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March 18, 2026 Get Citation Alerts Download PDF Add Note

Homeowner's Choice Property & Casualty Ins. Co. v. Deborah Oakes

District Court of Appeal of Florida

• Citations: None known
• Docket Number: 4D2024-1873

• Disposition: Affirmed

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.7K)

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Disposition

Affirmed

Combined Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

HOMEOWNER’S CHOICE PROPERTY & CASUALTY INS. CO.,
Appellant,

v.

DEBORAH OAKES,
Appellee.

No. 4D2024-1873

[March 18, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Keathan Briscoe Frink, Judge; L.T. Case No. CACE21-
006061.

Mark David Tinker and Brandon James Tyler of Cole, Scott & Kissane,
P.A., Tampa, for appellant.

Timothy Hubbard Crutchfield and Keith Alan Truppman of Mintz
Truppman, P.A., North Miami, for appellee.

GROSS, J.

One of the most common reasons behind a per curiam affirmance
without written opinion is that the appellant failed to preserve a legal issue
for appellate review. It is informative for the Bar when this court writes on
a preservation issue to flesh out its requirements. This is a case where an
insurance company’s attorney failed to preserve the legal issues raised on
appeal regarding the interpretation of the underlying policy.

Homeowners Choice Property and Casualty Insurance Company (the
“Insurer”) appeals a final judgment entered in favor of the policyholder,
Deborah Oakes. A jury returned a verdict for Oakes on her breach of
contract claim against the Insurer.

The main issue on appeal concerns the interpretation of the policy. We
therefore find it necessary to examine the policy’s salient terms to give
context for our holding.
The Insurance Policy

Oakes held a homeowners’ insurance policy with the Insurer. Section
I of the policy contains four parts: (1) Property Coverages; (2) Perils Insured
Against; (3) Exclusions; and (4) Conditions. We describe the policy in some
detail to demonstrate that the case presented significant issues of policy
interpretation.

The Property Coverages part consists of Coverage A (Dwelling),
Coverage B (Other Structures), Coverage C (Personal Property), and
Coverage D (Loss of Use). In addition to the four standard property
coverages, Section I – Property Coverages also contains an “Additional
Coverages – Collapse” provision, which states in relevant part:

1. Collapse a. The coverage provided under this Additional Coverage – Collapse applies only to an abrupt collapse. b. For the purposes of this Additional Coverage – Collapse, abrupt collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose. c. This Additional Coverage – Collapse does not apply to: [listing various exclusions] ... d. We insure for direct physical loss to covered property involving abrupt collapse of a building or any part of a building if such collapse was caused by one or more of the following:

(1) The Perils Insured Against in Coverage C – Personal
Property;
(2) Decay, of a building or any part of a building, that is
hidden from view, unless the presence of such decay is
known to an “insured” prior to collapse.
However, d.(2) above does not provide coverage for a
plumbing system or any part of a plumbing system
resulting from decay as described in Additional Coverage
8.c.(4) above;
(3) Insect or vermin damage, to a building or any part of a
building, that is hidden from view, unless the presence of
such damage is known to an “insured” prior to collapse;
(4) Weight of contents, equipment, animals or people;
(5) Weight of rain which collects on a roof; or

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(6) Use of defective materials or methods in construction,
remodeling or renovation if the collapse occurs during the
course of the construction, remodeling or renovation.

The Additional Coverage – Collapse provision thus contains its own self-
contained coverage grant separate from the coverage grants in Section I –
Perils Insured Against. Also, the Additional Coverage – Collapse provision
contains no language stating that the coverage granted in that provision
is also subject to the Section I – Exclusions.

The operative coverage grants for Coverages A, B, and C are contained
in the Section I – Perils Insured Against, not in the earlier Section I –
Property Coverages section, which primarily describes the property and
sets forth limits of liability. In Section I – Perils Insured Against, the policy
contains the following coverage grant for Coverages A and B: “We insure
against risk of direct loss to property described in Coverages A and B only
if that loss is a physical loss to property.” Similarly, Section I – Perils
Insured Against contains the following coverage grant for Coverage C: “We
insure for direct physical loss to the property described in Coverage C
caused by a peril listed below unless the loss is excluded in SECTION I –
EXCLUSIONS.”

The policy’s Perils Insured Against section expressly excludes collapse
coverage except as provided in the Additional Coverage – Collapse
provision:

SECTION I – PERILS INSURED AGAINST

COVERAGE A – DWELLING and COVERAGE B – OTHER
STRUCTURES

We insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to
property.

We do not insure, however, for loss:

1. Involving collapse, including any of the following conditions of property or any part of the property, whether above or below the ground:

a. An abrupt falling down or caving in;

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b. Loss of structural integrity, including separation of
parts of the property or property in danger of falling down
or caving in; or
c. Any spalling, crumbling, settling, cracking, shifting,
bulging, racking, sagging, bowing, bending, leaning,
shrinkage or expansion, or any other age or maintenance
related issues, as such condition relates to (1) or (2) above;

except as provided in 8. Collapse under Additional Coverages.

...

1. Excluded under Section I – Exclusions.

The Perils Insured Against section expressly states that the Section I -
Exclusions apply to Coverages A, B, and C. As set forth above, within the
Perils Insured Against section discussing Coverages A and B, the policy
expressly states: “We insure against risk of direct loss to property
described in Coverages A and B only if that loss is a physical loss to
property. We do not insure, however, for loss: . . . 3. Excluded under
Section I – Exclusions.” And within the Perils Insured Against section
discussing Coverage C, the policy expressly states: “We insure for direct
physical loss . . . unless the loss is excluded in SECTION I – EXCLUSIONS.”
By contrast, the Additional Coverage – Collapse provision contains no
language subjecting the coverage grant to the Section I – Exclusions.

The policy also includes an endorsement that completely replaces the
Additional Coverages section of the policy when a catastrophic ground
cover collapse occurs. The Catastrophic Ground Cover Collapse
Endorsement contains the following language not included in the
Additional Coverage – Collapse section applicable to Oakes’s claim:

SECTION I – ADDITIONAL COVERAGES is replaced by the
following:

ADDITIONAL COVERAGES
The following Additional Coverages are subject to all the
terms, provisions, exclusions and conditions of this policy.

The Section I – Exclusions portion of the policy begins as follows: “1.
We do not insure for loss caused directly or indirectly by any of the
following.” Paragraph 1 of this part then contains general exclusions
precluding coverage for losses resulting from, among other things, “Fungi,”
Wet or Dry Rot, Yeast or Bacteria. Paragraph 2 of this part states: “We do

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not insure for loss to property described in Coverages A and B caused by
any of the following,” including “Faulty, inadequate or defective . . .
[d]esign, specifications, workmanship, repair, construction, renovation,
remodeling, . . . [m]aterials[,] . . . [or] [m]aintenance.”

The Loss

In September 2020, a ceiling collapsed in the secondary home on
Oakes’s property. Oakes reported the claim to the Insurer, which denied
coverage after its investigation.

The Lawsuit—Pleadings

Oakes sued the Insurer for breach of contract, alleging that the collapse
was covered by the policy and that the Insurer had improperly denied her
claim.

The Insurer answered and raised several general policy exclusions in
Section I – Exclusions as affirmative defenses, including the exclusion for
faulty or defective design, construction, or maintenance (second
affirmative defense) and the exclusion for fungi, wet or dry rot, yeast, or
bacteria (fourth affirmative defense). The Insurer also raised as its first
affirmative defense various exceptions to coverage within the Section I –
Perils Insured Against portion of the policy, including “wear and tear,
marring, deterioration,” “smog, rust, decay or other corrosion,” “settling,
shrinking, bulging or expansion, including resultant cracking,” “animals,
whether dead or alive . . . including . . . vermin [and] termites,” and “insects
or pests.”

Oakes’s Motion for Partial Summary Judgment

Oakes moved for partial summary judgment on the Insurer’s affirmative
defenses, arguing that the Policy provided specific “Additional Coverage”
for the peril of collapse and that “only those exclusions and/or limitations
contained within the additional coverage for collapse would apply.”

Oakes alleged that she was entitled to partial summary judgment on
the Insurer’s affirmative defenses that were based on general exclusions,
because “the only exclusions and/or exceptions to collapse coverage are
those explicitly contained within the ‘ADDITIONAL COVERAGES’ for
collapse provision of this insurance policy.”

Relying upon Kings Ridge Community Ass’n v. Sagamore Insurance Co.,
98 So. 3d 74, 79 (Fla. 5th DCA 2012), Oakes argued that the “‘additional

5
collapse coverage’ cannot be modified or qualified in any manner by other
listed exclusions except those specifically contained within the ‘additional
collapse’ coverage provision.” Oakes maintained that “there is not an
actual conflict between the general exclusions and the ‘Collapse’
exceptions, but the application of the general exclusions to a ‘Collapse’
would render certain parts of the ‘Collapse’ exceptions mere surplusage.”
As such, Oakes argued, “only the specified ‘Collapse’ exceptions could be
applicable to a collapse claim, as the Kings Ridge court made clear.”

In sum, Oakes’ motion asserted that the Insurer’s affirmative defenses
based on general exclusions were legally insufficient.

Insurer’s Written Response to Motion for Partial Summary
Judgment

The Insurer responded in opposition to Oakes’s operative motion for
partial summary judgment on the affirmative defenses. The Insurer’s
response focused almost entirely on factual disputes regarding whether
the alleged collapse was “abrupt,” whether the damage was hidden,
whether the damage was caused by insects or vermin, and whether the
damage was known to Oakes prior to the collapse.

The Insurer offered no meaningful legal argument explaining why Kings
Ridge should not apply or pointing out how the policy language in this
case differed from that in Kings Ridge. Instead, the Insurer made only the
cursory, superficial argument that “Kings Ridge is not ‘definitive’ as
Plaintiff asserts and such an interpretation as to the subject policy would
lead to nonsensical results.”

The Insurer later filed over 100 pages of documents from the Kings
Ridge litigation, including pleadings, motions, memoranda, and the
summary judgment order. But this filing was nothing more than a
document dump. The Insurer neither focused on any specific language
within those documents nor advanced any argument that would justify
distinguishing Kings Ridge from this case.

Hearing Before General Magistrate

Oakes’s motion for partial summary judgment was referred to a general
magistrate.

During the hearing before the magistrate, Oakes’s counsel relied on
Kings Ridge and argued that “the only exclusions that apply relative to the
additional coverage for collapse are the exclusions that are expressly

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stated within the additional coverage.” Oakes’s counsel made clear that
his position was based solely on contract interpretation, independent of
the facts of the case.

The Insurer’s counsel countered that Oakes had not met her summary
judgment burden and that he could “just shut up and rely upon the lack
of evidence.” According to this lawyer, Oakes had not proven that the
collapse was abrupt, that the decay/termite damage was unknown to
Oakes prior to collapse, or that the collapse rendered the structure not
suitable for living.

Significantly, the Insurer’s counsel made no coherent, substantive
argument against Oakes’s interpretation of the policy or against the
applicability of Kings Ridge.

Rather, the Insurer’s counsel merely asserted without elaboration that
Kings Ridge was “remarkably different” and “does not say what [Oakes’s
counsel] says it says.” The Insurer’s counsel later added this horseback
opinion: “[Oakes’s counsel] says, because there’s an additional coverage
provision, that no other coverages or exclusions apply. That’s illogic [sic]
and doesn’t make any sense and not with any insurance law.”

The Insurer’s counsel offered no legal analysis of how the Kings Ridge
policy was different from Oakes’s policy, how Oakes’s counsel had
supposedly misstated the holding of Kings Ridge, or why Oakes’s
interpretation of the policy was illogical or otherwise inconsistent “with
any insurance law.”

Magistrate’s Report and Recommendation

The magistrate issued a Report and Recommendation concluding that
Oakes’s motion for partial summary judgment should be granted. The
magistrate found “no disputed issues of material fact that prevent the
Court from granting partial summary judgment to establish as a matter of
law the correct interpretation of the subject policy language.” The
magistrate relied upon Kings Ridge and concluded that “the only
exclusions and/or exceptions to collapse coverage are those explicitly
contained within the ‘ADDITIONAL COVERAGES’ for collapse provision of
this insurance policy.” “Under the express terms and conditions of the
insurance policy and the caselaw presented,” the magistrate reasoned,
“none of the general exclusions are applicable to the ‘ADDITIONAL
COVERAGES’ for collapse.” Thus, “based upon the pleadings and
argument presented,” the magistrate found that Oakes was entitled to

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partial summary judgment on the Insurer’s affirmative defenses related to
general policy exclusions.

Insurer’s Exceptions to Magistrate’s Report

The Insurer filed exceptions to the magistrate’s report, arguing
primarily that partial summary judgment in favor of Oakes was
unwarranted because there were genuine issues of material fact regarding
whether the collapse was “abrupt.” The Insurer raised only the following
cursory challenge to the magistrate’s actual reasoning: “Moreover, the
Report and findings therein failed to take into account the actual issues
involved in Kings Ridge and distinctions between those issues and the
issues in this lawsuit, including significant differences in the applicable
policy provisions.” The Insurer also argued that the magistrate’s report
was unclear.

Circuit Court Hearing on Exceptions

Judge Frink held a hearing on the Insurer’s exceptions to the
magistrate’s Report. At the outset of the hearing, Judge Frink succinctly
framed the legal issue as whether the applicable Additional Coverage for
Collapse provided only “limited exclusions,” such that the general
exclusions raised were “not specific” to the collapse coverage.

The Insurer’s lawyer did not take the hint. He contended that the
magistrate erred because Oakes had submitted “zero evidence” to
establish that the collapse was abrupt or that the decay, insect, or vermin
damage “was hidden from view and not known by the insured prior to
collapse.” Judge Frink responded that he understood the argument, “but
the issue that I understand in the motion was just – was a partial summary
judgment on your defenses.”

The Insurer’s counsel replied that if the collapse coverage provision did
not apply, then the Insurer should be permitted to present other policy
exclusions to the jury:

[INSURER’S COUNSEL]: . . . [W]e filed summary judgment in
opposition, showing that there are genuine issues of material
fact as to whether it was even abrupt, to begin with.

And if that’s the case, if the fact finder finds that it was not
abrupt, then those other exclusions in the policy that are the
other affirmative defenses would necessarily potentially apply.
And that’s where we think that the magistrate erred. . . .

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So, if it is indeed that the collapse additional coverage
provision does not apply because, for example, it was not
abrupt, and/or it wasn’t hidden and the Plaintiff didn’t
know about it prior to the collapse, then we contend those
other provisions should -- we should be able to present
those potential exclusions to the jury.

(Emphasis supplied).

Instead of addressing Oakes’s argument that the general exclusions
raised in the affirmative defenses did not apply to the Additional Coverage
– Collapse provision, the Insurer reiterated its argument that those
exclusions applied if Oakes’s claim was not covered under that provision.
For example, the Insurer’s lawyer made the following argument that
justifiably confused the trial judge:

[INSURER’S COUNSEL]: . . . And if the jury decides that it
wasn’t abrupt and that policy doesn’t -- that additional
coverage doesn’t apply, then I think we’re entitled to present
to the jury those other additional exclusions such as wear and
tear and things of that nature that would apply.

THE COURT: Okay. That’s where you lost me. So, we’re just
-- the only way that coverage is afforded is if it’s under this
provision for a collapse.

The Insurer’s counsel concluded with the observation “to the extent I
guess they’re claiming any other damages outside of quote, unquote,
‘collapse’ in this matter, we would contend those other provisions exclude
any such damages.”

Oakes’s counsel tried to bring the argument back into focus by pointing
out that “this is only a collapse claim,” and if he did not “prevail on the
collapse claim and prove at trial that it falls within the definition of a
collapse, I lose. End of story.” He reiterated: “I didn’t move for summary
judgment on collapse. I just moved for summary judgment as to the
exclusions that would apply to my collapse claim.”

Judge Frink noted that the Insurer was “going further than what the
motion is asking for,” explaining that Oakes was “asking for the Court to
make a legal determination of the defenses available based on the policy.”
Judge Frink added that this legal determination “requires an
interpretation and reading of the policy, not whether the Plaintiff has

9
proven or the Defense has presented evidence or can prove whether these
defenses apply, or whether there’s, in fact, coverage.”

The Insurer’s lead counsel then explained that the Insurer’s position
“in a nutshell is if they cannot satisfy the abrupt collapse and knowledge
requirements, then . . . this provision would not trump our defenses, and
we would be allowed to present our defenses to the jury.”

Oakes’s counsel reiterated that he “would lose” under such a scenario,
and Judge Frink agreed. Judge Frink observed that if the collapse was
not abrupt, then Oakes would lose. Conversely, if an abrupt collapse were
proven, the only exclusions available would be “the exclusions provided .
. . under the additional coverages.”

At the conclusion of the hearing, Judge Frink ruled: “I don’t find
anything legally incorrect with the magistrate’s ruling based on the policy
that applies.” In short, Judge Frink ruled that “[t]he affirmative defenses
that are raised based on the exclusions within the general coverages of the
policy . . . do not apply, can’t be raised; only those . . . available under the
additional coverages.” Judge Frink entered an order overruling the
exceptions to the magistrate’s report.

Trial, Verdict and Final Judgment

The case proceeded to trial, where the Insurer was prohibited from
arguing that the general policy exclusions barred coverage for the loss.
The jury returned a verdict in favor of Oakes, finding that (1) the loss
occurred during the policy period, (2) the Insurer did not prove that Oakes
failed to provide documents and records, (3) the Insurer did not prove that
Oakes failed to mitigate damages, and (4) Oakes suffered $80,772 in
damages. The trial court entered a final judgment awarding Oakes the
damages fixed by the jury along with prejudgment interest. The trial court
denied the Insurer’s motion for new trial, prompting this appeal.

The Insurer’s Arguments on Appeal

On appeal, the Insurer makes a detailed argument concerning the
interpretation of the policy. The Insurer contends that the trial court erred
by prohibiting it from asserting general policy exclusions as defenses to
Oakes’s claim for collapse coverage.

First, the Insurer argues that the text and structure of the policy—and
well-reasoned case law—demonstrate that the general exclusions apply to
all coverages, including additional coverages. Specifically, the Insurer

10
asserts that “the Exclusions part does not differentiate between the
relevant coverages,” and that the trial court “contorted” the collapse
exclusion to somehow displace all other exclusions. The Insurer contends
that the policy’s structure—with general exclusions separately following
the collapse coverage and the collapse exclusion—demonstrates that
general exclusions apply to all coverages.

Second, the Insurer argues that Kings Ridge is distinguishable because
the Insurer’s policy is structured differently, with the “except as provided
in” language appearing in the “Perils Insured Against” part rather than
alongside the general exclusions; unlike here, the Insurer argues, the
exclusion asserted in Kings Ridge directly conflicted with the grant of
collapse coverage.

Third, the Insurer argues that Kings Ridge’s holding that general
exclusions could not apply to collapse coverage is unsupported, and ample
authority from other jurisdictions reaches the opposite conclusion.

Fourth, the Insurer argues that faulty-construction-or-maintenance
and fungi-or-rot exclusions are consistent with the grant of coverage for
collapse, so the Insurer should have been allowed to raise them as
defenses.

Oakes answers that the judgment on appeal must be affirmed because
the Insurer did not present the trial court with the arguments it now raises
as grounds for reversal and thus failed to preserve the arguments for
appellate review. Oakes emphasizes that the Insurer did not present any
of the arguments set forth in the headings of its initial brief—such as
arguments about policy structure, distinctions from Kings Ridge, or out-
of-state case law—to the magistrate or to Judge Frink.

Discussion

We agree with Oakes that the Insurer failed to adequately preserve the
specific arguments it advances on appeal.

“It is well established that issues not properly preserved are waived.”
State v. Clark, 373 So. 3d 1128, 1131 (Fla. 2023). Specificity in the trial
court is the key to preservation for appeal. “[T]o be preserved for further
review by a higher court, an issue must be presented to the lower court
and the specific legal argument or ground to be argued on appeal or review
must be part of that presentation if it is to be considered preserved.”
Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005)
(quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)); see also Santiago

11
v. Mauna Loa Invs., LLC, 189 So. 3d 752, 757 (Fla. 2016) (applying
Tillman). The argument on appeal “must be the specific contention
asserted as legal ground for the objection, exception, or motion below.”
Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).

Recently, the Florida Supreme Court has tightened up the
requirements for preservation, rejecting the notion that vague comments
can substitute for clear and specific legal objections.

In State v. Pacchiana, 289 So. 3d 857, 862 (Fla. 2020), the Florida
Supreme Court held that defense counsel’s comment—“[t]hat’s a religious
based strike”—was not itself a clear and specific legal objection to the
constitutionality of a peremptory strike on religious grounds, even though
defense counsel’s comment occurred during a Batson 1 challenge to the
prosecution’s exercise of a peremptory strike against an African-American
Jehovah’s Witness.

Following Pacchiana, this court has explained that “it is not enough to
generally talk about an objection; to preserve an issue for appeal, a litigant
must assert the ‘clear and specific’ objection required by the law.”
Chiarella v. Ford, 383 So. 3d 102, 105 (Fla. 4th DCA 2024). Indeed,
“[m]erely referring to an authority without expressly arguing to the lower
court the principle that flows from it is inadequate to preserve the issue
for review if the argument was not considered by the trial court.” 12550
Biscayne Condo. Ass’n v. NRD Invs., LLC, 336 So. 3d 750, 756 (Fla. 3d
DCA 2021).

Here, the Insurer failed to preserve the specific arguments it now
advances to challenge the trial court’s ruling that the Insurer could not
raise general policy exclusions as defenses against Oakes’s claim for
collapse coverage. Despite some gentle prodding from Judge Frink to get
on point, the Insurer’s counsel appeared to miss the legal thrust of the
motion for partial summary judgment. Nothing remotely resembling the
detailed arguments in the initial brief was presented below. The Insurer’s
arguments on appeal were not presented to either the magistrate or Judge
Frink with sufficient clarity, specificity, or legal development.

First, none of the core legal arguments now raised on appeal were
sufficiently articulated below. The Insurer’s initial brief advances four
distinct sub-arguments challenging the trial court’s ruling that general
exclusions did not apply to the additional collapse coverage: (1) the text
and structure of the policy demonstrate that general exclusions apply to

1 Batson v. Kentucky, 476 U.S. 79 (1986).

12
all coverages, including additional coverages; (2) Kings Ridge is
distinguishable due to differences in policy language; (3) Kings Ridge’s
holding is unsupported and conflicts with ample authority from other
jurisdictions; and (4) the faulty-construction and fungi-or-rot exclusions
are consistent with the grant of additional coverage for collapse. However,
these arguments either were not presented below or were presented in
such a superficial way as to constitute a waiver.

Merely referencing Kings Ridge and asserting that it was “not definitive”
or “would lead to nonsensical results” was insufficient to preserve the
challenges raised on appeal to its holding or applicability. The Insurer did
not attempt below to distinguish the policy language in Kings Ridge from
the policy language here, nor did the Insurer assert below that Kings Ridge
was in conflict with out-of-state jurisprudence.

While the Insurer dumped a number of documents from the Kings
Ridge litigation into the trial court’s lap, it was not the trial court’s job to
sift through those documents, organize them, and divine the Insurer’s
argument. The Insurer offered no meaningful legal argument below
explaining why Kings Ridge should not apply or how the policy language
in this case differed from that in Kings Ridge. The Insurer presented no
textual or structural analysis below of how the additional collapse coverage
interacted with general exclusions. In short, the Insurer never advanced
any coherent legal principle below for why Kings Ridge was wrong or
distinguishable. 2

2 We do not mean to suggest that Kings Ridge, or any legal authority, necessarily

obtains the meaning proposed by one party where the other party fails to
adequately address their opponent’s characterization of it. “When an issue or
claim is properly before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.” Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991). “The contrary conclusion would permit
litigants, by agreeing on the legal issue presented, to extract the opinion of a court
on hypothetical Acts of Congress or dubious constitutional principles, an opinion
that would be difficult to characterize as anything but advisory.” U.S. Nat’l Bank
of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993); see also
United States v. Undetermined Quantities of All Articles of Finished & In-Process
Foods, 936 F.3d 1341, 1350 (11th Cir. 2019) (“The court’s role is to get it right,
not to choose which side’s argument is better and adopt it lock, stock, and
barrel.”).

Put more eloquently, “[i]t is emphatically the province and duty of the judicial
department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

13
Likewise, the Insurer’s statement to the magistrate that Oakes’s
position was “illogic [sic] and doesn’t make any sense and not with any
insurance law” does not equate to the presentation of a specific legal
argument regarding how the general exclusions interacted with the
additional collapse coverage in the policy. Such a conclusory, superficial
assertion fails to meet Florida’s standard for preservation. Again, the
Insurer never offered any legal analysis of how Oakes’s interpretation of
the policy was illogical or otherwise inconsistent “with any insurance law.”
Although a litigant need not file a full-blown appellate brief in the trial
court, the litigant must fairly apprise the court of the legal argument being
advanced.

The Insurer’s strategy in opposing the motion for partial summary
judgment was primarily to argue that factual disputes precluded summary
judgment. The Insurer largely failed to grapple with Oakes’s actual
argument for partial summary judgment concerning the inapplicability of
general exceptions or exclusions based on the policy language. At the
hearing before Judge Frink, the Insurer made a different argument than
the arguments it now advances on appeal. The Insurer argued that if
Oakes was claiming any damages other than “collapse,” then the general
exclusions would apply.

In sum, the Insurer did not present the trial court with any of the
specific legal arguments now advanced on appeal concerning policy text
and structure, the alleged lack of conflict between collapse coverage and
certain exclusions like faulty workmanship and fungi/rot, and out-of-state
jurisprudence. The Insurer offered no meaningful distinction from Kings
Ridge and pursued a largely fact-based opposition to the motion for partial
summary judgment. None of the Insurer’s textual, structural, or
jurisprudential arguments were ever considered by the magistrate or
Judge Frink.

The trial court construed the policy based on the arguments raised
below. That the trial court so construed the policy language does not open
the door on appeal to raise every argument that might have been—but was
not—presented to the trial judge. Because the Insurer’s specific
arguments were raised for the first time on appeal, they are unpreserved
and waived.

But when a party, as the Insurer here, fails to make an argument below—legal or
factual—they will generally not be heard to make the argument for the first time
on appeal. In other words, that argument raised for the first time is not “properly
before the court.” Kamen, 500 U.S. at 99.

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For these reasons, we affirm the final judgment on appeal without
reaching the issue concerning the proper construction of the insurance
policy. Nothing in this opinion should be taken as even a hint of a ruling
on that issue.

Affirmed.

CIKLIN and LOTT, JJ., concur.

---

Not final until disposition of timely-filed motion for rehearing.

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