DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DOROTHY ARCHER,

Appellant,

v.

TOWER HILL SIGNATURE INSURANCE COMPANY,

Appellee.

No. 4D19-3702

[March 24, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Raag Singhal, Judge; L.T. Case No. CACE-18-4463 (21).

Paul B. Feltman of Alvarez, Feltman, Da Silva & Costa, PL, Coral 

Gables, and Justin Cernitz of Cernitz, Shanbron, LLC, Miami, for 

appellant.

Daniel M. Schwarz of Link & Rockenbach, P.A., West Palm Beach, and 

Paul S. Vicary of Zinober, Diana & Monteverde, P.A., Fort Lauderdale, Fort 

Lauderdale, for appellee.

LEVINE, C.J.

An insured appeals a final summary judgment on her claims for 

damage from a plumbing leak and a hurricane. The insured argues that 

a genuine issue of material fact remained as to whether the hurricane 

caused an opening in her roof through which water entered. The insured 

further argues that two endorsements to the insurance policy created an 

ambiguity such that a water damage exclusion did not apply to the 

plumbing leak claim. We find that the insured’s affidavits and deposition 

were conclusory and insufficient to create a genuine issue of material fact 

as to the roof claim. We further find that the endorsements were not 

ambiguous and thus the water damage exclusion barred the plumbing 

leak claim. We affirm without comment the insured’s claim relating to 

underpayment for hurricane damage to her pool screen and fence. 

The insured had a homeowner’s insurance policy with Tower Hill. The 

policy had a Water Damage Exclusion that was later superseded by two 
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endorsements: a Water Damage Exclusion Endorsement and a Special 

Provisions for Florida endorsement. 

The Water Damage Exclusion Endorsement provided as follows: 

WATER DAMAGE EXCLUSION ENDORSEMENT

For the premium charged, your policy is changed as follows: 

. . . .

SECTION I – EXCLUSIONS

Paragraph 1.c. Water Damage is deleted and replaced by the

following:

c. Water Damage, meaning:

(1) Flood, surface water, waves, tidal water, overflow of a 

body of water or spray from any of these, whether or not 

driven by wind;

(2) Water, water-borne material or sewage which backs up 

through sewers or drains or which overflows from a 

sump; or 

(3) Water, water-borne material or sewage below the surface 

of the ground including water which exerts pressure on 

or seeps or leaks through a building, sidewalk, driveway, 

foundation, swimming pool or other structure.

(4) Accidental or intentional discharge or overflow of water or 

steam from within a plumbing, heating, air conditioning 

or automatic fire protective sprinkler system or from 

within a household appliance, 

(5) Water penetration through the roof system or exterior 

walls or windows whether or not driven by wind unless 

water penetration is a direct result of damage caused by 

wind or hail. Water damage resulting from rain that 
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enters the insured dwelling through an opening that is a 

direct result of a “hurricane loss” is covered as a 

“hurricane loss” and is subject to the hurricane 

deductible stated in your policy declarations. Water 

damage subsequent to and as a result of an opening 

caused by wind or hail will be covered as a wind or hail 

loss provided that your policy includes coverage for wind 

or hail.

Direct loss by fire or explosion resulting from water damage is 

covered. 

The Special Provisions endorsement provided: 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE 

READ IT CAREFULLY. 

SPECIAL PROVISIONS FOR FLORIDA

. . . .

GENERAL EXCLUSIONS

. . . .

Exclusion 1.c. Water Damage is deleted and replaced by the 

following. 

c. Water Damage, meaning:

(1) flood, surface water, waves, tidal water, overflow of a body 

of water, or spray from any of these, whether or not 

driving [sic] by wind;

(2) water, water-borne material or sewage which backs up 

through sewers or drains or which overflows or is 

discharged from a sump, sump pump or related 

equipment; or 
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(3) water, water-borne material or sewage below the surface 

of the ground, including water which exerts pressure in 

or seeps or leaks through a building, sidewalk, driveway, 

foundation, swimming pool or other structure.

Direct loss by fire, explosion or theft resulting from water 

damage is covered. 

The insured, through her public adjuster, notified Tower Hill of two 

separate claims that occurred on two separate dates: a plumbing leak and 

roof damage from Hurricane Irma. After Tower Hill denied the claims, the 

insured filed a complaint against Tower Hill for declaratory relief as to the 

plumbing leak and breach of contract as to the roof claim. Tower Hill filed 

an answer and affirmative defenses, arguing that the policy excluded 

coverage for water damage. 

Tower Hill moved for summary judgment, arguing that there was no 

damage to the roof caused by the hurricane and that the water damage 

exclusion excluded coverage for the damage alleged by the insured. In 

support of its motion, Tower Hill filed several affidavits, including the 

affidavit of its field adjuster who inspected the property. The field adjuster 

determined the roof was at least twenty years old. Tower Hill’s field 

adjuster did not see any openings in the roof or any obvious wind-related 

damage to the roof. 

Tower Hill also filed the deposition of the insured, who testified that she 

went to the house after Hurricane Irma and saw the ceiling had “come 

down on the floor” and “some of the rooms were soaked.” She had someone 

seal cracks in the roof to stop the leaks. Prior to Hurricane Irma, she had 

someone else seal the roof “maybe once or twice,” but it had been “a long 

time.” 

The insured filed a response in opposition to the motion for summary 

judgment and a cross-motion for summary judgment, relying on several 

affidavits as well as her own deposition. Dawkins’s affidavit stated that he 

had previously resealed the roof and that after Hurricane Irma, he 

“observed wind damage to the roof,” “cracks and openings to the roof,” and 

“water damage to the interior of the Property which entered through 

openings from the roof.” The affidavit of Leath—a person who according 

to the insured sealed cracks in the roof after Hurricane Irma—stated that 

he “observed water damage to the interior of the Property which entered 

through openings from the roof.” The affidavit of the insured’s public 

adjuster stated: “Based upon my inspection of Plaintiff’s dwelling and my 
5

years of experience as a public adjuster, the interior damages that I 

witnessed is consistent with damages that entered through openings 

created by Hurricane Irma.”

After a hearing, the trial court entered summary judgment in favor of 

Tower Hill. The insured appeals. 

The standard of review for summary judgment is de novo. Volusia Ctny. 

v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). 

“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.” 

Id. “[T]he burden of proving the absence of a genuine issue of material fact 

is upon the moving party.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). 

“[O]nce there is a motion for summary judgment that is supported by 

affidavit or other factual showing, the burden shifts to the opposing party 

to show by appropriate means that genuine and material issues do remain 

to be tried.” Id. at 42.

Hurricane Claim 

The trial court properly entered summary judgment on the insured’s 

Hurricane Irma breach of contract claim. The policy provided coverage for 

water damage only when wind or hail creates an opening through which 

the water enters. Tower Hill satisfied its initial burden of demonstrating 

no issues of material fact by submitting the affidavit of its field adjuster 

who did not see any openings in the roof through which water could have 

entered. The burden then shifted to the insured to show that genuine 

issues of material fact did remain to be tried. Holl, 191 So. 2d at 42. 

The insured failed to meet her burden because her affidavits and 

deposition were conclusory. Conclusory statements which are framed in 

terms only of conclusions of law are not sufficient to prove the nonexistence of a genuine issue of material fact. Progressive Express Ins. Co. 

v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) (citing Heitmeyer v. 

Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995)). 

The insured offered the affidavits of Dawkins and Leath as lay 

witnesses. Dawkins’s affidavit did not describe the nature or appearances 

of the cracks and openings, what led him to believe the cracks and 

openings were caused by wind from Hurricane Irma, or the location of the 

cracks and openings on the roof. All Dawkins relates to seeing is “wind 

damage to the roof” and “cracks and openings to the roof.” He does not 

explain how there is wind damage or how the damage was caused by the 
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wind. Merely reciting conclusory statements does not rebut the 

statements of Tower Hill’s field adjuster. Similarly, Leath’s affidavit did 

not set forth the basis for his knowledge or even state that the openings 

were caused by Hurricane Irma. Additionally, the insured’s deposition did 

not say anything about openings on the roof. 

The affidavit of the insured’s public adjuster was also insufficient to 

show that a genuine issue of material fact existed as to the existence and 

cause of an opening in the roof. Section 90.702, Florida Statutes (2017), 

which codifies the Daubert standard, states: 

[A] witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify about it in the 

form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and 

methods; and

(3) The witness has applied the principles and methods 

reliably to the facts of the case.

The affidavit did not say anything about the public adjuster’s

qualifications, training, education, or methodology. In fact, she never even 

stated that she saw any openings in the roof. The public adjuster did not 

expound on her observations or explain how she came to her conclusion, 

other than to cite her years of experience as a public adjuster. “[N]o weight 

may be accorded an expert opinion which is totally conclusory in nature 

and is unsupported by any discernible, factually-based chain of 

underlying reasoning.” Parc Royale E. Dev., Inc. v. U.S. Project Mgmt., Inc., 

38 So. 3d 865, 869 (Fla. 4th DCA 2010) (citation omitted). 

The insured’s evidence was unlike, for example, that in Garcia v. First 

Community Insurance Co., 241 So. 3d 254, 257-58 (Fla. 3d DCA 2018), 

where the insured successfully opposed summary judgment by submitting 

an engineering report explaining that the dynamic force of the winds 

caused an opening in the roof by uplifting and debonding the shingles, 

causing damage to the underlayment through which rain was able to 

enter. See also Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1172-

73 (Fla. 3d DCA 2018) (finding issue of material fact where deposition 

testimony stated that a tree branch went through the roof, creating a huge 
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hole, and affidavit of general contractor and engineer attested to uplift 

damage to roof from windstorm which allowed water to enter); Frederick v. 

Citizens Prop. Ins. Corp., 45 Fla. L. Weekly D2750 (Fla. 3d DCA Dec. 9, 

2020) (finding insured met burden of showing existence of triable issue by 

relying on affidavit, inspection report, and deposition of general contractor 

who concluded that roof leaks resulted from micro fissures in the roof 

caused by strong wind gusts and wind-driven rain). 

Plumbing Claim 

With respect to her plumbing leak claim, the insured argues that the 

trial court erred in applying the Water Damage Exclusion Endorsement

because it conflicts with the Specific Provisions for Florida endorsement, 

creating an ambiguity in the policy. She further argues that the ambiguity 

should be construed in her favor to provide coverage. 

“[W]e rely upon the rule of construction requiring courts to read 

provisions of a contract harmoniously in order to give effect to all portions 

thereof.” Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). “[A]n 

interpretation which gives a reasonable, lawful, and effective meaning to 

all its terms is preferred to an interpretation which leaves a part of the 

contract unreasonable, unlawful or of no effect.” Raytheon Subsidiary 

Support Co. v. Crouch, 548 So. 2d 781, 783 (Fla. 4th DCA 1989).

We find there is no ambiguity in the policy. The Water Damage 

Exclusion Endorsement and the Special Provisions endorsement both 

stated that they replace the Water Damage exclusion in the original policy. 

Additionally, there is no conflict between the two endorsements as the first 

three subsections are virtually identical in each endorsement. The Special 

Provisions endorsement includes two additional exclusions that 

supplement, and do not conflict with, the first three exclusions. 

The insured alleges that the Special Provisions endorsement went into 

effect after the Water Damage Exclusion Endorsement. The insured 

suggests that because that the Water Damage Exclusion Endorsement is 

older, the newer water damage definition in the Special Provisions 

endorsement should apply. However, which endorsement came first, in 

this case, is irrelevant. Nothing in the second endorsement, the Special 

Provisions endorsement, suggests it was intended to supplant the first 

endorsement, the Water Damage Exclusion Endorsement. Rather, both 

endorsements replaced the Water Damage exclusion clause in the original 

policy. The use of two separate endorsement forms can be explained 

because one was intended for use in many states, whereas the other was 

specific to Florida, a practice that insurers commonly employ. See Fla. 
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Peninsula Ins. Co. v. Cespedes, 161 So. 3d 581, 587 (Fla. 2d DCA 2014) 

(Altenbernd, J., concurring in part and dissenting in part). 

Because there is no conflict between the endorsements, the trial court 

properly gave effect to subsection (4) of the Water Damage Exclusion 

Endorsement, which excluded the plumbing leak from coverage. 

In conclusion, because there were no issues of material fact on the 

hurricane damage claim and no ambiguity in the policy as to the plumbing 

leak claim, we affirm the final summary judgment. 

Affirmed. 

GROSS and ARTAU, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.