                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

 CITIZENS PROPERTY INSURANCE,                )
 CORPORATION,                                )
                                             )
               Appellant,                    )
                                             )
 v.                                          )   Case No. 2D14-3002
                                             )            2D14-5077
 RONA SALKEY and TREVOR SALKEY,              )
                                             )      CONSOLIDATED
               Appellees.                    )
                                             )

Opinion filed November 16, 2018.

Appeal from the Circuit Court for Polk
County; J. Dale Durrance, Judge.

Kara Berard Rockenbach and David A.
Noel of Link & Rockenbach, P.A., West
Palm Beach; and Andrew P. Rock and
Karen M. Walker of The Rock Law
Group, Maitland, for Appellant.

Raymond T. Elligett, Jr. and Amy S.
Farrior, of Buell & Elligett, P.A., Tampa;
and K.C. Bouchillon of Sanders Law
Group, Bartow, for Appellees.


CRENSHAW, Judge.
             Upon remand from the Florida Supreme Court, we reconsider our prior

decision1 in light of the subsequent opinion in Sebo v. American Home Assurance Co.

(Sebo II), 208 So. 3d 694 (Fla. 2016). In Sebo II, the supreme court clarified that the

concurrent-cause doctrine, not the efficient-proximate-cause doctrine, is the appropriate

theory of recovery to apply when two or more perils converge to cause a loss and at

least one of the perils is excluded from an insurance policy. Id. at 697.

             In Salkey, we concluded that the trial court improperly instructed the jury

on the concurrent-cause doctrine and that it should have instructed the jury on the

efficient-proximate-cause doctrine. Citizens Prop. Ins. Corp. v. Salkey, 190 So. 3d

1092, 1094 (Fla. 2d DCA 2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017).

We also concluded that the jury instructions were confusing and may have misled the

jury. Id. at 1094-95. Because our determination that the jury instructions were

confusing and may have misled the jury is not affected by Sebo II, we again reverse and

remand for a new trial. We do not reach the issue of the attorneys' fee award.

Background

             In 2008, Rona and Trevor Salkey (the Salkeys) purchased an all-risk

homeowner's insurance policy from Citizens Property Insurance Corporation (Citizens).

The policy insured against the risk of direct physical losses to the property unless

expressly excluded. Losses caused by mine subsidence and sinkholes were excluded

from the main policy. However, the Salkeys purchased the optional sinkhole loss




               1CitizensProp. Ins. Corp. v. Salkey, 190 So. 3d 1092 (Fla. 2d DCA
2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017).
                                           -2-
coverage endorsement, which provided coverage for direct physical loss caused by

sinkhole activity.

              The Salkeys presented a sinkhole claim to Citizens after discovering

damage to their property during the policy period. Citizens retained MCD of Central

Florida (MCD) to evaluate the property for sinkhole activity. MCD concluded that the

property damage was not caused by sinkhole activity but was caused by the ongoing

decay of organic soils and phosphatic clay in the reclaimed mine zone over which the

Salkeys' house was built. Citizens denied the Salkeys' sinkhole claim, and the Salkeys

filed a breach of contract claim against Citizens.

              At trial, the parties disputed causation. Citizens presented expert

testimony to argue that there was no sinkhole activity and the damage to the property

was caused only by the ongoing decay of the soils beneath the home. The Salkeys'

presented their own expert evidence that while the soils beneath the home were

decaying and contributing to the damage suffered, the most substantial factor in the loss

was sinkhole activity. Citizens did not dispute that the Salkeys' property suffered

damage during the policy period; therefore, the trial court granted the Salkeys' motion

for directed verdict on their threshold burden: to prove that physical damage occurred

during the policy period.

              At the charge conference, Citizens objected to a number of the Salkeys'

proposed jury instructions. The trial court crafted the following instruction:

              Plaintiffs have the burden of proof to establish, by the greater
              weight of the evidence, that their property experienced
              damages from a sinkhole. If the greater weight of the evidence
              does not support the Plaintiff's claim, your verdict should be for
              the Defendant, Citizens Property Insurance Corporation.



                                            -3-
              If, however, the greater weight of the evidence supports the
              Plaintiffs' claim, then your verdict should be for the Plaintiffs, the
              Salkeys.

              The court has determined and now instructs you that the
              Plaintiffs have met their burden of proving that damage
              occurred to their home during the policy period.

              You are instructed that the burden of proof is on Defendant to
              prove that all of the damage to the residence is caused by
              conditions excluded under the policy.

              The Defendant has the burden to prove that all of the damage
              is non-sinkhole related. If you find that any damage is caused
              by sinkhole activity, or that sinkhole activity is acting in
              conjunction with any other cause, the Defendant has not met its
              burden and you must find that the damage is a covered loss.

              The jury returned a verdict in favor of the Salkeys. Thereafter, the trial

court entered a final judgment in favor of the Salkeys, and in a separate order it granted

the Salkeys' motion for attorneys' fees and costs. Citizens appealed the final judgment.

              As set forth in our prior opinion, we concluded that the trial court

improperly instructed the jury on Citizens' burden of proof. Salkey, 190 So. 3d at 1094.

Specifically, we held that the trial court should have instructed the jury on the efficient-

proximate-cause theory and not the concurrent-causation theory. Id. We further

concluded that the jury instructions were confusing and may have misled the jury, which

also required reversal. Id. at 1094-95.

              In reaching the conclusion that the trial court should have instructed the

jury on the efficient-proximate-cause theory, we relied on this court's decision in

American Home Assurance Co. v. Sebo (Sebo I), 141 So. 3d 195 (Fla. 2d DCA 2013),

which has since been quashed by the supreme court. See Sebo II, 208 So. 3d 694.




                                             -4-
Thereafter, the supreme court quashed our decision in Salkey and remanded it to this

court for reconsideration in light of the Sebo II decision. Salkey, 190 So. 3d 1092.

Analysis of the case on remand

             In Sebo II, the supreme court clarified that the concurrent-cause doctrine,

not the efficient-proximate-cause doctrine, is the appropriate theory of recovery to apply

when two or more perils converge to cause a loss and at least one of the perils is

excluded from an insurance policy. Id. at 697. On remand, Citizens argues that the

concurrent-cause doctrine should not be applied in this case, despite Sebo II, because

the policy here includes anti-concurrent cause language.

             "An anti-concurrent cause provision is a provision in a first-party insurance

policy that provides that when a covered cause and non-covered cause combine to

cause a loss, all losses directly and indirectly caused by those events are excluded from

coverage." Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486, 487 n.1 (Fla. 5th DCA

2015). In Sebo II, the supreme court contemplated that it would have applied the

efficient-proximate-cause doctrine had there been anti-concurrent cause provisions in

the contract. Sebo II, 208 So. 3d at 700.

             Citizens argues that its policy contains language sufficient to avoid

application of the concurrent-cause doctrine in two places. First, Citizens argues that

the earth movement exclusion contained in the policy explicitly contains anti-concurrent

cause language:

             1.     We do not insure for loss caused directly or indirectly by
                    any of the following. Such loss is excluded regardless of
                    any other cause or event contributing concurrently or in
                    any sequence to the loss.

                    ....


                                            -5-
                       b.     Earth Movement and Settlement, meaning:

                       ....

                              (3) mine subsidence;
                       ....

                       i.     Loss caused by "sinkhole."

              However, the sinkhole endorsement purchased by the Salkeys expressly

provides as follows:

              The GENERAL EXCLUSIONS – Earth Movement and
              Settlement exclusion 1.b. does not apply with respect to
              coverage provided by this endorsement.

                       ....

              The GENERAL EXCLUSIONS – Loss caused by Sinkhole
              exclusion 1.i. does not apply with respect to coverage provided
              by this endorsement.

              Accordingly, because the plain language of the sinkhole endorsement

explicitly states that the anti-concurrent cause language found in section 1 of the policy

does not apply to sinkhole claims, the anti-concurrent cause provision found in section 1

does not apply in the instant case so as to avoid application of the concurrent-cause

doctrine.

              Citizens also argues that the sinkhole endorsement requires "direct

physical loss" caused by sinkhole activity. Contrasted with the other exclusionary

clauses in Citizens' policy, the "direct physical loss" language is insufficient to avoid

application of the concurrent-cause doctrine.

              Therefore, applying Sebo II to the instant case, we conclude that the trial

court properly instructed the jury on the concurrent-cause doctrine, requiring it to


                                             -6-
determine if at least one of the concurrent causes was covered under the insurance

policy.

             However, in Salkey, we also concluded that the jury instructions were

confusing and may have misled the jury, which required reversal. Salkey, 190 So. 3d at

1094-95. This case involved an all-risks insurance policy. "[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 that the

cause of the loss was excluded from coverage under the policy's terms." Mejia v.

Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (citing Hudson v.

Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA 1984)).

             Here, the jury instructions improperly informed the jury that the Salkeys

had the burden to prove "that their property experienced damages from a sinkhole," see

Mejia, 161 So. 3d at 578, but then correctly advised that the "court has determined and

now instructs you that the Salkeys have met their burden of proving that damage

occurred to their home during the policy period." The trial court then instructed that

Citizens had the "burden to prove that all of the damage is non-sinkhole related." These

instructions are confusing and may have misled the jury, causing it to conclude that the

Salkeys' had proved that their property was damaged by a sinkhole—a burden they did

not have—and making it impossible for Citizens to meet its burden of proving that no

loss was sinkhole related. See, e.g., Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295

(Fla. 1974) ("An instruction which tends to confuse rather than enlighten the jury is

cause for reversal if it may have misled the jury and caused [it] to arrive at a conclusion

that otherwise [it] would not have reached." (citing Finch v. State, 156 So. 489 (Fla.



                                            -7-
1934))). Because the supreme court's decision in Sebo II does not affect our conclusion

that the jury instructions were confusing and may have misled the jury, we again

reverse and remand for a new trial.

              Reversed and remanded.

BLACK and SALARIO,2 JJ., Concur.




              2Judge   Salario has been substituted for Judge Altenbernd, who was on
the original panel.
                                           -8-
