Universal Property & Casualty Insurance Company v. Boniface Jean

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,
Appellant,
v.
BONIFACE JEAN,
Appellee.
No. 4D2024-1257
[November 19, 2025]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. CACE-22-018547.
David A. Noel and Kara Rockenbach Link of Link & Rockenbach, PA,
West Palm Beach, for appellant.
Scott 	J. 	Edwards 	of 	Scott. 	J. 	Edwards, 	P.A., 	Boca 	Raton, 	and
Vyacheslav 	Borshchukov 	of 	Vyacheslav 	Borshchukov, 	P.A., 	Fort
Lauderdale, for appellee.
K LINGENSMITH, J.
Appellant 	Universal 	Property 	& 	Casualty 	Insurance 	Company
(“Insurer”) appeals the trial court’s final judgment entered in favor of
appellee Boniface Jean (“Homeowner”) following a jury trial. 	Insurer
argues the trial court erred by: (1) denying Insurer’s motion for directed
verdict despite undisputed evidence that Homeowner did not live at the
subject property as the policy required; and (2) submitting Homeowner’s
waiver theory to the jury because coverage cannot be created by waiver.
We agree with both arguments. Therefore, we reverse the trial court’s final
judgment and remand for the entry of a final judgment for Insurer.
Procedural History
Homeowner filed a declaratory action seeking coverage for a property
loss. 	The policy covered only the property where the named insured
resided 	(the 	“residence-premises” 	requirement). 	Insurer 	raised 	a
residence-premises defense, asserting that Homeowner did not reside at

2
the subject property as the policy required. Homeowner did not file a reply
or otherwise seek to avoid Insurer’s defense.
Insurer 	confirmed 	Homeowner’s 	non-residency 	during 	its 	claim
investigation and denied coverage after Homeowner’s examination under
oath. At trial, Homeowner also admitted he had never lived at the subject
property, including on the loss date. 	Based on this admission, Insurer
moved for a directed verdict in its favor. 	Homeowner responded that
Insurer 	had 	waived 	the 	policy’s 	residency 	requirement 	when 	Insurer
accepted premiums from Homeowner after learning that Homeowner did
not live at the subject property. 	The trial court denied Insurer’s directed
verdict motion, thus allowing Homeowner’s claim and Insurer’s defense to
be decided by a jury.
The jury found that Insurer had proved Homeowner did not reside at
the subject property, but that Insurer had waived the policy’s residency
requirement as Homeowner had argued. Thus, the jury returned a verdict
for Homeowner. 	Insurer timely appealed.
Appellant’s Directed Verdict Motion
We review the trial court’s denial of Insurer’s directed verdict motion de
novo. See People’s Tr. Ins. Co. v. Kidwell Grp., LLC, 363 So. 3d 1108, 1110
(Fla. 4th DCA 2023).
Coverage provisions define the scope of insurance coverage. See Lloyds
Underwriters at London v. Keystone Equip. Fin. Corp., 25 So. 3d 89, 92 (Fla.
4th DCA 2009). 	Lack of coverage may exist where “the insuring clause
does not by its express terms apply to the kind of claim being made, or it
may exist simply because the policy elsewhere expressly excludes the
coverage.” 	See State Farm Mut. Auto. Ins. Co. v. Hinestrosa, 614 So. 2d
633, 636 (Fla. 4th DCA 1993) (emphasis added).
Because coverage provisions define the existence of insurance coverage,
coverage provisions cannot be waived. Doe on Behalf of Doe v. Allstate Ins.
Co., 653 So. 2d 371, 373 (Fla. 1995). Waiver cannot create coverage where
none exists. 	Universal Prop. & Cas. Ins. Co. v. Qureshi, 396 So. 3d 564,
568 (Fla. 4th DCA 2024).
Here, the policy insured only the dwelling where Homeowner resided.
Because Homeowner undisputedly did not live at the subject property
where the loss occurred, the loss was not covered. The residence-premises
clause defined the scope of coverage, and the clause was not a forfeiture

3
condition subject to waiver. 	See Qureshi, 396 So. 3d at 568; see also
Lloyds Underwriters, 25 So. 3d at 92.
The record here establishes, without contradiction, that Homeowner
did not reside at the subject property on the loss date, and the jury also
made this finding of fact. 	Therefore, the trial court should have entered a
directed 	verdict 	for 	Insurer. 	See Universal Prop. & Cas. 	Ins. Co. v.
Gonzalez-Perez, 387 So. 3d 333, 336 (Fla. 3d DCA 2023); see also Arguelles
v. Citizens Prop. Ins. Co., 278 So. 3d 108, 112–13 (Fla. 3d DCA 2019).
Homeowner’s reliance upon Arguelles to support his claim of waiver is
misplaced. 	Arguelles did not hold that a residence-premises requirement
could be waived. 278 So. 3d at 112–13. Rather, the Third District affirmed
summary judgment for the insurer as the homeowner did not live in the
subject property. 	Id. at 111–13. 	The Third District further cited, with
approval, cases from our court and other district courts of appeal, holding
that waiver and estoppel cannot create coverage. 	Id. (citing Winans v.
Weber, 979 So. 2d 269, 274 (Fla. 2d DCA 2007)); Aetna Cas. & Sur. Co. of
Am. v. Deluxe Sys., Inc., 711 So. 2d 1293 (Fla. 4th DCA 1998). 	Although
the Third District noted that the homeowner’s waiver claim was not
supported by the evidence, it did not hold that if the homeowner had
presented such evidence, the appeal’s outcome would have been different.
Arguelles recognized precedent holding that a residence-premises clause
functions as a coverage provision, not a forfeiture condition. 	Because
Homeowner 	here, 	like 	the 	homeowner 	in 	Arguelles, 	admitted 	non-
residency, Insurer was entitled to a directed verdict.
The trial court here treated the denial of coverage as something that
can be waived similar to a policy precondition for payment, or post-loss
defense such as, for example, the requirement of timely notice to the
insurer of the claim. 	In fact, coverage is distinct from such matters. 	A
residence-premises clause is a coverage provision not subject to forfeiture
or waiver. If coverage does not exist under the policy from the outset, then
the insurer’s later actions or inactions does nothing to create coverage.
Courts have even held that payments by insurers made in error do not
constitute waivers. 	See Universal Prop. & Cas. Ins. Co. v. Horne, 314 So.
3d 688, 692 (Fla. 3d DCA 2021) (insurer’s payment to homeowner did not
waive post-loss defenses); see also Rodrigo v. State Farm Fla. Ins. Co., 144
So. 3d 690, 692 (Fla. 4th DCA 2014) (insurer’s payment to insured and
negotiations did not waive proof-of-loss requirement). 	Therefore, the fact
that an insurer may continue to mistakenly accept premiums cannot waive
a residency requirement integral to the policy’s creation and the existence
of coverage.

4
Conclusion
The lower court erred in submitting Insurer’s waiver issue to the jury
in light of the uncontroverted evidence presented at trial. 	The policy’s
residence-premises provision defines coverage and therefore could not be
waived by Insurer. 	Because Homeowner undisputedly did not reside at
the subject property, Insurer was entitled to a directed verdict.
Reversed and remanded as directed.
GROSS and S HEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.