UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 20-22086-CIV-MORENO

JUAN CARRASCAL and MARIA 

CARRASCAL, 

Plaintiffs,

vs.

SCOTTSDALE INSURANCE CO.,

Defendant.

_________________________________________/

ORDER DENYING MOTION FOR SUMMARY JUDGMENT 

This insurance coverage dispute stems from damage to the Plaintiffs’ home from rock 

quarry blasting. The insurance policy contains an exclusion, which is at issue in the motion for 

summary judgment. The Plaintiffs claim the damage is covered by the policy because it was 

caused by land shock waves repeatedly hitting their home from the nearby blasting. Defendant 

asserts that an exclusionary provision applies to preclude coverage for damage from earth 

movement. Strictly construing the earth movement exclusion, the Court finds it appropriate to 

deny the motion for summary judgment. 

THIS CAUSE came before the Court upon Defendant's Motion for Summary Judgment

(D.E. 35), filed on October 22, 2020. 

THE COURT has considered the motion, the response, the pertinent portions of the record, 

and being otherwise fully advised in the premises, it is

ADJUDGED that the motion is DENIED.

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I. Background

The parties dispute whether the damage to Plaintiffs’ home is attributable to earth 

movement, which is excluded from coverage under the policy. Plaintiffs’ expert engineer, Gerald 

Zadikoff, P.E. with G.M. Selby, Inc., opines that Plaintiffs’ damages were caused by the house 

shaking and vibrating, and not earth movement. He asserts that the long duration of the shaking 

and the vibrations caused cyclic loading on the structure and fatigue of the building materials. 

The result of the vibrations, in his view, is the damage to the interior and exterior walls, 

windows, roof, the foundation/wall joints, walkway slab, etc. 

At his deposition, Mr. Zadikoff opined that the cracks in the home were caused by small 

seismic waves over time. He states “the wave is in the air, hits your car drum. That vibration 

causes a vibration to your brain. It is the same thing in the house. There is a wave, the Rayleigh 

vibration, it hits the house. In the house translation, like the brain, [the house] is damaged.” 

The policy at issue excludes damage caused from earth movement from coverage. It 

defines earth movement as follows:

Exclusions

Paragraph 2. Earth Movement

“Earth Movement” means: 

a. Earthquake, including land shock waves or tremors before, during 

or after a volcanic eruption; 

b. Landslide, mudslide, or mudflow; 

c. Subsidence or sinkhole; or

d. Any other earth movement, including earth sinking, rising or 

shifting; 

caused by or resulting from human or animal forces or any act of 

nature unless direct loss by fire or explosion ensues, and then will 

pay only for the ensuing loss. 

Defendant’s position is that because the land shock waves traveled through the earth, 

earth movement caused the damage to the Plaintiffs’ home. The question at summary judgment 

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is whether there is an issue of fact precluding summary judgment as to the cause of the damage 

or whether as a matter of law, the Court must find that the earth movement exclusion bars 

coverage.

II. Legal Standard

Summary judgment is authorized where there is no genuine issue of material fact. Fed. 

R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating 

the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 

(1970). The party opposing the motion for summary judgment may not simply rest upon mere 

allegations or denials of the pleadings; the non-moving party must establish the essential 

elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 

477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 

The non-movant must present more than a scintilla of evidence in support of the non-movant's 

position. A jury must be able reasonably to find for the non-movant. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 254 (1986).

III. Legal Analysis

The Court must examine the application of the insurance policy’s earth movement 

exclusion to the Plaintiffs’ claim. Viewing the facts in the light most favorable to the Plaintiff, 

the cause of the damage to the home was land shock waves repeatedly shaking the walls and 

other components of the home. The question is whether the policy’s earth movement provision 

is broad enough to exclude damage caused by the land shock waves.

In resolving this issue, it is notable that the policy is an “all risks policy” that provides 

coverage for all risks of loss unless specifically excluded. Fayad v. Clarendon Nat’l Ins. Co., 899 

So. 2d 1082, 1089 (Fla. 2005). Under an “all-risks” policy, the insured must show loss during the 

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policy period, then the burden shifts to the insurer to show the cause of loss is excluded under the 

terms of the policy. Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d 

DCA 1984). Therefore, it is Defendant’s burden to show the exclusion applies.

The Court is also mindful that exclusionary clauses in insurance policies are strictly 

construed against the drafter. Demshar v. AAACon Auto Transport., Inc., 337 So. 2d 963, 965 

(Fla. 1976). Exclusionary clauses are construed more strictly than coverage clauses. Wallach v. 

Rosenberg, 527 So. 2d 1386, 1389 (Fla. 3d DCA 1988) (stating an insurer’s burden is even 

heavier under an all-risk policy.”). The Court must also give the insurance contract its plain 

meaning with any ambiguities construed against the insurer and in favor of coverage. U.S. Fire 

Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007). 

The language of this policy excludes damage caused by earth movement, which is 

defined as an earthquake, landslide, mudslide or mudflow, subsidence or sinkhole, or any other 

earth movement. Defendant’s motion for summary judgment argues that land shock waves fall 

within the definition of earthquake or in the catchall provision of “any other earth movement . . . 

caused by or resulting from human or animal forces or any act of nature.” The earthquake 

definition includes damage to property caused by land shock waves or tremors before, during, or 

after a volcanic eruption. There is nothing in this provision to exclude coverage for damage 

caused by land shock waves, unrelated to a volcanic eruption. Certainly, if Defendant wanted to 

exclude damages from blasting, it could have included a statement that “earth movement” means 

land shock waves after blasting. It did not do so and this Court is obligated to strictly construe 

this exclusionary clause under Florida law.

The second issue is whether the catchall provision excludes damage caused by land shock 

waves from human forces. To make this argument, Defendant relies on Hernandez v. Citizen’s 

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Prop. Ins. Corp., 306 So. 3d 137 (Fla. 3d DCA 2020), where the Third District Court of Appeal 

upheld a trial court’s summary judgment order finding an earth movement provision excluded 

coverage. In Hernandez, however, the expert opined that the cracks in the slab stemmed from 

lack of soil support where the vibrations created voids in the slab. That is not the Plaintiffs’ 

expert’s testimony in this case, where he states the constant hitting of the home structure caused 

the damage. In Hernandez, the court found that the cause of the damage described by 

Hernandez’s expert engineer fit at least two definitions of earth movement: “earth sinking, rising, 

or shifting” and “settling, cracking, or expansion of foundations.” 

Here, the Court does not find the expert’s testimony as to the cause of the damage, land 

shock vibrations caused by blasting, squarely fits into the catchall provision of the policy. There 

is an issue of fact, at the very least, as to whether the land shock waves impacting the building 

caused the damage or if the land shock waves moved the earth under the Plaintiffs’ home to 

cause the harm. During the trial in Puente v. Tower Hill Signature Ins. Co., Case No. 18-22208-

CA-22 (11th Jud. Cir. Mar. 14, 2019), Judge Hanzman said it best:

My problem with your exclusion is it’s not the movement of the 

soil that causes the harm. It’s the wave that just happens to move 

the soil on its way, just like a bullet will happen to move your 

jacket on its way to your chest, but that doesn’t mean the 

movement of your jacket caused the damage to your shoulder. The 

bullet caused the damage. 

Giving the exclusionary provision a strict construction, as the Court must, the summary 

judgment motion is denied in this case.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th of August 2021.

______________________________________

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

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Copies furnished to:

Counsel of Record

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