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.

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

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.

Continue Reading When is an Insurance Claim Ready for Litigation?

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).

Continue Reading Keeping Halloween Parties within Association Rules

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.

Continue Reading Loss Assessment Coverage and the “Master Deductible” Clause

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.

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

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.

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

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.

Continue Reading More Confusion of Florida’s Statute of Limitations for Property Insurance Claims

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.”

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

Almost twelve years ago, Florida’s Third District Court of Appeal published its opinion in U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999). As of the writing of this post, Romay has been cited in no less than 44 published court opinions. Most of these cases, like the recent Citizens Prop. Ins. Corp. v. Gutierrez, 59 So. 3d 177 (Fla. 3d DCA 2011), cite the language from Romay which requires that “[t]he insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered.” Unfortunately, this statement is only half of Romay. This is the half that focuses on the insured’s obligations. There is another side of Romay that focuses on the insurer’s obligations, and although this other side is not often discussed, it recently found its way into a published opinion from the United States District Court for the Southern District of Florida in 200 Leslie Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 10-61984-CIV, 2011 WL 2470344 (S.D. Fla. June 21, 2011).

Continue Reading The Other Side of Romay: Insurer Post-Loss Obligations and Appraisal