CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 6572, 2010 WL 1874367
...ted the burden of proof to him. Accordingly, we reverse. In March 2005, Universal issued an all-risks homeowners' insurance policy to Mr. Warfel. The policy covered sinkhole claims. Effective June 1, 2005, the legislature amended sections
627.706 to
627.707, Florida Statutes (2005), and enacted sections 627.7065,
627.7072, and
627.7073 relating to database information, testing standards, and reporting requirements for sinkhole claims....
...Alternatively, Universal argued that any impairment was overridden by the State's interest in resolving a sinkhole insurance claim crisis. Universal also asked the trial court to determine that section
90.304, Florida Statutes (2007), allowed a jury instruction based on section
627.7073(1)(c) as a rebuttable presumption affecting the burden of proof....
...They concluded that a sinkhole, at least in part, caused the damage. Universal presented testimony of a structural engineer, a geotechnical engineer, and a geologist, all affiliated with SD II Global. They concluded that sinkhole activity did not damage the home. Universal posited that section
627.7073(1)(c) required Mr. Warfel to prove that he suffered a sinkhole loss as specifically defined by statute. The 2005 version of section
627.7073(1)(c) provided as follows: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct. [3] Universal retained its experts under section
627.707(2) to conduct the testing required by section
627.7072 and to issue a *138 report in accordance with section
627.7073. This report bears the presumption of correctness. Universal also contended that section
627.7073(1)(c) created a section
90.304 presumption because it implemented public policy relating to a sinkhole insurance crisis....
...You must presume that report is correct. That report is the only report in evidence. You can take it back in the room. Read it. You will presumethe Judge will instruct you you must presume that's correct. Throughout the trial court proceedings, Mr. Warfel argued that the section 627.7073(1)(c) presumption was a "vanishing" or "bursting bubble" presumption, a presumption affecting the burden of producing evidence but not one shifting the burden of proof to him....
...We are also mindful that, historically, an all-risks policy encumbers the insurer with the burden to prove that a claimed loss is not covered. See Wallach v. Rosenberg,
527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988). We must assume that the legislature *139 was aware of this fact when it enacted section
627.7073(1)(c)....
...3d DCA 1990) (explaining that the statutory presumption of paternity under section
742.12(1), Florida Statutes (1989), is a rebuttable presumption and the legislature specifically provided that it was governed by section
90.304 of the evidence code). In contrast, the legislature has not declared that the presumption in section
627.7073(1)(c) is a public policy-related presumption. Nor did the legislature specifically provide that section
627.7073(1)(c) was to operate as a burden-shifting presumption under sections
90.302(2) or
90.304. Absent a clear legislative directive, we must conclude that section
627.7073(1)(c) is a "vanishing" or "bursting bubble" presumption that affected only Mr....
...trial is required. Reversed and remanded. However, because our ruling may affect insurance claims for sinkhole losses throughout Florida, we certify the following question to the supreme court as one of great public importance: DOES THE LANGUAGE OF SECTION
627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION
90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION
90.303. WALLACE, J., Concurs. VILLANTI, J., Dissents with opinion. VILLANTI, Judge, Dissenting. I respectfully dissent because I do not agree that the trial court erred in its jury instruction regarding section
627.7073....
...3d DCA 2005) (noting that decisions regarding jury instructions rest within the trial court's discretion and will not be reversed absent a showing of prejudicial error). In this case, the statute stated that the findings, opinions, and recommendations of the experts were presumed correct. See § 627.7073(1)(c)....
...Against this critical economic background, the legislature revised the statutes at issue in this case "in response to a continuing crisis regarding the availability and affordability of sinkhole coverage." Fla. S. Banking & Ins. Comm., CS for SB 286 (2006) Staff Analysis 3 (Apr. 11, 2006) (on file with comm.). Specifically, section 627.707, Florida Statutes (2005), was amended to revise the standards for investigating sinkhole claims. See SB 1488 Staff Analysis at 24. Section 627.707(2) requires an insurer who receives a sinkhole claim to engage an engineer or professional geologist to conduct testing as set forth in section 627.7072, to determine the cause of loss. Section 627.7072 sets forth specific standards to test for the presence or absence of sinkholes. The testing must conform to the Florida Geological Survey Special Publication No. 57 (2005). § 627.7072(2). Section 627.707(2) then requires that a report be issued as provided in section 627.7073. Id. Section 627.7073 specifies what must be included in that report. Section 627.7073(1)(c) then clearly states: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of...
...ns under section
90.304. While this may be true, as illustrated by Caldwell, the fact that the statute does not expressly state that it contains a burden-shifting presumption is not always dispositive of the issue. In fact, this case illustrates why section
627.7073's presumption ought to be a burden-shifting presumption....
...Upon receiving Mr. Warfel's claim, Universal hired experts whose qualifications met the requirements of the relevant statute and had those experts conduct the type of testing required by the statute. The experts then prepared a report as required by section 627.7073. This was all done at Universal's expense. At trial Mr. Warfel offered his own experts, who simply reviewed Universal's *143 report and visited the property; they did not conduct independent testing consistent with the standards set forth in section 627.7072....
...Warfel's experts then simply disagreed with the report's conclusions and opined that a sinkhole contributed to the damage to Mr. Warfel's property. To apply a "vanishing" presumption under these facts effectively negates the presumption of correctness conferred upon the report by section 627.7073(1)(c)....
...cy in claims handling and reduce the number of disputed sinkhole claims. This type of ipse dixit logic from the insured's experts is not consistent with the history and intent of the statute. NOTES [1] Universal was required to retain these experts. Section
627.707 provides, in part, as follows: Upon receipt of a claim for a sinkhole loss, an insurer must meet the following standards in investigating a claim: (1) The insurer must make an inspection of the insured's premises to determine if there has been physical damage to the structure which may be the result of sinkhole activity. (2) Following the insurer's initial inspection, the insurer shall engage an engineer or a professional geologist to conduct testing as provided in s.
627.7072 to determine the cause of the loss within a reasonable professional probability and issue a report as provided in s.
627.7073, if: (a) The insurer is unable to identify a valid cause of the damage or discovers damage to the structure which is consistent with sinkhole loss; or (b) The policyholder demands testing in accordance with this section or s.
627.7072. [2] The trial court denied Universal's motion as to sections
627.706 to
627.707, finding that these amendments were substantive and not applicable retroactively. The trial court granted Universal's motion as to the three new enactments, sections 627.7065,
627.7072, and
627.7073, relating to sinkhole database, testing, and reporting requirements, reasoning that the statutes were procedural and did not involve an issue of retroactivity. Although Mr. Warfel takes issue with the latter ruling, we find no error and discuss the matter no further. [3] The legislature made minor changes to section
627.7073(1)(c) in 2006, none of which are relevant here....
...[7] We recognize the legislature's desire to stem the tide of sinkhole-related insurance claims. Unquestionably, certain provisions of the statutes described earlier in this opinion reflect a concern with identifying and advising homeowners and others of potential sinkhole-prone areas. See §§ 627.7065, 627.7072, 627.7073. For example, the reporting and recording provisions of sections 627.7065 and 627.7073 promote public awareness....
