ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

This case was removed from Hernando County Circuit Court on May 23, 2012. The Amended Complaint (Dkt. 25) includes Plaintiffs' breach of contract claim. The basis of jurisdiction is diversity.

Defendant The First Liberty Insurance Corporation ("First Liberty") filed a Counterclaim for Declaratory Judgment (Dkt. 26, pp. 9-13). Defendant moves for entry of summary judgment on the Counterclaim.

I. Standard of Review

A. Fed. R. Civ. P. 56

Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

The appropriate substantive law will guide the determination of which facts are material and which facts are. . .irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and ail justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson, 477 U.S. at 248. But, [i]f the evidence is merely colorable. . .or is not significantly probative. . .summary judgment may be granted." Id. at 249-50.

B. Principles of Insurance Contract Interpretation

It is undisputed that Florida law governs the interpretation of the insurance policy at issue. The Court looks first to the decisions of the Florida Supreme Court, and, in the absence of definitive guidance, follows relevant decisions of Florida's intermediate appellate courts. State Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004).

Under Florida law, insurance contract interpretation is a matter of law, and such "contracts are construed in accordance with the plain language of the policy as bargained for by the parties." Fayad v. Clarendon Nat'l Ins. Co., 889 So.2d 1082, 1086 (Fla. 2005)(internal quotation marks and alteration omitted).

In interpreting an insurance contract, courts are bound by the plain meaning of the contract's text; if the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566 (Fla. 2011). Where the language in a policy is plain and unambiguous, there is no special construction or interpretation required, and the plain language in the contract is to be given the meaning which it clearly expresses. Jefferson Ins. Co. of N.Y. v. Sea World of Fla., Inc., 586 So.2d 95, 97 (Fla. 5th DCA 1991). The fact that the policy does not provide definitions of certain terms does not automatically render the terms ambiguous. Jefferson Ins. Co., 586 So.2d at 97 (citing Travelers Ins. Co. v. C.J. Gayfer's & Co., Inc., 366 So.2d 1199, 1201 (Fla. 1st DCA 1979)). When interpreting insurance contracts, a court may consult references commonly relied on to supply the accepted meanings of words. Garcia v. Federal Ins. Co., 969 So.2d 288, 291 (Fla. 2007)(citing Govt. Employees Ins. Co. v. Novak, 453 So.2d 1116, 1118 (Fla. 1984)).

However, Thy the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage, and the [other] limiting coverage, the insurance policy is considered ambiguous." Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). "Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy." Id. "Likewise, ambiguous insurance policy exclusions are construed against the drafter and in favor of the insured." Id. "[E]xclusionary clauses are construed even more strictly against the insurer than coverage clauses." Id. (citations omitted). "Nil construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect." Id.; see also Sec. 627.419(1), Florida Statutes. ("Every insurance policy shall be construed according to the entirety of its terms and conditions. . .") "[A]ny apparent inconsistency should be reconciled if possible." Florida Farm Bureau Ins. Co. v. Birg, 659 So.2d 310, 312 (Fla. 2d DCA 1991).

C. Principles of Statutory Construction

Legislative intent is the polestar that guides the interpretation and construction of a statute. See E.A.R. v. State, 4 So.3d 614, 629 (Fla. 2009). A court primarily discerns legislative intent by looking to the plain text of the relevant statute. See id. A court gives a statute its plain meaning when the language of the statute is clear and unambiguous and conveys a definite meaning. See Maddox v. State, 923 So.2d 442, 450 (Fla. 2006). When the meaning of a statute is ambiguous, a court may turn to the rules of statutory interpretation and construction. See E.A.R., 4 So.3d at 629

One rule of statutory construction is the doctrine of in pari materia. See id. This principle requires courts to construe statutes that relate to the same subject matter together to harmonize those statutes and give effect to legislative intent. See id. Similarly, a statute is to be read as a consistent whole, and a court should accord meaning and harmony to all of its parts, with effect given to every clause and related provision. See Larimore v. State, 2 So.3d 101, 106 (Fla, 2008).

II. Statement of Facts

The Case Management Order included the Court's instructions as to procedures for a Statement of Undisputed Facts. The docket does not show any sign that either party complied with those procedures. The Court has attached Counterclaim Plaintiff's and Counterclaim Defendants' statements of fact to this Order. To the extent that a party's Statement of Facts includes legal conclusions, the Court ignores those conclusions.

III. Discussion

In the Counterclaim, Counterclaim Plaintiff First Liberty seeks a declaration that the following coverage provision provides no coverage for the damage claimed by Plaintiffs/Counterclaim Defendants Severin and Stephanie Hegel to their real property located at 8257 Tranquil Drive, Spring Hill, Hernando County, Florida, unless that loss includes structural damage, and that the term "structural damage" includes, at a minimum, damage that impairs the structural integrity of the building:

(Dkt. 29-1, p. 40).

A. Presence of Genuine Issue as to Material Fact

Defendant/Counterclaim Plaintiff First Liberty argues that the only issue to be determined by the Court is one of law, and there are no genuine issues as to any material facts.

Plaintiffs/Counterclaim Defendants argue that there are genuine issues of material fact as to whether sinkhole activity is present at the subject property, whether sinkhole activity is the cause of the damages and distress, and what the appropriate method of repair is.

The construction of an insurance policy is a question of law for the Court. It is for the jury to determine whether the facts of the case fall within the scope of coverage as defined by the Court. State Farm Fire & Casualty Co. v. Lichtman, 227 So.2d 309, 311 (Ha. 3d DCA 1969)(Whether a certain set of facts exists to bring loss to insured within terms of policy is to be determined by the trier of fact).

The only issue on which Defendant/Counterclaim Plaintiff First Liberty seeks entry of summary judgment is an issue of contract interpretation, which is a question of law for the Court.

B. Policy No. H36-258-068174-4008

There are no genuine issues of material fact as to the content or execution of Policy No. H36-258-068174-4008, the policy covering 8527 Tranquil Dr., Spring Hill, FL. The policy period is 10/5/2010 to 10/5/2011. The policy was countersigned on 9/2/2010. (Dkt. 29-1, pp. 1-4).

It is undisputed that on August 12, 2011, Plaintiffs/Counterclaim Defendants made a claim for damage to the property discovered on August 12, 2011. Defendant/Counterclaim Plaintiff First Liberty retained Structural Engineering and Inspections, Inc. ("SE1"), who conducted a structural evaluation of the subject property, and produced a report dated September 23, 2011, in which SEI opined that the subject property did not meet the criteria for structural damage as defined in Florida Statute 627.706 (SB 408). Defendant/Counterclaim Plaintiff determined that the policy provided no coverage for Plaintiffs' claim, and denied the claim.

C. The 2011 Amendment to Florida Statute 627.706

The Florida Legislature has not changed the definition of "sinkhole loss" since 2005, but enacted a new, technical definition for "structural damage" that went into effect on May 17, 2011. See 2011 Fla. Sess. Law Serv. Ch. 2011-39, Sec. 22. As a result of the 2011 amendments, the following definition is included in the Florida Insurance Code:

D. Meaning of "Structural Damage"

Defendant/Counterclaim Plaintiff argues that the Legislature's replacement of the term actual physical damage" with the term "structural damage" within the definition of "sinkhole loss" in the 2005 amendments to F.S. 627.706, and the 2007 amendment is determinative. Defendant/Counterclaim Plaintiff argues that the replacement was a purposeful, substantive change to the threshold damage requirement contained in the sinkhole statute. Defendant/Counterclaim Plaintiff further argues that the 2011 Amendments are a further refinement of that substantive change. Defendant/Counterclaim Plaintiff argues that the new definition of "structural damage" should retroactively be made a part of the Policy at issue as a clarification of a prior substantive change in Florida law.

The term "structural damage" is not defined in the applicable insurance policy. A term in an insurance policy is not necessarily considered ambiguous because the term is not defined in the policy. Under Florida law, the Court should construe the undefined word or phrase according to the meaning a person of ordinary intelligence would reasonably give it. Pacific Employers Ins. Co. v. Wausau Business Ins. Co., 508 F.Supp.2d 1167, 1174 (M.D. Fla. 2007). See also Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993)("[t]he insurer cannot, by failing to define the terms. . . .or to include any additional qualifying or exclusionary language, insist upon a narrow, restrictive interpretation of the coverage provided.")

Defendant/Counterclaim Plaintiff First Liberty and Plaintiffs/Counterclaim Defendants agree that the term "structural damage" should be given its ordinary and plain meaning. According to Defendant/Counterclaim Plaintiff First Liberty, the term "structural damage" means, at a minimum, its dictionary meaning of "damage that impairs the structural integrity of the building," or it means the statutory definition in the 2011 amendments to Ch. 627.706, Florida Statutes, which went into effect on May 17, 2011.

According to Plaintiffs/Counterclaim Defendants, the term "structural damage" means "damage to the structure."

1. Retroactive Application

Whether a statutory change in the law should be applied retroactively is governed by state law. Rivera v. Wal-Mart Stores East, LP, 2011 WL 7575393 at *2 (M.D. Fla. Jan. 13, 2011). "The presumption against retroactive application is a wellestablished rule of statutory construction that is appropriate in the absence of an express statement of legislative intent because [it] will generally coincide with legislative and public expectations." Florida Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, Inc., 67 So.3d 187, 195 (Fla. 2011). Where a change in the law is substantive, Florida law sets out a two-pronged inquiry to decide whether retroactive application is appropriate: "[1]. . .the Court must ascertain whether the Legislature intended for the statute to apply retroactively. . . .[2] if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles." Menendez v. Progressive Express Ins. Co., Inc., 35 So.3d 873, 877 (Fla. 2010).

In Bay Farms Corporation v. Great American Alliance Insurance Co., 835 F.Supp.2d 1227 (M.D. Fla. 2011)(amendment substantive; constitutionally impermissible to impair vested rights), the Court held that the 2011 statutory amendment providing a definition of "structural damage" was not retroactively applicable.

2. Substantive Change

A statutory change is substantive, and the presumption against retroactivity remains, when the new statute "accomplishes a remedial purpose by creating new substantive rights or imposing new legal burdens." Metro Dade Cnty, v. Chase Fed. Hous. Corp., 737 So.2d 494, 500 (Fla. 1999).

First Liberty argues that the Bay Farms Court did not consider that at the time of the 2005 amendment which replaced the term "`physical damage" with "structural damage" in the definition of sinkhole loss, the Florida Building Code defined the term "structural" as it applies to buildings to mean "any part, material or assembly of a building or structure which affects the safety of such building or structure and/or which supports any dead or designed live load and the removal of which part, material or assembly could cause, or be expected to cause. all or any portion to collapse or fail." First Liberty argues that the 2005 amendment substantively changed the definition of "sinkhole loss" and the 2011 amendments merely clarified the definition of "structural damage" added to Ch. 627.706 in 2005.

Plaintiffs/Counterclaim Defendants argues that the 2005 Amendment to Section 627.706 (b), "sinkhole loss," does not define "structural damage" and does not expressly incorporate the definition of "structural" in the Florida Building Code ("FBC").

a. Context of 2005 Amendment to Florida Statute 627.706

The 2005 Amendments to Sec. 627, inter alia, changed the definition of "sinkhole loss," explicitly provided that the statutory definition of "sinkhole loss" was the definition used in connection with insurance policies providing coverage for "sinkhole loss," changed the standards involved in investigating sinkhole claims, established testing standards by qualified professionals, established reporting requirements, and established a sinkhole database.

Florida Statute 627.706 (2003), Sinkhole insurance, effective from June 26, 2003 through May 31, 2005 provided:

Florida Statute 627.706 (2005), Sinkhole insurance; definitions, effective June 1, 2005 through September 30, 2006, provided:

(3) Every insurer authorized to transact property insurance in this state shall make a proper filing with the office for the purpose of extending the appropriate forms of property insurance to include coverage for sinkhole losses.

Effective June 1, 2005, the Legislature amended sections 627.706 to 627.707, Florida Statutes (2005), and enacted sections 627.7065, 627.7072, and 627.7073 relating to database information, testing standards, and reporting requirements for sinkhole claims. Warfel v. Universal Ins. Co. of North America, 36 So.3d 136 (Fla. 2d DCA 2010)(statute establishing presumption of correctness for findings of insurers engineer and geologist did not shift burden of proof to insured; reversing judgment in favor of insurer and remanding for new trial; certifying question as to effect of presumption to Florida Supreme Court). In Warfel, before a jury trial, the insurer, Universal, filed a motion asking the trial court to apply the referenced statutory provisions to the case, contending the 2005 amendments and enactments did not impair existing contract rights or obligations. In the alternative, Universal argued that any impairment was overidden by the State's interest in resolving a sinkhole insurance claim crisis. Universal also requested the trial court determine that section 90.304, Florida Statutes (2007) allowed a jury instruction based on section 627.7073(1)(c) as a rebuttable presumption affecting the burden of proof. The trial court denied Universal's motion as to sections 627.706 to 627.707, finding that the amendments were substantive and not applicable retroactively. The trial court granted Universal's motion as to sections 627.7065, 627.7972 and 627.7073, finding that those statutes were procedural and did not involve an issue of retroactivity, and granted Universal's motion as to the jury instruction. The Second District Court of Appeals found no error with the trial court's ruling finding that 627.7065, 627.7972 and 627.7073, sinkhole database, testing and reporting requirements, were procedural. Warfel at 137.

In Universal Ins. Co. v. Warfel, 82 So.3d 47 (Fla. 2012), the Florida Supreme Court approved the decision of the Second District Court of Appeals, and remanded, holding that: 1) the sinkhole claim process statute does not apply in the litigation context; 2) the statute establishing a presumption of correctness for the findings of the engineer and geologist retained by an insurer in cases of alleged sinkhole loss affected the burden of producing evidence, such that the presumption would disappear upon the presentation of rebutting evidence, and 3) the jury instruction that the findings of the insurer's engineer and geologist were to be presumed correct was fundamental error. Because Warfel no longer challenged the trial court's finding that 627.7065, 627.7972 and 627.7073 were procedural, the Florida Supreme Court did not rule on that issue.

The Florida Supreme Court began by explaining the background of the presumption in the Florida Evidence Code, and the statutory scheme for sinkhole loss, from the enactment of section 627.706 in 1981 to 2005, noting that in 2005 the Legislature significantly restructured the sinkhole claim process:

Universal Insurance Co. v. Warfel, 82 So.3d 47, 54-58 (Fla. 2012). The Florida Supreme Court further observed:

Universal Insurance Co., supra, at 57.

The Court has included the above citation only to show Florida Supreme Court's perception of Florida's statutory scheme for sinkhole losses in 2005. That scheme protects the public by: 1) requiring performance of scientific testing by qualified professionals during the claim adjustment process; 2) creation of a database for sinkhole claims, and 3) requiring filing and recording of sinkhole reports in connection with properties on which a claim has been paid, and disclosure of whether or not the amount of the claim proceeds were used to repair the sinkhole damage. The Court also notes the trial court's determination that Florida Statute 627.706 and 627.707 (2005) could not be applied retroactively; that determination recognizes that the 2005 amendments to those sections involved a substantive change which impaired vested rights.

Given that the 2005 amendment involved a substantive change, the Court must determine whether the term "structural damage" should be defined according to the meaning of "structural in the Florida Building Code. The Court looks first to the text of the relevant statute to determine legislative intent. The 2005 amendment to Sec. 627.706 does not include a reference to Florida Building Code. Where the language of that statute is clear and unambiguous, the Court should accord the statute its plain meaning; when the meaning of a statute is ambiguous, the Court turns to rules of statutory interpretation and construction.

In this case, both parties argue that the term within the statute "structural damage" should be given its ordinary and plain meaning. In arguing that the meaning of "structural damage" is determined according the meaning of the term "structural" defined in the Florida Building Code (2005), Defendant/Counterclaim Plaintiff is asking the Court to find that "structural damage" is ambiguous and to construe Sec. 627.706(2)(b) in part materia with the Florida Building Code ("FBC").

The Court finds that the term structural damage" does have an ordinary and plain meaning. Defendant/Counterclaim Plaintiff could have included a definition of "structural damage" within the policy, and could have spelled out Defendant/Counterclaim Plaintiff's intention only to afford coverage for sinkhole losses which cause a structure to fall down, or could be expected to cause a structure to fall down, but did not do so. In the absence of a definition in the policy or applicable statute, other courts, and this Court, following rules of contract interpretation, have found the plain meaning of "structural damage" to be "damage to the structure." See Zawadski v. Liberty Mutual Fire Ins, Co., 2012 WL 3656456 (M.D. Fla. 2012); Ayres v. USAA Cas. Ins. Co. 2012 WL 1094321 at *3-4 (M.D. Fla. 2012).

Defendant/Counterclaim Plaintiff argues that, as a matter of statutory construction, the Court should find that "structural damage to the building" means something other than "damage to the structure." In the 2005 Florida Statutes, in defining "engineer and "professional geologist," Section 627.706 (d), and (e) require expertise in the identification of sinkhole activity and "other potential causes of damage to the structure." in Florida Statute 627.7072, the report must certify that the cause of "actual physical and structural damage" is sinkhole activity, within a reasonable professional probability." After considering Florida Statute 627 as a whole, the Court concludes that the terms "structural damage," "damage to the structure" and "actual physical and structural damage" are used in a synonymous way.

If the Court assumes the term "structural damage" is ambiguous, while it is true that the FBC contained a definition of "structural" in 2005, it does not necessarily follow that the Florida Statutes regulating homeowner's insurance somehow incorporated that definition. The primary purpose of the FBC is to effectively protect the safety and welfare of Florida citizens at the most reasonable cost to the consumer, and secondarily to protect property, as appropriate, by adopting and enforcing uniform minimum standards in building construction. Florida Statute 553.2. The Legislature emphasized that one vital way to protect Florida citizens is to require that all participants in the design and construction industries maintain a thorough knowledge of the FBC and additions to the Code which improve construction standards to protect against storm and other damage. Florida Statute 553.841.

Property insurance is insurance on real or personal property against loss or damage from any hazard or cause, and against consequential loss upon the loss or damage. See Florida Statute 624.604. The property owner pays money to the insurer in exchange for the insurer's agreement to pay for loss or damage from contingent events which cause the losses. There are construction standards which can protect against certain types of damage, such as hurricane and windstorm damage. Where the property covered by a homeowners policy incorporates features and techniques which reduce the risk of hurricane damage or windstorm damage, a premium discount may be available. See Florida Statute 627.711, Notice of Premium Discounts for Hurricane Loss Mitigation, which became effective 10/1/2005. The risk of exposure to sinkhole losses cannot be reduced in the same way; almost the entire State of Florida is at risk for sinkhole loss to some degree, given the porous limestone or dolomite bedrock which underlies Florida. The Legislature chose to include certain requirements within the Florida Statutes regulating homeowner's insurance which protect the citizens of Florida, the above-referenced scientific testing, database and reporting requirements, all of which are "after the fact" measures intended to assist in prevention and remediation, rather than the prophylactic measures which avoid or lessen storm damage to structures in the FBC. The FBC and the Florida Statutes regulating property insurance for sinkhole losses are not about the same thing, where one is primarily concerned about public safety, and the other is concerned about the risk of economic loss to individual property owners. On a general level, both statutes involve buildings, but that is not such a close relation that, if the term "structural damage" were determined to be ambiguous, the Court should construe that term according to the definition of structural in the Florida Building Code.

If in 2005 the Legislature did intend to limit the type or degree of damage to a home caused by sinkhole activity to only damage that could cause or be expected to cause the structure insured to fall down, which is a substantive change from "actual physical damage," without some evidence of that intent, or a clear expression of that intent, such as a reference in statute's language or legislative history, the Court cannot apply that interpretation of "structural" to this dispute.

b. The 2007 Amendment to Florida Statute 627.706

In 2007, Florida Statute 627.706 provided:

The 2007 amendment to Florida Statute 627.706 is a substantive change in that coverage for catastrophic ground cover collapse is required to be made available, and coverage for sinkhole losses, aside from catastrophic ground cover collapse, is available as optional coverage, for a separate premium.

The definition of "sinkhole loss" in Florida Statute 627.706(c) (2007) is unchanged from the 2005 amendment, Florida Statute 627.706(b)(2005). The 2007 amendment provides that "Structural damage consisting of settling or cracking of a foundation, structure or building does not constitute a loss resulting from a catastrophic ground cover collapse." The Court understands this to mean that if geological activity results in all of the following: 1) abrupt collapse of ground cover, 2) a depression in the ground cover, 3) structural damage to the building, including the foundation, and 4) the insured structure is condemned and ordered vacated, there is coverage available for the structure and contents, but structural damage limited to settling or cracking of the foundation and structure is not a loss within the coverage afforded by catastrophic ground cover collapse.

Based on the language of the statute, the 2007 amendment does not limit the meaning of "structural damage" According to the statute, "settling or cracking of the structure or foundation" is within the meaning of "structural damage." The 2007 amendment indicates that structural damage which results in condemnation of the structure such that the structure is ordered vacated, assuming the other requirements are met, is within the coverage for catastrophic ground cover collapse, but structural damage limited to cracking and settling of the building and foundation is not within that coverage. The 2007 amendment represents a legislative decision to provide coverage for structural damage which causes the structure to fall down, or be expected to fall down, when all statutory requirements are met. Outside of catastrophic ground cover collapse, and premised on the payment of an additional premium, coverage for structural damage which is caused by sinkhole activity is available.

The Court has determined that the 2005 amendment did not incorporate the meaning of "structural" as defined in the Florida Building Code. The 2005 amendment and the 2007 amendment did not define "structural damage." After consideration, the Court concludes as a matter of law that the 2011 amendment to Sec. 627.706(k) is a substantive change to the meaning of "structural damage."

3. Intent to Apply Retroactively

The Court notes the analysis in Bay Farms Corporation v. Great American Alliance Insurance Co., 835 F.Supp.2d 1227 (M.D. Fla. 2011), in which the Court determined that there was no clear, unambiguous intent to apply the 2011 amendment to Sec. 627.706 retroactively. See also Garcia v. First Libert Ins, Corp., 2012 WL 3656456 at *2 (M.D. Fla. Oct. 29, 2012); Zawadski v. Liberty Mutual Fire Ins, Co., 2012 WL 3656456 (M.D. Fla. 2012)

Defendant/Counterclaim Plaintiff has not identified clear evidence of intent that the 2011 amendment should apply retroactively in the language of the statute or its legislative history.

4. Violation of Constitutional Principles

The 2011 amendments to Ch. 627.706, Florida Statutes, went into effect after the subject policy was issued. Narrowing the scope of insurance coverage for sinkhole losses in a contract that predates the amending legislation violates Florida and federal constitutional principles. "The Supreme Court of Florida has repeatedly recognized that `subsequent legislation which diminishes the value of a contract is repugnant to [the Florida] Constitution." Bay Farms, 835 F. Supp. At 1241 (citing Dewberry v. Auto-Owners Ins, Co., 363 So.2d 1077, 1080 (Fla. 1978).

There is no evidence that the parties expected any changes to the definitions of "sinkhole loss" or structural damage" when they contracted for the policy, and there is no evidence that they agreed to be bound by subsequent changes in Florida law. Since retroactive application of Sec. 627.706(k) would impair the value of the contract, Florida law forbids it. Accordingly, it is

ORDERED that Defendant/Counterclaim Plaintiff's Motion for Summary Judgment (Dkt. 29) on its Counterclaim for Declaratory Judgment is denied.

DONE and ORDERED.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW

COMES NOW, the Defendant. TI IF FIRST LIBERTY 1NSRUANCE CORPORATION (hereinafter "Liberty"), by and through its undersigned counsel and pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully requests that this Honorable Court enter Summary Judgment in its favor on its counter claim that requests the Court to interpret the meaning of the term`"structural damage" as it is used in the policy, and as grounds therefore states:

I. Undisputed Material Facts

1. Liberty issued policy number 1136-258-068174-4008 (hereinafter, the "subject policy") to Plaintiffs, for the effective period of October 5, 2010 through October 5. 2011 which provided coverage to the premises located at 8257 Tranquil Drive, Spring Hill, Florida 34606-6570 (hereinafter, the "insured residence") subject to the terms, limitations, exclusions, and conditions of the policy.1

2. The subject policy (as modified by the SPECIAL PROVISIONS — FLORIDA) provides coverage for Sinkhole Loss as follows:

The SECTION I — Earth Movement exclusion does not apply to this peril.

3. On August 12, 2011, Plaintiffs made a claim for sinkhole loss with Liberty for damage to their residence that they assert was discovered on August 12, 2011. Subsequently, on or about October 30, 2012, Plaintiffs changed the date they assert the damage was discovered to March 1, 2011.

4. Liberty retained Structural Engineering and Inspections. Inc. ("5EI"), who conducted a structural evaluation of the insured residence and produced a report concluding that:

5. Following SEI's conclusion that there was no structural damage affecting the insured residence, Liberty determined, pursuant to the policy provisions, there was no coverage for Plaintiffs' claim. It advised the insureds:

6. Plaintiffs filed suit against Liberty in Florida state court for an alleged breach of the policy of insurance issued by Liberty to Plaintiffs. The state court action was removed to this Court on May 23, 2011.4

7. In addition to its Answer and Affirmative Defenses, Liberty filed a Counterclaim for Declaratory Judgment. In that Counterclaim. Liberty noted the Plaintiffs initiated this lawsuit because they assert that the policy's requirement that there be structural damage as a threshold for coverage does not foreclose his claim.

8. The policy does not define the term "structural damage," and, absent a definition, it will be for the Court to interpret the term in accordance with the terms and conditions of the policy. Liberty's Counterclaim asserts that the term "structural damage" in the contract between the parties means, at a minimum, its dictionary meaning of damage that impairs the structural integrity of the building.

PLAINTIFFS' AMENDED RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiffs, SEVERIN HEGEL and STEPHANIE HEGEL ("Mr. and Mrs. Hegel"), by and through their undersigned counsel, and pursuant to Federal Rule of Civil Procedure 56, hereby file this response to Defendant, THE FIRST LIBERTY INSURANCE CORPORATION'S ("First Liberty"). Motion for Summary Judement. First Liberty's motion must be denied because there are material facts in dispute and First Liberty is not entitled to judgment as a matter of law. In support thereof, Mr. and Mrs. Hegel state the following:

1. This case involves a breach of an insurance policy ("the Policy"), which covers Mr. and Mrs. Hegel's property, located at 8257 Tranquil Drive, Spring FL 34606. Hernando County, Florida, for damages caused by sinkhole activity. (Dkt. 2.)

2. On or about August 12, 2011, while said Policy was in full force and effect. Mr. and Mrs. Hegel discovered damage to their home, including, hut not limited to. progressive physical damage to the walls and floors of the residence. (Dkt. 2 ¶ 5.)

3. Accordingly, Mr. and Mrs. Hegel made an application for benefits under the Policy with the effective period of October 5, 2010 to October 5, 2011. (Dkt. 2 ¶ 3 ¶7.)

4. In response, First Liberty retained Structural Engineering & Inspections, Inc. ("SEI") to conduct a limited inspection at the subject property "to determine, based on visual. non-destructive structural inspection of the readily accessible areas, if the home has been structurally damaged as defined in the current Fla. Stat. § 627.706 (SB 408)." (Ex. A.)

5. SEI's conclusions were based entirely on the definition of "Structural Damage" that was added to Florida's sinkhole statute after the Policy of insurance was issued.

6. First Liberty accordingly failed and/or refused to comply with Fla. Stat. § 627.707 (2010)1 requiring that it retain a professional engineer or professional geologist to conduct the geological subsurface testing required to determine the presence or absence of sinkhole loss.

7. On or about October 3, 2011, First Liberty notified Mr. and Mrs. Hegel that their claim was being denied because "your policy does not afford coverage for the shrinkage of concrete or settlement (as stated in 2.e.6. of the stated exclusions below). It is also being denied for improper embedment of your foundation (as stated in 2.c.2. of the stated exclusions below). In addition, your policy only provides coverage for sinkhole losses when there is structural damage to the home. As outlined in the engineers report, there is no indication of-any structural damage to your home." Id.

8. The Policy does not define "structural damage."

9. The undefined term "structural damage" is not ambiguous. and should be given its plain and ordinary meaning. which is "damage to the structure." See Ayres v. USAA Cas. Co., 2012 WL 1094321 (M.D. Fla. 2012); Paid Zawadzki v. First Liberty Fire Ins. Co., 2012 WL 3656456 (M.D. Fla. 2012); Jahn & Audrey Testa v. First Liberty Insurance Corporation, Case No. 8:12-cv-190-T-EAJ (M.D. Fla. October 1, 2012); David Argust v. First Liberty Fire Ins. Co., Case No. 8:12-cv-1519-T-AEP (M.D. Fla. November 26, 2011); See also Composite Exhibit B.

10. First Liberty's inaction and failure to comply with the statutorily required geological subsurface testing to determine the presence of sinkhole activity at the subject property is a willful attempt to deny Mr. and Mrs. Hegel ail I benefits under the subject insurance policy.

11. On or about May 29, 2012. Mr. and Mrs. Hegel initiated the underlying lawsuit, alleging that they are suffering direct physical damage to their home and property, and further alleging that Defendant has breached the Policy by failing to pay all benefits due thereunder. (Dkt. 2 ¶ 9-10.)

12. First Liberty removed this matter to Federal Court on or about May 21. 2012. (Dkt. 1.)

13. First Liberty subsequently filed a counterclaim against Mr. and Mrs. Hegel requesting declaratory relief from the Court on the basis that "Plaintiffs have initiated this lawsuit because they disagree with Liberty Mutual's determination that the policy's requirement that there be `structural damage', a term that is not specifically defined by the policy, forecloses their claim. Plaintiffs' disagreement with the denial due to the lack of structural damage arises either because Plaintiffs have defined the term otherwise to encompass the purely cosmetic damage they have claimed or because Plaintiffs believe that, because the policy does not define the term `structural damage,' the term `structural damage' is ambiguous. . . . Therefore, there exists a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issue of a declaration of judgment as to the coverage available under the policy and the rights and responsibilities of the parties thereto." (Dkt. 13 ¶ 29 & 32.)

14. Mr. and Mrs. Hegel filed their Motion to Dismiss First Liberty's Counterclaim on or about October 4, 2012, on the basis that they have not put forth any such assertion regarding a perceived ambiguity as the basis of his breach of contract claim. (Dkt. 29.)

15. There are genuine issues of material fact regarding whether sinkhole activity is present at the subject property, whether sinkhole activity is the cause of the damages and distress, and what the appropriate method of repair is. Accordingly, First Liberty is not entitled to judgment as a matter of law.