Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-2414 Lower Tribunal No. 17-15817 ________________ Dale Deshazior and Cartez Deshazior, Appellants, vs. Safepoint Insurance Company, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge. Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), for appellants. Bressler, Amery & Ross, P.C., and Hope C. Zelinger and Nicole S. Houman (Fort Lauderdale), for appellee. Before EMAS, C.J., and FERNANDEZ and HENDON, JJ. HENDON, J. Dale Deshazior and Cartez Deshazior (the “insureds”) appeal from a final summary judgment entered in favor of Safepoint Insurance Company (“Safepoint”), based on the trial court's finding that the insureds’ claimed loss was specifically excluded under their policy. As we conclude the claimed loss falls within the policy’s exclusion provision, we affirm. The insureds’ property is insured by an all-risk homeowners policy 1 issued by Safepoint. In August 2015, the insureds property sustained water damage in a bathroom. The insureds hired a restoration company to do the mitigation, but did not immediately report the claim to Safepoint. Once it received the claim, Safepoint sent out two independent claims adjusters and a professional engineer to evaluate the damaged property. 2 The inspector noted that the insureds had apparently discarded the damaged portions of the pipes, wall, and baseboards. The inspector and the forensic engineer concluded from their observations that the property damage appeared to have been caused by long-term seepage and exposure to water, coupled with failure to maintain the plumbing in and around the bathroom where the claimed leak occurred. The insureds sent a claim to Safepoint in the amount of 1 “[A]n ‘all-risk’ policy is not an ‘all loss’ policy, and this does not extend coverage for every conceivable loss.” Sebo v. Am. Home Assurance Co., 208 So. 3d 694, 696- 97 (Fla. 2016) (citation omitted). 2 An independent adjuster first inspected the insureds’ property on September 18, 2015, and a forensic engineer inspected the insureds’ property on October 14, 2015. 2 $35,977.32. Safepoint denied the claim based on the slow leak/seepage exclusion in the policy. 3 The insureds sued Safepoint for breach of contract, alleging that sudden water discharge in a bathroom caused damages that are covered under the policy. Safepoint denied the insureds’ allegations and raised several affirmative defenses. In pertinent part, Safepoint alleged the policy’s “constant and repeated seepage or leakage” exclusion provision barred the insureds’ claim. Safepoint moved for summary judgment. At the summary judgment hearing, the insureds argued that there was a genuine issue of material fact as to whether the damage was caused by a sudden, accidental water discharge event, or if the damage was from a long-term leak and the policy exclusion applied. After considering the record, arguments of counsel, and evidence submitted, the trial court entered final summary judgment in favor of Safepoint. 3 The exclusion provision states, 1. 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. ... n. Constant or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor; which occurs over a period of time, whether hidden or not and results in damage such as wet or dry rot, “fungi,” deterioration, rust, decay or other corrosion. 3 “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130–31 (Fla. 2000); Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1096 (Fla. 1st DCA 1999). The insureds argue that summary judgment should not have been entered in favor of Safepoint based on the “constant or repeated seepage” exclusion provision because there were disputed expert opinions as to the duration of the leak, i.e., whether it was sudden or long-term. Evidence at the summary judgment hearing included the October 2015 report from Safepoint’s expert witness forensic engineer, Joseph Frega, in which he concluded that the staining observed was an indication that the damage was caused by water having leaked in that area over a period of several months. The insured’s expert witness, plumber Rafael Leyva, testified in his May 2018 deposition that after viewing the damaged areas at the insured’s property,4 he could not make any determination as to how long the leak had been active. He also agreed in his deposition that he was not an expert in evaluating duration. In November 2018, Mr. Leyva submitted an affidavit contradicting his prior deposition 4 Mr. Leyva’s inspection took place more than two years after the reported loss. He testified that he was relying on photographs taken by the field adjuster in determining the scope of the damage. 4 testimony as to duration.5 Safepoint argued that this was the insureds’ invalid attempt to avoid summary judgment. Once the insured establishes a loss, the burden shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms. Kokhan v. Auto Club Ins. Co. of Fla., 45 Fla. L. Weekly D544 (Fla. 4th DCA Mar. 11, 2020). When an insurer relies on an exclusion to deny coverage, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation. Id.; see also Jones v. Federated Nat'l Ins. Co., 235 So. 3d 936, 941 (Fla. 4th DCA 2018) (“[A]n insured claiming under an all-risks policy has the burden of proving that the insured property suffered a loss while the policy was in effect. The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms.”). Once the movant produces competent evidence in support of summary judgment, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue” of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979); accord Valderrama v. Portfolio Recovery Assocs., Inc., 972 5 Mr. Leyva stated in his November 2018 affidavit as follows: I observed damages at the property that were the result of a one-time sudden and accidental event that took place on or about August 6, 2015, as reported to me by the insured. . . . I was not able to identify any inconsistency with the loss as reported to me by the homeowner, specifically that a bathroom plumbing leak occurred on or about August 6, 2015. (emphasis added). 5 So. 2d 239, 239 (Fla. 3d DCA 2007). Safepoint proffered evidence that the damage likely occurred by slow leakage or seepage of water over a period of weeks or months. The burden then shifted to the insureds to introduce sufficient evidence to overcome summary judgment by showing there was a genuine issue of disputed fact, i.e., that the damage was instead caused by a one-time accidental release of water. The insureds were unable to introduce any evidence to meet their burden of showing that the damage was not caused by an excluded event. The trial court excluded an affidavit filed by the insureds’ expert, Mr. Leyva, six months after his deposition, which directly contradicted his prior sworn statement. In excluding the affidavit, the trial court relied on Lesnik v. Duval Ford for the proposition that a litigant, when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory affidavit testimony. Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 580 (Fla. 1st DCA 2016); see also, Oulette v. Patel, 967 So. 2d 1078, 1082-83 (Fla. 2d DCA 2007) (“The principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor ‘includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.’”) (emphasis added) (quoting Koflen v. Great Atl. & Pac. Tea Co., 177 So. 2d 529, 531 (Fla. 3d DCA 1965)); see Williams v. Ryta Food Corp., 45 Fla. L. Weekly D440 (Fla. 3d DCA Feb 26, 2020) (“[A] party when met by a motion for summary 6 judgment should not be permitted by his [or her] own affidavit, or by that of another, to baldly repudiate his [or her] previous deposition so as to create a jury issue.”) (quoting Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954)). Because the insureds failed to introduce evidence to show a genuine issue of disputed fact, summary judgment was proper. We find the remaining arguments on appeal to be without merit. Affirmed. 7