Belle Terre Condo Ass'n v. Westchester Surplus Lines Ins. Co.
| Decision Date | 08 July 2021 |
| Docket Number | CASE NO. 20-60921-CIV-SMITH |
| Citation | 548 F.Supp.3d 1301 |
| Parties | BELLE TERRE CONDO ASSOCIATION, Plaintiff, v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Nicholas Peter Ciani, Schirmer Law LLC, Fort Lauderdale, FL, for Plaintiff.
Janice Carole Buchman, John Vincent Garaffa, Butler Weihmuller Katz Craig, LLP, Tampa, FL, for Defendant.
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on Plaintiff's Motion for Partial Summary Judgment [DE 24], Defendant's Response in Opposition [DE 27], and Plaintiff's Reply [DE 29]. Also, before the Court is Defendant's Motion for Summary Judgment [DE 26], Plaintiff's Response [DE 28], and Defendant's Reply [DE 30]. This case arises from an unpaid insurance claim Plaintiff made under an insurance policy issued by Defendant. Plaintiff seeks partial summary judgment on the issue of coverage. Defendant seeks summary judgment in its favor because Plaintiff violated policy provisions. Because there are genuine issues of material fact, both motions are denied.
Defendant issued commercial property insurance policy number D37440838-002 (the "Policy") to Plaintiff. The Policy covered the period from September 13, 2016 to September 13, 2017 and insured commercial property located at 3000 N. University Drive, Coral Springs, Florida. On September 19, 2017, Plaintiff reported a claim to Defendant for roof damage and ensuing water damage resulting from Hurricane Irma, which occurred on September 10, 2017.
On December 14, 2017, Defendant's independent adjuster issued a report ("Report") that concluded that:
Hurricane Irma caused water intrusion small buildingBitumen felt roof lifting on small building10% of concrete shingles cracked or broke off mansardTwo small trees damagedParking canvas canopy ripped
(McLarens Rpt. [DE 25-1] at 1-2.) Under "Nature of Loss," the Report states:
Hurricane Irma brought intense winds and flooding to the insured's area. Wind driven rain damaged the bitumen roof of the small building causing resultant rainwater damage in office spaces below. Some mansard concrete tiles were cracked. Two small trees were damaged.
(McLarens Rpt. at 3.) The Report also states "[w]e request [Insurer's] review and confirmation of coverage and any specific sub-limits that may apply to the current Named Storm claim." (Id. ) On May 9, 2018, Defendant's independent adjuster sent a letter to Plaintiff stating that the damages that occurred from Hurricane Irma did not breach the Named Storm Deductible of the Policy and, therefore, no payment for the claim would issue. (May 9, 2018 Ltr. [DE 26-3].) The May 9, 2018 letter also stated: "Should you have any information indicating damages in excess of your deductible, we request that you forward this to our attention as soon as possible." (Id. )
As a result of the roof damages, Plaintiff hired Best Roofing to make repairs to the roof. (Urquia2 Dep. [DE 26-4] 11:6-22.) Best Roofing assessed the roof and recommended the repairs to be done, which Plaintiff then approved. (Id. 13:17-14:3.) Best Roofing made the repairs in May 2018. (Id. 20:15-23.) Prior to Hurricane Irma, Plaintiff was not aware of any issues with the roof tiles. (Id. 56:7-57:1.)
On May 20, 2018, Plaintiff made a police report stating that "in August of 2017 unknown suspects walked on the roof damaging 30% of the tiles." (Police Report [DE 26-6].) According to Plaintiff, the police report was filed at the suggestion of Plaintiff's public adjuster. (Urquia Dep. 60:9-61:3.) Plaintiff, however, did not actually know how the tiles were damaged. (Id. 63:19-64:7.) Plaintiff also made a claim on the Policy for vandalism damage that included the roof tiles, despite not knowing how the roof tiles were actually damaged. (Id. 68:6-69:24.) Plaintiff made the claim based on vandalism because the hurricane claim had been rejected. (Id. 122:10-21.) Thereafter, Plaintiff sought to reopen the hurricane damage claim in 2020.
The Policy contains a provision titled "Concealment, Misrepresentation or Fraud," which states:
(Policy [DE 26-1] at 10, ¶ A.) The Policy also contains a provision titled "Duties In The Event Of Loss Or Damage," which states:
(Policy at 22, ¶ 3.)
Summary judgment is appropriate when "the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co. , 240 F.3d 982, 991 (11th Cir. 2001). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(e) ). The Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether " ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ " Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson , 477 U.S. at 251-52, 106 S.Ct. 2505 ).
In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere "scintilla" of evidence supporting the opposing party's position will not suffice; instead, there must be a sufficient showing that the jury could reasonably find for that party. Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ; see also Walker v. Darby , 911 F.2d 1573, 1577 (11th Cir. 1990).
Defendant seeks summary judgment on Plaintiff's claim because Plaintiff intentionally misrepresented material facts, which voids coverage under the Policy, and Plaintiff violated the Policy's Duties in the Event of Loss or Damage provision by not producing requested documentation in support of Plaintiff's claim. Plaintiff responds that Defendant waived any affirmative defense based on misrepresentation or fraud, that Defendant has not established that any alleged fraud was intentional, and Plaintiff complied with its duties under the Policy. In its motion for partial summary judgment, Plaintiff seeks summary judgment based on the "mend the hold" doctrine, which Plaintiff maintains prevents Defendant from denying coverage after previously admitting it.
Defendant argues that an intentional misrepresentation made after a loss falls within the Concealment, Misrepresentation or Fraud provision of the Policy ("Concealment Provision") and, thus, the Policy is void. Defendant argues that Plaintiff made conflicting claims for the roof damage. First, Plaintiff filed a claim alleging hurricane damage to the roof. After Plaintiff was advised that the hurricane damage fell below the Policy's deductible, Plaintiff made a claim alleging vandalism damage to the roof. Then, Plaintiff sought to reopen the hurricane damage claim and subsequently filed this lawsuit alleging hurricane damage to the roof. Plaintiff's corporate representative testified that she had no idea how the roof was damaged. Based on this series of events, Defendant maintains that the Policy is void under the Concealment Provision.
In response, Plaintiff argues that Defendant has waived this argument by failing to raise fraud as an affirmative defense. While Defendant has not explicitly pled fraud in its Affirmative Defenses, Defendant's Fifth Affirmative Defense sets out the conflicting roof claims...
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