# Evanston Insurance Company v. Stan Weeks & Associates, Inc

> District Court, M.D. Florida · March 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10112288

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112288

## How later opinions describe it (automated extraction)

- finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

EVANSTON INSURANCE COMPANY,
a foreign corporation,

Petitioner,

v. Case No: 2:21-cv-508-JES-KCD

STAN WEEKS & ASSOCIATES,
INC., a Florida corporation,

Respondent.

OPINION AND ORDER
This insurance coverage dispute involves two excavators owned
by Stan Weeks & Associates, Inc. (Weeks), an excavation and mining
company, that were damaged after a levee failed and flooded a shell
mine where the excavators were located. Evanston Insurance Company
(Evanston) filed a declaratory judgment action (Doc. #1) seeking
declarations that coverage for the loss to one excavator was
excluded under the policy’s “earth movement” exclusion (Count I)
and that coverage for the loss to both excavators was excluded
under the policy’s “water damage” exclusion (Count II). (Id., pp.
7-8.) Weeks filed a Counterclaim for breach of contract, alleging
that Evanston failed or refused to fully indemnify Weeks for the
loss to both excavators in accordance with the policy. (Doc. #23,
p. 8.)
This matter now comes before the Court on review of the
parties’ cross Motions for Summary Judgment (Docs. ##40, 59). The
parties filed Responses in Opposition (Docs. ##48, 61), and a Reply
(Doc. #49.) For the reasons set forth below, Evanston’s motion is
granted and Week’s motion is denied.
I.

Summary judgment is appropriate only when the Court is
satisfied that “there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(quoting Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.
1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)). “If
a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,
1315 (11th Cir. 2007).
II.
The material facts are not in dispute:
Evanston issued an “all-risks” insurance policy (the Policy)
to Weeks for the period of July 28, 2020 through July 28, 2021.

(Doc. #1-2.) The Policy (policy #SAA333192) provided coverage for
scheduled equipment, including excavators bearing serial numbers
GKX00341 (Excavator 1) and DKY03913 (Excavator 2). (Doc. #1, ¶ 6.)
The parties agree that no part of the Policy relating to the claim
is ambiguous. The Policy’s Insuring Clause stated: “We will pay
for loss to Covered Property from any one occurrence caused by a
Covered Cause of Loss, during the coverage period.” (Doc. #1-2,
p. 82, emphasis in original.) The Policy’s Covered-Cause-Of-Loss
Clause stated that the Policy covers “Loss caused by any external
cause, except as otherwise excluded in paragraph V.” (Id.) In
turn, the Policy’s “earth movement” and “water damage” exclusions
contained in paragraph V provided:
V. PERILS EXCLUDED

This policy does not insure against loss which is
caused by, or arises in or from any of the following,
whether or not there are any other contributing causes
which would otherwise be covered by this policy.

* * *

D. Earthquake, volcanic eruption, landslide, or
other earth movement;

* * *

F. Water damage caused by, contributed to or
aggravated by any of the following;

1. Flood, surface water, rising waters,
waves, tides or tidal waves, storm
surge, overflow of any body of water or
their spray, all whether driven by rain
or not;

2. Mudslide or mudflow;

3. Water which backs up from any sewer or
drain; or Water that seeps, leaks or
flows from below the surface of the
ground;

* * *

(Id. at 83-84, emphasis in original.)
Weeks asserts that on November 20, 2020, it suffered a total
loss of two excavators. On December 2, 2020, Weeks submitted a
“Liability Notice of Occurrence/Claim” to Evanston (Doc. #40-1) to
report the loss. Weeks reported that Excavator 1 was “submerged
in a sinkhole” while on the job, and Excavator 2 was “submerged
when [an] isolation levy failed due to a sinkhole at jobsite” at
a shell mine in Punta Gorda, Florida. (Doc. #1, 9 12.) The Notice
included the following pictures of Excavator 1 and Excavator 2:

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(Docs. ##1-3; 1-4.)
Evanston retained independent adjuster Engle Martin 6
Associates (Engle Martin) which, along with a representative from
Weeks, inspected the scene and the damaged excavators on December
14, 2020. (Doc. #1, II 15-16.) Both excavators were found to be
a total loss. Under the heading “Cause of Loss,” the Engle Martin
report stated:
According to the insured representative, the
insured was working at a job site and had left
their equipment there overnight. Upon
returning the following morning, they found a
sink hole had opened beneath one excavator

(Ser # GKX00341) and it had sunk. The photo
the insured provided showed only the arm and
bucket above the water.
With the formation of the sinkhole, the flow
of water apparently caused the levee to fail
as well, which flooded approximately 6 acres
adjacent to the sinkhole. Excavator (Ser # D
KY03913) was parked in that field and suffered
flooding damage into the cab.
(Doc. #59-5, p. 3.)
In February 2021, Evanston advised Weeks by telephone that
coverage for the loss was excluded under the Policy’s “earth
movement” and “water damage” exclusions. (Doc. #1, ¶ 19.) Weeks
disagreed with Evanston’s conclusion. (Id., ¶ 20.)
Evanston then retained J.S. Held LLC (JS Held) to determine
the cause and origin of the ground movement. JS Held performed a
ground-movement assessment at the shell mine on March 1, 2021.
(Doc. #59-6; Doc. #40-2.) The Ground Movement Report, issued March
9, 2021, described the property as a 138-acre parcel which had
been used as an active shell mine since 2007 or 2008. At the time
of the inspection there were two older mine pits, or “cells,” which
were no longer being mined, plus a third pit which was actively
being mined. The pits were approximately 25 to 30 feet below
grade. Due to relatively high groundwater table, the mining
activities required dewatering, and the two older pits were used
to hold the water from the new active pit.1 (Doc. #59-6, p. 3.)
The Ground Movement Report set forth the following relevant
information, provided by Weeks, describing the events leading to
the loss: At the end of the day before the loss, an excavator was

parked on a “shelf” (an area where the ground elevation was raised
several feet above the bottom of the pit) in the de-watered active
mining pit. A second excavator was parked within the active pit
farther to the south. When Weeks personnel returned to the mine
the next morning, it was discovered that the active pit had flooded
and the road between the new and old pits had been washed out.
The flow of the water into the active pit had eroded the soil of
the shelf which had supported the excavator, resulting in the
excavator falling to the bottom of the pit and being buried by
suspended soils in the floodwater. The second excavator in the
pit was also flooded, but the soil underneath it had not been

washed out. The berm between the two older pits had been washed
out, resulting in the water level in the smaller pond rising by
several feet. (Doc. #59-6, p. 5.)
The Ground Movement Report concluded:
The soil movement which reportedly caused damage to one
excavator was the result of the hydrodynamic forces of

1 Weeks asserts, and Evanston does not dispute, that the two
older pits were manmade and were being used in its mining
operations. (Doc. #59, p. 3.)
water eroding the soils which supported the excavator.
The excavator was reported to be parked near the edge of
a raised “self” in the mining pit, and the erosion of
the soil caused the excavator to fall into a lower
section of the pit. The excavator was subsequently
buried by the suspended soils in the water.
The flood event was initiated due to a partial washout
of the berm between the smaller pond in the center of
the property, and the larger pond on the north side of
the property. The berm washout resulted in the water
level in the smaller pond rising several feet, which in
turn resulted in the washout of the berm on the north
side of the road between the new mining pit and the pond.
Water subsequently flowed across the road, washing out
the berm on the south side of the road and then flowing
into the new mining pit.
(Doc. #59-6, pp. 6-7.)
On March 17, 2021, Evanston issued a written declination of
coverage to Weeks. (Doc. #1, ¶ 26.)
III.
The “all risks” policy Evanston issued to Weeks (Doc. #1-2)
is governed by Florida law. 2 "[A]n 'all-risk' policy is not an
'all loss' policy, and this does not extend coverage for every

2 “In a contract action, a federal court sitting in diversity
jurisdiction applies the substantive law of the forum state unless
federal constitutional or statutory law compels a contrary
result.” Tech. Coating Applicators, Inc. v. U.S. Fid. & Guar. Co.,
157 F.3d 843, 844 (11th Cir. 1998); S.-Owners Ins. Co. v. Easdon
Rhodes & Assocs. LLC, 872 F.3d 1161, 1164 (11th Cir. 2017).
Florida courts apply the rule of lex loci contractus, which
“provides that the law of the jurisdiction where the contract was
executed governs the rights and liabilities of the parties in
determining an issue of insurance coverage.” State Farm Mut. Auto.
Ins. Co. v. Roach, 945 So. 2d 1160, 1163 (Fla. 2006). Evanston
states (and Weeks does not dispute) that the Policy was issued and
delivered to Weeks, a Florida corporation, in Florida. (Doc. #1,
¶¶ 4, 8.) Both parties also apply Florida law.
conceivable loss." Sebo v. Am. Home Assurance Co., 208 So. 3d 694,
696-97 (Fla. 2016) (citation omitted). "An all-risks policy
provides coverage for all losses not resulting from misconduct or
fraud unless the policy contains a specific provision expressly
excluding the loss from coverage." Mejia v. Citizens Prop. Ins.
Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014) (citation and

internal quotation marks omitted). "[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." Jones v.
Federated Nat'l Ins. Co., 235 So. 3d 936, 941 (Fla. 4th DCA 2018)
(citation omitted). “The insured does not need to disprove any
excluded causes.” Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d
671, 674 (Fla. 2d DCA 2014). "In short, in all-risk policies . .
. construction is governed by the language of the exclusionary
provisions." Sebo, 208 So. 3d at 697.

Under Florida law, the interpretation of an insurance policy
is a question of law. Westchester Gen. Hosp., Inc. v. Evanston
Ins. Co., 48 F.4th 1298, 1302 (11th Cir. 2022). See also People's
Tr. Ins. Co. v. Garcia, 263 So. 3d 231, 234 (Fla. 3d DCA 2019).
Terms utilized in an insurance policy are given their plain and
unambiguous meaning as understood by the "man-on-the-street." Atl.
Specialty Ins. Co. v. Pastukov, 750 F. App'x 909, 911 (11th Cir.
2018)(quoting Harrington v. Citizens Prop. Ins. Corp., 54 So. 3d
999, 1001 (Fla. 4th DCA 2010)). "[I]n 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).
See also Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948

(Fla. 2013). An unambiguous policy provision is "enforced
according to its terms whether it is a basic policy provision or
an exclusionary provision." S.-Owners Ins. Co., 872 F.3d at 1164
(quoting Hagen v. Aetna Cas. & Sur. Co., 675 So. 2d 963, 965 (Fla.
5th DCA 1996)). Further, “insurance coverage must be construed
broadly and its exclusions narrowly." Horn v. Liberty Ins.
Underwriters, Inc., 998 F.3d 1289, 1293 (11th Cir. 2021) (quoting
Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568
(Fla. 2d DCA 1984)).
IV.
The evidence shows without dispute that Weeks suffered a loss

of both excavators during the time period the Policy was in effect.
Weeks is therefore entitled to judgment unless Evanston carries
its burden of showing that one or both of the exclusions apply.
Evanston argues that it has carried its burden because the
undisputed facts show that the Policy’s “water damage” and/or
“earth moving” exclusions apply. (Doc. #40, pp. 9-15.)
Weeks states that “[w]hile it is not clear from Petitioner’s
investigation as to why the levee washed out, it is agreed that a
levee, designed to hold back and retain water failed causing a
chain of events that damaged Respondent’s excavators.” (Doc. #59,
p. 6.) See also Doc. #59, p. 4, ¶ 13 (“The damage was caused after
levies between the mines and cells holding water failed and caused

water intrusion into the excavators.”) Weeks continues that
[t]he question therefore is whether the chain
of events starting with the failure of the
levee and resulting in damage fall within
subject policy’s water-damage exclusion or
earth movement exclusion.
(Doc. #59, pp. 6-7.) Weeks argues that the answer is “no” because
both exclusions require a “natural phenomena,” not simply the
failure of a “manmade structure” (such as the manmade cells and
levees) which broke and caused damage. (Doc. #48, p. 1; Doc. #59,
p. 2.) Weeks argues that a failure of a manmade structure to
perform as designed is not a natural phenomenon, and therefore is
not excluded by either provision of the “all risk” Policy relied
on by Evanston. (Id.)
A. Earth Movement Exclusion
Count I of the Petition asserts that coverage for the loss of
Excavator 1 is excluded pursuant to the Policy’s “Exclusion D –
Earth Movement” exclusion. (Doc. #1, p. 7.) This excludes “a loss
which is caused by, or arises in or from any of the following,
whether or not there are any other contributing causes which would
otherwise be covered by this policy . . . D. Earthquake, volcanic
eruption, landslide, or other earth movement; . . .” Count I
asserts that “[t]he compacted soil shelf on which Excavator #1 sat
was eroded by the floodwater that overflowed from the retention
ponds and flooded the mining pit” (Doc. #1, ¶ 36), and thus
qualifies as “other earth movement” under Exclusion D.

Weeks argues that the earth movement exclusion is limited to
damage caused by “natural phenomena.” (Doc. #48, p. 8.) Weeks
concludes that its claim for damages to Excavator 1 is not excluded
under the earth movement exclusion because the loss was the result
of the failure of the levee – a manmade structural component of
its mining operation – not a natural phenomenon. (Id., pp. 8-9;
Doc. #59, pp. 11-12.)
Weeks is correct that under Florida law an earth movement
exclusion is generally limited to damage caused by “natural
phenomena.” Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082,
1088 (Fla. 2005) (“In line with the majority of courts, we conclude

that absent specific language in the policy to the contrary, an
earth movement exclusion is limited to damage caused by natural
phenomena.”) The Policy’s earth movement exclusion provision
excludes loss from “earthquake, volcanic eruption, landslide, or
other earth movement”, all of which suggest natural phenomena.
But Weeks’ argument is mis-focused. While a “man-made event
such as blasting” does not fall within an earth movement exclusion,
Fayad, 899 So. 2d at 1088, there was no such event in this case.
Rather, the evidence establishes that a natural phenomena impacted
a man-made structure, which resulted in the loss of Excavator 1.
The soil movement which reportedly caused damage to one
excavator was the result of the hydrodynamic forces of
water eroding the soils which supported the excavator.
The excavator was reported to be parked near the edge of
a raised “shelf” in the mining pit, and the erosion of
the soil caused the excavator to fall into a lower
section of the of the pit. The excavator was subsequently
buried by the suspended soils in the flood water.

(Doc. #40-2, p. 4.) Thus, the cause of the earth movement was a
natural phenomenon – hydrodynamic forces of water eroding the soils
of the levee or shelf upon with the Excavator was placed – which
eventually led to Excavator 1 falling into a lower lying area where
it was buried under suspended soil in the floodwater. While the
levee and shelf were manmade, the cause of the damage was not. At
the very least, the loss was caused by or arose in or from earth
movement “whether or not there are any other contributing causes
which would otherwise be covered by this policy.” (Doc. #1-2, p.
83.)3

3 As noted above, on several occasion Weeks asserted that the
cause of the loss was a sinkhole. A sinkhole is a natural phenomena
under Florida law. A “sinkhole” is “a landform created by
subsidence of soil, sediment, or rock as underlying strata are
dissolved by groundwater. A sinkhole forms by collapse into
subterranean voids created by dissolution of limestone or
dolostone or by subsidence as these strata are dissolved.” Fla.
Stat. § 627.706(h).
B. Water Damage Exclusion

Count II of the Petition asserts that coverage for the loss
of Excavator 1 and Excavator 2 is excluded pursuant to the Policy’s
“Exclusion F — Water Damage.” (Doc. #1, p. 8.) This excludes
coverage for losses caused by, contributed to or aggravated by
“[w]ater damage caused by, contributed to or aggravated by . . .
[f]lood, . . . rising waters, . . . storm surge, . . . overflow of
any body of water, . . . or [w]ater that seeps, leaks or flows
from below the surface of the ground.” See (Doc. #1-2, pp. 83-84.)
Count II asserts that water damage was a contributing cause of
damage to Excavator 1 and the sole cause of damage to Excavator 2.
As Weeks correctly points out (Doc. #59, p. 8), not all water
damage is covered by this exclusion. Only water damage “caused
by, contributed to or aggravated by” certain identified events,
i.e., flood, rising waters, storm surge, overflow of any body of
water, or water that seeps, leaks or flows from below the surface
of the ground, is within the scope of Exclusion F.

Weeks argues that the grouping of the water-related events in
the Policy language connotes a distinction between natural (or
naturally flowing) and man-made. (Doc. #59, pp. 8-9.) Weeks
argues that there is no such natural phenomena because the levees
were manmade structures and the failure of a manmade structure is
not a loss caused by natural events. (Id. at p. 9.) Weeks
concludes that the water in this case was not naturally flowing
water that would fall under the exclusions, but water that was
artificially and forcefully moved to cells as part of a mining
operation. (Id., pp. 10-11.) See also (Doc. #48, pp. 7-8). There
is no evidence which supports this theory.
The Court finds that the water damage exclusion excludes
coverage for the damage to Excavators 1 and 2. The evidence shows

that the damage to the Excavators was caused by the washing out of
the berm between a smaller pond, which ultimately resulted in water
flowing into the active mining pit where the Excavators were
located. The water levels in the active mining pit rose high
enough to submerge both Excavators, as depicted in the photographs.
(Doc. #1-3; Doc. #1-4.) The Policy clearly excludes damage cause
by “[f]lood, surface water, rising waters, waves, tides or tidal
waves, storm surge, overflow of any body of water or their spray,
all whether driven by rain or not.” (Doc. #1-2, p. 84)(emphasis
added). Applying the plain meaning of the terms, as the Court
must, the damage to the Excavators was caused by natural movement

of the water – that is the overflow of a body of water, flood, or
rising waters that came from the berm washout between the retaining
ponds. Despite the retention pond, levee, and/or berm being
manmade, as discussed above there is no evidence that the cause(s)
of the failure of the manmade object were due to manmade action.
(Doc. #49, p. 3.)
Furthermore, the Policy’s anti-concurrent cause provision
states that “[t]his Policy does not insure against loss which is
caused by, or arises in or from any of the following [exclusions],
whether or not there are any other contributing causes which would
otherwise be covered by this policy.” (Doc. #40, pp. 12-15; Doc.
#40-1, p. 83.) The undisputed material facts show that water damage

did contribute to cause the loss, and that that any other causative
factors and the sequence in which such factors operated, are
irrelevant in light of the anti-concurrent cause provision. (Doc.
#40, p. 15.)
Because the Court has found that Evanston is entitled to
summary judgment on both of its coverage claims, it also finds
that Evanston is entitled to summary judgment on Weeks’ breach of
contract Counterclaim.
Accordingly, it is now
ORDERED:
1. Petitioner Evanston Insurance Company’s Motion for Final

Summary Judgment (Doc. #40) is GRANTED. Judgment shall enter in
favor of Evanston Insurance Company as to Count I and Count II of
its Declaratory Judgment Petition. (Doc. #1.) It is adjudged that
any coverage under Policy #SAA333192 for excavators bearing serial
numbers GKX00341 (Excavator 1) is excluded pursuant to Exclusions
D and F and any coverage for excavator DKY03913 (Excavator 2) is
excluded pursuant to Exclusion F. Judgment shall also enter in
favor of Evanston Insurance Company as to Respondent’s Breach of
Contract Counterclaim (Doc. #23, p. 8) and Stan Weeks & Associates,
Inc. shall take nothing on the Counterclaim.
2. Respondent Stan Weeks & Associates, Inc.’s Motion for
Summary Judgment (Doc. #59) is DENIED.
3. The Clerk of the Court shall enter judgment accordingly.
The Clerk shall terminate all pending motions, and deadlines as moot,
and close the file.
DONE AND ORDERED at Fort Myers, Florida, this 7th day of
March, 2023.

& AKL Be.
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies:
Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112288. Public record. Not legal advice.