Key Points

  • The Third District affirmed a $240,000 judgment, plus prejudgment interest, for a homeowner whose house was damaged during demolition next door.
  • The court held that summary judgment for the insurer under the earth movement and settlement exclusions was properly denied where the insured's expert attributed the damage solely to vibrations without displacement of the earth, creating a factual dispute with the insurer's expert.
  • The court found no prejudice from a pretrial ruling that vibration was not an excluded loss, because the insurer identified no evidence it was unable to present.
  • The insurer's denial letter, which described itself as a declination of coverage, waived defenses based on the insured's post-loss obligations despite boilerplate reservation-of-rights language.
  • Money damages were properly awarded on a complaint styled as a declaratory judgment action because the complaint sought damages.

A Florida appeals court on Wednesday upheld a $240,000 jury verdict against Homeowners Choice Property & Casualty Insurance Company, holding that the insurer's exclusion for earth movement and settlement did not defeat, as a matter of law, a Miami homeowner's claim that vibrations from demolition next door cracked her floors, walls and ceiling.

A three-judge panel of the Third District Court of Appeal affirmed the orders on appeal "in all respects," upholding the judgment for the homeowner, Sandra Moise. Judge Bokor wrote the opinion for a panel that also included Chief Judge Scales and Judge Miller, and no judge wrote separately. The ruling leaves in place a May 1, 2024, final judgment from Miami-Dade Circuit Judge Migna Sanchez-Llorens awarding the jury's $240,000 plus prejudgment interest.

The decision follows earlier Third District rulings holding that when an insured's expert blames damage on vibrations or shock waves alone, with no shifting of the ground, whether an earth-movement exclusion applies is for a jury to decide. The panel also upheld a ruling that the insurer, by denying the claim on its merits, waived defenses that Moise had failed to meet her duties after the loss.

According to the opinion, Moise's policy took effect May 8, 2013, and the damage occurred March 1, 2014, during demolition at a neighboring house. She testified at her deposition that she was home during the demolition, felt vibrations and saw picture frames shifting and shaking, and first noticed the damage two days later.

Homeowners Choice sent Bracken Engineering, Inc. to inspect the house in May 2014. Bracken concluded that the damage came from material shrinkage or settlement, and the insurer denied the claim on June 6, 2014. Moise sued that August. Her operative complaint sought a declaratory judgment but also asked for "damages attributable to the Loss, if covered."

The policy excludes losses "caused directly or indirectly" by a list of perils, among them earthquakes, landslides, sinkholes, "earth sinking, rising or shifting" and "Settling, cracking or expansion of foundations." The exclusion applies "regardless of any other cause or event contributing concurrently or in any sequence to the loss."

Homeowners Choice moved for summary judgment on the strength of Moise's own expert, Alfredo Brizuela. His report said heavy construction equipment next door created vibrations that "travelled through the lime rock subsoil strata and induced vibrations into the property foundation structure." The insurer argued that this described excluded cracking or settling of the foundation. Brizuela's affidavit, however, called vibration the sole cause and stated that "[t]he vibrations damaged the property without displacement of the earth." The trial court denied the motion in December 2019.

The panel distinguished a 2020 Third District decision on which the insurer relied, Hernandez v. Citizens Property Insurance Corp. There, the insurer's engineer attested that blasting vibrations "led to the house shifting, resulting in cracks in walls and flooring," and Judge Bokor wrote, "The losses in Hernandez were unambiguously excluded under the plain terms of the policy."

Moise's case was different, Judge Bokor wrote: "Here, relying on materially identical policy language and like Castillo II, the insured's expert opined that the damage was caused not by earth movement, settling, or any other excluded cause." Castillo II, a 2007 Third District decision, found no exclusion in a case involving allegations that vibrations and shock waves from blasting damaged a house "without displacement of the earth."

The court also relied on its 2023 decision in Tower Hill Prime Insurance Co. v. Bermudez, a quarry-blasting dispute that the panel described as presenting a "battle of the experts," and its 2026 decision in Izquierdo v. Universal Insurance Co. of North America. In Moise's case, the panel noted, the insurer's expert blamed material settlement or preexisting conditions, while her expert blamed vibration alone.

The insurer argued that a pretrial order barring evidence that vibration is an excluded loss kept it from pressing the exclusion at all. Judge Bokor wrote that "this overstates the impact of the court's ruling." Its only trial expert, Bracken's president, David Compton, agreed that vibration occurred but testified that "vibration did not cause this damage." The insurer, the court wrote, did not identify "any evidence or testimony it was unable to present because of these rulings," so any error was harmless.

On waiver, the panel quoted a 2020 Fourth District decision holding that "[a]n insurer's repudiation of coverage waives the insurer's right to insist upon the insured's compliance with policy conditions, such as filing a proof of loss." The trial court had granted Moise summary judgment on five defenses accusing her of failing to timely report the loss, protect the property and provide records.

The June 2014 denial letter noted missing documents and included boilerplate saying the insurer did not intend to waive its rights. But it called itself a "declination of coverage" and stated that "there is no coverage for the cracking/settlement damage because the causes for the damage determined by Bracken are specifically excluded under your policy." The reservation language, the court wrote, "was likely not sufficient to avoid a finding of waiver for denying the claim."

The panel also rejected the argument that the trial court granted relief Moise never requested when it entered a money judgment. It quoted a Fourth District holding that "[a] money judgment may be obtained for damages sought as incidental or supplemental relief pursuant to a declaratory decree," and concluded: "Because monetary damages were sought in the operative complaint, we affirm this aspect of the judgment as well."

Homeowners Choice was represented by Butler Weihmuller Katz Craig, LLP, and Mihaela Cabulea. Moise was represented by Alvarez, Feltman, Da Silva & Costa, P.L., and Paul B. Feltman.

A jury heard the case in November 2022, more than eight years after Moise sued. The opinion, filed Oct. 28, 2026, states that it is not final until the court disposes of any timely filed motion for rehearing.