Background
Sandra Moise sought coverage under her homeowners policy for cracking and related damage to her Miami home after demolition work at an adjacent property. Moise and her expert said vibrations from heavy construction equipment caused the damage without displacing the earth. Homeowners Choice denied the claim, maintaining that the damage resulted from material shrinkage or settlement and was excluded by the policy’s earth-movement and settlement provisions.
The trial court denied the insurer’s summary-judgment motion on those exclusions, granted partial summary judgment for Moise on defenses alleging noncompliance with post-loss duties, and limited trial evidence consistent with its ruling that vibration alone was not an excluded cause. A jury found the loss was not excluded, and the court entered a $240,000 judgment plus prejudgment interest.
The Court’s Holding
The Third District affirmed in full. The policy’s earth-movement exclusion did not compel judgment for the insurer because Moise’s expert attributed the damage solely to vibrations without earth displacement. That created a factual dispute distinct from cases in which blasting or vibration caused actual earth movement, settling, or shifting.
The court also found no reversible prejudice from the in-limine ruling. The insurer was still able to present expert testimony that settlement, rather than vibration alone, caused the damage. Its denial letter substantively declined coverage, waiving reliance on the insured’s alleged failure to satisfy post-loss conditions. Finally, damages were proper because Moise’s declaratory-judgment complaint also requested damages attributable to the loss.
Key Takeaways
- Vibrations or shock waves that cause damage without earth displacement are not necessarily excluded by an earth-movement provision.
- A coverage denial based on the cause of loss can waive policy defenses based on post-loss obligations.
- A declaratory-judgment action may support an award of monetary damages when the complaint seeks damages for the covered loss.
Why It Matters
The decision reinforces the distinction between damage caused by vibration alone and damage caused by vibration-induced earth movement or settlement. Where competing experts dispute that causation question, an insurer may not obtain judgment as a matter of law under an earth-movement exclusion.