Condominium Associations : Condominium Insurance Law

Posted on January 30, 2012 by Shaun Marker

Playgrounds Are Not All Fun And Games, Especially When They Are On Association Property

I often find that I am writing on this blog about recent court cases involving condominium associations and their property insurance claims with insurers. For this week’s post, I began thinking of another side of potential insurance disputes that associations are faced with. These involve liability issues. Risk management is a big concern for associations and their representatives. Similarly for me, as a new parent, potential dangers are suddenly more visible all around. Many condominium and homeowner associations have playgrounds in their common areas. Playgrounds are nice community amenities, but they can pose certain risks. The ironic thing is that such leisure amenities are often the things that pose increased risks. If injuries occur, the association and its insurer could get sued.

Tags: Condominium Associations

Posted on January 23, 2012 by Jeremy Tyler

Condominium Entitled to Matching Components Rather than Patchwork Repairs

Last week on the Property Insurance Law Blog, I discussed a Florida statute that often requires insurance companies to repair undamaged parts of a property in addition to the damaged parts of the property. As discussed, Florida and federal courts have held that Florida Statute § 626.9744 only applies to homeowners’ policies, and not condominium association policies that are considered “commercial residential” policies. See Ocean View Towers Ass'n, Inc. v. QBE Ins. Corp., 11-60447-CIV, 2011 WL 6754063, *9 (S.D. Fla. Dec. 22, 2011). Despite the statute not covering commercial properties, a commercial residential policy may require an insurance company to repair undamaged property as well.

Tags: Condominium Associations, Matching

Posted on January 16, 2012 by Shaun Marker

Can Associations Require Their Unit Owners To Carry Property Insurance?

The short answer to this question is yes, as long as the Declarations address it. A recent case decided January 6, 2012, by a Florida appellate court involved this issue, as well as the association’s claim for attorneys’ fees and costs associated with the lawsuit. Alorda v. Sutton Place Homeowners Association, Inc., No. 2D10–3966 (Fla. 2d DCA 2012).

Tags: Condominium Associations, Insurance

Posted on January 9, 2012 by Jeremy Tyler

Insurance Company Can Only Blame Itself For Ruling on Supplemental Claims

Last week on the Property Insurance Law Blog, I wrote about a condominium association that sued its insurance company for failing to discover all Hurricane Wilma damage. The association discovered additional damage several years after the storm, and rather than file a supplemental claim for damage, the association filed suit. The insurance company claimed that the association needed to notify it of the newly found damage and submit to a secondary investigation before it could recover benefits. Judge Robert N. Scola, Jr., of the United States District Court for the Southern District of Florida, disagreed, finding that the insurance policy did not require a supplemental claim.

Tags: Condominium Associations, Hurricane Wilma, Notice of Claim, Supplemental Claim

Posted on January 3, 2012 by Corey Harris

Important Decision for Hurricane Wilma Claims

The fact pattern is simple and quite common. An association suffered damages from Hurricane Wilma on October 24, 2005, and immediately notified its insurance carrier that the loss had occurred. The insurance carrier, in turn, retained an adjuster to investigate the loss and determine what was owed under the policy. After a brief inspection, the adjuster determines that the damages do not exceed the large hurricane deductible contained in the policy and denies payment.

Tags: Condominium Associations, Court Opinion, Hurricane Wilma, Notice of Claim

Posted on January 2, 2012 by Shaun Marker

Some Condominium Boards Spark Flames By Seeking To Extinguish Smoking Within Their Communities

Smoking poses obvious fire risks and insurance costs to association and apartment communities. In addition to the fire risks, there are certain health risks to community residents, as well as increased complaints from non-smoking residents. With the aim to not only prevent fires and reduce health problems, but also to increase property values, some boards are seeking to prevent unit owners and their guests from lighting up in their communities. It seems they have heeded the warnings of that famous icon, Smokey the Bear, “Remember... Only YOU Can Prevent Forest Fires.”

Tags: Condominium Associations

Posted on December 26, 2011 by Jeremy Tyler

Florida Court Limits Condo Association's Claim to Actual Cash Value Since It Had Not Completed Repairs

When condominium associations suffer millions of dollars worth of catastrophic damage from a natural disaster, most associations will need to rely on insurance proceeds to start and complete repairs. Indeed, that is why they purchased insurance in the first place. Unfortunately for condominium associations in Florida without millions of dollars in reserves, recent legal opinions may not help when it comes time to make those repairs.

Tags: Actual Cash Value, Condominium Associations

Posted on December 19, 2011 by Shaun Marker

The Concept Of "Custodial Contract" - Does It Make The Association Guardian Of Unit Owners' Repairs?

From time to time certain legal buzz words seem to jump off the page when reading court cases. “Custodial contract” is one of those interesting legal terms that I recently came across in an opinion from the U.S. Middle District of Florida. Upon first glance, it seems that the term must relate to the area of family law and guardianship or, more literally, to a contract for janitorial services. But law, in its infinite wisdom, has a way of transcending beyond the norm. Custodial is defined as “of or relating to the work of guarding or maintaining” and “marked by care and supervision.” The American Heritage Dictionary of the English Language, Fourth Edition. The concept of a contractual relationship arising out of the factual circumstances and actions pursued by the parties is an interesting one. The “custodial contract” concept as it relates to condominium association and unit owners is one with slim discussion in Florida legal precedent… until a recent case.

Tags: Condominium Associations

Posted on December 12, 2011 by Jeremy Tyler

The Incredible Shrinking Insurance Policy

A few years back, several journalists began reporting about a new trend in product packaging: offering less product for the same price. One of these journalists, Michael Brush, dubbed PepsiCo’s subtle repackaging as, “The incredible shrinking Doritos bag.” Most companies cited rising costs as the reason for reducing sizes, but when the result ends up being higher profits and larger market share, those motives could rightfully be challenged. According to Brush and Harvard Business School Professor John Gourville, this strategy works because consumers don’t react to a change in quantity like they do to a change in price. Unfortunately for insurance consumers, this trend is finding its way into the insurance industry.

Tags: Citizens Property Insurance Corporation, Condominium Associations, Insurance, Policyholders of Florida

Posted on December 5, 2011 by Corey Harris

National Flood Insurance Program To Be Extended Again

Few coverages are more important than flood insurance. Whether it is storm surge from a hurricane, rising rivers, torrential rains, or broken levees, floods occur in every part of the United States. Unfortunately, as most people know, flood insurance is difficult to find. Since most private insurers specifically exclude flood from coverage, the majority of flood coverage is purchased from the National Flood Insurance Program, which is instituted and administrated by the federal government. Unfortunately this vital program has been short on funding for years, leaving many to wonder if the program can survive.

Tags: Condominium Associations, Flood Insurance, Insurance, National Flood Insurance Program

Posted on November 28, 2011 by Jeremy Tyler

It's All About the Property Interest, or Why Associations Aren't Normally Responsible for Damage to Individual Condominium Units

Is a condominium association responsible to repair casualty loss damage to the interior of individual condominium units? Generally the answer is no, but why not? After all, some state statutes like the Maryland Condominium Act require that the association repair or replace, “any portion of the condominium damaged or destroyed.” In the case of Anderson v. Council of Unit Owners of Gables on Tuckerman Condo., 948 A. 2d 11 (Md. App. 2008), the court took the opportunity to explain why not.

Tags: Condominium Associations

Posted on November 19, 2011 by Corey Harris

Citizens Plans Large Rate Hike.....Again

While the holiday season usually brings good tidings and cheer, condominium associations and residents insured by Citizens Property Insurance Corporation can expect coal in their stockings this year. Once again, the state’s largest insurer plans to increase rates to Florida condominium residents between 19 and 20.6 percent on average leaving many dismayed, especially since it has been over 5 years since the last major hurricane.

Tags: Citizens Property Insurance Corporation, Condominium Associations, Insurance

Posted on November 14, 2011 by Jeremy Tyler

When is an Insurance Claim Ready for Litigation?

When asked if something is ripe, one might immediately think of fruit that is ready to eat. Similarly, the legal term “ripeness” means the readiness of a case for litigation. While a simple smell test may be all that is needed for fruit, the ripeness of a legal case, an insurance claim, and a legal case about an insurance claim, require a little more analysis.

Tags: Condominium Associations, Insurance

Posted on November 1, 2011 by Corey Harris

Florida Legislative Update: New Bad Faith Bill Filed

For the second straight term, a bill has been filed in the Florida Legislature designed to make changes to the well-settled legal principles that have successfully governed our state for many years and have held insurance carriers accountable when they act improperly.

Tags: Bad Faith, Condominium Associations

Posted on October 31, 2011 by Jeremy Tyler

Keeping Halloween Parties within Association Rules

Halloween usually brings two things for sure: trick-or-treaters and Halloween parties. As a member of a condominium or homeowner’s association, you can almost be certain that either your association or one or more of your neighbors will be hosting a Halloween party. If you or someone you know is planning a party, try to make sure that the party doesn’t go so far as to violate any of the association’s rules, as one California homeowner’s party did in Jones Ranch Homeowners Ass'n v. Degnan, A118584, 2008 WL 5049757 (Cal. Ct. App., Nov. 25, 2008, A118584).

Tags: Condominium Associations

Posted on October 17, 2011 by Jeremy Tyler

Loss Assessment Coverage and the "Master Deductible" Clause

When a condominium association needs money for an association expense such as property repairs, the association can generally divide the cost among association members and charge a proportionate amount to each member through special assessments. Many condominium unit owner policies provide coverage for some of these assessments. In fact, Florida Statute § 627.714 (2011) requires that residential condominium unit owner insurance policies include at least $2,000 of property loss assessment coverage that kicks in when an association assesses members for property damage.

Tags: Assessments, Condominium Associations

Posted on October 14, 2011 by Corey Harris

Am I Personally Liable Simply For Being A Director?

I am always amazed at the willingness of some unit owners to run for a board of directors. I am even more impressed when they choose to do it for a second, third, or fourth time. Being a director is not easy. Undoubtedly, a faction of the association will disagree with the board and will make their opinions known. Sometimes this leads to contentious situations that can drive a wedge between friends and neighbors.

Tags: Condominium Associations, Errors and Omissions

Posted on October 10, 2011 by Shaun Marker

Federal Middle District Court Of Florida Orders Nationwide To Produce Documents It Withheld Under The Attorney-Client Privilege And Work Product Protection

On September 12, 2011, in Customary Discovery Practices May Vary Greatly Between Federal And State Courts, I discussed how the Federal Middle District Court of Florida resolved a discovery dispute between Nationwide and Pepperwood of Naples Condominium Association. Recently, the Court decided another discovery dispute between the parties. This one involved Nationwide’s claim of attorney-client privilege and work product protection to some document requests. Such claims of privilege are common in litigation. The resolution of these disputes can play a very important role in the information that the policyholder can obtain to support its claims, especially in a bad faith case.

Tags: Bad Faith, Condominium Associations, Discovery, Insurance

Posted on October 3, 2011 by Jeremy Tyler

Colorado Court Employs Grammatical Approach to Determine Man-Made Earth Movement Not Excluded Under Earth Movement Policy Provision

If asked what an ordinary person might select for casual reading, one might think of books, magazines, or newspapers, but probably not insurance policies. If an ordinary person were to read an insurance policy, what would he or she think it meant? In states that employ the “reasonable expectations doctrine” for insurance policies, courts are often faced with this question. Colorado is one of the states that considers the reasonable expectation of the insured when interpreting insurance policies, and a recent condominium case there took a grammatical approach to determine what an ordinary reader would have understood the condominium policy to have covered.

Tags: Colorado, Condominium Associations, Exclusions, Insurance, Policy Language

Posted on September 26, 2011 by Shaun Marker

Boat Slip Owners Accuse Florida Condominium Association Of Leaving Them High And Dry By Not Insuring The Docks And Marina Before Hurricane Irene In 1999

In a recent case, the Florida's Third District Court of Appeals resolved a decade old controversy related to boat slips of a condominium association damaged by Hurricane Irene in 1999. The Court noted that the dispute had been ongoing for such a large amount of time that the National Weather Service re-circulated the name Irene, which just recently affected many people along the East Coast of the United States.

Tags: Condominium Associations

Posted on September 19, 2011 by Jeremy Tyler

Whose Responsibility Is It To Find The Source Of An Unknown Water Intrusion?

The modern day condominium involves a unique combination of real property rights between the condominium association and individual unit owners. The property interests are separate but related and can lead to some interesting questions regarding the rights and responsibilities of the parties that own each particular interest.

Tags: Condominium Associations, Insurance

Posted on September 17, 2011 by Corey Harris

Associations Should Review Restoration Contracts Carefully

After damage has occurred, the claims process often takes more time than expected. Unfortunately, while this is not always avoidable, delay in reconstruction can cause further losses in rent and keep people out of their homes for longer than necessary.

Tags: Condominium Associations, Insurance

Posted on September 12, 2011 by Shaun Marker

Customary Discovery Practices May Vary Greatly Between Federal And State Courts

"Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting.” Wikipedia. Recently, the Federal Middle District Court in Florida decided a discovery dispute between a condominium association and its insurer, Nationwide, in the case Pepperwood of Naples Condo. Ass’n., Inc. v. Nationwide Mut. Fire Ins. Co., No. 2:10-cv-753, 2011 WL 3841557 (M.D. Fla. August 28, 2011). Discovery disputes arise when one party asks another to produce information, but the other party coes not comply. It is common for insurers to refuse to produce claim file materials, claiming the documents are protected by certain privileges and citing other objections. The Pepperwood case involved a situation where the condominium association sued Nationwide for bad faith damages for not promptly paying all insurance proceeds from the 2004 hurricane damages and forcing it to incur additional expenses in the claim presentation through an appraisal process.

Tags: Condominium Associations, Discovery, Florida, Insurance

Posted on September 5, 2011 by Jeremy Tyler

More Confusion of Florida's Statute of Limitations for Property Insurance Claims

On May 17 of this year, Florida Governor Rick Scott signed into law Senate Bill 408, which, among other things, shortened the statute of limitations for property insurance claims in Florida to five years from the date of the loss. Under the earlier Florida Statutes § 95.11 and § 95.031, the statute of limitations did not expire until five years after a property insurer had breached the insurance policy. The Senate Bill 408 change came roughly five and a half years after Hurricane Wilma destroyed an enormous amount of Florida property, and the change left many questioning whether they could still seek redress for these claims.

Tags: Condominium Associations, Insurance, State Legislation, Statute of Limitations

Posted on August 29, 2011 by Shaun Marker

The Devil Is In The Details And Everything In First-Party Property Insurance Is A Detail

With so many recent disastrous events taking place across the United States it is important for associations, businesses and all policyholders to understand that in a property insurance claim, the devil is in the details. Hearing generalizations from insurance professionals about what may be covered and what may be excluded is not nearly enough when putting together a damage claim. The detail work is in the particular facts, documentation of the event and damage, and sometimes most importantly, the language of the policy at issue.

Tags: Condominium Associations, Policy Language

Posted on August 22, 2011 by Jeremy Tyler

Even with a Narrow Pollution Exclusion Limitation, California Court Denies Condominium Association's Property Claim for Asbestos Cleanup

Pollution exclusions in insurance policies are typically complex provisions that require a significant amount of legal analysis to apply correctly. Over the years, the body of law interpreting these exclusions has evolved into what is now a fairly narrow interpretation of what is and is not “pollution” under these exclusions. For example, in the case of MacKinnon v. Truck Ins. Exch., 73 P. 3d 1205 (Cal. 2003), the California Supreme Court limited a pollution exclusion in a commercial general liability (CGL) policy, holding that the exclusion only applied to “injuries arising from events commonly thought of as pollution, i.e., environmental pollution.”

Tags: California, Condominium Associations

Posted on August 15, 2011 by Shaun Marker

Update On Bad Faith Case Against Citizens Property Insurance Corporation That Was Allowed To Proceed

The issue of whether Florida’s legislative-created insurer, Citizens Property Insurance Corporation, is, or should be, subject to damages for bad faith claims handling practices has been heavily debated by industry professionals during the last several years. Debbie Moroy, of ClaimSmentor, recently posted a comment to request an update on the Citizens Property Insurance Corporation v. San Perdido Association, Inc. case. In my Property Insurance coverage Law Blog post from October 18, 2010, titled Bad Faith Lawsuit Allowed to Proceed to Trial Against Citizens Property Insurance Corporation, I discussed an interesting turn of events on this issue. At that time, the First District Court of Appeal rejected Citizens’ request to stop a bad faith action against it from proceeding in the trial court.

Tags: Bad Faith, Citizens Property Insurance Corporation, Condominium Associations

Posted on August 12, 2011 by Corey Harris

Policyholders Should Know About Ensuing Loss Provisions

“All Risk” policies generally contain a plethora of exclusions that limit or bar coverage for many types of damage. For instance, if a loss is caused by wear and tear, deterioration or improper installation, many policies will specifically exclude payment. Fortunately for some, many commercial and residential insurance policies contain ensuing loss clauses that may afford coverage for damages resulting from one of these perils.

Tags: Condominium Associations, Ensuing Loss

Posted on August 8, 2011 by Jeremy Tyler

Associations Need to Provide the Services they Advertise

Breaking and entering is never a laughing matter, but that didn’t stop TMZ from making Goldilocks and Marie Antoinette jokes after a NFL player found an intruder sleeping in his bed and eating his cake in his Miami Beach condominium.

Tags: Condominium Associations

Posted on August 1, 2011 by Shaun Marker

Court Analyzes Whether A Statute of Limitations Issue is Ripe

Last week in Can Insurers, Through Written Statements, Waive A Statute Of Limitations Defense?, I wrote about how Florida’s five-year statute of limitations applicable to the 2004 and 2005 hurricanes can be difficult to determine because it begins on the date an insurer breaches an insurance contract. Last week’s post discussed how the U.S. District Court for the Middle District of Florida held that the statute of limitations defense can be waived by insurers through written statements. The Southern District recently analyzed whether a claim for declaratory relief related to a statute of limitations issue in a Hurricane Wilma case was ripe for determination.

Tags: Condominium Associations, Hurricane Wilma, Statute of Limitations

Posted on July 18, 2011 by Shaun Marker

The Residential Only Restriction In Condominium Association Documents And Unit Owners Telecommuting From Their Units

Telecommuting is a work arrangement in which employees enjoy flexibility in working location and hours. For them, the daily commute to a central place of work is replaced by cyber communication links. According to Wikipedia, estimates suggest that over fifty million U.S. workers (about 40% of the working population) could work from home at least part of the time. Some may work from home occasionally, while others may establish a home-based business. For many, homes are the most convenient and cost-effective workplace, particularly in this economic crisis. Homeowners in condominium associations may be subject to restrictions—or potentially even a total ban—on business use of their homes if the association has a residential restriction in its governing documents that prohibits the use of residential units for commercial purposes.

Tags: Condominium Associations

Posted on July 4, 2011 by Shaun Marker

The Importance Of Disaster Response Plans For Associations Cannot Be Downplayed

One of the best defenses against natural disasters is to have a disaster plan in place. Depending on where your association is in the United States, there are numerous disasters, such as earthquakes, wild fires, tornados, floods, and hurricanes that residents potentially face. Emergency planning has become an essential skill for association managers, who should understand what types of disasters are likely to occur, develop disaster response plans, practice them, and discuss them with the residents.

Tags: Condominium Associations, Hurricane Preparation

Posted on July 1, 2011 by Corey Harris

Changes In The Law Can Lead To Confusion

With the passage of Senate Bill 408, (Chapter Law 11-39), many have asked how the new laws will affect their current insurance claims. While sweeping changes are rarely passed, even a small change in a law can determine the outcome of a claim.

Tags: Condominium Associations, Court Opinion, State Legislation

Posted on June 27, 2011 by Jeremy Tyler

Condominium Association Directors in Florida Can Seek Indemnification for Actions Brought Against Them by the Association Itself

Condominium association directors generally owe a fiduciary duty to the association they serve. As a fiduciary, a director owes grave duties of loyalty and good faith to the association. This relationship is one of trust that finds its roots in contract, statute, and the common law. While directors owe this high duty of care to the association, under the right circumstances, a director may seek to have the association cover any liability or expense incurred to defend the director against accusations of wrongdoing. This is the principle of indemnity.

Tags: Condominium Associations, Directors and Officers

Posted on June 20, 2011 by Shaun Marker

Was A Policyholder Release Intended As A Final Settlement Of An Association's Wilma Claim? - Court Will Determine Whether Mutual or Unilateral Mistake

The Southern District Court of Florida will have to determine whether an insurance company appropriately obtained a policy release from a condominium association involving a Hurricane Wilma claim in a case that is pending before it. Continuum Condominium Assoc., Inc. v. Mt. Hawley Ins. Co., No. 10-23550, 2011 WL 2214810 (S.D. Fla. June 2, 2011). It can be a questionable practice for insurers to demand that their policyholders sign a release during the adjustment of a claim before obtaining insurance benefits, particularly when the policyholder is not represented by counsel. The court’s analysis may balance public policy in favor of releases, which encourage parties to resolve their disputes, with the potential over-reaching or inappropriate means with which this release was obtained.

Tags: Condominium Associations, Mutual Mistake, Release, Unilateral Mistake

Posted on June 17, 2011 by Corey Harris

What Is The Role of An Appraiser?

If an association is unhappy with its insurer’s offer to settle a claim, it has two main avenues to resolve the dispute. First, the association can retain an attorney and file suit against the carrier for breach of contract. Second, the association can invoke the appraisal process afforded by most insurance policies.

Tags: Appraisal, Condominium Associations, Insurance

Posted on June 13, 2011 by Jeremy Tyler

Condominium Developers May Be Liable to Condominium Associations for Insurance Benefits

When a new condominium is constructed, the developer initially owns the property. Typically the developer will start selling individual condominium units, but maintain ownership and control over the common elements and unsold individual units. At some point, usually after a majority of the individual units have been sold, the developer will turn over ownership and control of the common elements to an association of individual condominium unit owners. These are usually times of transition, and different parties at different times carry different interests in the property. When an insured loss occurs during these transitory times, complicated issues can arise regarding who is entitled to insurance benefits.

Tags: Condominium Associations, Court Opinion

Posted on June 10, 2011 by Corey Harris

Can Your Association Recover Public Adjuster Fees From An Insurer?

It is no secret that association board members, for the most part, have no formal training in dealing with insurance issues. In fact, neither do most association managers. While an association or manager can deal with a small claim without help, claims involving widespread damage or confusing policy issues often require outside help.

Tags: Condominium Associations, Public Adjuster

Posted on June 6, 2011 by Shaun Marker

Recent Case Holds That Condominium Association Could Owe A Duty of Care to Unit Owners to Maintain Pipes In the Interior Boundary Walls of Units

In a recent case, the Florida Fourth District Court of Appeal analyzed a condominium association’s declaration documents to determine whether the association owed a duty to maintain the pipes located within interior walls of the condominium. While the subject of the case is a negligence action by the unit owner against the association, the case involves analyses into governing documents and statutory construction similar to those often required in the first-party property insurance context in claims by unit owners in condominium associations.

Tags: Condominium Associations

Posted on June 2, 2011 by Corey Harris

Hurricane Season Coincides With Important Notice Changes In Florida

As most of us know, June 1 was the beginning of the Atlantic Hurricane Season. Experts are again predicting a “highly active” year, and some opine that more than ten major hurricanes are possible. Coincidently, June 1 also came with significant changes to the laws regarding property insurance in Florida. As Jeremy Tyler mentioned on Monday, even the statute of limitations for filing a property damage lawsuit has been changed to five years from the date of the storm.

Tags: Condominium Associations, Hurricane Preparation

Posted on May 30, 2011 by Jeremy Tyler

New Changes to Florida Property Insurance Statute of Limitations

A statute of limitations serves to restrict access to the courts after a specified amount of time has passed. The reasons for such are many, but the underlying principle is simply that if you wait too long, you give up the opportunity to resolve your issue with the courts. The statute of limitations is created by the legislature, but the parties to a contract can also agree to limit the time to bring an action before a court of law. When this happens, a question often arises as to which controls, the statute or the contract.

Tags: Condominium Associations, Florida Statutes, Statute of Limitations

Posted on May 27, 2011 by Corey Harris

Associations Should Be On High Alert For Fires This Memorial Day Weekend

When I hear about wildfires, I automatically think of California and the large fires that have destroyed millions of acres of forests and property in the past years. While not usually as publicized, wildfires threaten almost every portion of the United States and pose a significant risk to life and property alike.

Tags: Condominium Associations, Fire

Posted on May 23, 2011 by Shaun Marker

The Importance Of Timely Disclosing Expert Reports

The Southern District Court in Florida recently issued an unreported opinion involving a discovery dispute between the parties where the insurer sought to have the condominium association’s expert reports stricken from consideration at trial because they were not timely disclosed. The ruling focused on disclosure requirements found in the Federal Rules of Civil Procedure. The crux of the condominium association’s case was potentially at stake in this dispute.

Tags: Condominium Associations, Court Opinion, Discovery

Posted on May 21, 2011 by Corey Harris

Alabama Tornado Claims Hits Sixty-Five Thousand

The devastating tornados that ripped through portions of southeast this month have already led to over sixty thousand claims filed in Alabama alone. While many automatically think of condominium associations as the high-rise vacation destinations along the Gulf Coats, many condominium associations and HOA’s are located throughout the states. In Alabama, some of the worst hit areas around Birmingham and Tuscaloosa have some of the highest concentrations of condominiums in the state.

Tags: Condominium Associations, Tornado

Posted on May 2, 2011 by Jeremy Tyler

Must an Insured "Sit" for an EUO Before Filing Suit if It Has Been Requested?

A standard clause in most property insurance policies requires an insured to sit for an examination under oath (EUO) if the insurance company requests one during the claims process. This clause is often listed as one of the insured’s duties after loss. A separate clause, sometimes entitled “Suit Against Us,” may also require that the insured comply with its post-loss duties before suit may be filed against the insurer. The question of whether an insured condominium association complied with its duty to sit for an EUO before filing suit was one of the issues discussed in the case of El-Ad Enclave at Miramar Condo. Ass'n, Inc. v. Mt. Hawley Ins. Co., 752 F. Supp. 2d 1282 (S.D. Fla. 2010).

Tags: Condition Precedent, Condominium Associations, Court Opinion, Examination Under Oath, Post-Loss duties

Posted on April 27, 2011 by Corey Harris

Associations Should Begin Checking And Understanding Their Policies Now

With the Atlantic Hurricane Season rapidly approaching, associations should be checking with their agents and brokers to make sure that their property policies are in place and that all terms and conditions are understood. This includes the typical policies that provide coverage for events such as wind and fire, as well as flood insurance policies mostly issued by the National Flood Insurance Program.

Tags: Condominium Associations, National Flood Insurance Program, Policy Language

Posted on April 25, 2011 by Shaun Marker

Insurers' In Florida Are Obligated To Notify Policyholders Of Their Right To Participate In Florida Mediation Program

In Florida, The Department of Financial Services manages a non-binding mediation process that permits policyholders to challenge claims decisions reached by Florida insurers. Florida Statute §627.7015 codifies the mediation process, which applies to condominium association and residential claims in Florida. The purpose of the statute is to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims prior to commencing litigation. Under the statute, insurers in Florida are required to notify all first-party claimants of their right to participate in the mediation program “[a]t the time a first-party claim within the scope of this section is filed.” Florida Statute §627.7015(2).

Tags: Condominium Associations, Department of Financial Services, Mediation

Posted on April 18, 2011 by Jeremy Tyler

Condominium Associations May be Liable for Failing to Resolve Unit Owner Disputes

A recent lawsuit filed in Baltimore, Maryland, by one condominium unit owner against a neighboring unit owner and her condominium association illustrates potential liability for condominium associations in unit owner disputes.

Tags: Condominium Associations

Posted on April 15, 2011 by Corey Harris

Memorializing Agreements Is Important In Subsequent Disputes

Many associations know the complexity of a large insurance claim all too well. Whether it is a fire, hurricane, earthquake, or water leak, dealing with adjusters, tenants, and other board members can be difficult and confusing at times. In most cases, best practices dictate that a single director should be appointed to “head up” the insurance claim effort. While the whole board should make decisions together, having a single individual as the contact person for the insurance company and/or its adjusters can relieve stress and avoid confusion.

Tags: Condominium Associations

Posted on April 11, 2011 by Shaun Marker

Would You Believe Some Insurance Company Representatives Do Not Understand The Parties' Burdens Under An All-Risk Policy?

Burdens of proof are always an important thing to understand in conducting an appropriate legal analysis, particularly as they relate to a coverage analysis in first-party property insurance claims. Shockingly, I have seen insurance company representatives who, when evaluating an insurance claim for coverage, do not fully understand the analysis under an all-risk policy form. This confusion can lead to litigation that may otherwise be unnecessary and can actually cause the insurance company additional costs above the amount of the claim.

Tags: Burden of Proof, Condominium Associations

Posted on April 9, 2011 by Corey Harris

Florida Supreme Court Addresses Conditions for Bad Faith Actions

As I have discussed in the past, some insurers attempt to avoid bad faith actions by arguing that the current law requires a judicial determination that the insurer breached the contract as a prerequisite to liability. Simply by participating in the appraisal process, these carriers believe that they somehow have immunity for any previous actions that delayed a claim.

Tags: Bad Faith, Condominium Associations, Court Opinion

Posted on April 4, 2011 by Jeremy Tyler

Prepare Your Case In Advance to Avoid an Early Dismissal

Late last year, the Garden-Aire Village South Condominium Association filed a declaratory judgment action against its insurance company, QBE Insurance Corporation, seeking a declaration from the Court as to its rights on its Hurricane Wilma loss. The condominium association’s lawsuit included three counts:

Seeking a declaration that glass windows and sliding glass doors were covered under the association’s master insurance policy;
Seeking a declaration that the association was entitled to have its Hurricane Wilma loss appraised under the policy;
Seeking a declaration that the windstorm deductible in the association’s master insurance policy was void because of deficiencies in font requirements of the deductible notice.

Tags: Condominium Associations

Posted on March 28, 2011 by Shaun Marker

Recent Ruling That There Is No Common Law Fiduciary Duty Between An Insurer And A Policyholder In A First-Party Claim In Florida

In a recent opinion, a federal trial court reviewing Florida law ruled on the issue of whether a Complaint involving a condominium association stated a claim against insurers for breach of a fiduciary duty in adjusting a first-party claim for damages. Grandrimo v. Parkcrest Harbour Island Condo. Assoc., Inc., No. 10-964, 2011 WL 550579 (M.D. Fla. February 9, 2011). The claim involved significant water damage, requiring extensive repairs forcing the Plaintiff, a unit owner within the condominium association, to stay in a hotel. The Plaintiff filed suit against the condominium association and numerous insurer Defendants asserting, among other things, that the insurers breached a fiduciary duty in the handling of the claim.

Tags: Condominium Associations, Court Opinion, Fiduciary Duty, Florida

Posted on March 21, 2011 by Jeremy Tyler

New Bills Before the Florida Legislature Could Change Florida Condominium Insurance Law

A new legislative season is upon us in Florida. This usually means big changes to Florida condominium law and Florida condominium insurance law. Some of 2010’s big legislative changes to condominium insurance in Florida can be found in my posts from last June, New Changes to Condominium Insurance Legislation and More on New Changes to Condominium Insurance Legislation.

Tags: Condominium Associations, State Legislation

Posted on March 20, 2011 by Corey Harris

A Public Records Request May Help Support Your Claim

Previously, in Documentation of Prior Repairs Can Be Important, I wrote about the importance of keeping relevant information such as receipts and pictures from prior maintenance and repairs to support a future insurance claim. Aside from the work that your association does, another important source of information is your insurer’s underwriting and claims files. While most for-profit insurers will not easily part with these files, if you are insured by Citizens Property Insurance Corporation, you have a right to these files as a matter of law.

Tags: Citizens Property Insurance Corporation, Condominium Associations

Posted on March 14, 2011 by Shaun Marker

The Game Of Cat And Mouse With Insurers In Florida Asserting That Their Claim File Materials Are Completely Protected From Disclosure

During litigation in Florida first-party property insurance disputes, insurers often withhold their entire claims files from discovery by relying the work product doctrine. The claim file contains reports, estimates, photos and other information that is pertinent to the issues in a coverage dispute between a policyholder and its insurer. Insurers attempt to shield the entirety of the claim file from production in discovery where there should be disclosure between the parties. On the flip side, insurers often litigate issues regarding whether policyholders fully complied with their requests for documents and information in compliance with the policy of insurance. It would seem fair and logical that such disclosure would be a two way street, but insurers assert that it is definitely a one way street. When an insurer claims privilege to its entire claim file, the policyholder has no choice but to litigate that issue to obtain any information.

Tags: Condominium Associations, Discovery

Posted on March 7, 2011 by Jeremy Tyler

Litigating the Right to Resolve Disputes Without Litigation

Last week on the Property Insurance Coverage Law blog, I wrote about new appeals that had been filed in Florida’s Third District Court of Appeal in Miami regarding insurance appraisals. Since November of 2010, three new cases regarding appraisal had come out of the Third District: Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc., 48 So. 3d 188 (Fla. 3d DCA 2010), Citizens Prop. Ins. Corp. v. Maytin, No. 3D10-693, 36 Fla. L. Weekly D51 (Fla. 3d DCA Dec. 29, 2010), and Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, Inc., No. 3D10-2014, 2011 WL 613518 (Fla. 3d DCA Feb. 9, 2011). As of last week’s blog post, four new appeals had been filed by Citizens, which makes a total of seven (7) appraisal appeals filed by Citizens in the Third District alone.

Tags: Appraisal, Citizens Property Insurance Corporation, Condominium Associations, Court Opinion, Florida

Posted on March 4, 2011 by Corey Harris

The Obligation Of Good Faith And Fair Dealing

Every disagreement between a policyholder and its insurer is not necessarily due to bad faith on the insurer’s part. Many claims are settled promptly, fully, and fairly. That said, there are also instances where an insurer and its adjusters and representatives do not adjust and settle a claim with the policyholder’s best interests at heart. This is when bad faith allegations come into play.

Tags: Bad Faith, Condominium Associations

Posted on February 28, 2011 by Shaun Marker

Associations Should Review Their Policies To See If Their Insurers Have Made Them Responsible For A Share Of The Risk Of Loss - This Is Known As Coinsurance

Coinsurance is a provision in the insurance industry which allows an insurance company and its policyholder to potentially apportion between them any loss covered by the policy. This is usually according to a fixed percentage of the value for which the property is insured. In property insurance policies, the coinsurance clause provides that property must be insured for a specific percentage, usually 80% to 100% of its value. This means that the insurance company can shift part of the risk of loss back to the policyholder if the property is not insured to a certain ratio of the value of the property at the time of a loss. If the value of the property times the coinsurance percentage is greater than the limit of insurance for the property, then the insurer may apply a coinsurance “penalty” and may not pay the full value of that loss. Associations and all policyholders should periodically review their policies to determine if they are subject to a coinsurance percentage and to ensure that they are adequately insured for the value of their property according to any coinsurance percentage. This “penalty” can be huge for associations suffering a large loss in the event of a large catastrophe like a hurricane.

Tags: Coinsurance, Condominium Associations

Posted on February 21, 2011 by Jeremy Tyler

The Penny Gets a Rare Moment in the Spotlight

Last week on the Property Insurance Coverage Law Blog, I wrote about removal of lawsuits from state to federal court. The possibility that an insurance carrier defendant will remove a lawsuit filed by a condominium association is much greater than that for the average homeowner. One reason is because many condominium associations get insurance from out of state carriers, and another is because property losses to a condominium association will typically be larger than that of the average homeowner.

Tags: Amount in Controversy, Condominium Associations, Remand

Posted on February 14, 2011 by Shaun Marker

Recent Third District Court of Appeals Ruling on Appraisal

Just last week, the Third District Court of Appeals issued another ruling involving entitlement to appraisal in Citizens Property Insurance Corp., v. Mango Hill Condo. Association 12, Inc., No. 3D10-2014 (Fla. 3d DCA February 9, 2011). The Third District has been busy the last couple of months with rulings on the issue of appraisal, and one carrier in particular seems to be filing many of the appeals. I wanted to introduce the recent ruling, and there will likely be some follow up discussion in the weeks to come.

Tags: Appraisal, Condominium Associations, Post-Loss duties

Posted on February 12, 2011 by Corey Harris

Documentation of Prior Repairs Can Be Important

Most condominium associations are constantly working on their buildings and property. General maintenance, landscaping, cleaning, and minor repairs are among some of the most time consuming daily tasks. While these repairs may seem minor to many, thoroughly documenting major repairs can be very important during a subsequent insurance claim.

Tags: Condominium Associations

Posted on February 7, 2011 by Jeremy Tyler

Clerical Errors in Insurance Policies Can Raise Complex Issues in Litigation

In my last condominium blog post, I discussed a recent case from Florida in which a condominium unit owner sued a condominium association for allegedly failing to maintain and repair the condominium roof, which resulted in damage to the unit owner’s property. The United States Court of Appeals for the Fifth Circuit recently published an opinion on a similar case out of Louisiana, in which a condominium unit owner sued a condominium association for failure to procure adequate flood insurance and failure to pursue an insurance claim on the unit owner’s behalf.

Tags: Condominium Associations, Court Opinion, D & O Insurance, Directors and Officers, Directors and Officers Insurance

Posted on January 31, 2011 by Shaun Marker

Is There An Agreed Upon Definition For The Term "Fixtures"?

Continuing from my January 3, 2011, blog,Florida Southern District Grants Summary Judgment Against QBE Finding Coverage For Association’s Windows And Sliding Doors Damaged By Hurricane Wilma, QBE disagreed with the association’s interpretation of the term “fixtures” in the case, Royal Bahamian Association, Inc. v. QBE Insurance Corporation, No. 10-21511 (S.D. Fla. October 28, 2010).

Tags: Condominium Associations, Fixtures

Posted on January 29, 2011 by Corey Harris

What Type of Policy Do You Have And Why Does It Matter?

In the world of property insurance, there are two main types of policies, “all-risks” and “named perils”. Which type an association or unit owner has can have a large effect not only on the coverages provided but also the burdens that must be met to prove your claim in subsequent litigation. Therefore, it is important for all policyholders to be familiar with their policy before a loss occurs.

Tags: Burden of Proof, Condominium Associations

Posted on January 24, 2011 by Jeremy Tyler

Property Damage Claims Can Also Implicate Liability Insurance Issues

Most property insurance claims only involve two parties, the insured and the insurer. Sometimes, however, property claims can get more complicated and involve third parties, implicating liability insurance policies. This is exactly what happened in Eastpointe Condo. I Ass'n, Inc. v. Travelers Cas. & Sur. Co. of America, 379 Fed. Appx. 906 (11th Cir. 2010).

Tags: Condominium Associations, D & O Insurance, Directors and Officers, Directors and Officers Insurance

Posted on January 17, 2011 by Shaun Marker

Association Held Responsible For Repairs To Interconnected System Of Pipes Viewed As Common Property

The question of insurer responsibility for damages from a pipe break in a condominium association is a common question. Often times, the individual unit owner has an insurance policy providing coverage for portions of the interior of that unit, while the association has a master policy providing coverage for association property pursuant to the condominium declarations and certain state statutes. In a recent California case, Dover Village Association v. Jennison, (Cal. Ct. App. December 21, 2010), an individual unit owner had a leaky sewer pipe two feet beneath the concrete slab of his Newport Beach condo. The association said he was responsible for the repair bill on the theory that the sewer pipe was “exclusive use common area” for which he was responsible. The trial court entered a judgment declaring that the association should bear the expense of the repair cost, and awarded that unit owner damages, attorney’s fees and court costs. The association appealed that judgment.

Tags: California, Condominium Associations, Court Opinion

Posted on January 13, 2011 by Corey Harris

Association's Right of Entry: When Can an Association Enter a Unit Without Permission?

Anyone who has submitted an insurance claim knows that the investigation can be lengthy. For a condominium association, the investigation can be much more troublesome. Not only must the association investigate potential damage, but the insurance company and its adjusters and consultants will undoubtedly want access as well.

Tags: Condominium Associations, Florida

Posted on January 10, 2011 by Jeremy Tyler

"The Rest of the Story" on a Premature Lawsuit Against a Condominium Association

Last week I received a comment on my last blog post “Attorney's Fees Awarded in Lawsuit Filed Prematurely Against Condominium Association.” The comment was from Erwin Rosenberg, who was counsel for the appellee in the case of Point East Four Condo. Corp., Inc. v. Zevuloni & Assoc., Inc., No. 4D09-3221, 2010 WL 4962853 (Fla. 4th DCA Dec. 8, 2010). Mr. Rosenberg offered a firsthand account of his side of the case, which isn’t readily available from reading the opinion published by the Fourth District. In its opinion, the Fourth District awarded attorneys fees to a condominium association after it found that a public adjuster had sued for its fee prematurely.

Tags: Attorney Fees, Condominium Associations

Posted on January 3, 2011 by Shaun Marker

Florida Southern District Grants Summary Judgment Against QBE, Finding Coverage For Association's Windows And Sliding Doors Damaged By Hurricane Wilma

The Southern District Court of Florida entered summary judgment in favor of the Royal Bahamian Condominium Association and found coverage for the windows and sliding doors damaged during Hurricane Wilma in 2005. Royal Bahamian Association, Inc. v. QBE Insurance Corporation, No. 10-21511 (S.D. Fla. October 28, 2010). It is an important ruling, since a majority of the damage claimed by the association from Hurricane Wilma was to the windows and sliding doors. QBE took the position that the windows and doors were not covered because those items are the individual unit owners’ responsibility to maintain under the condominium declarations. The association board members operated under the mistaken belief for several years after the loss that the unit owners were responsible for repairing and replacing the windows and doors damaged during the hurricane. The board sent out notices advising the unit owners of its interpretation of the condominium declarations and quoting the pertinent sections of the declarations related to unit owner responsibility to maintain the windows and doors. Once the association retained counsel and a team of experts experienced in first-party property insurance, it submitted a Proof of Loss to QBE for over $8 million in damages caused by Hurricane Wilma in 2009.

Tags: Condominium Associations, Court Opinion, Florida, Hurricane Wilma, Insurance

Posted on December 27, 2010 by Jeremy Tyler

Attorney's Fees Awarded in Lawsuit Filed Prematurely Against Condominium Association

Recently, the Florida Fourth District Court of Appeal reversed a trial court decision that denied attorney’s fees for a condominium association after it was successful in getting a suit against it dismissed. In Point East Four Condo. Corp., Inc. v. Zevuloni & Assoc., Inc., No. 4D09-3221, 2010 WL 4962853 (Fla. 4th DCA Dec. 8, 2010), a condominium association signed a contract with a public adjuster to handle its claim under an insurance policy. The contract provided that 10% of the amount recovered would be payable to the public adjuster. The contract also provided that the prevailing party in “any action” would be entitled to attorney’s fees, payable by the losing party.

Tags: Attorney Fees, Condominium Associations, Court Opinion, Florida

Posted on December 20, 2010 by Shaun Marker

Having a Long-Range Reserve Plan is an Important Part of an Association's Budget

It is very important for homeowner and condominium associations to have budgets with adequate reserves for necessary maintenance repairs to association property. Association board members and property managers may be interested in the Association of Professional Reserve Analysts (“APRA”). APRA is a non-profit corporation established to maintain an understanding of reserve planning and increase awareness in this field. APRA maintains a bimonthly publication with various articles of interest that contain beneficial information for board members and property managers involved in the budgeting of their associations.

Tags: Condominium Associations

Posted on December 17, 2010 by Corey Harris

Policy Changes Through Endorsements Are Not Always Valid

It is no secret in the insurance industry that the widespread damage caused by Hurricane Andrew, Hurricane Hugo, and the Northridge Earthquake changed the way insurers do business. While the claims handling process was forever changed by the internal programs instituted by large insurers like State Farm, Allstate, and Farmers, many companies also began to re-think the coverages. Meaningful mold coverage has all but disappeared, the definition of what constitutes a collapse has been significantly changed, and strict co-insurance provisions and large hurricane and earthquake deductibles are becoming more and more common.

Tags: Condominium Associations, Endorsement, Insurance

Posted on December 13, 2010 by Jeremy Tyler

The Aldridge-Benge Firefighter Safety Act Aims to Keep Firefighters Safe

Chip Merlin recently authored several blog articles on the increased risks of fires this time of year. In Thanksgiving Day is the Number One Fire Insurance Claim Day and A Touching Thanksgiving Day Fire Follow-up, he discussed the increased risks of kitchen fires, and in Christmas Trees Don’t Cause Fire Insurance Claims, he gave tips for avoiding fires with Christmas trees. As important as it is for each of us to recognize these risks for our own residences, that importance is multiplied for condominium associations and owners of other multiunit residential properties.

Tags: Condominium Associations

Posted on December 6, 2010 by Shaun Marker

Condominium Association Found Liable For Sewer Back-up Damage Inside Unit

A recent California case, Affan v. Portofino Cove Homeowners Association, Inc., No. G041379, (Cal. App. 4th October 29, 2010), involves an interesting issue of liability for resulting damage and contamination to the interior of a condominium unit related to a sewage back-up from the association common area plumbing.

Tags: Condominium Associations, Court Opinion

Posted on December 3, 2010 by Corey Harris

BP To Pay Over $37 Million To Alabama Condominium

More than six months after the Deepwater Horizon explosion and ensuing oil spill, many on the Gulf Coast are still waiting for payment from BP and the Gulf Coast Claims Facility run by “Oil Spill Czar” Ken Feinberg.

Tags: BP Oil, Condominium Associations, Deepwater Horizon, Oil Spill

Posted on November 29, 2010 by Jeremy Tyler

Condominiums Need to Cooperate with Insurer Requests Before Demanding Appraisal

The day before Thanksgiving last week, the Florida Third District Court of Appeal issued a non-final opinion in the case of Citizens Property Ins. Corp. v. Galeria Villas Condo. Ass’n, No. 3D10-807, 2010 WL 4740049 (Fla. 3d DCA Nov. 24, 2010).

Tags: Appraisal, Condominium Associations, Court Opinion

Posted on November 22, 2010 by Shaun Marker

Some Property Managers Split Commissions with Insurance Agents when Placing an Association's Insurance

Two of Florida’s largest property management companies disagree over whether commission splitting with the association’s insurance agent is a conflict. Some property managers feel that commission splitting is fine and actually induces competitive pricing on insurance quotes for their associations. For example, if the property manager is intricately involved in the association’s efforts to obtain the insurance quotes, then the manager may be able to induce the association’s current insurance agent to match bids from competitors looking to write the policy. Property managers familiar with the association can provide competitive information to the agencies in this regard. Annual commissions on association policies can be tens of thousands of dollars, and, as an incentive for the placement, they are often split with the agents in this type of arrangement.

Tags: Condominium Associations

Posted on November 15, 2010 by Jeremy Tyler

More on Condominium Insurance Exclusions

A few weeks ago, in my post, David Thompson’s Dirty Dozen Condo Insurance Exclusions, I wrote about property elements that were excluded from the master condominium policy under Fla. Stat. § 718.111(11)(f). I left that post a little open-ended by not nailing down how specific property items that are not expressly excluded in the statute would be treated, and I received a few questions following that post. To recap, Fla. Stat. § 718.111(11)(f)3 excludes from a master condominium insurance policy: (1) “personal property”, (2) a list of specific items such as floor coverings and electrical appliances, and (3) items that are “located within the boundaries of the unit and serve only such unit.”

Tags: Condominium Associations, Exclusions

Posted on November 8, 2010 by Shaun Marker

Florida Ethical Concerns Surrounding Insurance Settlement Agreements

In Can a Condo Association Get Out of an Insurance Settlement Agreement? Jeremy Tyler discussed a recent California case involving a homeowner association’s challenge of an insurance settlement agreement. He provided an analysis into the factors an association would need to consider when attempting to challenge an insurance settlement agreement. Challenging such a settlement, even if based upon fraudulent inducement, can be a difficult decision for an association to make since, as Jeremy discussed, they may have to return the payment they did receive from the insurer. The facts in the case of Village Northridge Homeowners Ass’n v. State Farm Fire and Cas. Co., 237 P.3d 598 (Cal. 2010), where the policyholder alleged that the insurance company represented that the policy provided only $4.9 million worth of coverage when it in fact it provided $11.9 million, is very problematic and troubling.

Tags: Condominium Associations, Florida, Insurance, Public Adjuster

Posted on November 5, 2010 by Corey Harris

Consumer Complaints Grow As A Result Of Colorado Hail Storm

In 2009 and 2010, areas of Colorado took a beating from strong hail storms. Through contacts with adjusters, appraisers, and contractors alike, I have heard numerous stories about improper claims handling and appraisal tactics of many insurers over the past year. It appears that the state of Colorado has heard these same complaints as well.

Tags: Condominium Associations

Posted on November 1, 2010 by Jeremy Tyler

Must All Coverage Disputes Be Resolved Prior to a Court Order for Appraisal?

Last week, the Florida Fourth District Court of Appeal issued its ruling in Citizens Property Ins. Corp. v. Michigan Condo. Ass'n, No. 4D10-1794, 2010 WL 4226281 (Fla. 4th DCA Oct. 27, 2010). Michigan Condo. involved a condominium association that suffered damage to its property from Hurricane Wilma. The association timely notified its insurance company, Citizens, which investigated and estimated the amount of hurricane damage to be below the association’s insurance deductible. The association relied upon Citizens’ estimation, but later realized that damages were, in fact, in excess of the deductible, and reopened the claim. After Citizens had spent close to a year investigating the claim with no coverage decision, the association filed a Petition to Compel Appraisal in circuit court, based on the appraisal provision in the insurance policy. Citizens, in turn, denied coverage for the claim. Because there was a dispute in the amount of damage, with Citizens estimating the damage below the deductible and the association estimating the damage above the deductible, the circuit court ordered appraisal, and Citizens appealed.

Tags: Appraisal, Condominium Associations, Florida, Insurance

Posted on October 31, 2010 by Corey Harris

Associations Should Choose Examination Under Oath Representatives Carefully

While working on a condominium’s Hurricane Wilma claim this week, I had the opportunity to discuss numerous aspects of insurance adjusting with two adjusters who have more than 40 years combined experience working only for insurance carriers. Thankfully, these individuals have seen the light and now work for policyholders, but their insight into the claims process is invaluable.

Tags: Condominium Associations, Examination Under Oath

Posted on October 25, 2010 by Shaun Marker

Residents Of A Florida Condominium Association Were Given A Week To Move Out Of The Building By The City After It Was Rendered Unsafe

The City of Bradenton, Florida, sent a letter to all thirty-six units of a condominium building, stating that the six year old building had been found unsafe by the city fire marshal. The city ordered the residents to move out within seven days. To paraphrase one of the residents living in the building; imagine coming home to your condominium thinking about your evening or the weekend ahead, and then finding out that you only have seven days to move out and find a place to live.

Tags: Condominium Associations, associations, condominium

Posted on October 18, 2010 by Jeremy Tyler

Can a Condo Association Get Out of an Insurance Settlement Agreement?

What happens when a condominium or homeowners association enters into a settlement agreement with an insurance company and later finds out that the settlement was not enough or was fraudulently induced? That is exactly what happened in California in the case of Village Northridge Homeowners Ass’n v. State Farm Fire and Cas. Co., 237 P.3d 598 (Cal. 2010).

Tags: California, Condominium Associations, Court Opinion

Posted on October 16, 2010 by Corey Harris

Citizens Policyholders May See Rates Increase In 2011

Although Florida has not seen a major hurricane touch its shores since Hurricane Wilma in 2005, Citizens Property Insurance Corporation may be raising rates on many of its policyholders. Earlier this month, Insurance Commissioner Kevin McCarty approved additional rate increases that will affect thousands of insureds, including many condominium associations.

Tags: Citizens Property Insurance Corporation, Condominium Associations, Florida, Hurricane Preparation, Insurance

Posted on October 11, 2010 by Shaun Marker

Florida Appellate Court's Recent Ruling Involving Insurer's Late Notice of "Supplemental" Claim Defense

Recently, the Third District Court of Appeals issued an opinion reversing a summary judgment that had been entered in favor of an insurer in a case involving a condominium association’s hurricane damage claim. I wanted to write about the case because it is an interesting ruling related to the topic of an insurer’s late notice of a “supplemental” claim defense, which is a topic that Jeremy Tyler and I have written about previously.

Tags: Condominium Associations, Court Opinion, Florida, Hurricane Wilma, Insurance, Notice of Claim, Supplemental Claim

Posted on October 4, 2010 by Jeremy Tyler

David Thompson's Dirty Dozen Condo Insurance Exclusions

A few weeks back, David Thompson, with the Florida Association of Insurance Agents (FAIA), wrote on the FAIA web site about “The Dirty Dozen” condominium insurance exclusions. Anyone who has access to the FAIA web site should definitely give it a read.

Tags: Condominium Associations, Exclusions, Insurance

Posted on September 27, 2010 by Shaun Marker

Time Is Of The Essence For Associations

The story goes like this: A condominium association in South Florida incurred damage during Hurricane Wilma. The association called its insurer, which sent an insurance adjuster to inspect the damage. The adjuster determined that the damages were below the deductible. The association's board of directors considered re-opening the claim while there is still time. Based on unit owner complaint, the Board recently discussed hiring insurance professionals to determine whether the condominium sustained more extensive damage than that found by the insurance company’s investigation. Unit owners within the association have expressed their feelings that it is imperative to conduct this investigation before it is too late. The unit owners have even threatened to sue the board for its inaction if the appropriate steps are not taken.

Tags: Condominium Associations, Hurricane Wilma, Statute of Limitations

Posted on September 13, 2010 by Shaun Marker

Condominium Unit Owner May Not Deny The Association Reasonable Access To Their Unit To Repair Common Element

The question of whether a condominium unit owner must provide his or her association access to the interior of their unit to perform repairs or maintenance to common elements was recently addressed in a Florida appellate court opinion, Hollywood Towers Condo. Assoc., Inc. v. Hampton, 35 Fla. L. Weekly D1424a, 2010 WL 2509178 (Fla. 4th DCA June 23, 2010). Hollywood Towers, a Florida condominium association, became concerned with the structural integrity of the concrete balconies on each unit, so it hired experts to inspect each balcony. The balconies are common elements under the association’s declaration documents and are the responsibility of the association to maintain. The expert discovered that Ms. Hampton’s balcony, among many others, had suffered corrosion requiring repair. The expert concluded that demolition and repair work should be done from the inside of Ms. Hampton’s unit to remove the appropriate amount of concrete and rebar four inches past where the corrosion stopped. The association determined that it would install a temporary dust wall to Ms. Hampton’s unit, to separate the work area from the rest of the unit.

Tags: Condominium Associations, Insurance

Posted on September 6, 2010 by Jeremy Tyler

Liability on the Insurance Agent

A few weeks ago, Corey Harris and I briefly wrote about liability that can fall back on the insured in our respective posts, Errors in Insurance Application May Leave You with No Coverage and More on Errors in Insurance Applications. This week, presents a situation in which liability may fall back on the insurance agent. Similar to the situations mentioned the posts above, an insurance agent may be liable for errors in an insurance application, for giving improper insurance advice, or negligently failing to procure insurance for a customer. The laws vary from state to state, but generally insurance agents owe a duty to their customers, that, if breached, could make an insurance agent liable for resulting harm.

Tags: Condominium Associations, Errors and Omissions, Insurance Agent

Posted on August 30, 2010 by Shaun Marker

Arbitration for Certain Disputes Between Unit Owners and Condominium Associations Is Not Mandatory

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.

Tags: Arbitration, Condominium Associations, Court Opinion, Fiduciary Duty

Posted on August 23, 2010 by Jeremy Tyler

Mandatory Arbitration for Disputes Between Unit Owners and Condominium Associations

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.

Tags: Arbitration, Condominium Associations, Fiduciary Duty

Posted on August 21, 2010 by Corey Harris

Vacancy Exclusions Are Effecting More Claims In Today's Economy

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.

Tags: Condominium Associations, Exclusions, Insurance, Vacancy

Posted on August 16, 2010 by Shaun Marker

Is It Reasonable For An Insurer To Request Examinations Under Oath Of Unit Owners During A Claim?

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.

Tags: Condominium Associations, Examination Under Oath

Posted on August 13, 2010 by Guest Blogger

How To Protect Your Roofing Investment

(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.

Tags: Condominium Associations, Hurricane Preparation, Roofing

Posted on August 9, 2010 by Jeremy Tyler

Substantial Compliance and the Examination Under Oath

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).

Tags: Condominium Associations, Examination Under Oath

Posted on August 2, 2010 by Shaun Marker

How Many Examinations Under Oath Can An Insurer Demand Of An Association?

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.

Tags: Condominium Associations, Examination Under Oath, Florida, Insurance

Posted on July 26, 2010 by Jeremy Tyler

Hurricane Preparedness for Insurance Coverage

With Tropical Storm Bonnie passing through South Florida this past weekend, I thought this would be a good time to address the importance of hurricane preparedness. There are plenty of resources and guides for preparing property for a disaster, but I want to focus on preparing condominium insurance coverage.

Tags: Condominium Associations, Hurricane Preparation, Insurance

Posted on July 24, 2010 by Corey Harris

Failing To Obtain Regular Appraisals Can Hurt Associations After A Large Loss

The second named storm of the year has crossed Florida, and it will only be a matter of time before another tropical system strikes the state. While there are many problems that an association can face after a loss, few are harsher than the effect of a coinsurance penalty that reduces the amount paid on an otherwise valid claim. Many policies, especially large commercial polices, contain coinsurance provisions. Unfortunately, many directors and managers do not understand what they mean or the effect that they can have.

Tags: Actual Cash Value, Coinsurance, Condominium Associations, Hurricane Preparation, Insuring to Value

Posted on July 19, 2010 by Shaun Marker

Submitting Volumes Of Documents Through Which An Insurer Can Make An Intelligent Inquiry Into The Details Of The Loss Does Not Relieve An Insured Of Its Obligation To Appear For Examination Under Oath

Here are common problems that arise when an insurance carrier requests examinations under oath in a claim filed by a condominium association:

The board of directors has changed and the current board members are not familiar with the details of the claim, damages, previous repairs and future necessary repairs;
The current board members are aware of the voluminous records and documents kept by the previous board through which the insurance carrier would be able to intelligently assess the details of the loss being claimed; and
The current board members will provide the insurance carrier with the documents and information for the insurer to ascertain all of the details of the claim, damages, previous and future repairs.

Tags: Condominium Associations, Examination Under Oath, Insurance

Posted on July 12, 2010 by Jeremy Tyler

More on Errors in Insurance Applications

The other day, a colleague and I were discussing potential insurance issues that could come up when another major catastrophe hits Florida. The conversation led to the subject of insurance application errors, which reminded me of Corey Harris’ post from June 8 of this year. Corey’s post accurately describes the rule of law in Florida under Florida Statute § 627.409, that any misrepresentation on an insurance application in Florida, whether innocent or intentional, may void coverage.

Tags: Condominium Associations, Florida, Insurance

Posted on July 5, 2010 by Shaun Marker

Insurance Coverage Provided By The Condominium Association To Condominium Property Is Considered Residential Insurance Coverage

Your first impression after reading the title of this article may be: “well that is obvious since there are residents that live within condominium associations.” Condominium claims are sometimes referred to simply as commercial claims when, in fact, they are classified by Florida Statute as “residential.”

Tags: Condominium Associations, Florida, Florida Statutes, Insurance

Posted on July 3, 2010 by Corey Harris

Examinations Under Oath Can Be Difficult For Associations

All insurance policies place certain obligations on the insured in the event of a loss. While most policyholders do not understand all of the terms and conditions of their policy, these post-loss obligations are extremely important. Failing to fulfill these obligations may be grounds for an insurer to deny an otherwise valid claim in some circumstances; therefore, all board members should read and understand what to do after a loss occurs.

Tags: Condominium Associations, Examination Under Oath, Post-Loss duties

Posted on June 28, 2010 by Jeremy Tyler

More on New Changes to Condominium Insurance Legislation

I received several questions on my last post regarding the force place insurance provision that will be removed from Fla. Stat. § 718.111(11) on July 1, 2010. This week, I explain the history of the provision to clarify some of the information I provided two weeks ago.

Tags: Condominium Associations, Florida, State Legislation

Posted on June 21, 2010 by Shaun Marker

The Difference Between The Duty To Maintain and The Duty To Insure Condominium Association Property

There are often disagreements between association board members, unit owners and property managers regarding what constitutes condominium association property for insurance claim purposes. In these situations, there can be confusion between the association’s duty to maintain condominium property and the duty to insure condominium property. The condominium statute, §718.111(11), addresses the association’s duty to provide primary insurance coverage protecting the association.

Tags: Condominium Associations, Duty to Insure, Florida

Posted on June 14, 2010 by Jeremy Tyler

New Changes to Condominium Insurance Legislation

(Note: this guest blog is by Jeremy Tyler, an attorney with Merlin Law Group in the Coral Gables office).

I am very excited to have the opportunity to contribute to this blog. Shaun Marker and I will be contributing to the Condominium Insurance Law Blog each Monday. Please check back frequently, as we have a lot to discuss.

For starters, in the recent legislative session, the Florida Legislature made numerous changes to Florida Statute § 718.111, which regulates condominium associations. For this blog, I’ll focus on the changes the Florida Legislature made to § 718.111(11) that deals with condominium insurance.

Tags: Condominium Associations, Florida, State Legislation

Posted on June 1, 2010 by Corey Harris

June 1st Is The First Day Of Hurricane Season: Is Your Association Prepared?

As I mentioned last Friday in Hurricane Expert Revises Prediction, experts are predicting one “hell of a year” for hurricanes. While the Atlantic has not picked up yet, we have already seen the effects of Tropical Storm Agatha, which killed over 100 people in Central America and caused a large amount of property damage. This should be a wakeup call to complacent associations and should encourage those who have not begun preparing for a potential storm to do so.

Tags: Condominium Associations, Hurricane Prediction, Hurricane Preparation

Posted on May 17, 2010 by Corey Harris

Thoughts Regarding the 2010 CAI Conference

Because of the unfortunate events involved in the sinking of the Deepwater Horizon and the subsequent gulf oil spill, I have not been able to take a minute to reflect on the 59th Annual Community Associations Institute National Conference which ended last week. I have been fortunate to attend many of these meetings over the years, and have watched CAI grow into a remarkable resource for anyone who is involved with Condominiums or Home Owners Associations.

Tags: Community Associations Institute, Condominium Associations

Posted on May 3, 2010 by Corey Harris

Florida Condominiums Are Already Feeling the Effect of the Gulf Oil Spill

Our firm has been receiving calls from a large number of Florida condominium associations over the past few days regarding the increasing problems associated with the oil spill that is plaguing the gulf coast. I have a personal connection to this growing crisis. I spent a large portion of my life in Destin, Florida, and part of my family still lives and works in the area. Late last night, I flew to the panhandle to see what our firm could do to help.

Tags: BP Oil, Class Action, Condominium Associations, Deepwater Horizon, Florida, Oil Spill

Posted on May 1, 2010 by Corey Harris

Insuring A Condominium Building: What Is Covered Under The Association Policy?

One of the first steps in dealing with an association’s claim, is determining what is covered under the association policy and what is covered under the individual unit owner’s policy. Many associations and insurance professionals are unclear as to what exactly is covered by the association policy, and questions constantly arise during the claim.

Tags: Condominium Associations, Insurance

Posted on April 24, 2010 by Corey Harris

Florida Southern District Court Upholds Condominium Association's Right to Bad Faith Discovery

In Florida, discovery in breach of contract actions usually centers around the mystical “claim file” which insurers guard more closely than their first born child. As most who read this blog already know, the “claim file” has been held to be generally protected by Florida courts, and usually undiscoverable in a breach of contract action.

Tags: Bad Faith, Claims File, Condominium Associations, Discovery, Florida, Post-Loss duties