### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STATE FARM FLORIDA INSURANCE COMPANY
,

Appellant,

v.

RICHARD MOODY, ROBERTA MOODY and ROBERT DENNEY
, Appellee s

.

No s . 4D 13

- 3377, 4D14

- 273 and 4D14

- 274

[ December 9, 2015 ]

Consolidated a ppeal s from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Janis Brustares Keyser , Judge; L.T. Case

No s

. 502006CA014072XX and 502007CC002907XX

.

Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami

, and Bernstein, Chackman, Lis s & Rose, Hollywood, for appellant.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Louis M. Silber and Allison J. Davis of Silber & Davis, P.A., West Palm Beach, for appellees.

M AY
, J.

A ristotle once said: “The whole is great er than the sum of all its parts.” This appeal gives us an opportunity to reflect on this statement as an insurer appeals a final judgment for “ Additional Living Expenses ” that

were incurred as a result of Hurricane Jeanne. The insurer argues that

two separate trial courts erred in entering summary judgment for the

insureds in these consolidated cases. 1 We agree with the insurer and

reverse.

In 2004, the National Hurricane Center issued a Tropical Cyclone Report naming an upcoming storm Hurricane Jeanne. On September 24, 25, and 26, the National Hurricane Center issued hurricane warnings for Hurricane Jeanne for South Florida. On the night o f September 25 and the morning of September 26, Hurricane Jeanne hit South Florida. During

1 Judge Keyser and Judge Damico ruled on separate motions for summary judgment, but the cases were consolidated before Judge K eyser for the trial.2

Hurricane Jeanne , the i nsureds’ condominiums were severely damaged

and became uninhabitable.

The i nsureds held separate condominium policies with the same

insurer

, including building property , personal property , and additional living expense coverage s . Before section one in both policies, a notice read

“Hurricane Notice

–

You may have no coverage or you may have limited coverage for damage caused by hurricane.” Sect ion one listed the protection for the dwelling (Coverage A), personal property (Coverage B), loss of use (Coverage C) , and loss assessment (Coverage D) . “Section 1 . . . Losses Insured,” listed familiar perils the policy protected against, but

had a secti on stating

, “Windstorm, hail

– See special hurricane coverage

that follows.”

The policies also contained a Hurricane Coverage Endorsement , which

stated :

There is no coverage for loss caused by a hurricane under Section I of the policy to which this endorse ment is attached. No coverage is provided for accidental direct physical loss to the property described in the policy caused by a hurricane other than that which is provided in this endorsement. The provisions of this endorsement apply only in respect to loss caused by hurricane.

The Hurricane Coverage Endorsement contained “Section I

– Coverages,” which replaced Coverages A, B, C, and D. “Coverage C

– Loss of Use,” read, in part:

1. Additional Living Expense. When a hurricane causes the

covered dwell ing to become uninhabitable, we will cover the necessary increase in cost you incur to maintain your standard of living for up to 12 months. Our payment is limited to incurred costs for the shortest of: (a) the time required to repair or replace the cove red dwelling; (b) the time required for your household to settle elsewhere; or (c) 12 months.

. . . . Our payment will not exceed an amount equal to 10% of the Coverage B limit applicable at the time of loss.

The Hurricane Coverage Endorsement also contai ned the definition of

“hurricane.”

When used in this endorsement:3 “hurricane” means a storm system that has been declared to be a hurricane by the National Hurricane Center of the

National Weather Service. The duration of the hurricane includes the time period, in Florida:

a. beginning at the time a hurricane watch or hurricane warning is issued for any part of Florida by the National Hurricane Center of the National Weather Service;

b. continuing for the time period during which the hurricane conditions exist anywhere in Florida; and

c. ending 72 hours following the termination of the last

hurrican e watch or hurricane warning for any part of Florida by the National Hurricane Center of the National Weather

Service.

The insurer paid the i nsureds their full coverage amounts on the building property and personal property coverages. B ased on the

Hurric ane Coverage Endorsement, the insurer paid the i nsureds their additional living expenses, which were limited to 10% of the Coverage B (personal property coverage) limit.

In June 2006, the insureds, Richard and Roberta Moody

, filed a two

count complaint against the insurer ; and in March 2007, another insured,

Robert Denn e y , f

iled suit. The i nsureds alleged in count one that the

insurer breached its contract with them by providing additional living expenses coverage under the Hurricane Coverage Endorsement rather than under the general policy provisions because “the loss of use was caused by a peril other than a hurricane.”

They alleged their loss was caused by a tornado or microburst

, not a hurricane. They alleged the ir po licies’ Hurricane Coverage Endorsement was ambiguous and coverage should not be limited to 10% of the Coverage

B (personal property coverage) limit. The Moodys requested $11,245 .00

and Denney requested $10,059.10 in additional living expenses.

The insure r answered both complaints and assert ed affirmative

defenses. In its first af firmative defense, the insurer asserted that “[t]he [ insureds ’ ] actions [were] barred or limited by the Hurricane Coverage Endorsement of the policy.” In its third affirmative d efense, the insurer

a sserted that “[t]he [ insured s ] [w ere ] barred from recovery because the tornado which allegedly caused [the] loss occurred during and was4

therefore part of Hurricane Jeanne which affected [the] property on or about September 26, 2004.”

The i nsureds and insurer all moved for summary judgment. Denney argued a tornado, not a hurricane, caused damage to his condominium so the ten percent additional living expenses limitation under Coverage C of

the Hurricane Coverage Endorsement should not apply. He also argued

the definition of hurricane in the Hurricane Coverage Endorsement “is limited to a hurricane, and does not include other meteorologica l events,

such as a tornado.” I f the insurer “wanted to exclude tornado as part of

its hurricane exclusion, it could and should have said so,” and that “a hurricane can occur without a tornado, and a tornado can occur without

a hurricane.” He asserted that hurricanes and tornados are not synonymous as understood by an everyday person.

The Moodys m ade similar arguments

. They also argued the insurer

used only the definition of hurricane found in section 627.4025(2)(c),

Florida Statutes , and not the definitions of hurricane coverage and

windstorm in sections (2)(a) and (2)(b). They asserted that if the insurer used all three statutory sections in the policy, the Hurricane Coverage

Endorsement w ould have included tornados. The Moodys attached a Citizens windstorm policy, which included all three statutory sections

. They argued the insurer’s choice t o include only one section should be construed against it

. They filed an affidavit from their daughter attesting that the attached Citizens policy was hers

.

The insurer argued that its policy was unambiguous and should be given its plain and ordinary mea ning. It argued the definition of hurricane

was clear and damage resulting from the storm system wa s covered under the Hurricane Coverage Endorsement. To the insurer, t he real issue wa s whether the tornado occurred during the storm system. No one disputed that the National Hurricane Center declared the storm system Hurricane

Jeanne ; the hurricane hit the i nsureds’ condominiums on September 26, which was a day the hurricane warning occurred ; and the i nsureds incurred losses on that day.

Separate tr ial judges granted summary judgment for the insureds, and

denied the insurer’ s motion for summary judgment

. Both courts found:

If [the insurer] had included in its policy the definition of “hurricane” sections 2(a) and 2(b) in addition to Section 2(c) of section 627.4025, Florida Statutes , there would be no question that the policy’s hurricane definition included

tornados. If [the insurer] had i ntended to include tornados in5 its Hurricane Coverage Endorsement, it should have used language clearly stating this purpose.

. . . . The Court finds that the fact that [the insurer] had available language such as that contained in Section 627.4025, Florid a Statutes and chose not to insert that language in their policy should be construed against [the insurer] and in favor of a finding of coverage. Based on [the insurer]’ s failure to include the language set [forth] in Sections 2(a) and 2(b) of Section

627 .4025 in its definition of “hurricane,” the Court finds that the Hurricane Endorsement does not apply to losses caused by tornados. 2

2 (2) As used in policies providing residential coverage:

(a) “ Hurricane coverage ” is coverage for loss or damage caused by the peril of windstorm during a hurricane. The term includes ensuing damage to the interior of a building, or to property inside a building, caused by rain, snow, sleet, hail, sand, or dust if the direct

force of the windstorm first damages the building, causing an opening through which rain, snow, sleet, hail, sand, or dust enters and causes damage.

(b) “ Windstorm

” for purposes of paragraph (a) means wind, wind gusts, hail, rain, tornados, or cyclones caused by or resulting from a hurricane which results in direct physical loss or damage to
property.

(c) “ Hurricane ” for purposes of paragraphs (a) and (b) means a storm system that has been declared to be a hurricane by the

National Hurricane Center of the Nationa l Weather Service. The duration of the hurricane includes the time period, in Florida:

1. Beginning at the time a hurricane watch or hurricane warning is issued for any part of Florida by the National Hurricane Center of the National Weather Service;

2. Continuing for the time period during which the hurricane conditions exist anywhere in Florida; and

3. Ending 72 hours following the termination of the last hurricane watch or hurricane warning issued for any part of Florida by the

National Hurricane Cen ter of the National Weather Service.

§ 627.4025(2), Fla. Stat . (emphasis added).6

The consolidated cases proceeded to a jury trial on whether a hurricane

or a tornado caused the lo sses. Prior to trial, t he i nsureds moved to

d etermine the burden of proof. The parties disagreed on which party bore the initial burden of proof. The trial judge found that “ [ the insured s ] ha [ve] the initial burden to prove that the loss is covered under the applicable policy of insurance. The burden shall then shift to [the insurer] to prove
that the loss falls within the Hurrican e Endorsement of the policy.”

The trial focused on facts largely irrelevant to th e legal issue in th is

appea l. The insurer’s expert testified that tornados and hurricanes were “separate meteorological phenomena.” The i nsureds’ expert testified to reasons tornados and hurricanes were different. But, he also testified that

“a tornado is an element of a hurrican e.” He noted that there have been hurricanes, including Hurricane Jeanne, where tornados developed in the hurricane eye wall. He also distinguished between tornados in the Midwest and tornados that may occur within a hurricane.

The evidence showed that the i nsureds’ building sustained heavy damage, while the surrounding buildings sustained minor damage. The

i nsureds’ expert opined that the damage to the i nsureds’ building was caused by a tornado. The insurer’s expert opined that the damage was

caused b y hurricane

- force winds that hit the i nsureds’ building, which was unprotected because it was across from a golf course.

The jury found the insurer did not prove by the greater weight of the evidence that the damage was caused by a hurricane and not by a tornado that developed during the hurricane. The trial court entered final judgment in favor of the i nsureds. The i nsureds moved for attorney’s fees
pursuant to section 627.428, Florida Statutes , and the trial court later entered final judgment for att orney’s fees in their favor for $755,465.00 in fees and $3,600.00 in expert witness fees.

The insurer moved for entry of judgment in accordance with its motion for directed verdict and renewed motion for summary judgment. It also moved for a new trial, arguing the trial court erred in its burden of proof ruling, and in giving incorrect jury instructions and an incorrect v erdict

form. The trial court denied the insurer’s motions. The insurer now appeals.

The insurer continues to argue that the policy is unambiguous and property damage caused by a storm system de clared a hurricane by the

National Hurricane Center is covered under the Hurricane Coverage

Endorsement. It argues that the court erred in considering extrinsic

evidence in the form of the Citizens policy to interpret the policy. It asserts7

the ten percent coverage limitation on additional living expenses applie d

because the i nsureds’ condominium losses w ere caused by Hurricane

Jeanne.

The i nsureds respond that their p olicies provide general coverage for residential losses and a specific exclusion/limitation for hurricanes. They argue the trial court did not err in deciding the general loss provisions applied to their claims for additional living expenses. They argue the

Hurricane Coverage Endorsement defines “hurricane,” in part, as a “storm system,” but there is nothing in the policy that defines the components of the system. They argue their loss must be caused “ by ” a hurricane and not just caused “ during ” a hurric ane. If the insurer intended for the

Hurricane Coverage Endorsement to apply to tornados, it could have included section 627.4025(2)(b), which defined “windstorm” as part of a

hurricane including tornados.

We have de novo review. Rodrigo v. State Farm Fla. Ins. Co. , 144 So. 3d 690, 692 (Fla. 4th DCA 2014) (citation omitted). We also have de novo

review of a trial court’s ruling on a motion for directed verdict. Gyongyosi

v. Miller , 80 So. 3d 1070, 1074 (Fla. 4th DCA 2012) (citation omitted).

“An insu rance contract must be construed in accordance with the plain language of the policy.” Landmark Am. Ins. Co. v. Pin

- Pon Corp. , 155 So. 3d 432, 437 (Fla. 4th DCA 2015) (citation omitted).

If the terms of a contract are clear and unambiguous, the

court i s bound by the plain meaning of those terms. Thus, where a contract is unambiguous, the parties’ intent must be gleaned from “the four corners of the document.” “In the absence of ambiguity, the language itself is the best evidence of the parties’ intent and the plain meaning controls.”

Id

. (internal citations omitted)

.

With these clear rules of construction in place, we begin our review.

T he Hurricane Coverage Endorsement defines hurricane as, “a storm system that has been declared to be a hurricane by the National Hurricane

Center of the National Weather Service.” (Emphasis added). There is only one reasonable interpretation of this definition. I f the National Hurricane

Center names a storm system a hurricane, the entire named storm system , includ ing the elements of the storm, constitutes the hurricane.

Under the loss of use provision in the Hurricane Coverage8

Endorsement, “[w]hen a hurricane causes the covered dwelling to become uninhabitable, [the insurer] will cover the necessary increase in cost [the insureds] incur to maintain [their] standard of living for up to 12 months,” subject to the ten percent limitation. Here, the National Hurricane Center

named the storm system “Hurricane Jeanne” and issued the policy

required hurricane warnings a nd watches . O n September 26, Hu rricane Jeanne passed over the i nsureds’ condominiums and the storm system caused their condominiums to become uninhabitable. Therefore, the

Hurricane Coverage Endorsement unambiguously applied.

The i nsureds argue the defi nition of hurricane is ambiguous b y reference to the Citizens insurance policy , coupled with the insurer’s

failure to include subsections (2)(a) and (2)(b) of section 627.4025 , Fl orida Statutes, in its policy. But, when a policy is unambiguous, there is n o need to, and courts should not, consider extrinsic evidence

. Bombardier Capital Inc. v. Progressive Mktg. Grp., Inc. , 801 So. 2d 131, 134 (Fla. 4th DCA 2001) ; see Auto

- Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000)

. Here, the court’s interpretation of the policy effectively rendered

the entire Hurricane Coverage Endorsement meaningless. See Ergas v. Universal Prop. & Cas. Ins. Co. , 114 So. 3d 286, 289 n.1 (Fla. 4th DCA 2013) (“A term of an insurance policy should not be construed to r each an absurd result.”).

Both t rial court s erred in granting summary judgment in favor of the

i nsureds and finding the policy ’s definition of hurricane did not include tornados spawned during a named hurricane storm system

. The policy was not ambiguou s. The trial courts should have applied the policy’s plain

, unambiguous language. T he Hurricane Coverage Endorsement applied to the insureds ’ loss es

.

We therefore reverse and remand for entry of judgment for the insurer. The insurer has also appealed t he attorney’s fees and costs judgments.

The insureds agree that if the judgment is reversed, the attorney’s fees and

costs judgment s should also be reversed. We therefore reverse the attorney’s fees and costs judgments.

Reversed.

G ROSS and C ONNER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.