Congratulations to Companion Property & Casualty n/k/a Enstar Group as well as Homeowners Choice Property & Casualty for both securing summary judgments this week. One summary judgment involved a third-party liability slip and fall while the other lawsuit involved a sinkhole.
In McNabb, Jonathan v. Bay Village Club Condo. Assoc., Inc. and Taylor Elevator Company, Judge Krier in Lee County Circuit Court granted Defendant Bay Village Condo Association’s motion for summary judgment ruling that Plaintiff failed to show that the condominium was on actual or constructive notice of a leak from an elevator that caused Plaintiff to slip and fall. A hydraulic seal failed in an elevator room causing oil to leak into the hallway. Discovery showed that the elevator was inspected by a state inspector three days before the fall, that the puddle did not exhibit signs that it had been there for a long period of time, and that no residents noticed the leak prior to the Plaintiff’s fall. The Defendant established that the Association was not on constructive notice of the leak because one would have to engage in pure speculation to determine the length of time the leak was ongoing prior to the fall. Plaintiff filed an expert affidavit in opposition to the motion arguing that the leak may have been occurring for a long period of time, but the affidavit was found to be speculative as the expert himself could only state that the leak was possibly from an elevator and that possibly it was occurring for a long period of time. The court granted the motion for summary judgment ruling as a matter of law that Plaintiff failed to show actual or constructive notice of the leak on the part of Defendant such that liability could be imposed. This is another successful motion for summary judgment in the third-party liability context by Vanessa Ross in our Sarasota office. Congratulations to Enstar Group and its insured, Bay Village Association, on the win! The last demand was $1.2 Million!
In the first party property arena, Homeowners Choice obtained Summary Judgment on a sinkhole claim. The insureds originally submitted a claim for sinkhole loss in 2010. A subsidence investigation was completed and a report was issued which verified that there was no sinkhole loss. The claim was denied based upon policy exclusions and the claim was subsequently closed in 2010. The claim was reopened in 2014, after receiving a letter from the insureds’ attorney requesting reconsideration of the claim based upon new testing by a different company. Upon reopening the claim, Homeowners Choice requested an examination under oath, a sworn proof of loss, and documents pertaining to the new testing. The insureds filed a lawsuit without complying with the post loss conditions. Homeowners Choice moved for summary judgment based upon failure to comply with policy conditions. The Plaintiffs responded that the policy conditions were waived because the claim had been unequivocally denied based upon policy exclusions and further asserted that the issue of whether the Defendant was prejudiced created a material issue of fact. At the hearing, Tampa attorney Jonathan Hall argued that the body of case law asserting that policy conditions are waived once the claim is denied does not apply to reopened or supplemental claims. Counsel further argued that a showing of prejudice is not required when an insured fails to comply with the conditions of submitting to an examination under oath and submitting a sworn proof of loss because both conditions have been found to be conditions precedent to filing a lawsuit, which is distinguishable to cooperation clauses. The Court granted Homeowners Choice’s Motion for Summary Judgment. Interestingly, back in the early 1990’s, Bob Groelle was the trial attorney in Goldman v. State Farm who prevailed on summary judgment to establish the distinction between conditions precedent and cooperation clauses.
Two big wins with more to come.