Danny Kapson and Noelle Rose v. Homeowners Choice Property & Casualty Insurance Company, Inc.

Third District Court of Appeal
State of Florida
Opinion filed January 14, 2026.
Not final until disposition of timely filed motion for rehearing.
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No. 3D24-0363
Lower Tribunal No. 18-CA-1089-K
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Danny Kapson and Rose Noelle,
Appellants,
vs.
Homeowners Choice Property & Casualty
Insurance Company, Inc.,
Appellee.
An Appeal from the Circuit Court for Monroe County, Mark Wilson,
Judge.
Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellants.
Kelley Kronenberg, and Andrew A. Labbe (Fort Lauderdale), for
appellee.
Before SCALES, C.J., and GORDO and GOODEN, JJ.
GOODEN, J.,

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After Hurricane Irma destroyed their home, Appellants Danny Kapson
and 	Rose 	Noelle 	sought 	coverage 	under 	several 	policies—a 	standard
hazard policy, a flood policy, and a named-peril (wind only) policy issued by
Appellee Homeowners Choice Property & Casualty Insurance Company.
The Appellants collected $222,800.00 from the flood carrier without dispute.
Homeowners Choice acknowledged that some damage, specifically the roof
and trusses, fell within its coverage. It sent payments totaling $38,122.67.1
Thereafter, Kapson and Noelle filed suit against Homeowners Choice
for breach of contract. 	They asserted that wind destroyed the home before
flooding or storm surge occurred, and therefore, all damages were covered.
Yet Homeowners Choice asserted that the remaining damages were from
flooding and storm surge, which are not covered. The policy contained anti-
concurrence cause language. 	At trial, evidence was admitted that Kapson
and Noelle submitted claims, which were paid, to the flood carrier. 	But the
amount of the benefits received was excluded.
Ultimately, the jury found that Kapson and Noelle did not prove by the
greater weight of the evidence that the loss was caused by wind and entered
1 Kapson and Noelle have rebuilt their home. 	It is 345 square feet smaller
than their previous home. 	They paid $310,054.18 for the cost of the
structure.

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verdict for Homeowners Choice. After post-trial motions were denied, a final
judgment was rendered in favor of Homeowners Choice.
On appeal, Kapson and Noelle assert several arguments. 	Finding
none of them meritorious, we affirm in all respects. 	See Murphy v. Int’l
Robotic 	Sys., 	Inc., 	766 	So. 	2d 	1010, 	1031 	(Fla. 	2000) 	(“[B]efore 	a
complaining party may receive a new trial based on unobjected-to closing
argument, the party must establish that the argument being challenged was
improper, harmful, incurable, and so damaged the fairness of the trial that
the public’s interest in our system of justice requires a new trial.”); Citizens
Prop. Ins. Corp. v. Kings Creek S. Condo, Inc., 300 So. 3d 763, 766 (Fla. 3d
DCA 2020) (“Moreover, this is a named perils policy, with wind being the
covered cause of loss. After the insured presents evidence of wind related
damage, the insurer has the right to challenge that evidence with evidence
of non-wind related causes.”).
We 	write 	briefly 	to 	address 	one 	issue—admission 	of 	evidence
regarding the flood claim. 	In a named-peril policy dispute, the jury can
consider evidence that the policyholder made a claim to and received
benefits from a different insurer for a peril specifically excluded by the current
policy. 	It is relevant to show that the loss was caused by an excluded peril
rather than a covered one. 	See § 90.401, Fla. Stat. (2022); § 90.402, Fla.

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Stat. (2022); Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645, 652–53 (Fla.
1st DCA 2010) (“Evidence that such flood insurance benefits were received
was relevant to the issue of whether flood or wind caused the total loss of
the 	home, 	and the 	trial court 	abused 	its 	discretion 	in 	excluding such
evidence. 	Where Ashe now claims that his house was totally destroyed by
wind, the jury can and should be allowed to hear evidence that he sought
and 	accepted 	payment 	from 	his 	flood 	insurer, 	which 	by 	contract 	only
provided compensation in the event of losses from a flood peril.”). It directly
rebutted Kapson’s and Noelle’s all-or-nothing theory of the case.
Section 90.408, Florida Statutes, does not foreclose this evidence. 	§
90.408, Fla. Stat. (2022). 	The record does not show that this was a
settlement or compromise of a claim “which was disputed as to validity or
amount.” 	Id. 	It appears the flood carrier compensated Kapson and Noelle
without issue and the flood carrier simply fulfilled its contractual duty. 	See
Ashe, 50 So. 3d at 655 (“For this court to accept his argument here, every
payment of insurance benefits would constitute a settlement rather than
simply fulfilling a contractual duty.”); Charles W. Erhardt, et. al., Florida
Evidence § 408.1 (2025 ed.) (“If there is no dispute as to either validity or
amount, the section 90.408 prohibition does not apply because there is no
compromise;”). 	Further, the evidence was offered to prove causation—not

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liability or value. 	§ 90.408, Fla. Stat.; Bankers Tr. Co. v. Basciano, 960 So.
2d 773, 780 (Fla. 5th DCA 2007) (“If the evidence is offered for another
purpose, the evidence is not barred by section 90.408 . . . .”).
Lastly, the common law collateral source evidentiary rule does not bar
this evidence.2 “The collateral source rule does not, however, bar the
admission of evidence of collateral source payments where such evidence
is relevant to liability or rebuts a party’s theory of the case, or where the
plaintiff’s evidence may mislead the jury about the plaintiff’s present financial
circumstances.” Russo v. Lorenzo, 67 So. 3d 1165, 1167–68 (Fla. 4th DCA
2011) (internal citations omitted). 	See also Ashe, 50 So. 3d at 654; Rease
v. Anheuser-Busch, Inc., 644 So. 2d 1383, 1387 (Fla. 1st DCA 1994). In any
event, the evidence of the amount of payment was excluded. 	See Citizens
Prop. Ins. Corp. v. Hamilton, 43 So. 3d 746, 751–52 (Fla. 1st DCA 2010).
In the end, the trial court did not abuse its discretion in admitting
evidence of the flood claim and receipt of benefits. So, we affirm.
Affirmed.
2 We are aware of the district split concerning whether the collateral source
evidentiary rule applies to contract actions. Contrast City of Miami Beach v.
Carner, 579 So. 2d 248, 253–54 (Fla. 3d DCA 1991), Trs. of Cameron-Brown
Inv. Grp. v. Tavormina, 385 So. 2d 728, 729 (Fla. 3d DCA 1980), with
Hamilton, 43 So. 3d at 751. However, we do not need to address or resolve
that issue here as there are additional reasons why this would not fall within
the collateral source evidentiary rule.