CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 8768, 2015 WL 3609892
...SDII estimated the cost of the recommended remediation at
$62,890.
Four months later, on October 3, 2013, Colfin filed a Motion to Set Aside
and Rescind Foreclosure Sale Based upon Fraud, Misrepresentation, Non-Disclosure
and Failure to Timely Comply with Florida Statute § 627.7073....
...Colfin pointed out that three years had passed between the time of the
testing in 2010 and the filing of the Executive Claim Report in 2013 and that the reason
for the delay was unknown. Colfin concluded that the failure to disclose the existence of
the sinkhole activity in accordance with section 627.7073 constituted fraud and that as a
result of the fraud and inequity against Colfin, the court should set aside the sale.
U.S....
...Presumably, the correct year of the statute, if it were
applicable, would be 2010 based on the date that SDII performed its testing, which is
the earliest date that the obligation to file the report may have arisen.
-3-
foreclosure sale. It asserted that Colfin's reliance on section 627.7073 to establish fraud
was misplaced....
...Sanoba's
testimony, Colfin had performed a title search on the property before the sale which did
not reveal the existence of the sinkhole because the report had not been recorded.
Colfin alleged that it was unknown why there was a three-year delay in recording the
report as required by section 627.7073(2)(a), or who was responsible for the failure to
timely record the report....
...ment to Colfin regarding a material
fact, which was known to be false when it was made, with the intention that Colfin rely
on that false statement, and that Colfin did so rely.
Further, as argued by U.S. Bank, Colfin's reliance on section 627.7073 to
establish any sort of fraud or impropriety is misplaced. Section 627.7073(2)(a) provides
in pertinent part that:
Any insurer that has paid a claim for a sinkhole loss
shall file a copy of the report and certification, prepared [by a
professional engin...
...obligation to file the report
and certification had not yet arisen at the time of the foreclosure sale. Moreover, Colfin
does not allege that it was defrauded in its purchase of the subject property by the
insurance company insuring the property. Section 627.7073(2) further provides that
(a) ....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 6572, 2010 WL 1874367
...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...
...neer 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)....
...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....
...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)....
...(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....
...[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....
