[Liability Insurance] Florida Bar RPPTL Insurance & Surety Committee Monthly Call Scheduled for Monday, April 21, 2014, beginning at Noon
Robert Friedman
rob at friedmanpa.com
Wed Apr 23 06:25:58 PDT 2014
I was a little late to Monday’s call, but I believe I caught the back end of
your discussion of the 11th Circuit’s decision in Banta v. Arch case (a copy
of the decision is attached). The decision has received a lot of attention
in the property manager and insurance broker communities, and especially
among managers and brokers that work with real estate program insurance. I
wanted to share with you a commentary provided by Laura Pearce, who is
general counsel of the Florida Association of Insurance Agents (see blog
post attached).
What had puzzled me about the decision was the insured status of the
property owner, which seems unclear in the opinion. It does not seem
controversial to me that a property manager has an insurable interest in a
property it manages, but only to the extent of its financial interest, not
to the full extent of the property’s value. But I could not figure out how
the owner itself failed to recover when it was a named insured. The portion
of the case pasted below and cited by Pearce in subsequent discussions
explains that Arch did not have to pay the property owner because it
provided excess coverage and the total loss to the property owner did not
exceed the excess attachment point. So the opinion may not be as
problematic as it might appear at first blush. So long as property owners
insured under a property insurance program run by a property management firm
are named as additional named insureds under the policy, there should not be
an insurable interest issue. The case excerpt is below:
The complication in this case arises from the ownership of the apartment
complexes. In April 2005, when the property insurance was obtained, the
Banta Family owned the separate legal entities comprising Parkcrest,
Colonial Park, and Westwood. The Banta Family, however, was not the named
insured, and is not the plaintiff in this case. Instead, “Banta Properties,
Inc.” was the named insured on the primary and excess policies, while
“Colonial Park Apts,” “Parkcrest Apts,” and “Westwood Apts LLC” were
additional named insureds.3 Further, in August 2005, prior to Hurricane
Wilma and the loss at issue, the Banta Family sold Parkcrest to an unrelated
nonparty, while Banta Properties continued to serve as the property
management company.
B. Banta Properties’s Assertion of the Owners’ Interests
Perhaps recognizing the limits of its own insurable interest, Banta
Properties argues two ways to impute the insurable interest of the owners to
itself. Banta Properties first argues its suit is asserting the interest of
the Banta Family. Both parties devoted considerable time arguing about
whether the interests of the Banta Family are properly represented on the
policies, and whether Banta Properties’s suit is on behalf of those
interests. However, we need not resolve these arguments because the loss to
the Banta Family’s insurable interest was insufficient to trigger Arch’s
liability under the excess policy.
At trial, Banta Properties asserted $6.1 million in damage to the apartment
complexes. Of that asserted loss, $3.5 million was from damage to the
Parkcrest complex. Banta Properties therefore claimed, at most, $2.6 million
in damage to the Colonial Park and Westwood complexes. But Banta
Properties’s policy with Arch is an excess policy, which requires the damage
to exceed the coverage of the primary policy. The primary policy covers $2.5
million in damage plus a $550,186.50 deductible, or approximately $3 million
total. The $2.6 million in asserted damage to Colonial Park and Westwood is
less than the $3 million attachment point. Even if we attribute to Banta
Properties all of the insurable interests of the Banta Family, Banta
Properties must still show the Banta Family had an insurable interest in the
Parkcrest complex to recover against Arch.
Moreover, the insurable interest must have existed at the time of the loss.
See Fla. Stat. § 627.405(1). But the Banta Family had no insurable interest
in Parkcrest when Hurricane Wilma occurred in October 2005, because they had
sold their interest in Parkcrest to a nonparty in August 2005. Therefore,
Banta Properties cannot prevail, even assuming this suit is on behalf of the
Banta Family as a whole.5
Robert H. Friedman
Friedman P.A.
340 Royal Poinciana Way, Suite 317-202
Palm Beach, FL 33480
Phone: 561-800-2110
Fax: 561-246-3413
<http://www.friedmanpa.com/> www.friedmanpa.com
<http://www.insurancelawflorida.com/> www.insurancelawflorida.com
From: liability_insurance-bounces at lists.flabarrpptl.org
[mailto:liability_insurance-bounces at lists.flabarrpptl.org] On Behalf Of
Whelan, Ed
Sent: Monday, April 21, 2014 10:17 AM
To: 'Wright, Wm. Cary'; liability_insurance at lists.flabarrpptl.org
Subject: Re: [Liability Insurance] Florida Bar RPPTL Insurance & Surety
Committee Monthly Call Scheduled for Monday, April 21, 2014, beginning at
Noon
Cary and Committee Members:
I am attaching a few other pleadings/orders that I will cover in my
presentation at 12. These additional pleadings/orders and their
significance are as follows:
1. Carithers v MCC order 3/11/14 – addressing coverage issues under CGL
policy
2. Carithers v MCC order 2/10/14 – holding Florida follows injury in
fact trigger and not time on the risk – holding occurrence is when the
defective work was performed
3. Treace v MCC Garnishor’s Proposed Order Following Trial: –
addressing the rip and tear defense
4. Treace v MCC order 1/17/14 – holding only insured entitled to
attorneys’ fees against Insurance Carrier
5. Treace v MCC order 1/14/14 – denying MSJ on insurance carrier’s
failure to disclose divergence of interest under Duke v Hoch
6. Treace v MCC order 1/14/14 – denying MSJ on insurance carrier’s
failure to disclose divergence of interest under Duke v Hoch
7. Treace v MCC Depo Excepts – Insurance carrier rep admitting that
carrier failed to disclose a divergence of interests
Brief outline of topics I intend to cover:
1. Use of Garnishment Action and Implead to Collect From Insurance
Carriers
a. Prevent removal
b. Keep case with Judge that tried underlying action
c. Potential to recover from multiple policies absent a non-cumulative
provision
d. Application of set off under Garnishment Statute
2. Carrier’s Motions to Intervene in Underlying Trial and Burden to
allocate between covered and non-covered damages post judgment
a. Last minute motions to intervene – what to do?
b. Divergence of interests
c. Lack of knowledge by plaintiff of specific coverage “setup” reasons
for Carrier’s motion
d. Special Rogs
3. Applicable Trigger for coverage under a CGL policy for construction
defect claims
a. differences between Federal and State Courts
b. is there any difference between injury in fact and manifestation
c. need to have expert testimony to establish occurrence date –
suggestions as to how to do so
d. distinction between knowledge for SOL vs. knowledge for trigger
4. Mold Exclusion -- applicability to defect cases
5. Defenses to the Enforceability of Restrictive Endorsements when
Carrier fails to properly disclose
a. 627.4133(1)(a) – non-renewal requirements to disclose
6. Rip and Tear Defense – its misapplication by carriers
7. Recovery of Attorneys’ Fees Post Judgment
a. Haynes 793 So 2d 1006 (5th DCA 2001): Attorneys’ fees from
underlying trial not damages and not costs – judgment plaintiff can’t
recover them from Carrier
b. Lucas Waterproofing 581 FSupp2d 1201 (SD Fla 2008): distinguishing
Haynes as relying upon non-insurance cases and holding that attorneys’ fees
awarded in the underlying trial as recoverable
From: Wright, Wm. Cary [mailto:cwright at cfjblaw.com]
Sent: Friday, April 18, 2014 3:48 PM
To: liability_insurance at lists.flabarrpptl.org
<mailto:liability_insurance at lists.flabarrpptl.org>
Cc: Whelan, Ed; Michael J. Gelfand
Subject: Florida Bar RPPTL Insurance & Surety Committee Monthly Call
Scheduled for Monday, April 21, 2014, beginning at Noon
Everyone:
I hope you are having an enjoyable Easter weekend.
Attached are the following for the monthly Insurance & Surety Committee
conference call scheduled for Monday, April 21, 2014 at noon: (1) agenda;
(2) minutes of the March 17, 2014 telephone conference; and (3) a copy of a
Trial Court judgment in the James T. Treace and Angeline G. Treace v. Harbor
Island Joint Venture III et al.
The CLE presentation will be by Ed Whelan, a shareholder in the Jacksonville
office of Gunster. Ed will present on the attached case in which he was
able to garnish CGL insurance proceeds as a result of obtaining a judgment
in the underlying construction defect action. This is a very interesting
and timely case with practical implications to those seeking to recover on
hard-earned judgments. We will all benefit from Ed’s insight and experience
from this case.
The dial-in information is:
Dial-in: 888-376-5050
Pin: 8425484201#
Moderator: 13137#
Thanks and I appreciate everyone’s participation.
Cary
Wm. Cary Wright
Attorney at Law
Board Certified in Construction Law
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida 33607-5780
Direct: 813.229.4135 | Fax: 813.229.4133
<mailto:cwright at cfjblaw.com> cwright at cfjblaw.com |
<http://www.cfjblaw.com/> www.CFJBLaw.com
<http://www.cfjblaw.com/cwright/> bio |
<http://www.cfjblaw.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=270>
vcard | <http://www.linkedin.com/in/wcarywright> LinkedIn
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Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
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