In the District Court of Appeal Third District of Florida

In the District Court of Appeal Third District of Florida CASE NO.: 3D12-875 SOUTHERN OAK INSURANCE COMPANY, Appellant, v. ARMANDO RODRIGUEZ and ELIZABETH RODRIGUEZ, Appellees. ON APPEAL FROM THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA INITIAL BRIEF OF APPELLANT Respectfully submitted, DIAZ BRISCOE MEDINA, P.A. mmedina@dbmlegal.com 100 S.E. 2nd Street, Suite 2020 Miami, Florida 33131 Telephone (786) 866-3377 -and- RUSSO APPELLATE FIRM, P.A. e-service@russoappeals.com 6101 S.W. 76th Street Miami, Florida 33143 Telephone: (305) 666-4660 Counsel for Appellant

TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 A. Overview... 1 B. Pertinent Facts and Proceedings... 1 1. The facts giving rise to the water loss... 1 2. The pertinent policy provisions... 3 3. The lawsuit and summary judgment proceedings... 7 STATEMENT OF THE ISSUE... 9 Whether Appellees water damage claim was excluded under the policy.... 9 SUMMARY OF ARGUMENT... 10 STANDARD OF REVIEW... 11 ARGUMENT... 11 A. The Policy excludes this claim... 11 B. Paragraph b may not be rewritten to limit its application to water originating off the property... 12 CONCLUSION... 15 CERTIFICATE OF SERVICE... 16 CERTIFICATE OF COMPLIANCE WITH FONT STANDARD... 16 i

TABLE OF AUTHORITIES CASES: Page Auto-Owners Ins. Co. v. Pozzi Window Co. 984 So. 2d 1241 (Fla. 2008)... 11 Campbell v. Allstate Ins. Co. 2006 WL 6033239 (Pa. Comm. 2006)... 14 Deni Assoc. of Fla., Inc. v. State Farm Fire and Casualty Co. 711 So.2d 1135 (Fla. 1998)... 13 Newlo Realty Co. v. U.S.F. & G. Corp. 213 A.D.2d 295, 624 N.Y.S.2d 33 (1995)... 14 Old Dominium Ins. Co. v. Elysee, Inc. 601 So. 2d 1243 (Fla. 1st DCA 1992)... 13 Siegle v. Progressive Consumers Ins. Co. 819 So.2d 732 (Fla. 2002)... 12 State Farm Mut. Auto. Ins. Co. v. Pridgen 498 So.2d 1245 (Fla. 1986)... 13 ii

STATEMENT OF THE CASE AND FACTS A. Overview Appellant/Southern Oak Insurance Company ( Southern Oak ) issued a homeowner s policy to Appellees which contained an exclusion for damage caused by water backups from sewers or drains. Appellees had a worn out, broken down drain line underneath their kitchen and adjacent bathroom, which caused water which should have been draining away from the property to back up and into their house through the baseboards and tiles of these two rooms. They made an insurance claim which was denied. Appellees did not purchase the endorsement titled, Water Back-Up and Sump Discharge or Overflow Florida, which would have covered this risk. Still, they filed a lawsuit seeking coverage. Cross motions for summary judgment on the coverage issue were filed. The trial court denied Southern Oak s motion and granted Appellees motion. Southern Oak submits that Appellees claim is excluded, and that its motion for summary judgment should have been granted. B. Pertinent Facts and Proceedings 1. The facts giving rise to the water loss claim In October 2008, Appellees began to notice a rotten sewer smell whenever they ran their kitchen sink or flushed the toilet in the half bathroom next to the 1

kitchen. (R 1, pp 145-146). 1 A week or so later, they began to notice that whenever they would use the bathroom or be in the kitchen doing the dishes, water would come out from the cabinet underneath the kitchen sink and in the half bathroom. (R 1, p 161). Appellees would mop up the water, and this went on for a couple of weeks until they decided to call a plumber on November 19. (R 1, p 161). The plumber found a worn out and broken sewer line underneath the house. (R 1, p 138). A week later, the bad drain line was replaced, and the water problem stopped. (R 1, pp 162-163). Appellees contacted a public adjuster, who made an insurance claim to Southern Oak for just over $58,000.00, which included a claim for water damage to kitchen cabinets and flooring. (R 1, p 136). Southern Oak investigated the claim which confirmed what Appellees plumber found: Our inspection revealed that the resulting water damage is due to a drain pipe which rotted due to wear, tear and deterioration causing water to back up into the interior. As such, your policy specifically excludes coverage for the plumbing repair and resulting water damage. (R 1, p 136). Southern Oak issued a denial letter, citing the wear and tear and water damage exclusions of the policy. (R 1, p 136-137). As discussed later in this Initial Brief, Appellees counsel conceded the drain 1 References to the record on appeal in this Answer Brief are to volume number, following by page number as follows: (R _, p ). All emphasis is supplied by undersigned, unless otherwise noted. 2

line went bad from wear and tear and that the repairs were not covered under the policy. (R 3, pp 409-410). Appellees contended that the backup exclusion for water damage should be interpreted to apply only when the backup originates off the property, and since this backup had occurred on the property, the backup exclusion should not be applied. The policy did not read that way at all; and such an interpretation would have required it to have been rewritten. 2. The pertinent policy provisions The pertinent portions of the Property Coverages section of the Southern Oak homeowner s policy reads in pertinent part: SECTION 1 PERILS INSURED AGAINST A. Coverage A Dwelling and Coverage B Other Structures 1. We insure against risk of direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: a. Excluded under Section 1 Exclusions; b. Involving collapse, except as provided in E.8 collapse under Section 1 Property Coverages; or c. Caused by: (1) Freezing of a plumbing, heating (2) Freezing, thawing, pressure or weight of water (3) Theft 3

(4) Vandalism (5) Continuous or repeated seepage or leakage of water or steam from a: (a) heating, air conditioning or automatic fire protective sprinkler system; (b) household appliance; or (c) plumbing system, including from within or around an shower stall, tub installation, or other plumbing fixture, including their walls, ceilings and floors; which occurs over a period of time. If loss to covered property is caused by water or steam not otherwise excluded, we will cover the cost of tearing out and replacing any part of the building necessary to repair the system, or appliance. We do not cover loss to the system or appliance from which the water or steam escaped. (6) Any of the following: (a) Wear and tear, marring, deterioration; (b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself; (c) Smog, rust or other corrosion; (d) Smoke from agricultural smudging or industrial operations; (e) Discharge, dispersal, seepage, migration, release or escape of pollutants (f) Setting, shrinking, bulging or expansion, including resultant cracking of bulkheads, pavements, patios, footings, foundations, walls, floors, roofs or ceilings; (g) Birds, vermin, rodents, or insects; or (h) Animals owned or kept by an insured. 4

Exception to c.(6) Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a: (i) (ii) Storm drain, or water, steam or sewer pipe, off the residence premises ; or Plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the residence premises. This includes the cost to tear out and replace any part of a building, or other structure, on the residence premises, but only when necessary to repair the system or appliance. However, such tear out and replacement coverage only applies to other structures if the water or steam causes actual damage to a building on the residence premises. We do not cover loss to the system or appliance from which this water or steam escaped. For purposes of this provision, a plumbing system or household appliance does not include a sump, sump pump or related equipment or a roof drain, gutter, down spout or similar fixtures or equipment. Section 1 Exclusion A.3. Water Damage, Paragraphs a. and c. that apply to surface water and water below the surface of the ground do not apply to loss by water covered under c.(5) and (6) above. Under 2.b and c. above, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. 5

(R 1, pp 27-28; 30-31). The Water Damage exclusionary clause is set out below: SECTION 1 EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. *** 3. Water Damage Water Damage means: a. Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind; b. Water or water-borne material which backs up through sewers or drains or which overflows or is discharged from a sump, sump pump or related equipment; or c. Water or water-borne material below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure; caused by or resulting from human or animal force or any act of nature. Direct loss by fire, explosion or theft resulting from water damage is covered. 6

(R 1, pp 30-31). 3. The lawsuit and summary judgment proceedings Appellees filed their lawsuit, alleging that the loss was covered as an accidental discharge of water from a plumbing system on the residence premises. (R 1, pp 5-6). Southern Oak answered, denied the allegations, and alleged that the loss was excluded under the policy. (R 1, pp 7-53). In due course, Southern Oak filed its motion for summary judgment. (R 2, pp 258-271; 297-305). The affidavit of the Director of Claims, which accompanied the motion, attested that Appellees had not purchased the endorsement titled, Water Back-Up and Sump Discharge or Overflow Florida, which would have specifically covered water damages which resulted from water that backs up through a sewer or drain. (R 2, p 274; 134-135). Southern Oak also included the transcript from another lawsuit in which another trial court determined that the exclusion applied to a water loss claim arising under nearly identical facts. (R 1, pp 168-212; 210-212). 2 Appellees filed their motion for partial summary judgment, asserting that the water damage exclusion should be read to apply only when the sewer or drain which causes the backup is located off the insured s property. (R 2, pp 297-305). 2 That case is pending on appeal: Cheetham v. Southern Oak Ins. Co., Case No: 3D11-3277. 7

At the hearing on the motions, the trial court appeared confused, at least initially, over whether the water had backed up, prompting Southern Oak s counsel to explain: MS. MEDINA: Okay. The plumbing system of a home contains two types of line: Supply lines, which are pressurized, water is always running through them, and drain lines, which are not pressurized and only have water running through them when water is pushed out of the property. What this policy intends to exclude is water that comes back into the property when it should be going out, which is what happened here. (R 3, pp 399-400). Appellees counsel did not dispute this account: MR. DUBOFF: [W]hat Maria is saying is that when it did break, some of the water must have gone into the house, backup from the pipe, and I can t really disagree with that. (R 3, pp 401-402). Appellees counsel said that this undisputed fact did not matter, crudely staking out their position as follows: MR. DUBOFF: In the vernacular, Judge, layman s terms, the policy pays for your poop. They won t pay for somebody else s poop. (R 3, p 402). Appellees argument that the backup exclusion should be interpreted to apply only when the backup originates off the property would have required impermissibly adding language into the exclusion as the plain wording did not contain any such limitation to its application. Toward the end of the hearing, Appellees counsel appeared to switch gears. He admitted that the pipes are definitely not covered, but that [t]he ensuing loss 8

from wear and tear is covered. (R 3, 409). For this, Appellees counsel referred the trial court to part of a paragraph on page ten of the policy: MR. DUBOFF: For the purposes of the record, page 10 [of] 25 and it talks about wear and tear and it says, Any ensuing loss from wear and tear. THE COURT: I have the same thing highlighted in hers. MR. DUBOFF: Okay. Ensuing loss is covered THE COURT: Give me a moment. Give me a moment. I think it s covered. Your motion is granted. (R 3, pp 409-410). The actual language referred to on page ten of the policy read: Under 2b. and c. above, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. (R 1, p 105). Having granted summary judgment in Appellees favor on coverage, the only remaining issue was the amount of the loss. (R 3, pp 407; 410; 389). In accordance with the joint stipulation for entry of final judgment, the Stipulated Final Judgment For Plaintiffs was entered in the amount of $45,000.00. (SR 3). This appeal ensued. STATEMENT OF THE ISSUE Whether Appellees water damage claim was excluded under the policy. 9

SUMMARY OF THE ARGUMENT As Southern Oak s counsel explained at the summary judgment hearing, a drain is a device by which liquid is drawn off; likewise a sewer is a device for carrying off water or water-borne material. The policy contained an express exclusion for water damage caused by backups from sewers and drains. An endorsement for coverage was available, but was not purchased. The exclusion applied in this instance where the drain line had deteriorated and stopped working as it should have, causing the water to back up and into the house. This maintenance problem was an excluded risk under the policy, and although the trial court did not say exactly why it thought differently, it made its ruling immediately after Appellees counsel quoted a paragraph from page ten of the policy out of context. The complete paragraph read: Under 2b. and c. above, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. (R 1, p 105). Of course, coverage for the ensuing loss in this case was precluded by the Water Damage exclusion in the policy. Finally, there is no merit to the grounds stated in Appellees summary judgment motion that the exclusion should be read as applying only when the backup originates off the property. The exclusion as written places no such limitation upon its application whatsoever. Thus, it cannot be rewritten to add 10

meaning that is not present. Further, courts will not place limitations upon the plain language of a policy exclusion simply because they may think it should have been written that way either. Plain and simple, Southern Oak s policy did not cover what happened in this case - a drain backup caused by a bad drain line, made that way by wear and tear. The matter should be reversed for entry of final summary judgment in favor of Southern Oak. STANDARD OF REVIEW The construction of an insurance policy is a question of law, subject to de novo review. Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So. 2d 1241, 1246 (Fla. 2008). A. The Policy excludes this claim ARGUMENT Section 1 Perils Insured Against, expressly stated that risks referred to in the Exclusions Section were not insured risks. Even the provision referring to a loss from an accidental discharge of water from a plumbing system was also qualified with Unless the loss is otherwise excluded. (R 1, p 105). The paragraph referred to at the summary judgment hearing on page ten of the policy was also qualified and read: Under 2b. and c. above, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. 11

(R 1, p 28). The exclusionary language was just as clear. The Exclusions lead-in provision of Southern Oak s policy excludes the losses regardless of cause: SECTION 1 EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. (R 3, p 498). Water Damage is listed as one of the exclusions. (R 3, p 498-499). The actual language used in the policy definition of Water Damage then specifically excluded water or water-borne material which backs up through sewers or drains... caused by or resulting from human or animal force or any act of nature. (R 3, p 499). The policy clearly and unambiguously excluded Appellees water loss claim in this case. Even their counsel did not claim an ambiguity in the way the policy was written to exclude this claim. B. Paragraph b may not be rewritten to limit its application to water originating off the property Faced with an unambiguous exclusion, Appellees, at least in their written motion for summary judgment, argued that the exclusion should be rewritten to apply only when the backup is located off the premises. It is axiomatic that an unambiguous exclusion must be given effect as written, Siegle v. Progressive 12

Consumers Ins. Co., 819 So. 2d 732, 735 (Fla. 2002), and this exclusion does not contain any such limitation on its application. Courts may not rewrite contracts to add meaning that is not present. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986). Further, courts will not place limitations upon the plain language of a policy exclusion simply because they may think it should have been written that way either. Deni Assoc. of Fla., Inc. v. State Farm Fire and Casualty Co., 711 So. 2d 1135, 1139 (Fla. 1998). In their motion for summary judgment, Appellees cited a handful of out-ofstate cases which excluded coverage by rewriting the exclusion to apply when water backs up from outside the insured s property. The one Florida case, Old Dominium Ins. Co. v. Elysee, Inc., 601 So. 2d 1243 (Fla. 1st DCA 1992), relied upon in Appellees motion for summary judgment, does not support their position for coverage here. In Old Dominium Ins. Co. v. Elysee, Inc., the location of the blockage just happened to have been in the main drain pipe that serviced an entire shopping mall. The insured s store was located inside the mall. The drains and sewers inside the insured s store backed up as a result of the blockage in the mall s main drain pipe. The trial court ruled that the exclusion did not apply because the water which had backed up never entered the city s sewer system before backing up. The First District reversed and said that the exclusion was unambiguous, and applied it 13

because the water had backed up through a drain or sewer. Finally, while there appear to have been no other reported cases in Florida on this particular issue, some courts outside Florida which have considered the issue, have rejected the argument which Appellees made in their motion for summary judgment. These cases are much more in line with Florida s jurisprudence against courts rewriting unambiguous policies to create coverage where it does not exist. For example, in Campbell v. Allstate Ins. Co., 2006 WL 6033239 (Pa. Comm. 2006), the insured s residence sustained damages when a toilet overflowed and water flowed onto the bathroom floor of his home. The overflow was caused by a blockage in the sewer line on his own property. The insured argued that the court should read into the sewer and drain exclusion a requirement that the blockage must occur outside the property line. The Court rejected this contention: Applying the clear, unambiguous policy language, excluding loss from water that backs up through sewers or drains, to Campbell s own admission that the backup occurred from sewer piping, this Court properly entered Summary Judgment for Allstate. 2006 WL *4. See also: Newlo Realty Co. v. U.S.F. & G. Corp., 213 A.D.2d 295, 624 N.Y.S.2d 33 (1995): Assuming in plaintiff's favor that the water damage it sustained as a result of overflow from a blocked-up bathroom sink drain falls within the coverage provisions of the policy, summary judgment in favor of defendant would still be warranted since the loss falls within the exclusion for water that backs up from a sewer or drain. There is no merit to plaintiff's argument that since the three other subclauses of 14

the exclusion refer to events such as floods, tidal waves, mudslides and underground water flows, the doctrine of ejusdem generis suggests that the exclusion applies only to natural disasters, natural disasters not ordinarily being regarded as the cause of a backed-up drain (see, Album Realty Corp. v. American Home Assur. Co., 80 N.Y.2d 1008, 1010, 592 N.Y.S.2d 657, 607 N.E.2d 804). Nor is there anything about the common understanding of the word drain, or in the policy itself, that requires a construction limited to underground pipes. The word is unambiguous and applies to the sink drain in question. 624 N.Y.S.2d at 295. CONCLUSION This Court should reverse, and remand for entry of final summary judgment in favor of Southern Oak. Respectfully submitted, DIAZ BRISCOE MEDINA, P.A. mmedina@dbmlegal.com 100 S.E. 2nd Street Suite 2020 Miami, Florida 33131 Telephone (786) 866-3377 Facsimile (786) 866-3399 -and- 15

RUSSO APPELLATE FIRM, P.A. e-service@russoappeals.com 6101 S.W. 76th Street Miami, Florida 33143 Telephone: (305) 666-4660 Facsimile: (305) 666-4470 Counsel for Appellant By: /s/ Susan S. Lerner SUSAN S. LERNER Florida Bar No. 349186 ssl@russoappeals.com CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent by electronic mail this 5th day of November, 2012 to: Kenneth R. Duboff, Esquire, Duboff Law Firm, 680 N.E. 127th Street, North Miami, Florida 33161, email@dubofflawfirm.com. /s/ Susan S. Lerner CERTIFICATE OF COMPLIANCE WITH FONT STANDARD Undersigned counsel hereby respectfully certifies that the foregoing Initial Brief complies with Fla. R. App. P. 9.210 and has been typed in Times New Roman, 14 Point. /s/ Susan S. Lerner 16