El-Ad Enclave at Miramar Condominium Ass'n v. Mt. Hawley Insurance
752 F. Supp. 2d 1282
S.D. Fla.2010Background
- Mt. Hawley issued a $1 million-per-incident property policy to El-Ad Enclave Enclave for the 2005–2006 term; Wilma damage occurred October 2005.
- Policy includes a windstorm deductible of 3% of total values at risk per building and a $10,000 per-occurrence deductible for all other perils, with a declared value of $44 million and no per-building schedule.
- Enclave sought coverage for Wilma damage and initially received $11,441.15 after adjuster inspection in 2006; suit was filed May 15, 2009.
- Policy presuit conditions required document production and an examination under oath (EUO); Mt. Hawley sought belated compliance before or during litigation.
- Plaintiff and defendant engaged in pre-suit negotiations; there is a genuine dispute as to whether Enclave fully complied with EUO and document requests before filing suit.
- The court ultimately denied Enclave’s motion for summary judgment and granted in part Mt. Hawley’s motion on the windstorm deductible interpretation, with trial set for January 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Enclave complied with presuit conditions | Enclave substantially complied; agreement to provide documents and EUO occurred before suit. | Pre-suit compliance was not satisfied; failure to provide requested documents and attend EUO bars suit. | Dispute of fact; summary judgment denied |
| Interpretation of the windstorm deductible | Deductible is 3% of total policy value (i.e., $30,000). | Deductible is 3% of total values at risk per building (per-building basis). | Mt. Hawley’s per-building interpretation is correct; Mt. Hawley granted partial summary judgment on interpretation |
| Validity of the windstorm deductible under § 627.701 | Deductible violates § 627.701 and should be void. | No voiding penalty for noncompliance; deductible valid under statute. | Deductible not void; Enclave's motion denied |
Key Cases Cited
- Goldman v. State Farm Fire & General Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995) (EUO provisions are conditions precedent to suit)
- Shaw v. State Farm Fire & Casualty Co., 37 So. 3d 329 (Fla. 5th DCA 2010) (EUO requirement is a condition precedent to recovery)
- Southgate Gardens Condominium Ass'n v. Aspen Specialty Ins. Co., 622 F. Supp. 2d 1332 (S.D. Fla. 2008) (Compliance with EUOs is a condition precedent; can be questioned factually)
- Amica Mut. Ins. Co. v. Drummond, 970 So. 2d 456 (Fla. 2d DCA 2007) (Failure to attend EUOs can be a material breach but not always dispositive)
- Chalfonte Condominium Apt. Ass'n v. QBE Ins. Corp., 526 F. Supp. 2d 1251 (S.D. Fla. 2007) (Penalties for noncompliance with § 627.701(4)(a) not expressly provided; policy may remain valid)
- RTG Furniture Corp. v. Industrial Risk Insurers, 616 F. Supp. 2d 1258 (S.D. Fla. 2008) (Consider extrinsic evidence only when ambiguity remains; sophisticated insureds not favored for liberal construction)
- Central Metal Fabricators v. Travelers Indemnity Co. of Am., 703 So. 2d 1251 (Fla. 3d DCA 1998) (Cooperation with policy conditions may be treated as fact-dependent)