Ms. Garcia and her husband, Abelardo Alvare, sued First Community, alleging breach of contract. Ms. Garcia and Mr. Alvare 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." They also said that they provided First Community with a damage estimate for $22,986.66.

First Community filed an answer and asserted a number of affirmative defenses, including that the damage, if any, had been caused by the "age and wear and tear of the roof."

First Community moved for summary judgment, relying on Ms. Acosta'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 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, Ms. Garcia and Mr. Alvare filed the affidavit and report of a professional engineer, Alfredo Brizuela, who inspected the property on March 28, 2017 and who also reviewed Ms. Acosta's report. Mr. Brizuela attested that there was "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 was "no evidence to support any contention that the damages reported by the insured in this claim are age-related or long term in nature."

In Mr. Brizuela's report, which was attached to his affidavit, Mr. Brizuela 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 trial court granted First Community's motion and entered final judgment in favor of First Community.

Ms. Garcia appealed.

The First Community Policy

The First Community insurance policy provided:

COVERAGE A — DWELLING and COVERAGE B — OTHER STRUCTURES

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 

The appellate court reversed.

In its decision, the appellate court ruled that the trial court had erred in granting summary judgment in favor of First Community because 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 appellate court explained 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 appellate court continued, the trial court should not have entered final judgment in favor of First Community.

The appellate court was not persuaded by First Community's argument that the trial court had properly rejected Mr. Brizuela's opinion because his inspection of the property occurred three years after the date of the loss, whereas First Community's expert had inspected the property less than three months after the date of loss. According to the appellate court, the consideration of the timing of Mr. Brizuela's inspection of the property in relation to that of First Community's engineer went "to the credibility and weight" of Mr. Brizuela's opinion regarding the cause of loss – issues that were "not appropriate in a summary judgment determination."

The appellate court concluded that because a genuine issue of material fact existed as to the cause of the loss to the property, entry of final summary judgment in favor of First Community was improper.

The case is Garcia v. First Community Ins. Co., No. 3D17-968 (Fla. Ct.App. March 28, 2018). Attorneys involved include: Lopez & Best, and Virginia M. Best and Johanna M. Menendez, for appellant. Klein Glasser Park & Lowe, P.L., and Joseph H. Lowe, Andrew M. Feldman, and Nicole M. Reid, for appellee.