In Alvarez v. Citizens Property Ins. Corp., 328 So. 3d 61 (Fla. 3d DCA 2021), decided under the “old summary judgment standard,” the Third District considered yet another motion for summary judgment filed by Citizens. The trial court had granted it. The Third District reversed because the trial court had improperly weighed the summary judgment evidence.

The Third District set forth the facts:

In May 2015, Insureds suffered damage to their residence from a pressurized supply line water leak. They filed a claim with Citizens for the loss pursuant to their homeowners’ insurance policy. A Citizens adjuster inspected the damage and determined, among other things, that five floor tiles needed replacement. After accounting for Insureds’ deductible, Citizens made an actual cash value payment to Insureds in the amount of $7,108.47. Contending that the damage to their tile floor was much more extensive than Citizens had determined, Insureds filed a supplemental payment claim with Citizens seeking an additional $111,603.75.

Citizens denied this supplemental claim and, in June 2018, Insureds sued Citizens for declaratory relief and breach of contract. Citizens moved for summary judgment, attaching to its motion an affidavit by its corporate representative that provided a narrative of the dealings between Citizens and Insureds. Also attached to Citizens’s motion was the written estimate by Citizens’s adjuster that referenced the negligible tile damage.

Insureds filed two affidavits in opposition to Citizens’s summary judgment motion: (i) an affidavit from their public adjuster that disputed Citizens’s evaluation of the scope and amount of the loss; and (ii) an affidavit of their engineer whose inspection was the basis of Insureds’ belief that floor tile was damaged throughout the house. Insureds also filed the deposition transcript of their engineer.

Insureds’ engineer testified that he conducted a tapping test on the tile floor from room to room. From this test, which searches for a hollow sound in tile to establish tile porousness, the engineer concluded that the floor tiles were almost uniformly debonded,^[1] requiring replacement. The engineer concluded that the tile debonding was the direct consequence of water absorption from the leak.

At the January 29, 2021 summary judgment hearing, Citizens argued that the engineer’s debonding determination was speculative and conclusory. Citizens pointed out inconsistencies in both the engineer’s report and deposition.^[2] The trial court, in an unelaborated order, granted summary judgment in Citizens’s favor. The insureds appealed.

On appeal, Citizens asserted that it was entitled to summary judgment under the recent case, Gonzalez v. Citizens Property Insurance Corp., 273 So. 3d 1031 (Fla. 3d DCA 2019). In Gonzalez, the insureds suffered interior water damage due to a roof leak. Citizens moved for summary judgment on the ground that the roof damage was due to ordinary wear and tear rather than a result of a windstorm event, only the latter of which was covered under the insurance policy. Id. at 1034.

Coincidentally, noted the court, the insureds’ engineer in Gonzalez was the same engineer in the instant case, Alfredo Brizuela. In Gonzalez, the insureds filed two affidavits of Brizuela in opposition to summary judgment. In the first affidavit, Brizuela made the bald assertion that the roof leak was the result of a windstorm event. At the time of this first affidavit, though, Brizuela had not inspected the property. In the second affidavit, Brizuela based his conclusion about windstorm damage on an inspection he made more than a year after the insureds had replaced the damaged roof. Id. at 1034-35. Additionally, there was a discrepancy in the affidavits between the dates of high winds in the area of insureds’ home and the claimed date of loss. Id. at 1035. In affirming summary judgment for Citizens, the Third District concluded that the two Brizuela affidavits were inadmissible because they were based on conjecture rather than fact-based reasoning. Id. at 1037.

Each case is its own case, however. Turning to the instant case, the Third District said:

While we recognize in the instant case that there might be inconsistencies in Brizuela’s affidavit and deposition testimony that undermine his conclusions, we also recognize that, unlike in Gonzalez, there is a fact-based rationale to Brizuela’s opinion: the hollow sound from a tapping test that might indicate tile porousness and debondment.^[4] Citizens’s summary judgment evidence did not address debondment. Citizens attacked the quality of Insureds’ summary judgment evidence, which placed the parties’ evidence in conflict and demonstrated a genuine issue of material fact as to the cause and extent of Insureds’ loss. In granting summary judgment to Citizens, the trial court appears to have weighed the evidence, rather than having determined whether a genuine issue of material fact existed. We, therefore, are compelled to reverse the trial court’s final summary judgment for Citizens. See Garcia v. First Cmty. Ins. Co., 241 So. 3d 254, 257 (Fla. 3d DCA 2018).