “Tower Hill”), regarding her claims for rainwater damage to her home's interior caused by roof leaks. We reverse, finding that genuine issues of material fact exist regarding (1) Tower Hill's adjustment and payment of the “actual cash value” of the damage covered by Ms. Francis's insurance policy, and (2) the applicability of the policy's exclusion for “wear and tear” to a vague, unliquidated, and inchoate claim for damage to the roof itself.

Tower Hill paid the amount computed by its own appraiser for the interior repairs, less the applicable policy deductible and depreciation. The insurer notified her that the allowed amounts were based on “actual cash value,” and that she could make a claim for depreciation by providing documentation that the repairs were completed. See Trinidad v. Florida Peninsula Ins. Co., 121 So. 3d 433, 439 n.3 (Fla. 2013).

Ms. Francis used the amounts paid by Tower Hill to repair her roof rather than the damaged interior of the home. Tower Hill advised Ms. Francis that she could submit supplemental claims for damage revealed as repairs were made.

Ms. Francis sued Tower Hill for breach of the insurance contract based on an assertion that Tower Hill's payments were less than the actual cash value of the damage to the interior. Tower Hill moved for summary judgment, arguing that the insured was not entitled to further compensation because she had received payment for the actual cash value of her loss, and because she did not use the insurance proceeds to repair the reported damage. Tower Hill maintained that Ms. Francis had not submitted a claim for the roof itself, and that any such claim would have been disallowed as a result of the exclusion for “wear and tear.”

The trial court granted Tower Hill's motion for final summary judgment and denied a subsequent motion for rehearing. This appeal followed.

Analysis

The final summary judgment is subject to de novo review. The trial court is obligated to consider the “summary judgment evidence”1 in the record, and any reasonable inferences from that evidence, in the light most favorable to the non-moving party. Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 864-65 (Fla. 3d DCA 2011). If the summary judgment evidence presents any genuine issue of material fact, summary judgment should not be granted. Id.

In the present case, the record contains Ms. Francis's deposition testimony and the two sworn statements of proof of loss prepared by her adjuster, Stellar Public Adjusting Services. These two claims included line item estimates totaling over $139,000.00 (after applying the $1,000.00 deductible to each claim), versus Tower Hill's appraiser's (Pacesetter Claims Service) computation of approximately $15,000.00 (after deductible).2 Ms. Francis's sworn statements of proof of loss were signed by the adjuster before a notary and constituted summary judgment evidence under Florida Rule of Civil Procedure 1.510(c). It follows that the widely-divergent estimates of covered repair costs created a genuine issue of material fact precluding summary judgment regarding the roof leak claims. See Javellana v. Tower Hill Signature Ins. Co., 23 Fla. L. Weekly Supp. 1031 (Fla. 11th Cir. Ct. Mar. 31, 2016).

The next question is whether summary judgment was also appropriate regarding any claim for damages to the roof itself (in connection with the events that gave rise to the losses claimed for leakage to the interior of the home for April 22 and 29, 2015). Tower Hill persuaded the trial court that Ms. Francis could not raise roof damage issues because (a) she did not include that damage (only water damage inside the house) during her deposition, (b) neither she nor her adjuster made a claim for those costs in accordance with the insurance policy, and (c) Tower Hill's adjuster inspected the property and demonstrated that any such roof damage was excluded by the “wear and tear” exclusion in the policy.

On this point, Ms. Francis points to Tower Hill's letters enclosing the two payments made by Tower Hill. Although Tower Hill only adjusted the two water damage claims, it notified Ms. Francis “that the claim you have presented to Tower Hill Prime Insurance for roof damage does not qualify for payment,” because “the damages to your roof are due to wear and tear and not a covered peril.” The letters also state:

We also want to bring to your attention that the amount of [payment allowed by Tower Hill and enclosed] does not necessarily constitute a full and final settlement of your claim for damages associated with your claimed loss. You may submit supplemental claims for any damage discovered in the covered reconstruction and repair of the above mentioned property.

In Tower Hill's adjuster's notes in the record, evaluation of any roof damage was “pending until we can determine any or if any shingles were damaged by covered peril,” because the adjuster needed a tarp over the roof removed and photos of any damage before the restoration (the notes state: “Possible supplement for roof only if storm damage is found when tarp removed and photos can be taken.”). Thereafter, the tarp was removed and Tower Hill's adjuster determined that “the damages were due to deterioration of the sealant around the vents of the roof as opposed to weather storm(s).”

The complaint and record are unhelpful regarding the extent of the claim regarding the roof, referring vaguely to “the damage sustained to the building on the subject property, damage to contents, and loss of use of the property and possessions taken from therein.” Nevertheless, Tower Hill sought an adjudication in its motion for summary judgment that any claim by Ms. Francis for roof damage was excluded by the policy or otherwise precluded. The trial court's unelaborated order that Tower Hill's motion for summary final judgment is “granted” must also be reversed insofar as it may have addressed roof damage.

Based on our reading of the policy language, complaint, and other summary judgment evidence, Ms. Francis has not yet presented a proper, detailed, written claim for roof damage to Tower Hill for processing, and questions regarding both coverage and extent of loss, if any, have not crystallized for assertion as a cause of action for breach.

Finally, we reject Tower Hill's argument to the trial court and to us that this record is governed by Slayton v. Universal Property & Casualty Insurance Co., 103 So. 3d 934 (Fla. 5th DCA 2012). Slayton held that an insurer's payment of its own adjuster's estimate less the deductible (and agreeing to consider “supplemental claims for additional damages discovered during or arising from the repairs”) was not itself a breach of a policy authorizing such a procedure. Id. at 936. In that case, unlike the case before us, Slayton had failed to preserve the argument that the insurer violated section 627.7011, Florida Statutes, as in effect in 2009. In the present case, Ms. Francis raised and preserved the argument.

For these reasons, we reverse the final summary judgment and remand the case to the trial court for further proceedings.

__________________

1Fla. R. Civ. P. 1.510(c).

2Recoverable depreciation was not included for this comparison, but would have been included in payments to the insured upon proof that the repairs were completed.

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