Pulliam v. Travelers Indemnity Co.

743 S.E.2d 117, 403 S.C. 332, 2013 S.C. App. LEXIS 146
CourtCourt of Appeals of South Carolina
DecidedMay 8, 2013
DocketAppellate Case No. 2012-211939; No. 5130
StatusPublished

This text of 743 S.E.2d 117 (Pulliam v. Travelers Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulliam v. Travelers Indemnity Co., 743 S.E.2d 117, 403 S.C. 332, 2013 S.C. App. LEXIS 146 (S.C. Ct. App. 2013).

Opinion

KONDUROS, J.

Travelers Indemnity Company (Travelers) appeals the circuit court’s grant of summary judgment in favor of Respondents in this declaratory judgment action. The circuit court determined the Directors and Officers Endorsement (D & 0 Endorsement) issued by Travelers covered certain allegations against Kensington Place Property Owners Association (KPOA). We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

M.U.I. Carolina Corporation, Regent Carolina Corporation, and Regent Corporation (collectively Developers) purchased property from the PTL1 bankruptcy estate in 1990. Developers completed construction and made repairs to the property in 1994 and 1995 and then began marketing condominium units as the Kensington Place Horizontal Property Regime (Kensington Place). Developers created KPOA to manage Kensington Place. From its inception in 1996 until April 2007, a three-member board comprised of Developers’ employees or designates operated KPOA. The common elements of Kensington Place were transferred to the unit owners in April 2007, and individual unit owners became a part of KPOA’s board.

In 2008, Respondents, individual unit owners in Kensington Place, filed an underlying lawsuit alleging breaches of fiduciary duty, negligence, and breach of the warranty of habitability against M.U.I. and Regent as developers of Kensington Developers. Respondents also sued KPOA for breaches of fiduciary duty and negligence in failing to (1) adequately inspect, repair, and maintain the common elements, (2) inform unit owners of [337]*337the conflict of interest in a developer-controlled POA, and (3) establish a reserve fund to pay for repairs.

Respondents then filed this declaratory judgment action seeking a determination of whether the policy issued to KPOA by Travelers covered the claims alleged against KPOA in the underlying lawsuit. The parties agreed the allegations were based on “wrongful acts” as contemplated by the D & 0 Endorsement. However, Travelers filed a motion for summary judgment arguing, inter alia, Respondents’ claims are for “property damage” and punitive damages, both of which are excluded under the D & 0 Endorsement. The Respondents filed a summary judgment motion arguing the only interpretation of the policy is that their claims were not excluded because they claimed economic loss based on breaches of duty and negligence, not “property damage.”

As to KPOA, Respondents specifically alleged in the underlying complaint2:

19. The Defendant POA had the legal duty, as a fiduciary from 1996 until April 24, 2007, to insure that the Common Elements were properly inspected, repaired, and maintained, yet the POA, Inc., being controlled by the developer, failed in these duties, placed the interest of the developer ahead of the owners, including these Plaintiffs, and therefore breached its fiduciary duties. Additionally, the Defendant POA had the duty to create and fund an adequate fund of reserves for the normal replacement of the components of the Common Elements, yet, in placing the interest of the defendant Developers ahead of the owners, the POA failed to develop and fund and adequate reserve fund.
20. As a result of the aforementioned breaches of fiduciary duty, the Defendants are liable to the homeowners for all damages proximately flowing from the breach, including damages for the continued deterioration of the common elements.
[338]*33826. That the actions of the POA were negligent, reckless, willful, and wanton, in one or more of the following of the following particulars, to wit:
a. In failing to perform adequate inspections of the Common Elements from 1996-2007;
b. In failing to retain experts to assess the conditions of the building from 1996-2007;
c. In failing to maintain the Common Elements to an adequate state of repair from 1996-2007;
d. In failing to repair the Common Elements of the building from 1996-2007;
e. In negligently placing the Developers’ interests ahead of those of the individual property owners, so as to place the entire financial burden of deferred maintenance upon the property owners, including these Plaintiffs, while acting in the capacity of a fiduciary;
f. In failing to establish and fund adequate reserve funds;
g. In failing to establish an adequate depreciation schedule and adequately fund known building component repair and replacement; and
h. In failing to advise the homeowners of the various conflicts of interest inherent in a developer-controlled POA, and in failing to provide for independent representation of non-developer homeowners both with respect to POA actions, and also regarding property management and maintenance.
27. As a direct and proximate result of the negligence, recklessness, willfulness and wantonness of the Defendants as set out above, the Plaintiffs Homeowners will be required to expend considerable sums for the repair and refit of this property, all to their damage.
WHEREFORE, the Plaintiffs pray that they have judgment against the Defendants as follows:
1. Actual damages.
2. Actual and punitive damages on their causé of action for negligence and breach of fiduciary duty.
3. Such other and further relief as this Court deems just and proper.

[339]*339The circuit court granted Respondents’ motion and denied Travelers’ motion. It found the complaint alleged KPOA had breached certain fiduciary duties that related to the initial design and construction defects. The circuit court reasoned allegations relating to the initial defective design or construction would not be considered “property damage” under Crossmann Communities of North Carolina, Inc. v. Harleysville Mutual Insurance Co., 395 S.C. 40, 717 S.E.2d 589 (2011), and would not be excluded from coverage under the policy. The circuit court further reasoned “property damage” did include damages to other property flowing from the defective design or construction and such allegations would be excepted from coverage under the “property damage” exclusion in section (I)(D)(1) of the D & 0 Endorsement. The order concluded “damages for correction of initial defective construction are covered. Other property damage caused by such defective construction is not.” This appeal followed.

STANDARD OF REVIEW

“A declaratory judgment action is neither legal nor equitable, and therefore, the standard of review is determined by the nature of the underlying issue.” Auto Owners Ins. Co. v. Newman, 385 S.C. 187, 191, 684 S.E.2d 541, 543 (2009). “When the purpose of the underlying dispute is to determine whether coverage exists under an insurance policy, the action is one at law.” Id. “Where the action presents a question of law ... this Court’s review is plenary and without deference to the trial court.” Crossmann Cmtys. of N.C., Inc. v.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
743 S.E.2d 117, 403 S.C. 332, 2013 S.C. App. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulliam-v-travelers-indemnity-co-scctapp-2013.