Please set up your API key!

The Rough Notes Company Inc.

Rain on the roof: Must insurer pay for damage?

Rain on the roof: Must insurer pay for damage?

December 26
09:36 2018

Rain on the roof: Must insurer pay for damage?

Rita Garcia owned property in Miami that was insured under a homeowners policy with First Community Insurance Company.

On or about March 29, 2014, Garcia discovered water damage to the property that she alleged was caused by a roof leak. Garcia gave notice of the loss to First Community. On June 10, 2014, a forensic engineer retained by the insurer inspected the property. After an investigation, which included the findings of the engineer’s inspection, First Community denied coverage.

The relevant provision of the policy at issue provided:


We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property.


We do not insure, however, for loss:


2. Caused by:


h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.

i. Any of the following:

(1) Wear and tear, marring, deterioration;

On August 19, 2015, Garcia filed a complaint against First Community alleging breach of contract. Garcia subsequently filed an amended complaint on August 4, 2016, adding her husband, Abelardo Alvare, as a plaintiff. The amended complaint alleged that “[o]n or about, March 29, 2014, Plaintiffs discovered water damage within the insured property due to a roof leak, which is a covered loss under the insurance policy.” Garcia and Alvare alleged that they provided First Community a damage estimate in the amount of $22,986.66. They further alleged that the policy “provides coverage for direct physical loss to the Plaintiffs’s [sic] property due to roof leak mentioned herein.”

First Community filed an answer and affirmative defenses to the amended complaint. As its sixth affirmative defense, First Community alleged that the damages, if any, were caused by the “age and wear and tear of the roof.”

First Community filed a motion for summary judgment and argued that the claimed damages were not covered under the policy. First Community relied on the forensic engineer’s conclusions in her report that “[t]he cause of the water intrusion through the roof [was] a result of a combination of age-related deterioration, tree branch abrasions, and construction defects” and her conclusions that “[t]he face nails observed on the shingles create[d] a direct path for water to penetrate the structure[, which] is considered a construction defect.”

In opposition to First Community’s motion for summary judgment, Garcia and Alvare filed the affidavit and report of a professional engineer who inspected the property on March 28, 2017, and also reviewed the forensic engineer’s report. The home owners’ engineer attested that “there is insufficient evidence to rule out that the damages were caused by hail impact or wind uplift damage caused by a one-time occurrence.” He further attested that based on his own findings and inspection, “there is no evidence to support any contention that the damages reported by the insured in this claim are age-related or long term in nature.” He concluded that “the damages observed are systematic of high rain and/or wind events that occurred in the days leading up to and on the D.O.L. The dynamic force of the winds caused an opening in the roofing system by uplifting and debonding the shingles (causing damage to the underlayment) through which rain water was able to enter, causing water damage to the interior of the building.”

The court granted First Community’s motion and entered final judgment in favor of First Community. Garcia appealed.

Citing case law, the court of appeal agreed with Garcia that the trial court erred in granting summary judgment in favor of First Community when the conflicting reports of the parties’ experts established that there was a genuine issue of material fact as to the cause of the loss. The court of appeal stated that the conclusions reached by the opposing engineers were clearly at odds. Given this conflict in the material evidence as to the cause of loss, the court said, the trial court erred in entering final judgment in favor of First Community.

Because a genuine issue of material fact existed as to the cause of the loss to the property, the court of appeal said, entry of final summary judgment in favor of First Community was improper. Accordingly, the court reversed the final summary judgment entered in favor of First Community and remanded the case to the trial court for further proceedings.

Garcia vs. First Community Insurance Company-District Court of Appeals of Florida, Third District-March 28, 2018-No. 3D17-968.

Related Articles






Philadelphia Let's Talk - Click Here

Spread The Word & Share This Page

Trending Tweets