The Southern District Court of Florida recently dismissed a policyholder’s case against QBE and granted a stay of the action in a lawsuit stemming from Hurricane Wilma. Garden-Aire Village South Condo. Assoc., Inc. v. QBE Insurance Corp., No. 10–61985, 2011 WL 1184737 (S.D. Fla. March 31, 2011). The policyholder filed the lawsuit against QBE on October 18, 2010, alleging that Hurricane Wilma damaged its windows and sliding glass doors, and that the policyholder notified QBE of the loss. The policyholder asserted that QBE failed to determine the amount of its loss from Hurricane Wilma and that there was an actual and present need for various declarations by the Court concerning the parties’ rights and obligations under a policy of insurance.

The policyholder sought a declaratory judgment establishing the following three things, which were asserted in separate counts of the Complaint:

  1. that glass windows and sliding glass doors providing access to a single condominium unit are covered under the QBE Policy;
  2. that the policyholder is entitled to have the dispute concerning the amount of its Hurricane Wilma loss resolved through the appraisal process described in the Policy; and
  3. that the hurricane deductible in the QBE Policy is void pursuant to Florida Statute 627.701(4).

The Complaint alleged that QBE frequently takes the position that windows and sliding glass doors are not covered under its policies. The association alleged that QBE’s frequent denial of coverage for windows and sliding glass doors in other claims, coupled with the fact that QBE did not include the windows and doors in its initial evaluation of this claim, indicates that the association was entitled to have any doubt regarding coverage for the hurricane damage to its windows and doors determined by the Court.

The Court refused to consider QBE’s conduct in other actions as indicating its position on the windows and sliding glass doors in this particular claim. In dismissing Count I of the Complaint, the Court ruled that “speculation based on QBE’s dealings with other insureds does not present a concrete case or controversy” as to this action. The Court ruled that dismissal of Count II regarding appraisal was warranted since QBE had not taken a formal position in the claim, so there was not a disagreement over the amount of loss. It held that Count II regarding appraisal was premature. Lastly, the Court stayed Count III of the Complaint, pending the Florida Supreme Court’s decision in QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., No. SC09–441 (Fla.), on the specific issue of the applicability of QBE’s large hurricane deductibles.

The District Court, in reaching its decision to dismiss Counts I and II, noted that while the policyholder notified QBE generally of its Hurricane Wilma loss in 2005, the facts were clear that it did not notify QBE of any disagreement with QBE’s adjustment and apparent closure of the claim until after filing the lawsuit. It appeared that QBE was under the impression that the association’s president had withdrawn the Hurricane Wilma claim before QBE reached any conclusion, and there were no allegations that the policyholder communicated anything to the contrary to QBE before filing the lawsuit. The Court also noted that the facts of this case are different from a situation where a policyholder claims that QBE or another insurer failed to act on their particular claim submitted and actively pursued.

Following the Court ruling, QBE will presumably “investigate” the policyholder’s claim for Hurricane Wilma damages and reach a determination on coverage for the specific facts of that claim.

  • Insurance Veteran

    Having handled hundreds of condo association claims pursuant to the four hurricanes in 2004 and Hurricane Wilma in 2005, I’ve seen more claims for damage to windows and doors made that were attributable in my opinion to nothing more than salt corrosion, poor maintenance and shoddy quality than hurricane damage.

    Folks need to realize that property insurance is not a maintenance policy.

    I agree wholeheartedly that legitimate wind damage should be paid for and will fight for the insureds rights however you don’t get to neglect the obvious and expect someone else to pay for it.

  • Daniel Friedman

    I don’t think the insured was well represented. It seems that plaintiff did not frame the complaint properly.
    I handled many claims involving QBE. Being in Australia, they are somewhat protected from locaal regulation and their pet Miami law firm, experts at Delay, Deny, Defend can stonewall the average insured until they are willing to fold and just take what they can get.
    Insurance Vereran obviously represents the carriers and has responded with thier point of view. Sorry for the late response. Thank you.

  • Shaun Marker

    Thanks for your response Daniel!