Condominium Insurance Law : Condo Insurance Lawyers & Attorneys : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables & West Palm Beach

I wanted to continue a discussion that Jeremy Tyler initiated last week in his blog post, Mandatory Arbitration for Disputes Between Unit Owners and Condominium Associations. Jeremy introduced a recent case, Gomez v. Lakes of Carriage Hills Condo. Assoc., Inc., --- So. 3d ---, 35 Fla. L. Weekly D1822 (4th DCA August 11, 2010), which concerned the question of whether claims brought by unit owners against the association and various members of its board of directors must first be pursued through non-binding arbitration.  Jeremy's post also presented an excellent analysis of certain “disputes” that by Florida Statute §718.1255 must first be submitted to non-binding arbitration before a lawsuit may be filed.

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As I discussed in a previous post, What Is Bad Faith And What Can Be Done About It, most states, including Florida, recognize that every contract contains an inherent obligation that each party will perform with the utmost good faith and fair dealing. While insurance policies may not seem like typical contracts, they are. Therefore, when an insurer performs its contractual duties, i.e., adjusting a loss and making a coverage determination, it has a common law contractual obligation to perform in good faith.

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What happens when condominium unit owners disagree with their condominium association? According to Fla. Stat. § 718.1255(4)(a), disputes between unit owners and associations must first be submitted to non-binding arbitration before a lawsuit may be filed. That does not mean that all issues between unit owners and associations must first go through arbitration. Only “disputes” require arbitration before a lawsuit may be filed.

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In today’s down economy, more and more homes, condominiums, and buildings are becoming vacant each day. Recently, many national news sources picked up a story out of Ft. Meyers, where one family was the sole resident of a 32-story condominium building. While the family undoubtedly enjoyed exclusive use of the pools and other amenities, this freedom was not without problems. The family reported that they often found themselves dealing with trespassers and vandals roaming the empty building.

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The number of examinations under oath that can be reasonably requested and whether there is compliance with those requests are common issues in condominium association insurance claims, especially in loss investigations for reopened hurricane claims. There have been several posts in the past weeks regarding the topic. I thought I would write about a hypothetical South Florida case where an insurer makes excessive requests for examinations under oath while “investigating” the claim of a condominium complex with several-hundred units.

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(Note: This guest blog is by Steve Thomas, president of Roof Leak Detection Company, Inc., a Certified Testing Laboratory located in South Florida which specializes in testing and consulting services for commercial and industrial properties).

The past few years have taught building owners, property managers, and condominium managers an uneasy lesson about roofs. Most have discovered that if their roofs fail, they may still face a fight with their insurance company to recoup their losses. This dilemma can be avoided in many instances if one simple rule is followed: Document the condition of your roofing system.

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Last week, Shaun Marker wrote in “How Many Examinations Under Oath Can an Insurer Demand of an Association,” that the answer is “it depends.” This reminded me of the second part of a case I wrote about a few weeks on the Property Insurance Coverage Law Blog. The first part of Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1333 (S.D. Fla. 2009) dealt with late notice of claims, but the second part of the case dealt with Examinations Under Oath (EUO).

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In Florida, the work of adjusting insurance claims engages the public trust. Policyholders, both commercial and residential, are generally not very sophisticated in insurance issues and therefore must rely on their insurance company to fairly and honestly adjust losses and timely pay the amounts due under the policy.

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The answer to this question is a resounding, it depends. As is often the case in law, the answer to this question depends on such things as the particular language of the policy, the areas of inquiry requested by the insurer, and whether different individuals have knowledge regarding the areas of inquiry.

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