Recently, the Florida Southern District Court updated its order in Garden-Aire Village South Condo. Assoc., Inc. v. QBE Insurance Corp., No. 10-cv-61985 (S.D. Fla. January 4, 2012). I discussed the Garden-Aire case on April 5, 2011, in Importance Of An Actual Controversy Demonstrated As Southern District Court Of Florida Dismisses And Stays Action Against QBE As Speculative. In March 2011, the Court concluded that the Complaint filed by the association against QBE did not state a claim in which relief could be granted. In its recent opinion from just a few days ago, the same Court granted the condominium association’s request to amend the Complaint, and will presumably allow the case to proceed.


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How often do insurance companies get it right the first time? If they don’t, whose responsibility is it to correct them and give them a second chance? As demonstrated through litigation on many hurricane claims, the insurance companies may tell you it is the policyholder’s responsibility to notify them of newfound damage after a claim has already been resolved. Recently, Judge Robert N. Scola, Jr., of the United States District Court for the Southern District of Florida, disagreed with that logic, holding that a policyholder did not have to give the insurance company a second chance before suing it.


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When it comes to damage, few things are more expensive to replace than windows and sliding glass door systems. Almost every condominium unit has at least one sliding glass door system, and most have more than one. Widespread damage from earthquakes or hurricanes can prove extremely costly for an association and lead to substantial assessments if not properly insured.


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The Southern District Court of Florida recently issued an opinion discussing the amount of detail required to state a claim for breach of contract in Florida in a Hurricane Wilma claim. Galison v. Fireman’s Fund Ins. Co., No. 10-81522, 2011 WL 3419620 (S.D. Fla. August 4, 2011). The insurer in the case filed a motion to dismiss, claiming that the insured’s complaint was too vague and ambiguous for it to respond or bring a defense.


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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.

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The other day at the NAPIA Conference, Mary Fortson, Vivian Persand and I were discussing an issue of importance for policyholders to be mindful of even after their Hurricane Wilma claims are resolved. Oftentimes, much of the advice offered by lawyers and professionals to policyholders in the property insurance industry concerns what steps need to be taken to help policyholders navigate their way through the intricacies of policy interpretation and coverage. The maze of coverage issues actually continues even after the claim is resolved. If there is another hurricane in the next few years, carriers will be aware of the policyholders who had Hurricane Wilma claims and will likely request documentation reflecting repairs if damage is being claimed to similar areas of property.


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I recently represented a client at a court hearing on a motion to compel appraisal to determine the amount of roof damage from Hurricane Wilma. The insurance company’s attorney opposed appraisal, so the judge asked him who other than appraisers should determine the amount of damage from Wilma. “I’m not getting on that roof!” exclaimed the judge. “Are you getting on the roof?” he asked the insurance company’s attorney before looking at me and asking me the same question. As much as I wished I were qualified to differentiate between hurricane damage and wear and tear, I admitted that such a decision should be left to the experts. That experience led me to ponder on the subject of experts.


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Just a few weeks ago, the Fort Myers Division of the United States District Court for the Middle District of Florida handed down its memorandum opinion on the insurer’s motion for summary judgment in Royal Marco Point I Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 3:07 CV 16, 2010 WL 2757240 (M.D. Fla. July 13, 2010). Among other things, the insurer, QBE Insurance Corporation, argued that its participation in appraisal and timely payment of the appraisal award precluded an action against it on bad faith.

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