Mejia v. Citizens Property Insurance Corporation, ___ So. 3d ___, 39 Fla. L. Weekly D2471 (Fla. 2d DCA November 26, 2014)
The insured sued his homeowner’s insurance company for breach of contract for denying coverage for his sinkhole claim. The jury returned a verdict for the defendant, but the appellate court reversed judgment based on the verdict because the trial court misallocated the burden of proof between the parties. The trial court instructed the jury that the plaintiff had the burden of proving “that the damage was caused by sinkhole activity during the policy period, although the plaintiff was covered under an all risks policy. “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. . . . [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 the cause of the loss was excluded from coverage under the policy’s terms.” The fact that the sinkhole coverage was provided by endorsement “did not change the ‘all risks’ nature of the underlying policy; it merely narrowed the earth sinking exclusion.’” The trial court also abused its discretion by excluding evidence that the defense expert’s firm received $9.5 million in fees from the insurance company over the last three years because this evidence was probative on the issue of the expert’s bias.