They say there is no use crying over spilled milk – but dropping a bottle of wine? Well, that may be a different story. A few months ago, I came across Carreras v. Federated National Ins. Co., a case involving an insurance claim for damage caused by a dropped bottle of wine.1 The impact of the bottle caused some of the insured property’s tiles to crack and chip. The insureds made a claim for the property damage under the homeowner’s insurance policy they had purchased from Federated National Insurance Company (“Federated”). This “all risk” policy covered all direct physical loss to the property except those expressly excluded from coverage.

Eventually, Federated denied the insureds’ claim based on the policy’s “marring” exclusion. The policy provision states, in pertinent part, as follows:

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:
* * *
2. Caused by:
* * *
e. (1) Wear and tear, marring, deterioration;

The insureds subsequently filed a complaint against Federated alleging that the insurer had breached the insurance policy by wrongfully denying coverage for their loss. Federated maintained the position that the policy’s “marring” exclusion applied in this case because an object dropped onto tile flooring causing damage in the form of a chip or crack constitutes “superficial marring damage.” Federated eventually moved for judgment as a matter of law based on this theory.

The subject insurance policy did not define “mar” or “marring.” Federated argued that the trial court should adopt the interpretation promulgated by other courts as to the term’s meaning. Most notably, Federated cited to Ergas v. Universal Property and Casualty Insurance Company,2 which involved a claim for damage to tile flooring caused by a dropped hammer, denied under a similar “marring” exclusionary clause. In Ergas, Florida’s Fourth District Court of Appeal analyzed the meaning of “marring”:

The definition of “mar,” the verb from which “marring” is taken, has multiple meanings. In its motion for summary judgment, appellee quoted two definitions: “the common, plain and ordinary meaning of the term ‘marring’ includes ‘to injure, spoil, damage, ruin, detract from’ (the Universal Dictionary of the English Language, 1939), or to ‘detract from the perfection or wholeness of’ (Miriam–Webster Online Dictionary, 2009)….”

Other definitions include: “1. To inflict damage, especially disfiguring damage, on; 2. To impair the soundness, perfection, or integrity of; spoil.” The American Heritage Dictionary of the English Language Online, (4th ed. 2000) (emphasis added). Appearing at www.thefreedictionary.com. Another definition is: “(tr): to cause harm to; spoil or impair; n. a disfiguring mark; blemish.” Collins English Dictionary—Complete and Unabridged Online; www.thefreedictionary.com. (emphasis added) Universal also quotes Black’s Law Dictionary (revised edition) for its definition of “mar”: “to make defective; to do serious injury to; to damage greatly; to impair, spoil, ruin; to do physical injury to, especially by cutting off or defacing a part; to mutilate; mangle, disfigure, deface.” (Emphasis added). Although it is of concern to us that the definitions cited by Universal include both doing great damage as well as the relatively minor blemishing of the appearance in this case, under either definition the damage to the floor would constitute marring.

In response, the insureds argued the definition offered by Federated was ambiguous and that such an interpretation of the marring exclusion would effectively render the policy meaningless since insurers could use it to exclude almost all damage to covered property. The insureds explained that even in Ergas, the court noted how applying the exclusionary clause in certain situations would lead to absurd results:

While Universal maintains that marring means superficial damage to the appearance of the object, these definitions collectively form no bright line between superficial damage and more serious damage. The definitions of “mar” seem to include both concepts. These definitions of marring might thus cover almost all damage to property insured, whether slight or substantial. As this would cover most of what an insured would expect the policy to cover, a definition of “mar” which included serious injury would essentially gut coverage under the insurance policy. A term of an insurance policy should not be construed to reach an absurd result. See Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26 (Fla. 2d DCA 2004). Nevertheless, in this case the Ergases have not argued that the definition is ambiguous because it is over-inclusive of damage.

Unfortunately for the insureds in this case, the trial court adopted the interpretation of “marring” stated in the opinions cited by Federated. The court held that the tile damage caused by the insureds dropping a bottle of wine was subject to the marring provision of the policy and entered final judgment in Federated’s favor. The insureds have since moved to appeal the trial court’s ruling.

Though it is unclear at this point how much further insurance carriers can and will try to go with applying the marring exclusion, keep this case in mind next time next time you uncork your favorite bottle of wine.

1 Carreras v. Federated National Ins. Co., Collier County Case No. 12-CA-2836 (Fla. Cir. Ct. August 19, 2014) (Trial Order).
2 Ergas v. Universal Prop. and Cas. Ins. Co., 114 So. 3d 286, 289 (Fla. 4th Dist. App. 2013), reh’g denied (June 7, 2013), review denied sub nom. Ergas v. Universal Prop., 133 So. 3d 525 (Fla. 2014).