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


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT



FLORIDA PENINSULA INSURANCE      )
COMPANY,                         )
                                 )
           Appellant,            )
                                 )
v.                               )                  Case No.    2D12-4575
                                 )
MARICELA CESPEDES,               )
                                 )
           Appellee.             )
________________________________ )

Opinion filed December 17, 2014.

 Appeal from the Circuit Court for
 Hillsborough County; Sam D. Pendino,
 Judge.

 Kristen A. Tajak of Cole, Scott &
 Kissane, P.A., Miami, for Appellant.

 A. Lee Smith of Thompson Trial Group,
 P.A., Tampa, for Appellee.



KELLY, Judge.


             Maricela Cespedes brought an action against her property insurer, Florida

Peninsula Insurance Company, for failure to pay benefits regarding her claim for

sinkhole damages. Florida Peninsula moved for summary judgment arguing that Ms.

Cespedes' policy excluded sinkhole damage. Ms. Cespedes countered with a motion
for partial summary judgment in which she argued that her homeowner's insurance

policy was ambiguous regarding sinkhole coverage. The trial court granted her motion

and denied Florida Peninsula's motion. Florida Peninsula filed a timely notice of appeal

from the final judgment awarding Ms. Cespedes $125,400. Because we conclude that

Ms. Cespedes' policy unambiguously excluded sinkhole damage, we reverse.

             The policy Florida Peninsula issued to Ms. Cespedes contained an

endorsement stating:

             YOUR POLICY PROVIDES COVERAGE FOR A
             CATASTROPHIC GROUND COVER COLLAPSE THAT
             RESULTS IN THE PROPERTY BEING CONDEMNED AND
             UNINHABITABLE. OTHERWISE, YOUR POLICY DOES
             NOT PROVIDE COVERAGE FOR SINKHOLE LOSSES.
             YOU MAY PURCHASE ADDITIONAL COVERAGE FOR
             SINKHOLE LOSSES FOR AN ADDITIONAL PREMIUM.

This endorsement was also contained in the Homeowners Declaration. In addition, the

Special Provisions Endorsement states:

             The following Exclusion 1.i. is added to Section I –
             Exclusions:

             i.   Loss caused by "sinkhole"

                    (1) "Sinkhole" means:

                       (a) A landform created by subsidence of soils,
                       sediment, or rock as underlying strata are
                       dissolved by ground water.

                       (b) A "sinkhole" may form by collapse into
                       subterranean voids created by dissolution of
                       limestone or dolostone or by subsidence as these
                       strata are dissolved.

                       (c) This exclusion does not apply to the peril of
                       "Catastrophic Ground Cover Collapse."




                                          -2-
The Special Provisions Endorsement also defines "catastrophic ground cover collapse"

as follows:

              "Catastrophic ground cover collapse" means geological
              activity that results in all of the following:

              (1) The abrupt collapse of ground cover;

              (2) A depression in the ground cover clearly visible to the
              naked eye;

              (3) Structural damage to the building, including the
              foundation; and

              (4) The insured structure being condemned and ordered to
              be vacated by the governmental agency authorized by law to
              issue such an order for that structure.

The only other provision in the policy that references sinkholes is also contained in the

Special Provisions Endorsement and states:

              The following are additional conditions to Section I –
              CONDITIONS of your policy:

              17. Neutral Evaluation Program

              With respect to a claim for alleged "Sinkhole loss", a neutral
              evaluation program is available as follows:

                     a. Following receipt by us of a report from a
                        professional engineer or professional geologist on
                        the cause of loss and recommendations for repair
                        of property, or if we deny your claim, we will notify
                        you of your right to participate in a neutral
                        evaluation program administered by the Florida
                        Department of Financial Services (hereinafter
                        referred to as the department).

                     b. For alleged "Sinkhole loss" to property, this
                        program applies instead of the Mediation and
                        Appraisal condition set forth elsewhere in this
                        policy.




                                           -3-
                     c. You or we may file a request with the Department
                        for neutral evaluation; the other party must comply
                        with such request.

                     d. We will pay the costs associated with the neutral
                        evaluation regardless of which party makes the
                        request.

                     e. The neutral evaluator will be selected from a list
                        maintained by the Department.

                         The recommendation of the neutral evaluator will
                         not be binding on you or us.

                     f. Participation in the neutral evaluation program
                        does not change your right to file suit against us in
                        accordance with the Suit Against Us Condition 8 in
                        this policy.

In granting Ms. Cespedes' motion for partial summary judgment and denying Florida

Peninsula's motion, the trial court found that this latter provision created an ambiguity

and that Ms. Cespedes was entitled to coverage for her sinkhole claim.

              "The standard of review governing a trial court’s ruling on a motion for

summary judgment posing a pure question of law is de novo." Major League Baseball

v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). The construction of an insurance

contract is a question of law, not a question of fact; therefore, our standard of review is

de novo. Kattoum v. N.H. Indem. Co., 968 So. 2d 602, 604 (Fla. 2d DCA 2007). We

agree with Florida Peninsula that the trial court erred as a matter of law in denying its

motion for summary judgment because Ms. Cespedes' policy clearly and

unambiguously excludes coverage for sinkhole damages.

              If the language in an insurance policy is plain and unambiguous, a court

must interpret the policy in accordance with the plain meaning so as to give effect to the

policy as written. Washington Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla.



                                            -4-
2013). "In construing insurance contracts, 'courts should read each policy as a whole,

endeavoring to give every provision its full meaning and operative effect.' " Id. (quoting

U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007)). "If the relevant

policy language is susceptible to more than one reasonable interpretation, one providing

coverage and the other limiting coverage, the insurance policy is considered

ambiguous." Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). The

plain language of Ms. Cespedes' policy excludes sinkhole damage. The fact that the

policy contains a provision describing the neutral evaluation process in the event of a

sinkhole loss cannot reasonably be read as creating coverage for a loss that is

unambiguously excluded. Because the relevant policy language is susceptible to only

one reasonable interpretation, it was error for the trial court to deny Florida Peninsula's

motion for summary judgment. Accordingly, the judgment in favor of Ms. Cespedes is

reversed and this case is remanded with instructions to enter judgment in favor of

Florida Peninsula.

              Reversed and remanded with instructions.




VILLANTI, J., Concurs with opinion.
ALTENBERND, J., Concurs and dissents with opinion.




                                            -5-
VILLANTI, Judge, Concurring.

              I fully concur in Judge Kelly's opinion and write to point out that the

generally convoluted structure of homeowner's insurance policies in Florida did not work

an injustice in this case. Even if Ms. Cespedes' understanding of the policy was

relevant—which it is not in the face of the policy's unambiguous language, see SCG

Harbourwood, LLC v. Hanyan, 93 So. 3d 1197, 1200 (Fla. 2d DCA 2012)—the record

arguably shows that she knew that her policy did not include coverage for sinkhole loss.

At her deposition, Ms. Cespedes testified that she specifically recalled being informed

that sinkhole coverage would require an extra premium, and she specifically elected not

to pay that additional premium. Thus, it would be serendipitous indeed if we were to

allow her alleged inability to understand the provisions of her written policy to supersede

her knowledge that she opted not to pay the additional premium for sinkhole coverage

or to operate as some sort of penalty on Florida Peninsula for using the incorrect font in

a warning that Ms. Cespedes admittedly never read.

              I also write to point out that insurance companies would be involved in

much less litigation if they devised an alternative to the current "one form fits all"

approach that requires them to customize each "standard" policy through the use of

endorsements and special provisions. This is particularly true for "sinkhole" coverage.

Prior to 2007, all Florida insurers were required to include "sinkhole" coverage in all

homeowner's policies. This coverage included damage, however small, from all

sinkhole activity, however small. But as of January 25, 2007, the legislature required

insurers to provide coverage only for "catastrophic ground cover collapse"—a narrower

term intended to limit the mandatory "sinkhole" coverage to only those situations in




                                             -6-
which, as the name implies, the top of the sinkhole has actually collapsed. See Ch.

2007-1, § 30, Laws of Fla. As of that date, insurers were no longer required to provide

coverage for damage caused by a sinkhole that did not actually collapse, although they

could continue to provide that broader coverage for an additional premium. While this

change in the extent of coverage was significant, the ungainly terminology of

"catastrophic ground cover collapse" has not caught on, and most insureds—and

indeed probably many insurance agents—fail to appreciate that the standard

homeowner's insurance policy no longer covers all types of sinkhole activity that could

result in damage to the insured's home. Moreover, it appears that the standard

homeowner's policy forms have not been amended to account for this change either—

providing nowhere on the "checklist of coverage" to indicate that coverage exists for

"catastrophic ground cover collapse" as distinguished from "sinkhole" coverage.

             These standard homeowner's insurance policy forms, which consistently

reference coverage terms and conditions that do not actually apply to any given policy

and which fail to reflect statutory coverage changes that have been in effect for almost

eight years, can be addling to even experienced agents, adjusters, and attorneys.

Florida policyholders deserve better. However, an insured's befuddlement resulting

from these standard forms cannot create coverage where none otherwise exists.

Hence, I agree that we must reverse the judgment in this case and remand for entry of

summary judgment in favor of Florida Peninsula.




                                           -7-
ALTENBERND, Judge, Concurring in part and dissenting in part.

              Although I reluctantly agree that Maricela Cespedes is not entitled to

summary judgment due to the plain language in the endorsement identified as "FP

CGCC (03/08)," which is quoted in bold type in the court's opinion, I do not believe that

this endorsement entitles Florida Peninsula to summary judgment at this stage of the

proceedings. The statutory language in this endorsement is intended to be an obvious

warning provided to the insured about the contents of the insurance contract, not an

endorsement buried deep inside the contract. Thus, while I agree that the policy does

contain a legally unambiguous exclusion for sinkhole damage, in the absence of a

warning on the face of the policy, it is not clear to me that the exclusion is enforceable.

              Without stating the facts in detail, it is fair to say that Ms. Cespedes and

Florida Peninsula's field agent both thought this policy provided sinkhole coverage from

the point when she first reported her suspicions that her home had sustained sinkhole

damage in June 2009 through the time when the licensed professional engineer

retained by Florida Peninsula confirmed her suspicions in 2010.1 Apparently, it was

only when a more highly trained case manager reviewed the file that the insurance

company realized that the policy contained an exclusion. Thus, the initial inquiry in this




              1
                To the extent that Judge Villanti's concurrence suggests that no remand
is necessary to make factual determinations in this case because Ms. Cespedes knew
her 2009 policy did not include coverage for sinkhole loss and that she had not elected
to pay for that coverage, I believe he may read too much into the deposition. She
testified that she asked for "anything that covers my house." The declarations page
simply has no information from which an insured can determine whether a premium has
been charged for this coverage. Ms. Cespedes testified that her agent thought she had
sinkhole coverage when she reported the claim in June 2009. She knew that she had
no coverage in the policy issued after the claim in 2010.



                                            -8-
case might be to determine why both Ms. Cespedes and the trained field adjuster were

unable to determine that the policy "unambiguously excluded sinkhole damage." Five

circumstances appear to explain their confusion.

              First, neither the transmittal letter with the policy nor the beginning

sections of the insurance policy contains a warning that this exclusion exists. Section

627.706(4), Florida Statutes (2008), required insurers offering policies that exclude

coverage for sinkhole damage to "inform policyholders in bold type" of that exclusion.

The majority's opinion quotes the statutory warning and relies on it as the primary

source of the clear and unambiguous exclusion of coverage. But, as I read the statute

in the context of the insurance code, the warning is not intended to be an endorsement

added to the end of the policy. It is not supposed to be a part of the contract at all; it is

supposed to be a bold front-end warning informing the insured about the exclusion that

is somewhere within the contract.

              In this case, the declarations page lists "Forms and Endorsements." In

that list is "FP CGCC (03/08)." This is the warning given to the insured. By contrast,

the declarations page has two issues disclosed in bold type. Section 627.7011(4),

Florida Statutes (2008), required a policy to "include" a statement in bold type

concerning "law and ordinance coverage." Florida Peninsula dutifully placed that

warning on the declarations page. Likewise, section 627.701(4)(a), Florida Statutes,

required a bold warning on the "face" of the policy that the policy contained a separate

deductible for hurricane losses. Florida Peninsula placed that warning on page two of

the declarations. But Florida Peninsula did nothing similar for the sinkhole exclusion.

              These circumstances do not make the policy legally ambiguous. I am not




                                             -9-
certain what, if any, remedy is available to Ms. Cespedes if Florida Peninsula failed to

comply with section 627.706(4), Florida Statutes. This is the issue I would leave open

for consideration on remand.

              The remaining four factors probably confused Ms. Cespedes and the

insurance company's field agent, but they are not matters that will entitle her to any

relief on remand. Nevertheless, they warrant comment. The second factor is the

policy's four-page "Homeowners Declaration." As explained above, it reveals the added

exclusion only in the cryptic code listed in the "Forms and Endorsements." Because

sinkhole coverage is already included within the body of the main policy, which is

identified as "HO 00 03 04 91," this is not an added coverage option; it is merely an

exclusion. Thus, there is no place on the declarations page to list an amount of

coverage or the price charged for "sinkhole coverage." Coverages that may be included

within a policy usually are stated on the declarations page with either a statement of the

price charged, the premium, or with the word "included" or "excluded." Without that

option or a statement that the premium has been reduced in light of an added exclusion,

nothing on the declarations page directly informs the insured of this exclusion.

              Third, the original HO-3 insurance policy that was commonly issued in the

1970s was a relatively short and readable contract that could be comprehended by a

high school graduate. It has evolved in this case into a seventeen-page form identified

as "HO 00 03 04 91." Because that form is intended for use in many states, it does not

align with Florida law or the underwriting desires of Florida insurers. As a result, the

seventeen-page form is followed by a fourteen-page "Special Provisions—Florida"

endorsement, identified as "FP 23 04 08," that adds and deletes contract language from




                                           - 10 -
the national form. In my opinion, while not legally ambiguous, it has become structurally

ambiguous and exceedingly difficult for Florida's homeowners to read and understand.

Except in the eyes of trained lawyers and insurance agents, there is nothing plain and

unambiguous about the standard homeowner's insurance policy. But under the

applicable Florida law, the homeowner is not treated differently than a large corporation

with a lawyer in charge of risk management; the fact that the policy is "complex or

requires analysis" does not render the policy ambiguous. Penzer v. Transp. Ins. Co., 29

So. 3d 1000, 1005 (Fla. 2010) (rule stated as to commercial coverage); Garcia v. Fed.

Ins. Co. 969 So. 2d 288, 290-91 (Fla. 2007) (rule stated as to homeowner's coverage).

             Fourth, and perhaps most telling, there is a mistake in the "checklist of

coverage" that was provided with this policy. The checklist was inserted immediately

after the declarations page and before the main sections of the policy. In the checklist,

the box next to "sinkhole" coverage contains a "Y," which is the letter for "yes, you have

this coverage." A reasonable person might think that a mistake or misrepresentation of

coverage in such a checklist would create an ambiguity within the policy. But the

legislature does not agree.

             To address the problem of modern insurance policies that are too complex

for average Floridians to understand, the legislature requires insurance companies to

give the homeowner an "outline of coverage" either with the policy or before it arrives.

See § 627.4143, Fla. Stat. (2008). Florida Peninsula's "checklist of coverage" is its

compliance with this statute. But subsection 627.4143(5) requires the insurer to tell the

homeowner that the checklist is for "informational purposes only." The checklist cannot

change the provisions of the contract. Id. Subsection 627.4143(6) even attempts to




                                          - 11 -
create a rule of evidence prohibiting the admission of the checklist into evidence in a

civil case. Thus, this serious mistake in the outline of coverage provides no avenue of

redress for Ms. Cespedes.

              Fifth, as the court's opinion explains, the "Special Provisions—Florida"

endorsement contains both a sinkhole exclusion and a "Neutral Evaluation Program"

section. In other words, Florida Peninsula has included the procedures for addressing a

sinkhole claim in its standard form, while also excluding sinkhole coverage in that form.

By including the sinkhole procedures in a standard form that never covers sinkholes,

Florida Peninsula may not have created an ambiguity for a trained attorney, but I

understand why the trial court concluded that it created an ambiguity for the

homeowner. The supreme court has stated: "However, in construing insurance policies,

courts should read each policy as a whole, endeavoring to give every provision its full

meaning and operative effect." Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34

(Fla. 2000) (citing Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d

938, 941 (Fla. 1979)). In this instance, the neutral evaluation portion of the policy

cannot be given effect because there are no covered claims to which it can apply. This

useless portion of the policy under the case law does not seem to create an ambiguity.

Thus, I agree with the majority on this point because the law compels me to do so.




                                           - 12 -
