author: QUINCE, J.

text:
    Eric M. YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-2151.
    Supreme Court of Florida.
    Sept. 19, 2013.

      James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Kristen L. Davenport and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   QUINCE, J.

Eric M. Young was charged by information in Orange County with four offenses: burglary of a dwelling, robbery with a firearm, carjacking with a firearm and possession of a firearm by a convicted felon. A jury found Young guilty of the lesser included offenses of (1) burglary of a dwelling with an assault or battery with a dangerous weapon; (2) robbery with a weapon; and (3) carjacking with a dangerous weapon. Young was sentenced to twenty years in prison for each conviction, to all run concurrently with the sentence that he was already serving for other unrelated crimes.

Young appealed his convictions to the Fifth District Court of Appeal, which affirmed his convictions for burglary of a dwelling and carjacking. Young v. State, 73 So.3d 825 (Fla. 5th DCA 2011). The Fifth District certified conflict with Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006) on the issue of whether Florida’s burglary statute requires a structure to be suitable for habitation, on the date of the offense, for the structure to meet the definition of a dwelling. Id. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The Fifth and Second Districts disagree as to whether a structure undergoing substantial renovations constitutes a “dwelling” under section 810.011(2), Florida Statutes (2009). Young also seeks this Court’s discretionary jurisdiction citing a conflict with the Third District’s decision in Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003), as to whether a defendant can be convicted of carjacking where the force used in the robbery on the inside of the building is separate from the taking of the vehicle on the outside of the building. For the reasons that follow, we conclude that the building in question constitutes a dwelling under section 810.011(2), Florida Statutes (2009) and approve the Fifth District’s denial of relief. We further conclude that Young’s actions constitute a carjacking under section 812.133, Florida Statutes (2009). We disapprove the decision of the Second District in Munoz and the Third District in Flores to the extent that they are inconsistent with this opinion.

STATEMENT OF THE CASE AND FACTS

On October 1, 2009, Petitioner Eric M. Young was charged by information with four offenses: (1) burglary of a dwelling; (2) robbery with a firearm; (3) carjacking with a firearm; and (4) possession of a firearm by a convicted felon. The information alleged that, on September 6, 2009, Young entered a dwelling where the victim was located with the intent to commit an offense therein and that in the course of committing said offense, did make an assault or battery upon the victim, actually possessed a firearm or destructive device, and did carry, display, use, threaten to use or attempted to use a firearm, in violation of sections 810.02(l)(b)l, 810.02(2)(a), 775.087(1) and 775.087(2), Florida Statutes (2009). The information further alleged that Young took certain property from the victim, in violation of sections 812.13(2)(a) and 775.087(2), Florida Statutes (2009); that he took the victim’s motor vehicle by force, violence, assault or putting in fear, in violation of sections 812.133(1), 812.133(2)(a) and 775.087(2), Florida Statutes (2009); and that he did have in his care, custody, control or possession a firearm, after previously being convicted of a felony in violation of section 790.23, Florida Statutes (2009).

The victim testified at trial that he owns his own drywall texture business. At approximately 8:00 p.m. on the night of September 6, 2009, he was cutting drywall “in the kitchen/dining room/living room area” of a house that he had been hired to renovate. He stated that he had been working on the house for approximately a week and a half and that once he finished cutting the drywall that night, his task would be complete. No other workers were present in the house that night. While on the floor cutting drywall, the victim heard a voice and looked up to see a man walking toward him with a gun, saying “Don’t look at me.” Young then said “Where’s it at? Give it to me. You know where it’s at.” Young proceeded to reach into the victim’s pockets and removed the victim’s cell phone, keys and wallet. The victim stated that there was an accomplice outside with his shirt pulled over his head who quickly walked in, looked around and walked out. The victim watched the perpetrators leave in the victim’s truck and immediately ran to a neighboring house to call 911.

Patrol Officer Brandon Bottom of the Orlando Police Department testified at trial that on September 8, 2009, he attempted to pull over Young, who was driving the victim’s white Ford truck, after he failed to stop at two stop signs. Young immediately accelerated to a high rate of speed but was eventually apprehended. Thereafter, the officer ran the license tag number of the truck and learned that the truck was reported stolen. Young was taken to jail.

Approximately four days after the robbery, the victim identified Young as the perpetrator in a photo lineup. That same day, the victim was able to retrieve his truck from the impound. The victim stated that when his truck was returned to him, it was in the same condition as the last time he saw it before the robbery, except that the truck previously had a quarter of a tank of gas and upon return, the gas tank was nearly empty. He also stated that all of his tools were accounted for and his wallet was also in the back seat of the car with all of the checks and credit cards still present. There were no unauthorized charges to the victim’s credit cards and no money was missing from his bank account. The victim’s cell phone was never recovered.

ANALYSIS

These facts present two issues to be resolved by this Court. The first issue is whether the trial court erred in finding Young guilty of burglary of a dwelling where the building in question was undergoing renovations and, arguably, not suitable for lodging. This is the subject of the certified conflict between the decision under review and the Second District’s decision in Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006). The second issue is whether the trial court erred in finding Young guilty of carjacking, where the force used in the robbery occurred inside of the building and the taking of the car occurred outside of the building. Young presented the carjacking issue to this court, citing express and direct conflict with the Third District’s decision in Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003).

Fundamental Error

At the close of the State’s case the defense moved for a judgment of acquittal, claiming that the State had not proven all of the elements needed for pri-ma facie cases of burglary, robbery and carjacking. The defense did not elaborate on the basis for the motion in relation to the burglary and robbery charges, but went on to state that there was no evidence that the car was taken from the custody of the victim as required by the carjacking statute. In Brooks v. State, 762 So.2d 879, 895 (Fla.2000), this Court determined that a “technical and pro-forma” motion which requests a judgment of acquittal without further argument is “totally inadequate to preserve a sufficiency of the evidence claim for appellate review.” A defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court. F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The motion or objection must be specific in order to preserve the claim for appellate review. Id. at 230 n. 2. A boilerplate objection or motion is inadequate. Id.

There are two exceptions to the requirement that a timely objection be made to the trial court: (1) where the defendant is sentenced to death; and (2) where the evidence is insufficient to show that a crime was committed at all. Id. at 230. As to the second exception, if the defendant is convicted of a crime where the evidence does not demonstrate that a crime has been committed at all, this constitutes a fundamental error, an error that “reaches to the foundation of the case and is equal to a denial of due process,” and therefore need not be preserved at trial. Id. at 230-31. Young claims that the fundamental error exception applies in this case. However, the evidence presented suggests, at the least, that Young committed a burglary of a structure. It is a question of fact for the jury whether the structure qualifies as a dwelling. As the evidence indicates that a crime was in fact committed by Young, Young’s conviction cannot be said to be fundamental error. Therefore, any specific issue that Young would like to address on appeal must have been preserved at the trial level. Because Young did not specifically argue at trial that the building was not a “dwelling,” this claim was not properly preserved and has been waived. Further, as explained below, addressing the merits of this claim, Young has not established that the trial court erred.

Burglary of a Dwelling

Florida’s burglary statute, section 810.011, defines dwelling as:

a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. However, during the time of a state of emergency ... the term includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

§ 810.011(2), Fla. Stat. (2007) (emphasis added). In Perkins v. State, 682 So.2d 1083, 1083 (Fla.1996), this Court determined that pursuant to chapter 810, Florida Statutes, a structure’s design or suitability for habitation, rather than actual occupancy or intent to occupy, controls in determining whether a structure constitutes a dwelling. In reaching this conclusion, this Court approved the reasoning and analysis of the First District, as to how the burglary statute differs from the common law definition of “dwelling”:

Occupancy is no longer a critical element under this [statutory] definition. Rather, it is the design of the structure or conveyance which becomes paramount. If a structure or conveyance initially qualifies under this definition, and its character is not substantially changed or modified to the extent that it becomes unsuitable for lodging by people, it remains a dwelling irrespective of actual occupancy. It is, therefore, immaterial whether the owner of an unoccupied dwelling has any intent to return to it.

Id. at 1084 (quoting in Perkins v. State, 630 So.2d 1180, 1181-82 (Fla. 1st DCA 1994)). This Court went on to state that “[i]t is apparent here that the legislature has extended broad protection to buildings or conveyances of any kind that are designed for human habitation. Hence, an empty house in a neighborhood is extended the same protection as one presently occupied.” Id. at 1085. Florida district courts of appeal have disagreed as to the application of this Court’s rule in Perkins. This Court has under review Young v. State, 73 So.3d 825 (Fla. 5th DCA 2011), where the Fifth District affirmed Young’s conviction for burglary of a dwelling, where the crime was committed inside of a house undergoing renovations. The Fifth District certified conflict with Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006).

Munoz v. State

In Munoz, the Second District held that a house which had been “gutted” so that it could be restored and sold no longer qualified as a “dwelling.” The Second District reasoned that the legislature specifically protected houses made unsuitable for lodging during emergencies, and did not provide that same protection for houses unsuitable for lodging for other reasons, such as reconstruction or renovations. Id. at 689. The court also concluded that the state of emergency exception only made sense in relation to Perkins if a structure is required to be both designed for lodging by people and suitable for lodging by people in order to qualify as a dwelling. Id. Accordingly, the Second District determined that the “massive reconstruction” taking place in the house made it unsuitable for lodging, and therefore, it was not a dwelling. Id. at 689. In Munoz, the Second District departed from its previous decision in State v. Bennett, 565 So.2d 803 (Fla. 2d DCA 1990), where it concluded that “as long as a structure is ‘ “designed” for eventual human habitation,’ it qualifies as a dwelling.” Munoz v. State, 937 So.2d at 688 (quoting State v. Bennett, 565 So.2d 803, 805 (Fla. 2d DCA 1990)).

The dissent in Munoz asserted that the Munoz majority misread Perkins. Id. at 690 (Canady, J., dissenting). The dissent contended that the rationale employed in Bennett should have controlled the decision, as the Bennett rationale can be read in accordance with this Court’s decision in Perkins. Id. The dissent argued that “the designed use of a structure denotes the purpose for which the structure is eventually intended to be used” and that this designed use “is not changed by transitory circumstances — such as a major renovation project — that render the premises temporarily uninhabitable.” Id. As to this Court’s requirement in Perkins that the character of the structure not be substantially modified to the extent that it becomes unsuitable for lodging, the dissent explained that this requirement prohibits the purpose for which the structure is designed from being altered, such as when a residential structure is converted to a commercial or other non-residential use. Id. at 691 (citing Perkins, 682 So.2d at 1084). The dissent further opined that the state of emergency exception to the statute is necessary to ensure that a house that collapses or loses its roof during a state of emergency remains within the definition of a dwelling, despite the fact that it may no longer be considered a building. Id. at 692. The dissent contended that this exception also ensures that dwellings damaged during a state of emergency do not lose the protection of the penalties for burglary of a dwelling; this is evidenced by the history of the burglary statute which demonstrates legislative purpose to expand the coverage of the statute, not to restrict it as done by the majority in Munoz. Id.

As further explained below, we conclude that the dissent in Munoz provides the proper explanation of the legislative intent regarding section 810.011(2). As this Court has already stated, it is the character and purpose of the house that determines its status as a dwelling. Perkins, 682 So.2d at 1084. In Perkins, this Court also recognized that section 810.011(2) must be given its plain and obvious meaning unless a literal interpretation would produce an unreasonable or ridiculous result. Id. at 1085. It appears that the plain and obvious meaning of this statute can be ascertained, without producing an unreasonable conclusion. The plain meaning of the statute indicates an intent for the state of emergency exception to apply to the portion of the statute requiring a roof, not the portion requiring a certain “design.” See § 810.011(2), Fla. Stat. (2009) (“[DJuring the time of a state of emergency ... the term includes such portions or rémnants thereof as exist at the original site, regardless of absence of a wall or roof”) (emphasis added). The plain language of the statute indicates a legislative intent to protect the “dwelling” status of a house that is destroyed during a state of emergency, despite the fact that the roof no longer exists. This reading of the statute does not remove the requirement that the intended purpose or character of the building be that “designed to be occupied by people lodging therein at night.” Id. See § 810.011(2), Fla. Stat. (2009). This reading of the statute also effectuates the legislative intent without the need of adding an additional element not explicitly stated in the statute.

Suitable for Lodging by People

The key issue in the conflict between the Second District in Munoz and the Fifth District in this case, is the question of what qualifies as a “substantial change” that would render a home “unsuitable for lodging by people.” The dispute rests on the decision of whether the character of the building and suitability for human lodging are more synonymous with appearance or more synonymous with the purpose of the structure. The Munoz court seems to conclude that “suitable for lodging by people” refers to the appearance that the building is prepared for immediate habitability. See Munoz, 937 So.2d at 689 (concluding that the home in Perkins, which was furnished and regularly maintained by the owner was suitable for lodging, and that the home in Munoz, which was under construction and missing interior walls, sheetrock and insulation, was not suitable for lodging “by any stretch of the imagination.”).

In Perkins, this Court recognized suitability for lodging by people as relating to the “character” of the structure. See Perkins, 682 So.2d at 1084 (“If a structure ... initially qualifies [as a dwelling], and its character is not substantially changed or modified to the extent that it becomes unsuitable for lodging by people, it remains a dwelling ....)”; see also Ratliff v. State, 668 So.2d 1090, 1090 (Fla. 1st DCA 1996) (holding that a newly built but unoccupied home constituted a dwelling under Florida’s burglary statute). The word “substantially” used by this Court in the Perkins decision, seems to have created a sliding scale of the characteristics which define a dwelling, with the house described in Perkins being an example of one undergoing renovations which was suitable for lodging and the house described in Munoz being an example of one undergoing renovations that is not suitable for lodging, with all other examples falling somewhere within this spectrum. In Perkins, the burglarized house had been maintained by the owner, although it had been unoccupied for several months prior to the burglary. Perkins, 682 So.2d at 1084. The owner periodically rented the home and hoped to rent or sell it in the future “for someone to live in.” Id.

On the day of the burglary, the house contained various items of personalty, including a stove, refrigerator, washer, microwave, and assorted items in the closets and cabinets. The telephone had been disconnected and the water turned off, but the electricity was on and well water was available on the property. The owner last visited the house three to four weeks before the burglary when he mowed the grass and picked up trash.

Id. In a split decision, the First District held that this constituted a dwelling within the meaning of the burglary statute. Id. This Court concluded that the burglarized house was “designed to be occupied by people lodging therein at night,” and that the owner intended it to be used for that purpose. Id.

In Munoz, the Second District determined that the burglarized house was “not a dwelling by any stretch of the imagination” where the house had been “gutted” and was being “rework[ed] from the ground up.” 937 So.2d at 687, 689. The court described the house as a “construction site” as the electricity was temporary and “for construction purposes only” and the indoor plumbing was not in use. Id. at 687. The house had wires hanging from the ceiling, unfinished flooring and “a piece of plywood” acting as the back door. Id. Although this house was intended for “eventual human habitation,” the court determined that the condition of the house made it unsuitable for lodging by people at the time of the burglary.

However, in Michael v. State, 51 So.3d 574 (Fla. 5th DCA 2010), the Fifth District considered a house that had been occupied as a dwelling in the recent past, had an intact roof, was secured with windows and insulation but “was undergoing interior renovations that rendered it temporarily uninhabitable.” Id. at 575, 576. In holding the house to be a dwelling, the court acknowledged that in its current state it was unsuitable to be occupied by people for lodging. Id, at 575. The Fifth District agreed with the “well-reasoned dissent in Munoz” that there is no additional requirement that the structure be habitable as a dwelling on the date of the offense. Id.

And, in Jacobs v. State, 41 So.3d 1004 (Fla. 1st DCA 2010), the First District held that the evidence presented was sufficient to create a jury question as to whether a house was suitable for lodging, and thus remained a dwelling during a time of renovation. Id. at 1007. The burglarized house was a family home before it was ruined by a fire twelve years before the burglary. Id. at 1005. In the twelve-year period, no one lived in the house but the owner was slowly renovating the house. Id. The house had a roof over it, had floors and walls, was designed to be occupied by people and was so occupied prior to the fire. Id. at 1006. The house was equipped with plumbing and electric utilities which were turned off because the house was unoccupied. Id. The court concluded that there was competent, substantial evidence to support the status of the house as a “dwelling,” and that there was no evidence that the interior of the house was in a state of ruin comparable to that described in Munoz. Id. at 1007.

The Third District in Gonzalez v. State, 724 So.2d 126, 127 n. 1 (Fla. 3d DCA 1998), without addressing this Court’s language in Perkins, noted that a home under construction but nearing completion qualified as a “dwelling.” The Munoz court alleged that this statement is dicta because the question of whether a home under construction was a dwelling was not at issue in Gonzalez. See Munoz, 937 So.2d at 688. The Fourth District in Anderson v. State, 831 So.2d 702, 703 (Fla. 4th DCA 2002), agreed that the Third District’s language in Gonzalez was dicta, while noting that the Fourth District “do[es] not necessarily agree with that dicta.” Id. at 703. In Anderson, the burglarized home was being remodeled in order to make it larger. Id. The defendant entered an incomplete addition to the residence, which was separated from the home where the victim lived by a temporary wall. Id. This incomplete addition contained no access to the other part of the house, had walls and a roof, but no door or windows. Id. The Fourth District affirmed the burglary conviction based on the fact that the addition, although not yet habitable, was a part of the curtilage, and therefore a part of the dwelling. Id.; see State v. Hamilton, 660 So.2d 1038, 1039 (Fla.1995) (applying the common law definition of curtilage to Florida’s burglary statute).

In emphasizing the danger of charging a defendant with the incorrect offense, the Fourth District noted, “If a home under construction meets the definition of a structure, but is not ready to be occupied as a dwelling, the safer course, in our opinion, would be to charge burglary of a structure. A new home, ready to be occupied, but not yet occupied, is a dwelling.” Anderson v. State, 831 So.2d at 703, n. 1 (citing Ratliff v. State, 668 So.2d 1090 (Fla. 1st DCA 1996)). It therefore appears that the Fourth District follows the interpretation of the Second District, in that the suitability for immediate habitability determines whether a structure constitutes a dwelling, as opposed to the intent for “eventual human habitation.” We find it useful to examine how other jurisdictions have handled similar issues.

Other Jurisdictions

The conflict among Florida district courts has been discussed in Colorado’s recent decision in People v. Morales, 298 P.3d 1000, 1012-13 (Colo.Ct.App.2012). In Morales, the defendant argued that the home he was convicted of burglarizing was not a dwelling within the meaning of Colorado’s burglary statute because at the time of the burglary it was uninhabited, was being “professionally remodeled” and was “nothing more than a construction site.” Id. at 1010. The burglarized home had been inhabited by a family for approximately thirty-five years prior to being purchased for renovation and resale. Id. at 1002. The new owner “planned to replace the roof, windows, and siding, remodel the kitchen and bathrooms, and refinish the hardwood floors.” Id. At the time of the burglary, the contractors were in the process of demolishing the interior of the home and refinishing the floors. Id. “They had torn out the kitchen cabinets, moved the kitchen appliances, ripped up the carpeting, demolished a bathroom, taken out a fireplace, and removed ceiling tile, baseboards, trim, and several doors, among other things.” Id.

Colorado defines “dwelling” as follows: “Dwelling” means a building which is used, intended to be used, or usually used by a person for habitation.

Section 18-1-901 (S)(g), C.R.S.2011. The Morales court specifically disagreed with the Second District of Florida’s reasoning in Munoz. Morales, 298 P.3d at 1013. In concluding that the Munoz dissent was more persuasive than the majority opinion, the Morales court reiterated that the analysis of the Munoz majority was “inconsistent with the plain language of the statute, requiring only that a ‘dwelling’ be ‘designed’ for habitation.” Id. (quoting Munoz, 937 So.2d at 690) (Canady, J., dissenting). In reaching this conclusion, the Morales court also relied on People v. Silva, 256 Ill.App.3d 414, 195 Ill.Dec. 484, 628 N.E.2d 948 (1993), where an Illinois appellate court affirmed the trial court’s ruling that “apartments undergoing renovation were ‘dwellings’ because they were being prepared for residential use.” Morales, 298 P.3d at 1012 (citing Silva, 195 Ill.Dec. 484, 628 N.E.2d at 952).

In Giles v. Commonwealth, 277 Va. 369, 672 S.E.2d 879, 881, 884 (2009), as a matter of first impression, the Supreme Court of Virginia held that “a dwelling house is a house that one uses for habitation as opposed to another purpose.” The defendant in Giles appealed his sentence for burglary under Virginia’s Code section 18.2-89, claiming that the building that he broke into was not a “dwelling house” because no one was living there at the time of the offense and it was not being regularly used for sleeping. Id. at 371-72, 672 S.E.2d 879.Code section 18.2-89 provides, in pertinent part, “[i]f any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary.” The home that was broken into was described as a house that had furniture in three bedrooms, the living room, family room and kitchen. Id. at 371, 672 S.E.2d 879. The owner, whose primary residence was in Baltimore, Maryland, “had his own sleeping quarters in the house, and he kept food in the pantry, cabinets, and refrigerator. The house had operational utility services, including electricity and water. During the break in, [the defendant] took food, quilts, blankets, sheets, towels, bathroom supplies, two televisions, and a videocassette recorder from the house.” Id. The Supreme Court of Virginia held that

a house is a dwelling house pursuant to Code § 18.2-89 when the house is used for habitation, including periodic habitation. Periodic habitation does not require that the house be used at regular intervals. Rather, periodic habitation requires that when the house is used, it is used for the purpose of habitation. Thus, a dwelling house is a house that one uses for habitation, as opposed to another purpose.

Id. Although the home in Giles seems to be substantially furnished, which implies that it is suitable for immediate occupancy, which seems to be required by the Munoz court, the reasoning of the Giles court seems to be more aligned with the dissent in Munoz, which looks to the purpose of the home in determining its “dwelling status.”

In contrast, in Johns v. Commonwealth, 53 Va.App. 742, 675 S.E.2d 211 (2009) the Virginia Court of Appeals distinguished the building involved from that described in Giles. In Johns, the defendant was convicted of residential burglary, after he stole tools and construction supplies from a house. Id. at 212. The house was being remodeled so that it could be placed “on the market for someone to live there.” Id. at 215.

At the time of these events, no one lived in the house. No testimony at trial indicated how long the house had been empty. Although the house had a defined living area, dining area, and kitchen, none of these areas were described as containing furniture or any of the normal items found in an inhabited residence. The only items in the house were tools and construction supplies-such as a table saw, a tool belt, levelers, a skill saw, utility knives, tape measures, and sheet rock. For example, [the owner] used the kitchen to “store[] [his] tools when [he] was not there.”

Id. The house had a lock on the front door but did not have electricity. Id. The court acknowledged that “[t]he general public may equate the term ‘house’ with any building that appears from the outside to provide habitation at some time.... ” Id. at 218. However, the court explained that in Virginia, the term “dwelling house” seems to have a more limited meaning. Id. at 214 (citing Rash v. Commonwealth, 9 Va.App. 22, 383 S.E.2d 749, 751 (1989), where the same court determined that “a dwelling is no longer a ‘dwelling house’ for purposes of Code section 18.2-89 when its occupants leave it without any intention to return.”).

The Virginia Court of Appeals distinguished the home in the Johns case from that in Giles, by highlighting that the house was “completely unfurnished,” that it was not being used for the “usual activities of life,” the house was not “being maintained for immediate occupancy” and that “no previous resident intended to return and use the house as a ‘dwelling house.’” Id. at 215. The court acknowledged that the owner in Johns “owned the building, through a corporation, as a business investment — not for habitation” and that he “was remodeling the house for sale, not so his own family could live there.” Id. at 214.

This Case

The evidence presented in the case under review demonstrates that the burglarized home was located in a residential neighborhood, was substantially completed, and had a roof, drywall, and a door secured with a lock. The Fifth District determined that the house in this case is in fact a dwelling. The Fifth District did not provide its reasoning for this determination, and only cited its conflict with Munoz. However, it seems reasonable to assume that the Fifth District found the house to be a dwelling based on its purpose of “eventual human habitation,” and not the appearance of the home at the time of the burglary, as is consistent with its previous decision in Michael v. State, 51 So.3d 574 (Fla. 5th DCA 2010).

If the character of a house and its suitability for lodging in fact refer to the appearance of the house and its suitability for immediate habitability, anyone who fails to regularly maintain the appearance of his or her home or decides to renovate his or her home, except during a state of emergency, risks losing the protections of increased penalties for burglary of a dwelling. This seems to be an unreasonable conclusion. It is evident from the language of the statute and is more reasonable that the Legislature intended for character and suitability for lodging to refer to the purpose of the structure. The purpose of a house does not change due to the owner’s choice to update or remodel the structure. However, if a homeowner “substantially chang[es]” his or her home to create an office building, it is reasonable for this home to lose the status of “dwelling” as the purpose of the building has changed, along with the appearance. See Perkins, 682 So.2d at 1084. The fact that a house is undergoing renovations does not change its status as a dwelling, so long as its purpose is a house for lodging by people at night. The Fifth District did not err in affirming Young’s conviction of burglary of a dwelling.

Carjacking

A carjacking occurs when the state establishes the following three elements: “[1] the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, [2] with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, [3] when in the course of the taking there is use of force, violence, assault, or putting in fear.” § 812.133(1), Fla. Stat. (1993). Young contends that he cannot be charged with carjacking, claiming that there was no force used in the taking of the car, only in the taking of the keys and other items.

At trial, and subsequently on appeal, the defense claimed that the case of Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003), required that Young’s charge for carjacking be reduced to grand theft where there was no subsequent force in the taking of the vehicle on the outside of the building. The trial court denied Young’s motion, citing a distinction between stealing the victim’s keys, as in the instant case, and stealing the victim’s purse with the keys inside, as in Flores. The jury convicted Young of carjacking.

In Flores, the defendant demanded money during a robbery of a hair salon, stole the owner’s purse and the purses of her patrons, locked the owner and the patrons in the salon bathroom and stole the owner’s car. Id. at 567. On appeal, the Third District found that the “theft of the victim’s car was a fortuitous event occasioned only upon the defendant’s ... discovery of the car keys in [the victim’s] purse as he searched for money,” which he initially demanded upon entering the salon. Id. at 570 n. 5. The court concluded that the use of force, violence, assault or putting in fear was only used by Flores during the course of the robbery of the purse, not the taking of the motor vehicle. Id. at 570. The Third District found it to be persuasive that the victim “was most likely unaware of the theft of her car due to her confinement in the bathroom.” Id. at 570. The Third District reversed the defendant’s conviction, reducing the defendant’s carjacking charge to grand theft of an automobile. Id. at 570.

The Fourth District’s application of the statute in Carter v. State, 28 So.3d 1238 (Fla. 4th DCA 2009), is more persuasive. In Carter, the defendant beat a taxicab driver, stole his glasses, and drove away in the taxicab, after the taxicab driver ran away in fear. Id. at 1241. The victim in Carter ran away in fear of further physical violence from the defendant and was “likely unaware of the theft of [his] car, just as the victim in Flores.” Flores, 853 So.2d at 570. The defendant in Carter argued that his use of force “was too disconnected from the taking of the taxicab” to sustain a carjacking conviction. Carter, 23 So.3d at 1241. The Fourth District concluded that the robbery was not an afterthought, but that the “beating of [the victim] intertwined with the taking of the taxicab in time and place, so that the use of force occurred ‘in the course of the taking’ within the meaning of section 812.133(3)(b),” and therefore constituted a carjacking. Id. at 1242.

The Legislature has determined that “[a]n act shall be deemed ‘in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.133(3)(b), Fla. Stat. (1993). In the instant case, Young entered the house and asked the victim, “Where’s it at?” He then proceeded to reach into the victim’s pockets and removed the victim’s cell phone, keys and wallet. Young then walked outside of the house and used the keys to drive away in the victim’s truck. The victim testified that upon receiving his truck back, all items were accounted for except his cell phone, which implies that Young was more concerned with taking the vehicle rather than the items located therein, and that the taking of the truck was not an afterthought to the robbery of the other property. Young placed the victim in fear in order to gain access to the car that he stole. We find that the putting in fear of the victim in order to take the victim’s keys before walking outside and driving away in the victim’s car constitutes a continuous series of events, as to classify the fear as being within the course of taking the vehicle, within the meaning of section 812.133(3)(b).

Young’s access to the victim’s car was prompted by Young’s actions which placed the victim in fear, and allowed him to commit a robbery of the victim’s money and keys. Young argued that once he exited the building where the robbery occurred, the robbery was complete and anything that occurred outside of the building is a separate crime. This argument is not persuasive in light of the Legislature’s definition of what constitutes “in the course of taking.” To allow these criminal acts to be so easily separated would render the Legislature’s definition of “in the course of taking” meaningless. See § 812.133(3)(b), Fla. Stat. (“An act shall be deemed ‘in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of events.”) (emphasis added). Further, it is unreasonable to assume that the Legislature intended for Young to receive the benefit of a lesser penalty as a result of his decision to enter the building that the victim was renovating to steal the keys, as opposed to taking the victim’s car after the victim exited the building. See State v. Atkinson, 831 So.2d 172, 174 (Fla.2002) (“A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences.”). The Fifth District did not err in affirming Young’s conviction of carjacking.

CONCLUSION

Based on the foregoing, we approve the Fifth District’s decision to affirm Young’s convictions of burglary of a dwelling and carjacking; we disapprove the Second District’s decision in Munoz and the Third District’s decision in Flores to the extent that they are inconsistent with this opinion.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.

      . All convictions are first-degree felonies and Count I, burglary of a dwelling with an assault or battery with a dangerous weapon, is a life felony. As the jury did not find that the defendant used a firearm in the commission of the crime, the State decided to nolle pros count IV, possession of a firearm by a convicted felon.

      . The Fifth District previously certified conflict with Munoz on this issue in the case of Michael v. State, 51 So.3d 574 (Fla. 5th DCA 2010), wherein the Fifth District agreed with the "well-reasoned dissent” in Munoz. Id. at 575.

      . Illinois’ Criminal Code defines "Dwelling” as follows: (a) Except as otherwise provided in subsection (b) of this Section, "dwelling” means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence; (b) For the purposes of Section 19-3 [Residential Burglary] of this Code, "dwelling” means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside. Ill.Rev.Stat.1991, ch. 38, par. 2-6; codified as 720 ILCS 5/2-6 (West 1992).

      . See § 810.02, Fla. Stat. (2009); § 775.082, Fla. Stat. (2009).

      . The case under review is more analogous to a different case decided by the Third District, Baptiste-Jean v. State, 979 So.2d 1091 (Fla. 3d DCA 2008). In Baptiste-Jean, the defendant and an accomplice tied the victim up, beat him and took the car keys from his pocket. Id. at 1092. The perpetrator loaded the victim’s car with the stolen items and used the stolen keys to take the victim's car. Id. In Baptiste-Jean, the court concluded that although the force involved in the taking of the keys occurred prior to the taking of the car, it occurred in the course of the taking of the vehicle itself. Id.

      . The Third District distinguished this from the case of Price v. State, 816 So.2d 738, 741 (Fla. 3d DCA 2002), where it held that the defendant could properly be convicted of carjacking where he demanded and retrieved the victim's car keys at gunpoint as the victim was getting into her car.


source: Caselaw Access Project

author: PERRY, J.

license: Public Domain

text:
    Wayne TREACY, Petitioner, v. AI LAMBERTI, as Sheriff of Broward County, Florida, Respondent.
    No. SC12-647.
    Supreme Court of Florida.
    Oct. 10, 2013.
    Rehearing Denied Jan. 14, 2014.

      Jason T. Forman, Law Offices of Jason T. Forman, P.A., Russell J. Williams, Law Offices of Russell J. Williams, Fort Laud-erdale, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia Terenzio and Mitchell A. Egber, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PERRY, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Treacy v. Lamberti, 80 So.3d 1053 (Fla. 4th DCA 2012), holding that the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), does not impact a juvenile defendant’s entitlement to bond because the Florida Constitution “focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.” Treacy, 80 So.3d at 1054. Because the district court expressly construed a provision of the Florida Constitution, this Court has jurisdiction to review the decision. See art. V, § 3(b)(3), Fla. Const. Because we find that juvenile offenders cannot be charged with a crime punishable by life imprisonment under Florida’s current statutory scheme and Graham, we hold that such defendants are entitled to bond under the provisions of article I, section 14, of the Florida Constitution and we quash the decision entered below.

OVERVIEW

Treacy is a juvenile charged as an adult with attempted first-degree murder with a deadly weapon. Treacy moved to have a bond set, which was denied. Treacy argues that article I, section 14, of the Florida Constitution provides for pretrial release as a matter of right for a noncapital offense or an offense that does not carry the possibility of a life sentence. He further argues that because Florida does not currently provide an opportunity for parole and Graham prohibits the State from sentencing him to life without such a possibility, he is entitled to bond under the provisions of the Florida Constitution. The Fourth District Court disagreed, finding that because the Florida Constitution only considers the classification of the offense, not a defendant’s eventual sentence, Treacy was not entitled to bond as a matter of right. Furthermore, the Fourth District reasoned that the Legislature could provide an opportunity for parole at some point in the future, which would satisfy the requirements of Graham. The issue before us is whether the prohibition in Graham provides that juveniles such as Treacy are entitled to bond as a matter of right. This issue is a matter of first impression for this Court. First, we reject the State’s assertion that Treacy may be sentenced to life imprisonment based on prospective legislation creating an opportunity for parole. The security of Constitutional rights, especially those involving individual liberty, is not a matter of legislative grace. Second, we adopt a strict construction of the plain language of the Florida Constitution and determine that because Treacy cannot be sentenced to life imprisonment, he cannot be charged with “an offense punishable by life imprisonment” under current Florida law. Accordingly, we quash the decision of the Fourth District.

STATEMENT OF THE CASE AND FACTS

On March 17, 2010, Treacy was arrested by the Broward County Sheriffs Office for attempted premeditated murder in the first degree. Treacy was 15 years old at the time of his arrest. Treacy was taken into custody by the Department of Juvenile Justice and held until April 16, 2010, when the State filed an information against him charging him as an adult. Treacy was then transferred to the custody of the Broward County Jail.

On May 17, 2010, the United States Supreme Court issued its decision in Graham. Thereafter, on June 24, 2010, Trea-cy filed a Motion to Set Bond, which the trial court denied. In its order denying Treacy’s motion, the trial court agreed with the State’s assertion that Treacy was not entitled to bond as a matter of law. Specifically, the court found that Treacy was charged with an offense that “is clearly an ‘offense punishable by life imprisonment.’ ” See Treacy, 80 So.3d at 1054. The court then found that Graham “does not change the statute with respect to [Treacy’s] right to bond in the present case.” Id. Further, the court found that its reasoning was consistent with the Legislature’s intent in providing pretrial detention, citing section 907.041(1), Florida Statutes (2009): “Based upon the seriousness of the charge in the present case, the [c]ourt’s finding ... is also consistent with the legislative intent that persons committing serious criminal offenses be pretrial detained.” The court then declined to exercise its discretion to nevertheless grant Treacy a bond.

Treacy filed a Petition for Writ of Habe-as Corpus on July 16, 2010. The Fourth District Court of Appeal denied the petition without issuing an opinion. Subsequently, the Fourth District granted another juvenile’s petition for writ of habeas corpus under identical circumstances in McCray v. Lamberti, No. 4D11-3884 (Fla. 4th DCA Nov. 8, 2011). Treacy filed another motion with the trial court, which was again denied without any alteration to its previous decision.

On December 16, 2011, Treacy filed a second Petition for Writ of Habeas Corpus. The Fourth District issued an opinion denying the petition, and noted the inconsistent application it had created with its decision in McCray. Treacy, 80 So.3d at 1055-56 (Polen, J., concurring specially). In its opinion, the Fourth District considered whether, because Graham held that the United States Constitution prohibits sentencing juvenile defendants who have not committed a homicide to life imprisonment without the possibility of parole, article I, section 14, of the Florida Constitution entitles juvenile defendants charged with non-homicide crimes to bond as a matter of right. First, the Fourth District stated that “[t]he Florida [Ljegislature has not enacted a parole system that would satisfy Graham by allowing juvenile defendants sentenced to life in prison a chance to be released.” Treacy, 80 So.3d at 1054. “Therefore,” the court reasoned, “life sentences for such juveniles are now subject to reversal based on Graham.” Id. (citing Cunningham v. State, 74 So.3d 568 (Fla. 4th DCA 2011); Garland v. State, 70 So.3d 609 (Fla. 1st DCA 2010), cert. denied, — U.S. -, 132 S.Ct. 574, 181 L.Ed.2d 441 (2011)). Next, the Fourth District determined that Graham does not impact the entitlement to bond because the Florida Constitution “focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.” Treacy, 80 So.3d at 1054. Adopting the reasoning of the trial court in its order denying Treacy’s motion to set bond, the Fourth District held that because attempted murder is an offense that is punishable by life imprisonment, Treacy’s actual eligibility for such punishment does not change his right to bond. Id. The court noted that its classification approach was supported by this Court’s decisions in Batie v. State, 534 So.2d 694 (Fla.1988) (holding that despite sexual battery’s classification as a non-capital crime, the Legislature’s definition of the crime as “capital” was sufficient to deny postconviction bond) and State v. Hogan, 451 So.2d 844 (Fla.1984) (holding that although a death sentence may not be imposed for a sexual battery, it is a capital offense for purposes of determining the maximum allowable sentence but is not a capital offense for purposes of determining whether a twelve-person jury is required). Last, the Fourth District noted that “were the [Ljegislature to enact a parole system for juveniles who have been sentenced to life for non-homicide offenses, this issue would not even arise.” Treacy, 80 So.3d at 1055.

DISCUSSION

We are presented with a matter of constitutional construction. Accordingly, our review is de novo. See Zingale v. Powell, 885 So.2d 277, 280 (Fla.2004). Furthermore, as we have stated, “when constitutional language is precise, its exact letter must be enforced.... ” Fla. League of Cities v. Smith, 607 So.2d 397, 400 (Fla.1992). Both the arguments presented by Treacy and the State are based on what is arguably a reasonable reading of the plain language of article I, section 14, of the Florida Constitution. However, their incongruent readings do not create an ambiguity where none exists. “Ambiguity is an absolute prerequisite to judicial con-struction_” Id. at 400. Accordingly, the plain language of the Florida Constitution prevails here. Article I, section 14, provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

(emphasis added). The State concedes that Treacy cannot be punished by life imprisonment under Florida’s current statutory sentencing scheme because of the constitutional prohibition announced in Graham:

The [United States] Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Graham, 560 U.S. at 64, 130 S.Ct. 2011. Currently, the State of Florida does not provide any opportunity for parole, and any life sentence imposed is a sentence for a prisoner’s natural life. See § 921.002(1)(e), Fla. Stat. (2009) (“The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 percent of his or her term of imprisonment.... The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.”). Because Treacy, and juveniles like him, cannot receive a life sentence, we hold that the plain language of the Florida Constitution provides that they are “entitled to pretrial release on reasonable conditions [that] reasonably protect the community from risk of physical harm.... ” See, art. I, § 14, Fla. Const.

The State asks us to construe the clause “offense punishable by life imprisonment” to encompass defendants who may not legally be sentenced to life imprisonment, arguing that it is the classification of the offense and not the available punishment that should control our interpretation. Because we find this interpretation inconsistent with the language of the provision, we decline to apply the State’s reasoning.

First, we reject the assertion that Trea-cy’s offense is “punishable by life imprisonment.” Because Florida does not currently provide any opportunity for juvenile parole, the trial court was correct that it “could not impose a life sentence.” We do not agree with the trial court’s statement that the Legislature could provide a parole mechanism without revising the charging statute. Irrespective of the Legislature’s future intent to provide juveniles sentenced to life imprisonment with a reasonable opportunity for parole, the current statutory scheme makes no such provision. A current violation of a constitutional right is not cured by the potential for future legislative goodwill.

Secondly, having found that Treacy cannot be sentenced to life imprisonment, we hold that article I, section 14, of the Florida Constitution prevents the trial court from denying his bond as a matter of right. While both the Seventeenth Judicial Circuit Court and the Fourth District Court of Appeal have determined that the Florida Constitution, Article I, Section 14, requires a classification-based contemplation of a defendant’s right to bond and not a punishment-based one, we find this conflicts with the unambiguous language of the constitutional provision. We therefore find that the Fourth District’s reliance on our decisions in Batie and Hogan is misplaced.

Under the unambiguous language of article I, section 14, Treacy is not charged with an offense punishable by life imprisonment because he, himself, cannot be sentenced to life. We therefore hold that Treacy is correct that the unavailability of a life sentence in his case prohibits the classification of his offense as one “punishable by life imprisonment,” and quash the decision entered by the Fourth District below.

It is so ordered.

LEWIS, QUINCE, and LABARGA, JJ„ concur.

POLSTON, C.J., and CANADY, J., concur in result.

PARIENTE, J., recused.

      . Treacy has subsequently been convicted of the offense for which he was charged and sentenced to a term not to exceed 20 years, followed by 10 years’ probation. We maintain jurisdiction in this case because "[i]t is well settled that mootness does not destroy an appellate court’s jurisdiction ... when the questions raised are of great public importance or are likely to recur.” Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984).

      . See §§ 782.04(1 )(a), Fla. Stat. (2009) ("[t]he unlawful killing of a human being [w]hen perpetrated from a premeditated design to effect the death of the person ... is murder in the first degree and constitutes a capital felony"); 777.04(4)(b), Fla. Stat. (2009) ("[i]f the offense attempted ... is a capital felony, the offense ... is a felony of the first degree”); 775.087(l)(a), Fla. Stat. (2009) ("whenever a person is charged with a felony ... and during the commission of such felony ... carries, displays, uses, threatens to use, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified ... [i]n the case of a felony of the first degree, to a life felony.”).


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.490 AND NEW FLORIDA RULE OF CIVIL PROCEDURE 1.491.
    No. SC13-684.
    Supreme Court of Florida.
    March 13, 2014.
    Honorable Margaret 0. Steinbeck, Chair, Trial Court Budget Commission, Punta Gorda, FL, and Susan Dawson, Senior Attorney, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.
   PER CURIAM.

Previously in this case, the Court amended Florida Rule of Civil Procedure 1.490(Magistrates), as proposed by the Trial Court Budget Commission (Commission), and published those amendments for comments. See In re Amend. Fla. Rule Civ. Pro. 1490, 113 So.3d 777 (Fla.2013). After considering the comments filed with the Court and the Commission’s response, we essentially move the amendments to rule 1.490 adopted in our May 9, 2013, opinion to a new Florida Rule of Civil Procedure 1.491 (General Magistrates for Residential Foreclosure Matters).

As was the case with the May 9, 2013, amendments to rule 1.490, new rule 1.491 is adopted to help alleviate the residential mortgage foreclosure case backlog Florida courts are facing by expanding the use of general magistrates in mortgage foreclosure cases by authorizing referral of those cases to general magistrates based on implied consent of the parties. Id. at 778-79. The deletion of the amendments to rule 1.490and adoption of new rule 1.491 were suggested by the Florida Bar’s Civil Procedure Rules Committee (Rules Committee) in its comment filed in this case. The Commission does not oppose moving the rules governing general magistrates for residential foreclosure matters to a new rule, but offers its own proposals.

After considering the proposed amendments offered by the Rules Committee and the proposals offered by Commission, we amend rule 1.490 and adopt new rule 1.491, as proposed by the Commission. The majority of the prior amendments to rule 1.490are deleted and moved to new rule 1.491. As urged by the Commission, we retain the amendment to rule 1.490(d) that prohibits magistrates from practicing in the same case type. This is consistent with new rule 1.491(c) which governs magistrates appointed to residential mortgage foreclosure matters. Also, as proposed by the Commission, in order to clarify the time periods for objecting to a referral, new rule 1.491(b)(1)(A) is adopted to read,

“A written objection to the referral to a magistrate handling residential mortgage foreclosures must be filed within 10 days of the service of the order of referral or within the time to respond to the initial pleading, whichever is later.” (Emphasis added). The remainder of new rule 1.491 essentially mirrors the provisions governing general magistrates for residential foreclosure matters being deleted from rule 1.490.

We again thank the Commission and the Commission’s Foreclosure Initiative Work-group for their efforts in assisting the Court in addressing Florida’s residential mortgage foreclosure case backlog. We also thank the Civil Procedure Rules Committee for its valuable input on the rules.

Accordingly, the Florida Rules of Civil Procedure are amended as reflected in the appendix to the opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 1.490 MAGISTRATES

(a)General Magistrates. Judges of the circuit court may appoint as many general magistrates from among the members of the Bar in the circuit as the judges find necessary, and the general magistrates shall continue in office until removed by the court. The order making an appointment shall be recorded. Every person appointed as a general magistrate shall take the oath required of officers by the Constitution and the oath shall be recorded before the magistrate discharges any duties of that office. The chief judge of' each judicial circuit shall-appoint-such number of magistrates to handle-only-residential mortgage foreclosures-from-among the-members of the Bar in-the-circuit-as-are-necessary-to-expeditiously preside over all actions and suits-for-the-foreclosure- of a mortgage--on ■ residential real — property;- and any other-matter- concerning the foreclosure of — a-moi-tgage ■ -on residential real property -as allowed by the administrative order of the chief judge. — Magistr-ates-ap-poi-nted— to--handle "residential mortgage foreclosure -matters only shall-not-be-required- to-give bond or surety.

(b) [No Change]
(c) Reference.
G)-No reference shall be to a magistrate, either general or special, without the consent of the parties, except- consent.to — a magistrate for -residential mortgage foreclosure actions and suits may be express-on may be implied in accordance with the-requirements of this
(A-)-A-written - obj ection to the referral-to-a-magistrate handling-residential mortgage foreclosures ■ must be filed within 10-days of the service of the order of referral.
(B) If the time-set- for the hearing is less than 10-days after service of the order of referral, -the objection must be filed before commencement of the-hearing,
(C)- If- the — order—of—referral—fe served within -the-first 20 days after the service-of-the initial processr-the time to file-an-objection is extended to the time within which-to-file-a-r-espoB-sive-pleading;
(D) Failure to file - a -written-objection to a referral to the-magistr-ate handling residential-mor-tg-age-foreclo-sures within the applicable time period is deemed to be -consent --to-the order of referral.
(2) The-or-der-of referral to a magistrate — handling—residential—mortgage foreclosures-shall-be-in-substantial ■ conformity with this -rule-and-shall-eontain-the following language in -bold-type;-
A REFERRAL TO- A MAGISTRATE FOR A-RES-I-D-E-N-T-I-AL — M-OiRlPQA-GE FORECLOSURE-MATTER-REQUIRES THE CONSENT- -OF — ALL PARTIES; — VQU-ARE-ENTITLED-TG HAVE THIS MATTER -HEARD-BEFORE -A-JUDGE; — I-F-NQU--DQ-NGT WA-N-T — T-Q—HAVE—THIS—MAT-TE-R HEARD BEFORE — THE—MAGISTRATE, YOU MUST FIL-E-A-WRITTEN -OBJECTION — TQ-THE-RE-FE-R-■RAL — WITHIN 10 DAYS OF THE TIME.OF--SERVI-CE — QF-T-H-IS—Q-RD-ER^IF — T-HE-TIME-SE-T-EO-R-T-H-E HEARING--IS--LESS — T-HA-N—l-O-DAVS AFTER- THE- SERVICE-QF-T-H-IS-QR-DER, THE ■ OBJECTION-MUST--BE ■MADE-BEFORE-TH-E-HEARI-NGt — IE -TH-IS- ORBE R — IS-SERVED—WITH-I-N-THE FIRST 20 DAYS-AFTER.SERVICE OF PROCESS, THE TIME -TO -FILEaVN-QBJECTION IS EXTENDED-TQ-T-H-E-T-I-ME-W-I-T-H-I-N-WH-IGH A RESPONSIVE PLEADI-NG-IS-DUE. FAIL-URE-T-O-F-I-LE-A-WR-I-T-TE-N-OB-JEGTIQN — WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE CONSENT TO- THE -REFERRAL. REVIEW- -OF -THE- REPORT — AND RECOMMENDATIONS— MADE BY THE — MAG-ISTRATE-SHALL-BE.BY EXCEPTIONS AS PROVIDED IN THIS RULE. A RECORD, WHICH ■I-N-GLUDES A TRANSGBI-RT — QF-PROCEEDIN GS, — MA¥—BE—REQUIRED TO-SUPPORT THE EXCEPTIONS,

When a reference is made to a magistrate, either party may set the action for hearing before the magistrate.

(d)-(j) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

RULE 1.491. GENERAL MAGISTRATES FOR RESIDENTIAL FORECLOSURE MATTERS

(a) General Magistrates. Judges of the circuit court may appoint as many general magistrates from among the members of the Bar in the circuit as the judges find necessary, and the general magistrates shall continue in office until removed by the court. The order making an appointment shall be recorded. Every person appointed as a general magistrate shall take the oath required of officers by the Constitution and the oath shall be recorded before the magistrate discharges any duties of that office. The chief judge of each .judicial circuit shall appoint such number of magistrates to handle only residential mortgage foreclosures from among the members of the Bar in the circuit as are necessary to expeditiously preside over all actions and suits for the foreclosure of a mortgage on residential real property; and any other matter concerning the foreclosure of a mortgage on residential real property as allowed by the administrative order of the chief judge. Magistrates appointed to handle residential mortgage foreclosure matters only shall not be required to give bond or surety.

(b)Reference.
(1) No reference shall be to a magistrate, either general or special, without the consent of the parties, except consent to a magistrate for residential mortgage foreclosure actions and suits may be express or may be implied in accordance with the requirements of this rule.
(A) A written objection to the referral to a magistrate handling residential mortgage foreclosures must be filed within 10 days of the service of the order of referral or within the time to respond to the initial pleading, whichever is later.
(B) If the time set for the hearing is less than 10 days after service of the order of referral, the objection must be filed before commencement of the hearing.
(C) Failure to file a written objection to a referral to the magistrate handling residential mortgage foreclosures within the applicable time period is deemed to be consent to the order of referral.
(2) The order of referral to a magistrate handling residential mortgage foreclosures shall be in substantial conformity with this rule and shall contain the following language in bold type:
A REFERRAL TO A MAGISTRATE FOR A RESIDENTIAL MORTGAGE FORECLOSURE MATTER REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BEFORE A MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE OF THIS ORDER OR WITHIN THE TIME TO RESPOND TO THE INITIAL PLEADING, WHICHEVER IS LATER. IF THE TIME SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE BEFORE THE HEARING. FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE CONSENT TO THE REFERRAL. REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE MAGISTRATE SHALL BE BY EXCEPTIONS AS PROVIDED IN THIS RULE. A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, MAY BE REQUIRED TO SUPPORT THE EXCEPTIONS.

When a reference is made to a magistrate, either party may set the action for hearing before the magistrate.

(c) General Powers and Duties. Every magistrate shall perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court. Process issued by a magistrate shall be directed as provided by law. Hearings before any magistrate, examiner, or commissioner shall be held in the county where the action is pending, but hearings may be held at any place by order of the court within or without the state to meet the convenience of the witnesses or the parties. All grounds of disqualification of a judge shall apply to magistrates. Magistrates shall not practice law of the same case type in the court or circuit the magistrate is appointed to serve.

(d) Hearings. The magistrate shall assign a time and place for proceedings as soon as reasonably possible after the reference is made and give notice to each of the parties. If any party fails to appear, the magistrate may proceed ex parte or may adjourn the proceeding to a future day, giving notice to the absent party of the adjournment. The magistrate shall proceed with reasonable diligence in every reference and with the least practicable delay. Any party may apply to the court for an order to the magistrate to speed the proceedings and to make the report and to certify to the court the reason for any delay. Unless otherwise ordered by the court, all hearings shall be held in the courthouse of the county where the action is pending. The evidence shall be taken by the magistrate or by some other person under the magistrate’s authority in the magistrate’s presence and shall be filed with the magistrate’s report. The magistrate shall have authority to examine the parties on oath upon all matters contained in the reference and to require production of all books, papers, writings, vouchers, and other documents applicable to it and to examine on oath orally all witnesses produced by the parties. The magistrate shall admit evidence by deposition or that is otherwise admissible in court. The magistrate may take all actions concerning evidence that can be taken by the court and in the same manner. All parties accounting before a magistrate shall bring in their accounts in the form of accounts payable and receivable, and any other parties who are not satisfied with the account may examine the accounting party orally or by interrogatories or deposition as the magistrate directs. All depositions and documents that have been taken or used previously in the action may be used before the magistrate.

(e) Magistrate’s Report. The provisions for the requirement of the magistrate’s report in rule 1.490 shall apply to proceedings under this rule.

(f) Filing Report; Notice; Exceptions. The provisions for filing the report, notice, and exceptions to the report, including requirements for a record, in rule 1.490 shall apply to proceedings under this rule.

Committee Notes

2014 Adoption. This rule is the result of an emergency petition by the Trial Court Budget Commission and is intended to alleviate the backlog of residential mortgage foreclosure cases that Florida courts are currently facing.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . If the Rules Committee determines that new rule 1.491 should be amended in light of amendments to rule 1.490 that the Court adopted after the Committee suggested the adoption of the new rule in this case, the Committee should file a new report proposing the amendments. See In re Amend. Fla. Rules Civ. Pro., 131 So.3d 643, (Fla.2013).


author: NORTHCUTT, Judge.

text:
    AMERICAN HOME ASSURANCE CO., INC., Appellant/Cross-Appellee, v. John Robert SEBO, individually and as Trustee under Revocable Trust Agreement of John Robert Sebo dated November 4, 2004, Appellee/Cross-Appellant, and Paul A. Jacobsen, individually and Sarah T. Jacobsen, individually, Appellees.
    No. 2D11-4063.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied April 3, 2014.
    Anthony J. Russo, Scott J. Frank, and Ezequiel Lugo of Butler Pappas Weihmul-ler Katz Craig LLP, Tampa; and Janet L. Brown and Susan B. Harwood of Boehm, Brown, Fischer, Harwood, Kelly & Scheih-ing, P.A., Maitland, for Appellant/Cross-Appellee American Home Assurance Co., Inc.
    David A. Zulian and Edward K. Cheffy of Cheffy Passidomo, P.A., Naples; and Mark A. Boyle, Geoffrey H. Gentile, Michael W. Leonard, Debbie Sines Crockett, and Amanda K. Anderson of Boyle, Gentile, Leonard & Crockett, P.A., Fort Myers, for Appellee/Cross-Appellant John Robert Sebo.
    No appearance for Appellees Paul A. Jacobsen and Sarah T. Jacobsen.
   NORTHCUTT, Judge.

John Sebo purchased property insurance for his home in Naples, Florida, from American Home Assurance Company (AHAC). After the home was substantially damaged by rain and a hurricane, AHAC denied Sebo’s claim for the damages based on several coverage exclusions. Sebo filed a declaratory action seeking coverage and a jury found in his favor. The circuit court entered a judgment for more than $8,000,000. As we will explain in detail, we agree with AHAC that a new trial is required. We reverse and remand for proceedings consistent with this opinion.

Facts

Sebo purchased the home in April 2005, when it was four years old. AHAC provided homeowners insurance as of the date of the purchase. The policy, which insured against “all risks,” was issued through a private client group and was referred to as a manuscript policy. It was not a standard form but instead was created specifically for the Sebo residence. The house and other permanent structures were insured for over $8,000,000. The policy also provided additional coverage for loss of use of the home.

Shortly after Sebo bought the residence, water began to intrude during rainstorms. Major water leaks were reported to Sebo’s property manager as early as May 31, 2005. She prepared a list of problems: leaks in the main house at the foyer, the living room, dining room, piano room, exercise room, master bathroom, and upstairs bathroom. By June 22, 2005, the property manager advised Sebo of these leaks in writing. It became clear that the house suffered from major design and construction defects. After an August rain, paint along the windows just fell off the wall. In October 2005, Hurricane Wilma struck Naples and further damaged the Sebo residence.

Sebo did not report the water intrusion and other damages to AHAC until December 30, 2005. AHAC investigated the claim, and in April 2006 it denied coverage for most of the claimed losses. The policy provided $50,000 in coverage for mold, and AHAC tendered that amount to Sebo but stated that “the balance of the damages to the house, including any window, door, and other repairs, is not covered.” In May 2008, Sebo renewed his claim and sent more information about the damages to AHAC, but AHAC again denied the claim except for the $50,000 in mold damages.

The residence could not be repaired and was eventually demolished. In January 2007, Sebo filed suit against a number of defendants, including the sellers of the property, the architect who designed the residence, and the construction company that built it. He alleged that the home had been negligently designed and constructed and that the sellers had fraudulently failed to disclose the defects in the property. Sebo eventually amended his complaint in November 2009, adding AHAC as a defendant and seeking a declaration that the policy provided coverage for his damages. After Sebo settled his claims against a majority of all other defendants, the trial proceeded only on his declaratory action against AHAC. The jurors found in favor of Sebo, and the court eventually entered judgment against AHAC.

The Policy

The policy covered “all risks of physical loss or damage to your house, contents, and other permanent structures unless an exclusion applies” resulting from “occurrences.” As it relates to this case, “occurrence” was defined as “[a] loss or an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which occurs during the Policy Period and results in personal injury or property damages.” AHAC denied coverage for most of Sebo’s losses based primarily on the policy’s exclusion for Faulty, Inadequate or Defective Planning:

We do not cover any loss caused by faulty, inadequate or defective:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance;
of part or all of any property whether on or off the residence.

Although many of the exclusions in the policy provided coverage for ensuing damages, the above-quoted exclusion did not. Pertinent here, the policy did provide $50,000 in coverage for ensuing damages caused by fungi, wet or dry rot, or bacteria, as long as the damages resulted from a covered peril. Rain was a covered peril. As mentioned, AHAC offered Sebo this $50,000 to settle his claims. Sebo refused to settle.

Coverage for Damages Caused by Multiple Perils

Sebo’s complaint against AHAC was for declaratory relief. It stated:

This Count is being plead[ed] as an alternative to the Counts plead[ed] against the other Defendants arising out of the latent construction defects discovered at the property, in substantial part, because certain of the Defendants have alleged in their affirmative defenses that the damages to the Property were caused by weather-related problems, including but not limited to Hurricane Wilma. Alternatively, this action is limited to the damages to the Property and the insured caused by weather-related problems, including but not limited to Hurricane Wilma, not caused solely by construction defects.

There is no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind. In late 2010, AHAC and Sebo filed cross-motions for summary judgment on the issue of whether the policy covered Sebo’s damages. Sebo asserted AHAC was required to cover all its losses under the concurrent causation doctrine, which was applied in Wallach v. Rosenberg, 527 So.2d 1386 (Fla. 3d DCA 1988). Under that doctrine, when multiple perils act in concert to cause a loss, and at least one of the perils is insured and is a concurrent cause of the loss, even if not the prime or the efficient cause, the loss is covered. See id. at 1387-88. Thus, the Wallach court held “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Id. at 1388. In this case, defective construction, the basis of Sebo’s suit against the codefendants, was excluded from coverage, but weather-related damages, such as rain, were covered perils.

A prominent insurance treatise explains the concurrent causation rule:

[T]he concurrent cause rule takes the approach that coverage should be permitted whenever two or more causes do appreciably contribute to the loss, and at least one of the causes is a risk which is covered under the terms of the policy. Some jurisdictions limit the application of the concurrent cause rule by requiring that the concurring causes be independent of each other in order for the rule to apply.

Steven Plitt, Daniel Maldonado & Joshua D. Rogers, Couch on Insurance § 101.55 (3d ed.2012) (footnote omitted). Indeed, Wallach requires that the causes be independent. 527 So.2d at 1388. AHAC contends that the perils at play in this case were dependent and that therefore the circuit court erred in ruling that the concurrent causation doctrine applied. We do not address this issue because, as we will explain, we disagree with Wallach’s determination that the concurrent causation doctrine should be applied in a case involving multiple perils and a first-party insurance policy.

The concurrent causation doctrine is one of two prevailing theories employed to decide what coverage is afforded under these circumstances. The other one is the efficient proximate cause doctrine. Under it, the finder of fact, usually the jury, determines which peril was the most substantial or responsible factor in the loss. If the policy insures against that peril, coverage is provided. If the policy excludes that peril, there is no coverage.

Although the efficient proximate cause doctrine has long existed in some form, its contemporary genesis is widely attributed to the California Supreme Court’s decision in Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889 (1963). Wisler negligently built a home and negligently installed its sewer line on improperly compacted fill land. Four years after he sold the home to the Sabellas, the sewer line began to leak and infiltrate the unstable land beneath the foundation. The house settled but did not collapse. Id. at 892. The Sabellas sought coverage under a homeowners’ policy that insured against “all risks of physical loss” but excluded loss caused by “settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings; unless loss by ... collapse of buildings ensues.” Id. at 891-92. The insurer denied coverage for the Sabellas’ losses based on this exclusion. The California Supreme Court found as a matter of law that an insured peril, negligence in the installation of the sewer pipe, was the predominating or moving efficient cause of the loss. Id. at 895. It applied section 530 of the California Insurance Code, which stated that “ ‘[a]n insurer is liable for a loss of which a peril insured against was the proximate cause, although a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was only a remote cause.’ ” Id. at 896. Because the court had determined that a covered peril was the proximate cause of the loss, it ruled that there was coverage under the policy.

About ten years later, the California court came to a somewhat different resolution in a liability insurance case, State Farm Mutual Automobile Insurance Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 128 (1978). Partridge, the named insured in a State Farm homeowners’ policy and a State Farm automobile policy, filed down the trigger mechanism on his pistol to give the weapon a “hair-trigger” action. Later, Partridge had the altered pistol with him when he and several friends were hunting rabbits by shooting guns out the windows of his four-wheel-drive vehicle. Partridge veered off the road to chase a rabbit; he hit a bump and the pistol discharged, severely wounding one of his passengers. Id. at 125-26.

The passenger sued Partridge and a dispute arose over whether both the automobile policy and the homeowners policy provided coverage. State Farm asserted that because the accident was automobile related, there was no coverage under the homeowners policy, which excluded coverage for “bodily injury ... arising out of the ... use of ... any motor vehicle.” Id. at 126. The lower court ruled that it was clear that the automobile policy was implicated because the accident related to the use of the insured vehicle. Id. at 125. But the lower court had identified two acts of negligence: driving the vehicle off the road onto rough terrain and filing the pistol’s trigger mechanism. Id. at 127. The supreme court remarked that the use of Partridge’s car was not the sole cause of his passenger’s injuries, but was only one of the joint causes. Id. at 129. The second cause was his negligent filing of the trigger mechanism, which was not auto-related conduct. The supreme court ruled:

Although there may be some question whether either of the two causes in the instant case can be properly characterized as the “prime,” “moving” or “efficient” cause of the accident we believe that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply [a] concurrent proximate cause of the injuries.

Id. at 130 (footnote omitted). Thus the Partridge court applied concurrent causation theory and found coverage for liability to a third party under both the homeowners and the automobile policies.

The California Supreme Court reconciled the Sabella and Partridge holdings in Garvey v. State Farm Fire & Casualty Co., 48 Cal.3d 395, 257 CahRptr. 292, 770 P.2d 704 (1989) (In Bank). The Garvey court began by observing that a number of California courts had misinterpreted and misapplied Sabella and Partridge. Sabella was a first-party property damage case while Partridge was a third-party liability case involving damages for personal injury. Courts that employed the Partridge concurrent causation approach in a first-party property insurance case, instead of the Sabella efficient proximate cause theory, ignored the important distinction between property loss coverage and tort liability coverage. Id. at 705.

Property insurance is a contract between the insured and the insurer to cover property losses that are either caused by certain perils that are specifically named in the policy or are caused by “all perils” except for those specifically excluded from coverage. These perils are usually physical forces such as fire, rain, and wind. Liability insurance, on the other hand, looks to tort concepts such as fault, proximate cause, and duty. Insuring liability for a person’s negligence includes coverage for a broad spectrum of unnamed perils, i.e., losses of any sort that are caused by the insured’s negligent acts. Id. at 710. The covered perils in a property insurance policy determine the premium the insured will pay and the distribution of risk between the insured and the insurer. And as the Garvey court stated, an insured’s reasonable expectations of coverage under the policy “cannot reasonably include an expectation of coverage ... in which the efficient proximate cause of the loss is an activity expressly excluded, under the policy.” Id. at 711.

As elucidated in Garvey, the distinction between first-party property loss cases and third-party personal injury liability cases is the basis of our disagreement with Wallach.

Florida Law on Multiple Peril Losses

The First District’s Hartford Accident & Indemnity Co. v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974), was one of the first Florida cases to examine property insurance coverage for losses caused by multiple perils. In that case, two perils combined to cause damage to the Phelpses’ residence: the covered peril of water leaking from the plumbing system and the excluded peril of building settlement. The First District relied on Sabella and found coverage under the homeowners policy because the plumbing leak was the “proximate and efficient cause of the loss.” Id. at 364.

This efficient proximate cause theory was the prevailing law in Florida until the Third District’s decision in Wallach, 527 So.2d 1386, which also involved first-party coverage under a homeowners policy. The Wallach court briefly discussed Phelps, but concluded that the better rule would be that “where an insured risk constitutes a concurrent cause of the loss even where ‘the insured risk [is] not ... the prime or efficient cause of the accident’ ” coverage may be available. Id. at 1387 (quoting 11 G. Couch, Couch on Ins.2d § 44:268 (rev. ed.1982)). The court found Partridge to be persuasive and determined that the Sa-bella court’s efficient proximate cause theory was of little assistance when the perils were independent of each other. Thus, Wallach impliedly rejected Phelps and adopted the concurrent causation doctrine.

Wallach was issued the year before Garvey. And, like the California courts that were later held to have misapplied that state’s case law, Wallach did not differentiate between first-party coverage under a homeowners policy and a third-party tort liability policy. In fact, although Wallach involved a first-party dispute between a homeowner and its insurer, it quoted Partridge for the proposition that “coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries.” Id. at 1388 (quoting Partridge, 109 Cal.Rptr. 811, 514 P.2d at 130) (emphasis supplied).

The First District’s Phelps aside, it seems that the multiple-peril issue has not often arisen in Florida cases involving first-party coverage under homeowners policies. The dissent in Hagen v. Aetna Casualty & Surety Co., 675 So.2d 963, 971 (Fla. 5th DCA 1996) (Goshorn, J., dissenting), cited Wallach’s concurring causation language, but that case involved tort liability under a commercial general liability policy; it was not a first-party case. See also Transamerica Ins. Co. v. Snell, 627 So.2d 1275 (Fla. 1st DCA 1993) (citing the concurrent causation doctrine in a case involving an errors and omissions policy where Snell sued Transamerica’s insured for negligence, a third-party case).

Against this sparse background of precedents, we disagree with the rule stated in Wallach and applied by the circuit court in this case. As the Garvey court pointed out, a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy. Garvey, 257 Cal.Rptr. 292, 770 P.2d at 705. For example, the AHAC policy states: “Your homeowners insurance policy does not cover property damage from floods. A separate policy of flood insurance may be available to cover flood damage for an additional premium from the federal government.” But taken to its extreme, the concurrent causation theory might have this policy cover flood damage in a hurricane when only a minor portion of the damages was caused by the covered peril of rain.

The coverage analysis in first-party claims, the subject of a contract between parties, should be decided on the basis of the contract: if the efficient proximate cause of the loss is a covered peril, the losses are covered; if it is an excluded peril, the losses are not covered. We recognize that Garvey was underpinned by a California statute, Cal. Ins.Code § 530, 532, and that Florida does not have such a legislative mandate. But we note that the majority of states have adopted the efficient proximate cause theory for analyzing this issue. See Michael C. Phillips & Lisa L. Copien, Concurrent Causation versus Efficient Proximate Cause in First-Party Property Insurance Coverage Analysis, 36 Brief 32, 35 (Winter 2007) (listing thirty-four states that have adopted the efficient proximate cause model, and only seven, including Florida, that have applied the concurrent causation theory).

We reverse and remand this case for a new trial in which the causation of Sebo’s loss is examined under the efficient proximate cause theory. Because the question of whether multiple perils are dependent or independent is relevant only under a concurrent causation analysis, see Couch on Insurance § 101.55 (quoted above), we need not address AHAC’s argument on the point.

Anti-Concurrent Cause Language in Exclusion

Endeavoring to avoid coverage for uninsured perils under either the efficient proximate cause theory or the concurrent causation notion, insurers began adding language known generieally as anti-concurrent cause clauses to their policies. AHAC argues that the anti-concurrent cause language in its exclusion for defective work entitled it to a summary judgment on all of Sebo’s claims except for the $50,000 it tendered for ensuing mold damages. We note that some states reject the application of these clauses. See, e.g., Howell v. State Farm Fire & Cas. Co., 218 Cal.App.3d 1446, 267 Cal.Rptr. 708, 712-13 (1990), disapproved on other grounds by Reid v. Google, Inc., 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988 (2010). But Florida courts have not definitively weighed in on this topic. It is not necessary for us do so here because the language relied upon by AHAC was insufficient to exclude losses arising from concurrent causes.

The defective work exclusion stated merely that it applied to any loss caused by defective work. In contrast, other exclusions in the Sebo policy contained specific anti-concurrent-cause language. For example, the pollution or contamination exclusion recited that AHAC did not “cover any loss, directly or indirectly, and regardless of any cause or event contributing concurrently or in any sequence to the loss” caused by pollutants. We construe exclusionary clauses in insurance policies even more strictly against an insurer than we do coverage clauses, and we hold the insurer responsible to set forth what damages are excluded under the policy. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1086 (Fla.2005). Contrasted with the other exclusionary clauses in the same policy, AHAC’s defective work exclusion simply did not exclude losses arising from concurrent causes.

Evidence of Settlements

AHAC argues that if it is entitled to a new trial, as we so hold, it should be allowed to introduce evidence that Sebo had settled claims for faulty construction and design with some of AHAC’s former codefendants. It relies on Citizens Property Insurance Corp. v. Ashe, 50 So.3d 645 (Fla. 1st DCA 2010), for this proposition.

Ashe was a valued policy law case. The valued policy law statute applies in the case of a total loss. It states in paragraph (l)(a) that “the insurer’s liability under the policy for such total loss, if caused by a covered peril, shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.” § 627.702(l)(a), Fla. Stat. (2005). Ashe’s home was destroyed in Hurricane Ivan. Citizens insured the residence for losses caused by a windstorm. Ashe also had a policy of flood insurance through USAA and the National Flood Insurance Program that insured the house against damages from a flood. He received the full amount of the flood coverage and then sought full coverage for his loss under his windstorm policy, which was subject to the valued policy statute. In the ensuing lawsuit, the court determined that Citizens was permitted to introduce evidence that Ashe had received benefits from his flood policy, but not the amount he had received.

The decision in Ashe was grounded on a valued policy law concept explained in Florida Farm Bureau Casualty Insurance Co. v. Cox, 967 So.2d 815, 817 (Fla.2007), in which the court answered no to the following certified question:

DOES SECTION 627.702(1), FLORIDA STATUTES (2004), REFERRED TO AS THE VALUED POLICY LAW, REQUIRE AN INSURANCE CARRIER TO PAY THE FACE AMOUNT OF THE POLICY TO AN OWNER OF A BUILDING DEEMED A TOTAL LOSS WHEN THE BUILDING IS DAMAGED IN PART BY A COVERED PERIL BUT IS SIGNIFICANTLY DAMAGED BY AN EXCLUDED PERIL?

It is clear from the certified question that the Cox court was interpreting the 2004 version of the statute. By the time the case reached the supreme court, the legislature had already amended section 627.702(1) to provide that:

(b) The intent of this subsection is not to deprive an insurer of any proper defense under the policy, to create new or additional coverage under the policy, or to require an insurer to pay for a loss caused by a peril other than the covered peril. In furtherance of such legislative intent, when a loss was caused in part by a covered peril and in part by a noncovered peril, paragraph (a) does not apply. In such circumstances, the insurer’s liability under this section shall be limited to the amount of the loss caused by the covered peril. However, if the covered perils alone would have caused the total loss, paragraph (a) shall apply. The insurer is never liable for more than the amount necessary to repair, rebuild, or replace the structure following the total loss, after considering all other benefits actually paid for the total loss.

§ 627.702(1), Fla. Stat. (2005). Thus, the Ashe court ruled that evidence of benefits received for an uncovered peril was relevant to the issue of whether flood or wind caused the total loss of the home, and it was therefore admissible at trial. 50 So.3d at 652.

The problem we have in applying Cox and Ashe in this case is that it is not completely clear whether this is a valued policy law case. The jury was asked to determine the dollar amount of the FEMA threshold that represented 50% of the value of the insured premises, a calculation used to determine whether, as Sebo argued, the property was a constructive total loss. Although AHAC argued valued policy law in some motions, it seems that at some point it questioned whether the property suffered a total loss. We therefore leave all issues related to valued policy law, including the admissibility of benefits Sebo received from codefendants, to be clarified on retrial. We note that the 2005 version of the statute applies to this case— Sebo’s claim was filed in December 2005. See § 627.702(l)(c), Fla. Stat. (2005).

Because a retrial is necessary, we will not address AHAC’s other two issues on appeal or Sebo’s issues on cross-appeal. The parties are free to again raise these issues in the circuit court to the extent that they may still be applicable at the retrial.

Judgment reversed and remanded for a new trial consistent with this opinion.

LaROSE and CRENSHAW, JJ., Concur.

      . For example, while losses for damage caused by rodents, insects, birds or vermin were excluded, the policy stated that “we do insure ensuing covered loss unless another exclusion applies.”

      . Texas has adopted a third approach: where covered and noncovered perils combine to cause a loss, the insured must segregate the damages and will be entitled to recover only the portion caused by the covered peril. See Wallis v. United Servs. Auto. Ass'n, 2 S.W.3d 300, 302-03 (Tex.Ct.App.1999).

      . Because many hurricanes have ravaged this state in recent decades, it is somewhat surprising to find so few Florida cases addressing coverage when multiple perils cause a loss. These issues arose with frequency in Louisiana and Mississippi after Hurricane Katrina hit the coasts of those states. See, e.g., Tuepker v. State Farm Fire & Cas. Co., Civil Action No. 1:05CV559 LTS-JMR, 2006 WL 1442489 (S.D.Miss. May 24, 2006) (not reported in F.Supp.2d), aff'd in part, rev'd in part, and remanded, 507 F.3d 346 (5th Cir.2007) (involving a home damaged by the confluence of hurricane-force winds and wind-driven rain as well as a storm surge; wind and rain damage covered under the policy but storm surge subject to a water damage exclusion); Ruiz v. State Farm Fire & Cas. Co., Civil Action No. 1:07CV89 LTS-RHW, 2007 WL 1514015 (S.D.Miss. May 21, 2007) (not reported in F.Supp.3d).

      . Florida does have a statute that applies when a building is a total loss, § 627.702, Fla. Stat. (2005), which we address in a later portion of this opinion.

      . Federal Emergency Management Agency.


text:
    Martina SPENCER, Appellant, v. FLORIDA POWER LIGHT/BROADSPIRE, Appellees.
    No. 1D13-1703.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Rehearing Denied Dec. 17, 2013.
    Martina Spencer, pro se, Appellant.
    Derrick Cox, Winter Park, for Appel-lees.
   PER CURIAM.

On September 11, 2013, after receiving and reviewing Appellant’s initial brief, this court entered an order advising the parties that this appeal is being considered for summary affirmance under Florida Rule of Appellate Procedure 9.315(a). Accordingly, the parties were directed to refrain from further briefing. Appellant filed a response to this court’s preliminary summary affirmance order, arguing (in essence) that this case is not appropriate for summary affirmance because Appellant filed her brief in good faith and her arguments are meritorious. Under rule 9.315(a), summary affirmance is appropriate where the initial brief fails to present a “preliminary basis for reversal,” regardless of the good-faith intentions of the filing party. Because we conclude that Appellant’s initial brief fails to demonstrate a preliminary legal or factual basis for the reversal of the appealed orders, we affirm the appealed orders under rule 9.315(a), and deny on the merits Appellant’s motion requesting another means of disposition.

AFFIRMED.

VAN NORTWICK, ROWE, and MARSTILLER, JJ., concur.