When a homeowner’s expert says vibrations alone damaged a house, and the insurer’s expert says settlement did, the insurer is not entitled to summary judgment on the policy’s earth movement exclusion and its settlement provision; the question goes to the jury. The Third District Court of Appeal applied that rule on October 28, 2026, in Homeowners Choice Property & Casualty Insurance Company v. Moise, No. 3D2024-1000, and affirmed a final judgment for the insured. Judge Bokor wrote the opinion. Chief Judge Scales and Judge Miller completed the panel.
The earth movement exclusion and the claim
The policy, effective May 8, 2013, covered direct physical loss except where excluded. Its exclusions reached losses caused directly or indirectly by “Earth Movement and Settlement,” a category that includes earth sinking, rising or shifting, clay shrinkage, and “settling, cracking or expansion of foundations.” The insured sued in 2014 over cracking and related damage to floors, walls and ceiling that she said came from vibrations during demolition at a neighboring house on March 1, 2014. The insurer’s engineering firm concluded the damage was caused by material shrinkage or settlement, and the insurer denied the claim on June 6, 2014.
Why summary judgment was denied
The insured’s expert attested that heavy construction equipment next door sent vibrations through the subsoil into the foundation, and that the vibrations “damaged the property without displacement of the earth.” The insured also testified that she felt vibrations and saw picture frames shaking. The trial court held that vibration was not among the policy’s exclusions and denied the insurer’s motion. The Third District reviewed that ruling de novo and affirmed. It relied on its own earlier decisions, including Castillo v. State Farm Florida Insurance Co., Tower Hill Prime Insurance Co. v. Bermudez and Izquierdo v. Universal Insurance Co. of North America, and distinguished Hernandez v. Citizens Property Insurance Corp., where the insurer’s own engineer attributed the damage to blasting vibrations that led the house to shift. Quoting Izquierdo, the court wrote that if a jury finds the damage came from shock waves without earth movement, “the subject earth movement exclusion will not apply.” Here the experts conflicted, and the jury found the damages were not excluded.
Evidence limits at trial
The insurer argued that a ruling in limine kept it from arguing the exclusion at all. The court read the ruling more narrowly: it held only that “vibration,” specifically, was not an exclusion, and it did not limit other evidence on the earth movement provision. The insurer’s own expert testified that vibration occurred but that “vibration did not cause this damage.” Because the insurer did not identify any evidence it was unable to present, the court found no prejudice and treated any error as harmless.
Post-loss obligations
The trial court had granted the insured summary judgment on five affirmative defenses about late notice, protecting the property and providing records. The Third District held this was not error. A denial of coverage waives the insurer’s right to insist on compliance with policy conditions. The insurer denied the claim in a letter that called itself a “declination of coverage” on the basis that the causes of damage were excluded. The court said the letter’s references to missing documents and its reservation of rights “was likely not sufficient to avoid a finding of waiver.”
Money damages
The operative complaint was styled as a declaratory judgment action, and the insurer argued the court could not award the $240,000 jury verdict plus prejudgment interest. The court disagreed: the complaint also alleged improper denial of coverage and sought “damages attributable to the Loss, if covered,” and a money judgment may be awarded as incidental or supplemental relief to a declaratory decree. It cited section 86.061, Florida Statutes.
What this does and does not mean
The court did not hold that vibration damage is always covered. Its holding rests on conflicting expert evidence about the cause of the damage under materially identical policy language, and the jury found the damages were not excluded. The opinion’s discussion of the reservation-of-rights language is phrased as “likely” insufficient, not as a flat rule. The opinion contains no dissent or concurrence. It also prints the insurer’s name two ways, “Homeowners Choice” in the caption and “Homeowner’s Choice” in the text, and the opinion states it is not final until disposition of a timely motion for rehearing.
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Read the opinion (PDF): Download the opinion (PDF)
Source: Homeowners Choice Property & Casualty Insurance Company v. Moise, No. 3D2024-1000 (Fla. 3d DCA Oct. 28, 2026). This article is general information, not legal advice.