       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 17, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2261
                         Lower Tribunal No. 12-24244
                             ________________


                     Jose Alvarez and Hilda Alvarez,
                          Appellants/Cross-Appellees,

                                        vs.

               State Farm Florida Insurance Company,
                           Appellee/Cross-Appellant.



       An Appeal from the Circuit Court for Miami-Dade County, Pedro Echarte
Jr., Judge.

      Alvarez, Feltman & DaSilva, PL, and Brian C. Costa and Paul B. Feltman,
for appellants/cross-appellees.

      Law Office of Ubaldo J. Perez, Jr., P.A.; Russo Appellate Firm, P.A., and
Elizabeth K. Russo, for appellee/cross-appellant.


Before EMAS, C.J., and LOGUE and HENDON, JJ.

      HENDON, J.
      Jose Alvarez and Hilda Alvarez (“Homeowners”) seek to reverse the final

judgment in favor of State Farm Florida Insurance Company (“State Farm”) with

no entitlement to damages, and the subsequent order denying their motion to set

aside the verdict and enter judgment in their favor, or to enter a judgment

notwithstanding the verdict, or to grant them a new trial. We affirm.

      In 2009, the Homeowners experienced kitchen drain problems. The plumber

replaced and re-routed the kitchen drain line. The Homeowners continued to

experience bathroom backups and made attempts to correct the drainage problems.

In 2010, with the assistance of a public adjuster, the Homeowners filed a claim

with Appellee State Farm on their all-risk policy.                 State Farm’s claim

representative investigated and denied coverage in part based on the Homeowners’

statement that the toilets had not overflowed, that they had the kitchen drain lines

repaired, and there was no water damage to the interior of their home. State Farm

reported finding no accidental direct physical loss, thus no covered claim, and sent

two letters in November 2010 and April 2011 confirming denial of coverage to the

Homeowners. The denial of coverage letters noted that the Homeowners were not

claiming any direct water damage loss inside the house. The Homeowners did not

seek to appeal the decision or contradict the letters of denial.

       In March of 2012, the Homeowners’ public adjuster sent State Farm a

sworn proof of loss signed by the Homeowners asserting that a water damage loss



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occurred in 2009, and attesting to loss in the amount of $82,967.92. State Farm’s

claim reviewer noted that the 2009-10 inspector’s report indicated no interior water

damage, just slow toilets and a repaired kitchen J-pipe and drainage. In 2013,

State Farm conducted an extensive re-inspection of the Homeowners’ home and

found nothing to indicate water damage, except a small warping of one lower

cabinet toe-kick, attributed not to water damage but to improper installation.

      The Homeowners filed a complaint against State Farm for breach of

contract. State Farm answered, citing policy exclusions, and the defense that the

Homeowners had made material misrepresentations in pursuing their claim relating

to the scope and amount of loss claimed. In response to the Homeowners’ motion

for summary judgment on coverage, the trial court entered an order granting the

Homeowners’ motion for partial summary judgment (identifying the issue as one

of “liability,” rather than “coverage”) and reserved only the question of damages

for the jury. Upon the original trial judge’s retirement, a successor judge was

appointed to the case. The successor judge denied the Homeowners’ motion for

summary judgment on State Farm’s misrepresentation defense, allowing that issue

to proceed to trial. Discovery included reports from the original 2010 insurance

inspection, as well as proof that the Homeowners had made application to Citizens

for homeowners insurance certifying the home had no existing damage, in direct

contradiction to their sworn proof of loss to State Farm.



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        At trial, the successor judge ruled that the case would proceed on the issue

of damages and the issue of material misrepresentation.1 The verdict form asked

the jury to determine whether the Homeowners made a material misrepresentation


1   The jury instructions provided:

        Both parties agree that Plaintiffs, Jose Alvarez and Hilda Alvarez, and
        Defendant, State Farm Florida Insurance Company, entered into a
        contract wherein plaintiff agreed to pay premiums to defendant, and
        defendant agreed to insure plaintiffs’ home against damage.

        The Court has already determined that coverage exists under State
        Farm’s policy of insurance. State Farm’s remaining defense is that
        plaintiffs have made material misrepresentations regarding the scope
        and amount of loss. Overestimating the value, a mistake, or
        inadvertence is not sufficient to void the policy. The jury must decide
        whether plaintiffs made material misrepresentations of fact
        sufficient to void the policy. If not, then the jury is to determine the
        amount that the defendant must pay.

        . . ..

        On Defendant’s, State Farm’s defense, the issue for your determination
        is whether plaintiffs violated the concealment or fraud condition of the
        policy. The policy provision pertinent to this defense states as follows.

        Section 1 and section 2 conditions, No. 2, Concealment or Fraud. The
        policy is void as to you and any other insured if you or any other
        insured under this policy has intentionally concealed or misrepresented
        any material fact or circumstance relating to this insurance, whether
        before or after a loss. If you find for Defendant, State Farm, on this
        defense, then your verdict will be for State Farm and against plaintiffs.

        However, if the greater weight of the evidence does not support State
        Farm’s defense and does … support the claim of plaintiffs, your
        verdict should be for plaintiffs and against State Farm[.] (emphasis
        added).

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to State Farm “by exaggerating the extent of the loss” and how much damages

should be awarded. During their deliberations, the jury asked the trial court the

following question: “If we decide the plaintiff made a material misrepresentation,

can we still give plaintiff compensation?” The court advised the jury, “[i]n answer

to your question, be advised that I have given you all the law that applies to this

case.”      The jury ultimately found that yes, the Homeowners had materially

misrepresented the facts, and awarded the Homeowners $6,000 (the amount State

Farm’s plumber testified the kitchen drain repairs would cost).

         State Farm filed a motion for final judgment with no entitlement to damages.

The Homeowners filed a motion to set aside the verdict and to enter JNOV. The

trial court granted State Farm’s motion and denied the Homeowners’ motion. This

appeal followed.

Analysis.

         The State Farm insurance policy on the Homeowners’ dwelling contained a

valid provision voiding the policy upon material misrepresentation of fact by the

insured. The jury found that the Homeowners violated that provision by making

material misrepresentations of fact in their claim to State Farm. The fact that the

jury proceeded to award damages does not alter the outcome on appeal. As a

matter of law, the finding of material misrepresentation voids coverage for the

claim. See Schneer v. Allstate Indem. Co., 767 So. 2d 485, 489 (Fla. 3d DCA



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2000) (holding that an insureds' fraudulent misrepresentations as to their contents

claim voided their homeowner's policy in its entirety and thus voided the dwelling

coverage); Valdez v. Consolidated Prop. & Cas., 762 So. 2d 1034 (Fla. 3d DCA

2000) (affirming final judgment voiding insured's insurance policy where

insurance policy contained a valid provision voiding the policy upon intentional

concealment or misrepresentation by the insured); Am. Reliance Ins. Co. v. Kiet

Invs., Inc., 703 So. 2d 1190 (Fla. 3d DCA 1997) (holding that clauses voiding

coverage for intentional misrepresentations and fraud in claims process are valid

and enforceable); Wong Ken v. State Farm Fire & Cas. Co., 685 So. 2d 1002, 1003

(Fla. 3d DCA 1997) (“[T]he clause which voids coverage if the insured makes an

intentional misrepresentation ‘after a loss'-that is, as here, in making a claim-is

valid and enforceable.”) (citation omitted).

      We find the Homeowners’ argument that the jury rendered a “compromised”

verdict to be without merit. During the trial, the Homeowners insisted that both the

misrepresentation and damages questions be put on the verdict form for the jury to

determine.2 The verdict form presented the jury with both issues, as follows:

      1. Did the Defendant prove, by the greater weight of the evidence, that
      Plaintiffs intentionally and materially misrepresented the extent of the


2 State Farm asked for an instruction to be included on the verdict form that would
have told the jury to skip the damages question if the jury found that the
Homeowners had intentionally misrepresented material facts. The trial court used
the verdict form without that proposed instruction.

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       loss such that no other conclusion can be drawn than that a purposeful
       misrepresentation was intended? YES ______ NO ______

       (to which the jury answered YES)

And,

       2. What amount of money do you find, by the greater weight of the
       evidence, will compensate Plaintiff for damages arising from their
       claim? Answer in dollars and cents: ____________

       (to which the jury answered $6,000.00).

The jury dutifully answered both questions and the Homeowners did not raise any

inconsistency objection. The Homeowners cannot now complain of a

“compromise” error in obtaining the damages answer in the face of a verdict

finding that the Homeowners materially misrepresented facts in their claim to State

Farm. See Baker v. R.J. Reynolds Tobacco Co., 158 So. 3d 732, 739 (Fla. 4th

DCA 2015) (holding plaintiff's failure to object prevents revisiting the jury verdict

because the jury cannot be faulted for doing exactly what it was instructed to do);

see also Plana v. Sainz, 990 So. 2d 554, 557 (Fla. 3d DCA 2008); Beverly Health

& Rehab. Servs., Inc. v. Freeman, 709 So. 2d 549, 551 (Fla. 2d DCA 1998)

(holding that plaintiff waived error by agreeing to the verdict form).

       The trial court properly determined as a matter of law that the jury’s verdict

finding material misrepresentation voided the Homeowners’ coverage for the

claimed loss, and correctly rendered judgment in favor of State Farm with no




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entitlement to damages. Because we find no error, we have no need to address

State Farm’s cross-appeal. We therefore affirm the final judgment.

      Affirmed.




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