DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EMPIRE PRO RESTORATION, INC. A/A/O LAMBERT BOWDEN & 

ELAINE BOWDEN,

Appellant,

v.

CITIZENS PROPERTY INSURANCE CORPORATION,

Appellee.

No. 4D21-237

[May 26, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Giuseppina Miranda, Judge; L.T. Case Nos. COCE17-

20678 and CACE18-25444.

Frantz C. Nelson of Font & Nelson, PLLC, Fort Lauderdale, for 

appellant.

Maureen G. Pearcy of Paul R. Pearcy, P.A., Miami, for appellee.

FORST, J.

Appellant Empire Pro Restoration, Inc. seeks review of the trial court’s 

order granting Appellee Citizens Property Insurance Corporation’s 

(“Insurer”) motion for summary judgment. Appellant raises two issues on 

appeal. We affirm on both issues but write only to address Appellant’s 

first argument—that the trial court erred in its application of the burdenshifting framework applicable to “all-risk” insurance policies. 

Background

The home of Lambert Bowden (“Insured”) was covered by a 

homeowner’s policy issued by Insurer. The policy contained an exclusion

for damage caused by “rain . . . to the interior of a building[.]” This 

exclusion contained an exception if “a covered peril first damages the 

building causing an opening in a roof or wall and the rain . . . enters 

through this opening.” 
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In 2017, Insured sustained a roof leak causing water damage interior 

to the home’s ceiling and walls. Appellant performed the remediation 

services for the damages in exchange for assignment of Insured’s rights to 

recover for the cost of the work under the insurance policy. Insurer denied 

Appellant’s claim for benefits, maintaining that the policy at issue did not 

cover damage caused by wear and tear, and that a “covered peril” did not 

cause the opening in which the rain entered. 

Following Insurer’s denial of the claim, Appellant filed a breach of 

contract lawsuit. Neither party offered any evidence to establish what 

caused the roof leak leading to the interior water damage. The trial court 

observed that “[Appellant] failed to present any sworn evidence to support 

a factual basis for finding that the damage was caused by rain entering 

through an opening caused by a covered peril. . . . Furthermore, 

[Appellant] agrees that they do not know what caused the roof to leak.”

(emphasis omitted). Based on Appellant’s failure to offer evidence 

demonstrating the cause of the interior water damage, the trial court 

granted Insurer’s motion for summary judgment. This appeal followed. 

Analysis

“The standard of review of an order granting summary judgment is de 

novo.” Bogatov v. City of Hallandale Beach, 192 So. 3d 600, 601 (Fla. 4th 

DCA 2016) (quoting Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. 4th 

DCA 2007)). Likewise, “[t]he construction of an insurance contract 

involves a question of law, and an appellate court applies a de novo 

standard of review.” Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197 

(Fla. 4th DCA 2006) (citation and italics omitted). 

“An all-risks policy provides coverage for all losses not resulting from 

misconduct or fraud unless the policy contains a specific provision 

expressly excluding the loss from coverage.” Kokhan v. Auto Club Ins. Co. 

of Fla., 297 So. 3d 570, 572 (Fla. 4th DCA 2020) (quoting Mejia v. Citizens 

Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (emphasis 

omitted)). “[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.” Id. (alteration 

in original) (quoting Jones v. Federated Nat’l Ins. Co., 235 So. 3d 936, 941 

(Fla. 4th DCA 2018)). “If there is an exception to the exclusion, the burden 

once again is placed on the insured to demonstrate the exception to the 

exclusion.” E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678 

(Fla. 3d DCA 2005) (citation omitted); see also Deshazior v. Safepoint Ins. 

Co., 305 So. 3d 752, 755 (Fla. 3d DCA 2020) (to survive summary 
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judgment, the insured bears the burden of introducing evidence to create 

a genuine issue of material fact after the insurer shows that the damage 

falls under an exclusion to the insurance policy); Fla. Windstorm 

Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla. 3d DCA 2005) (“[T]he 

insured has the burden to prove an exception to an exclusion contained 

within an insurance policy[.]”).

Here, Appellant met its initial burden of demonstrating that the policy 

was in effect when the loss was incurred. Insurer then established that 

an exclusion applied as the loss occurred due to rain causing water 

damage to the interior of the home. The burden then shifted back to 

Appellant to offer evidence that an exception—an opening in the roof 

and/or wall(s) that was caused by a covered peril (such as hail) and not 

the result of wear and tear of the roof and/or wall(s)—precipitated the 

interior rain damage. Appellant offered no such evidence (as noted above, 

the trial court observed that “[Appellant] agrees that they do not know what 

caused the roof to leak”). Unlike in Jones where the parties offered 

competing and conflicting evidence and theories as to the cause of the roof 

damage, 235 So. 3d at 941, no such conflicting evidence was presented 

here to create a genuine issue of material fact. Appellant failed to offer an 

explanation as to what caused the entry points for the rain to come into 

the home. Accordingly, in the absence of evidence as to the cause of the 

roof damage, the trial court properly relied on Gajwani in granting

Insurer’s motion for summary judgment.

Affirmed.

WARNER, and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.