Bahama Bay II Condo. Ass'n, Inc. v. United Nat'l Ins. Co.

374 F. Supp. 3d 1274
District Court, M.D. Florida·Decided April 11, 2019·No. Case No: 6:17-cv-1800-Orl-41KRS·Published·Cited by 4 cases

Opinion

CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment (Doc. 49), to which Plaintiff filed a Response (Doc. 53), and Defendant filed a *1277Reply (Doc. 54). For the reasons stated herein, Defendant's Motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiff brought this suit against Defendant, alleging breach of contract for failure to pay benefits due under the commercial property insurance policy ("the Policy"). Defendant issued the Policy to Plaintiff for the period of March 26, 2016, through March 26, 2017. (Insurance Policy, Doc. 49-2, at 2). Plaintiff's insured property consists of thirteen buildings inside a condominium complex named Bahama Bay II located in Kissimmee, Florida. (Id. at 5, 57).

On or about December 9, 2016, a sinkhole appeared near Building 43. (Vidal Dep., Doc. 49-4, at 17: 8-25; Structural Engineering and Inspections ("SEI") Rpt., Doc. 53-3, at 1). After the sinkhole appeared, Building 43 was vacated and the building was declared unsafe. (Deatherage Dep., Doc. 49-5, at 17: 9-11; 21: 5-25). Building 43 remains unoccupied, (Doc. 49-4 at 127: 1-5), and after seven months, Plaintiff's board excused Building 43 condominium owners from paying association dues, (id. at 125: 19-126: 6).

Plaintiff submitted a claim to Defendant for benefits under the Policy, (Wilkinson Dep., Doc. 53-2, at 12: 1-25, 16: 7-14). Defendant investigated the loss, (Doc. 38 ¶ 9; Answer, Doc. 41, ¶ 9), accepted coverage for Building 43 under the Policy's Catastrophic Ground Cover Collapse ("CGCC") provision, (Wilkinsin Aff., Doc. 49-1, ¶ 14; Feb. 1, 2017 Letter, Doc. 53-8, at 2), and issued a check to Plaintiff in the amount of $ 290,000 for "immediate repairs," (Doc. 49-1 ¶ 15; Doc. 53-8 at 2). Defendant denied coverage as to buildings 42, 44, 45; repairs to the foundation of all buildings; the retaining wall and outdoor fences; security fencing and guards; land, landscaping, and patios; uncollected association dues; condominium unit owner property; and matching damages.

The CGCC provision of the Policy states:

We will pay for direct physical loss or damage to Covered Property caused by or resulting from catastrophic ground cover collapse, meaning geological activity that results in all of the following:
(a) The abrupt collapse of the ground cover;
(b) A depression in the ground cover clearly visible to the naked eye;
(c) Structural damage to the building, including the foundation; and
(d) The insured structure being condemned and ordered to be vacated by the governmental agency authorized by law to issue such an order for that structure.
However, structural damage consisting merely of the settling or cracking of a foundation, structure or building does not constitute loss or damage resulting from a catastrophic ground cover collapse.

(Doc. 49-2 at 27).

After receiving the initial payment from Defendant, Plaintiff installed underpinning to help stabilize Building 43 as well as to pay attorneys, public adjusters, and for security at the building. (Doc. 49-4 at 151: 5-25). At the time Defendant accepted coverage, it also requested Plaintiff provide a Proof of Loss. (Doc. 53-8 at 2). Plaintiff sent Defendant a Proof of Loss, which Defendant rejected as incomplete. (Doc. 53-2 at 84: 1-16, 92: 3-93: 20; Proof of Loss, Doc. 53-12 at 2-6).

In August 2017, Plaintiff filed suit alleging that Defendant breached the insurance contract by failing to provide additional coverage. (See generally Compl., Doc. 2). Defendant filed an Answer, Affirmative Defenses, and Counter-claim. (See Doc. 5).

*1278Plaintiff subsequently amended the complaint twice. (See Doc. Nos. 22, 38). The Second Amended Complaint (Doc. 38) is now the operative complaint. Defendant filed Answers and Affirmative Defenses, (Doc. Nos. 29, 41), in response to each Amended Complaint but Defendant never realleged its Counter-claim. Defendant now moves for summary judgment.

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it may "affect the outcome of the suit under the governing law." Id. "The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Allen v. Bd. of Pub. Educ. , 495 F.3d 1306, 1313-14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

However, once the moving party has discharged its burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (quotation omitted). The nonmoving party may not rely solely on "conclusory allegations without specific supporting facts." Evers v. Gen. Motors Corp.

Free access — add to your briefcase to read the full text and ask questions with AI

Bahama Bay II Condo. Ass'n, Inc. v. United Nat'l Ins. Co., 374 F. Supp. 3d 1274 (M.D. Fla. 2019).

374 F. Supp. 3d 1274 (Bahama Bay II Condo. Ass'n, Inc. v. United Nat'l Ins. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related