Third District Court of Appeal Examines a Jury Instruction on Concurrent Causation and a Policy’s “Earth Movement” Exclusion in a Claim for Damages from Rock Quarry Blasting

By Kelly M. Vogt

In an opinion filed on November 29, 2023 in Tower Hill Prime Ins. Co. v. Ivet & Mario Bermudez, Case No. 3D22-0828, the Third District Court of Appeal affirmed the final judgment entered in favor of the insured in its claim against Tower Hill for breach of contract and addressed the subject policy’s earth movement exclusion and a jury instruction on concurrent causation.

The insured claimed “cracking damage” allegedly caused by blasting vibrations from a nearby rock quarry. Tower Hill denied the claim on the basis that the damage was the result of excluded causes. The insured filed suit, and a jury trial proceeded on the sole issue of whether Tower Hill proved by the greater weight of the evidence that the damage was excluded from or not covered under the policy. The jury found that Tower Hill did not prove that the cause of the damage was excluded or not covered, returning a verdict in favor of the insured. Tower Hill appealed, arguing that its motion for directed verdict on the policy’s “earth movement exclusion” should have been granted and that the jury was improperly instructed that even if certain excluded causes combined with the pertinent covered cause (“land shock waves from blasting”) to damage the insured’s home, such damage was still not excluded under the policy.

The Tower Hill policy provides, in pertinent part:

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.
   b. Earth Movement, meaning
   (1) Earthquake, including land shock waves or tremors before, during or after a volcanic eruption;
   (2) Landslide;
   (3) Mine subsidence;
   (4) Mudflow;
   (5) Earth sinking, rising or shifting;
   (6) Clay shrinkage or other expansion or contraction of soils or organic materials;
   (7) Decay of buried or organic materials, construction debris, or fill;
   (8) Settling, cracking or expansion of foundation; or
   (9) Soil movement resulting from blasting.

(Emphasis added by the Court in citing to the policy provision.)

Tower Hill’s expert opined that the cause of the damage was kinetic energy from a blast, which shook adjacent soil particles. Therefore, Tower Hill pointed toward the “soil movement resulting from blasting” exclusion referenced above in support of its motion for directed verdict. However, the insured’s expert, conversely, testified that “the blasting at the rock quarry shook the house and caused the damage” and, therefore, the damage was the result of shock waves from the blasting that caused the house to shake. The appellate court found that, based on the competing expert testimony, a jury could reasonably have concluded that it was shock waves, and not soil or earth movement, that shook the house and caused the damage.

As for the jury instruction on concurrent causation, the Court cited to the seminal case of Sebo v. Am. Home Assurance Co., 208 So. 3d 694 (Fla. 2016) in its analysis of this issue. In Sebo, the Florida Supreme Court formally adopted the “concurrent causation” doctrine in a first-party property insurance case involving a loss caused by a combination of covered perils and excluded perils. Under Sebo, if an excluded peril and a covered peril act in concert to cause damage in such a way that it is impossible to discern the proximate or predominating cause, then the loss is covered – unless the policy’s exclusion provision contains anti-concurrent causation language. While the above-cited “earth movement” exclusion of the Tower Hill policy contained anti-concurrent causation language, other portions of the policy did not. Therefore, a loss caused by land shock waves from blasting at the quarry (not involving earth movement) would be covered, even if the loss was also caused by an excluded peril.

The Third District Court of Appeal accordingly affirmed the jury verdict, finding that no reversible error was committed during the trial and the verdict was supported by competent, substantial evidence.