Monterey at Malibu Bay Condo. Ass'n v. Empire Indem. Ins. Co.

• Decision Date: 29 April 2022
• Docket Number: 20-cv-24587-BLOOM/Otazo-Reyes
• Parties: MONTEREY AT MALIBU BAY CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. EMPIRE INDEMNITY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

MONTEREY AT MALIBU BAY CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. EMPIRE INDEMNITY INSURANCE COMPANY, Defendant.

No. 20-cv-24587-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

April 29, 2022

OMNIBUS ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BETH BLOOM UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Empire Indemnity Insurance Company's (“Defendant” or “Empire”) Motion for Summary Judgment, ECF No [94] (“Defendant's Motion”), and Plaintiff Monterey at Malibu Bay Condominium Association, Inc.'s (“Plaintiff” or “Monterey”) Motion for Summary Judgment, ECF No. [96] (“Plaintiff's Motion”) (collectively, “Motions”). The Court has carefully reviewed the Motions, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Defendant's Motion is granted in part and denied in part consistent with this Order. Plaintiff's Motion is denied.

I. BACKGROUND

A. Monterey I

On March 22, 2019, Plaintiff initiated its first action against Defendant in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. See Monterey at Malibu Bay Condo. Ass'n, Inc. v. Empire Indem. Ins. Co., No. 1:19-cv-23353-LFL (S.D. Fla. 2019), ECF No. [1-2] at 2-5 (“Monterey I”). On August 12, 2019, Defendant removed the case to federal court. Monterey I, ECF No. [1]. Plaintiff's Amended Complaint asserted a single count against Defendant for breach of contract, alleging that Plaintiff entered into an insurance policy agreement (“Policy”) with Defendant for coverage of Plaintiff's condominium (“Property”). Monterey I, ECF No. [1-2] at 25. Plaintiff alleged that the Property was damaged during Hurricane Irma and that the damage incurred was a covered loss under the Policy. After receiving Plaintiff's coverage claim, Defendant made a partial payment, and Plaintiff alleged that Defendant breached the Policy by failing to fully indemnify Plaintiff for the total amount of its damages. Id. at 3. On August 27, 2020, Plaintiff filed a motion seeking voluntary dismissal of Monterey I without prejudice pursuant to Fed.R.Civ.P. 41(a)(2), which Defendant opposed. Monterey I, ECF Nos. [64], [67]. On October 15, 2020, Magistrate Judge Lauren Louis granted Plaintiff's motion and dismissed the case over Defendant's objection. Monterey I, ECF No. [87] at 7.

B. Monterey II

On August 22, 2020, while Monterey I was still pending, Plaintiff filed a Petition for Declaratory Relief against Defendant, which was premised upon the same Policy, the same Property, the same loss resulting from Hurricane Irma, and the same ultimate amount of claimed damages. Monterey at Malibu Bay Condo. Ass'n, Inc. v. Empire Indem. Ins. Co., No. 1:20-cv-23506-KMW (S.D. Fla. 2020), ECF No. [1] (“Monterey II”). On October 29, 2020, however, the court in Monterey II sua sponte dismissed the case without prejudice after the parties failed to timely file their joint conference report as ordered. Monterey II, ECF No. [19].

C. Monterey III

Turning to the instant action, on November 6, 2020, Plaintiff re-filed its Petition for Declaratory Relief against Defendant, which asserted the same claims as those raised in Monterey II, seeking clarification of its rights under the Policy. ECF No. [1] (“Monterey III”).

Regarding the instant Motions, Defendant filed its Motion, ECF No. [94], along with its corresponding Statement of Material Facts, ECF No. [95] (“Defendant's SMF”). Plaintiff filed its Opposition to Defendant's Motion, ECF No. [106] (“Plaintiff's MSJ Response”), together with its Opposition Statement of Material Facts, ECF No. [107] (“Plaintiff's SMF Response”). Defendant filed a Reply to Plaintiff's MSJ Response, ECF No. [116] (“Defendant's MSJ Reply”).

Plaintiff filed its Motion, ECF No. [96], along with its corresponding Statement of Material Facts, ECF No. [101] (“Plaintiff's SMF”). Defendant filed its Opposition to Plaintiff's Motion, ECF No. [111] (“Defendant's MSJ Response”), and its Opposition to Plaintiff's SMF, ECF No. [112] (“Defendant's SMF Response”). Finally, Plaintiff filed a Reply to Defendant's MSJ Response, ECF No. [119] (“Plaintiff's MSJ Reply”).

II. MATERIAL FACTS

Based on the parties' statements of material facts in support of and in opposition to the Motions, along with the evidence in the record, the following facts are not genuinely in dispute unless otherwise noted.

A. The Policy

Empire issued Commercial Lines Policy number ECL9490651-02 to Monterey effective from March 2, 2017 to March 2, 2018. ECF Nos. [95] ¶ 1, [107] ¶ 1. The Policy states in relevant part:

Duties In The Event Of Loss Or Damage

a. You must see that the following are done in the event of loss or damage to

Covered Property:

* * *

(2) Give us prompt notice of the loss or damage. Include a description of the property involved.

(3) As soon as possible, give us a description of how, when and where the loss or damage occurred.

(4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination.

(5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.

(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records. Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.

(7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.

(8) Cooperate with us in the investigation or settlement of the claim.

ECF Nos. [95] ¶ 2, [107] ¶ 2, [72-1] at 39-40.

Additionally, the Policy states that Empire has the right to “[m]ake inspections and surveys at any time[.]” ECF Nos. [95] ¶ 4, [107] ¶ 4, [72-1] at 28.

B. Hurricane Irma and Its Aftermath

On September 10, 2017, the Property, which consists of 30 buildings, was exposed to wind and rain from Hurricane Irma. ECF Nos. [95] ¶ 5, [107] ¶ 5. For all times relevant, Guarantee Management Services, Inc. (“Guarantee Management”) was the property management company for Monterey. ECF Nos. [95] ¶ 6, [107] ¶ 6. Ms. Tracey Rubin (“Ms. Rubin”) is and has been the President of Guarantee Management and the property manager for Monterey. ECF Nos. [95] ¶ 7, [107] ¶ 7. Ms. Rubin spoke to a landscaper after Hurricane Irma who reported fallen trees at the Property, and Ms. Rubin first visited the Property a few weeks after Hurricane Irma when she observed that the roof tiles were “out of place . . . everything moved over and slid.” ECF Nos. [95] ¶ 7, [107] ¶ 7.

On September 27, 2017, Ms. Carla Diaz (“Ms. Diaz”), the assistant manager of Guarantee Management, sent an email to Ms. Rubin and Mr. Conrad Lopez (“Mr. Lopez”), the President of the Monterey Condominium Association, identifying six (6) units on the Property with roof leaks. ECF Nos. [95] ¶ 10, [107] ¶ 10. As of September 27, 2017, Monterey started “to see an uptick in roof repair, ” but Monterey did not report these roof leaks to Empire. ECF Nos. [95] ¶ 11, [107] ¶ 11. Mr. Lopez testified that he did not think Monterey needed to notify Empire at that time, but does not know why. ECF Nos. [95] ¶ 12, [107] ¶ 12. As of November 2017, Mr. Lopez was growing concerned with the roof repairs, but Mr. Lopez and the Monterey Condominium Association did not discuss contacting Empire. ECF Nos. [95] ¶ 14, [107] ¶ 14.

Between approximately September 19, 2017, and April 5, 2018, Allied Roofing repaired roof leaks and broken roof tiles at the Property. ECF Nos. [95] ¶ 15, [107] ¶ 15. On March 2, 2018, Mr. Lopez, on behalf of Monterey, signed a No-Loss Statement stating that “to the best of our knowledge there have been no known or reported Property/Wind losses from 03/02/2017 to the present, including hurricane [sic] Irma.” ECF Nos. [95] ¶ 16, [107] ¶ 16. In mid-2018, Mr. Cesar Marin (“Mr. Marin”), Monterey's Public Adjuster, hired Top Seal Services Corp. to inspect Monterey's roofs, and Mr. Marin retained Scott Thomas (“Mr. Thomas”) to provide an estimate of the physical damage. ECF Nos. [95] ¶ 17, [107] ¶ 17.

C. Insurance Claim and Initial Claim Handling Process

On August 21, 2018, Mr. Marin notified Empire of Monterey's loss. ECF Nos. [95] ¶ 20, [107] ¶ 20. Mr. Marin reported that the Property had roof damage from Hurricane Irma. ECF Nos. [95] ¶ 20, [107] ¶ 20.

On August 21, 2018, Mr. Brian Schwartz (“Mr. Schwartz”) from Empire emailed Mr. Marin to discuss Monterey's claim. ECF Nos. [95] ¶ 22, [107] ¶ 22. On August 24, 2018, Mr. Marvin Arlitz (“Mr. Arlitz”) of Madsen, Kneppers & Associates, Inc. (“MKA”) sent Mr. Marin an email scheduling the site inspection of the Property and asking Monterey to confirm the dates with the units that would require entry. ECF Nos. [95] ¶ 24, [107] ¶ 24.

On August 31, 2018, Mr. Scott Klaben (“Mr. Klaben”) the National General Adjuster from Empire, sent an email to Mr. Marin advising that Monterey's claim had been reassigned to him and that MKA's inspection of the Property was scheduled for September 17, 2018. ECF Nos. [95] ¶ 30, [107] ¶ 30. Mr. Klaben also asked for copies of all repair invoices and damage estimates. ECF Nos. [95] ¶...