June 2019 Newsletter

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C O N N E C T IIO N
SOUTH FLORIDA'S PREMIER
COMMUNITY ASSOCIATION
LIFESTYLE PUBLICATION
OUR NEXT MEETING
JUNE 14, 14, 2019 @@ 11:00 AM AM
SUNRISE LAKES PHASE 4 4 | CLUBHOUSE
| 10102 SUNRISE LAKES BLVD
SUNRISE, FL FL 33322
RSVP BY BY JUNE 07, 07, 2019
MARYMACFIE333@GMAIL.COM
OR OR BY BY PHONE 954-336-3335
June Meeting Hosted by:
Bill Condon, Director
Long Term Recovery Coalition of of Broward
Meeting Topic:
Hurricane Preparation and Recovery Process
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The President's Message
June 2019
C O N N E C T I O N
South Florida's Community Association
Publication serving Broward, Miami-Dade,
and Palm Beach Counties.
Board of Directors
President - Toby Feuer
1st Vice- President - Luis Alicea
2nd Vice -President - Mary Molina-Macfie
Treasurer - Alex Leonardo
Secretary - Catherine Evanoff
Director - Jill Aronofsky
Director - Theresa Sortino
Director - John Perrini
Director - Ann Zucker
Director - Alison Kallman
Director - Joanne Sterner
Legislative Liason
Michael S. Bender, Esq.
Kaye Bender Rembaum
Lisa Magill, Esq.
Kaye Bender Rembaum
Corporate Council
Steven J. Weinberg, Esq.
Frank, Weinberg and Black
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Dear Broward Coalition Members,
Our Thanks to Michael Bender, Chair of the Florida
Legislative Alliance "FLA" and Commissioner Mary
Molina Macfie, "FLA" Board Member for their
informative presentation regarding the 2019 Condo
& HOA Legislative Session.
Hurricane Season starts June 1st, ending November
30th.
Is your Association prepared? Are you prepared?
Do you have a plan? Shelter Options? Call 954-357-
6385 for special needs registry.
Ensure that your assets are protected. Don't forget to
make a plan for your pet. Prepare a disaster survival
kit, Inform your Family or/and your closest Friends of
your emergency evacuation plans.
Don't forget to purchase enough water per
person/per day. Experts recommend storing at least 1
gallon per person/per day. Purchase Non Perishable
food items, Batteries, Flashlights, Medications,
Money to sustain you for at least seven days.
For more information call 311 (Broward County
Information Line) or contact your municipality.
Please Be Safe.
The Broward Coalition will be on Summer Break July
and August returning for our first meeting of the
2019/2020 Season on September 13, 2019.
On behalf of all our Board of Directors, We wish you
a Happy and Healthy Summer Vacation.
Toby Feuer
President
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Hurricane Insurance Claims for
Condominium Associations
By Sanjay Kurian, Esq.
There is a lot of information on how associations can prepare for hurricanes but much
less information as to what happens after the hurricane, particularly as it pertains to
insurance claims. A question that managers and board T members need to consider
is, what is required after a hurricane
WHAT IS AN INSURANCE POLICY?
An insurance policy is a contract between you and the insurer, nothing more. Although
this particular contract may be lengthy and hard to understand, courts treat
this contract as it would other contracts. What did the parties agree to in the policy?
Rights and remedies post-hurricane are those defined in the policy and any applicable
statutes. Every policy is different, and the requirements in one policy may not exist
in another. Obligations to provide notice of a claim, produce documents, sit for an
examination under oath, or provide a sworn statement in proof of loss arise out of
the insurance policy.
PROVIDING NOTICE OF THE CLAIM
Providing notice of the claim is the critical first step. Your policy will contain
language such as “timely notice after the casualty,” “reasonable notice after the
casualty,”or “within ‘X’ days of the casualty.” Know what the policy requires for
notice, and where the notice should go. It is imperative that notice be provided to the
insurance carrier as quickly as possible. After receiving notice of the claim, the insurer
may do several things. Hopefully the insurer steps in, investigates the claim, and
provides funds to help the association start on the road to rebuilding and recovery.
Unfortunately, that does not happen as often as we would like. The insurer may wish
to investigate the loss by requesting documents, taking examinations under oath, and
asking for a sworn statement in proof of loss. The policy requires cooperation in the
investigation of the claim. Remember, what you perceive as delay will be argued by
the insurer as a thorough investigation and evaluation.
DOCUMENTS, EXAMINATIONS UNDER OATH, AND
SWORN STATEMENTS IN PROOF OF LOSS
The documents requested may include repair records, maintenance records, meeting
minutes, financial statements, and a variety of other documents. The insurance company’s
reason for wanting these documents is to establish what damages existed prior
to the claim, if any, as well as to evaluate potential coverage issues. The association
is required to provide any documents that are responsive to the request. Each request
should be reviewed and compared to association records to determine what exists and
then produce them. This can be a very time-consuming process as you may be dealing
with voluminous information. It is not unusual to produce thousands of pages of
documents. You may believe this is a waste of time and that the insurance company
can evaluate the claim without those documents, but remember that the policy allows
the insurer to request the documents and also requires the association to cooperate.
After receiving the documents, the insurer may ask for the examinations under oath
of the insured. An examination under oath is essentially a deposition. The witness is
placed under oath, and the attorney for the insurance company will ask a series of
questions which the witness is required to answer, all of which is transcribed by a
court reporter. It can be an intimidating process. If your association is represented by
counsel, then counsel should be present as well. The witnesses may include members
of the board of directors and possibly consultants that the association has retained.
Generally, the examination under oath is only required of the insured. However,
where the insured does not know the technical details of the damages or repairs, producing
consultants for an examination under oath may be necessary. In some cases,
the insurer may ask to take the examinations of several board members, the manager,
or consultants in order to evaluate the claim. What examinations are required under
the policy is a fact specific determination. The sworn statement in proof of loss is a
significant trigger under most policies. The policy will contain language that within a
set number of days after the proof of loss is submitted a coverage determination will
be made. However, an insurer may sometimes not request one, or after receiving one,
the insurer may state that the proof of loss is not sufficiently detailed as to trigger the
policy requirement to make a coverage determination. The proof of loss is the document
which sets out what the value of the claim is. It is a very important document,
and one which you should take very seriously. Although this document may be prepared
by a lawyer or a public adjuster, the association is the signatory. Once signed
and submitted, the proof of loss represents what the insured is representing, under
oath, is the amount owed to the association. Although the proof can be supplemented,
accuracy is very important.
ALTERNATIVE DISPUTE RESOLUTION
The two primary ways to resolve an insurance claim without litigation are an appraisal
or pre-suit mediation. The appraisal process is governed in the insurance policy
itself, and the pre-suit mediation process is governed by the Division of Insurance.
An appraisal is essentially a binding arbitration proceeding which avoids the legal
process. Many policies contain a provision for appraisals, which either party can
invoke. An appraisal requires that each side pick an appraiser. They then meet and
try to agree on the value of the claim. If they cannot agree, they select an umpire,
who will issue a binding decision. Some policies require the umpire and one of the
two appraisers agree on damage items before the process is binding. In other cases,
the insurer may retain the right to deny the claim even after the appraisal award by
finding no coverage existed under some policies. The state has created a pre-suit
mediation program to try to resolve insurance claims. Mediation is not a binding process,
and there is resolution only if both sides agree to a resolution of the claim. The
mediator cannot bind the parties nor make them agree to something the party does
not wish to do. However, if both parties are interested in resolving the claim, mediation
can be a useful tool to resolve claims, partially or wholly, without litigation.
LITIGATION
If you are forced to file suit, many issues need to be considered, such as venue, legal
theories, basis for recovery, and the size and scope of the claim. These are all important
considerations which should be considered with counsel. Also of high importance
is the statute of limitations. Typically, an insured has five years from the date of
denial of the claim to file suit. However, your policy may have language that attempts
to shorten this limitations period. Generally, any contractual provision that shortens
the limitations period is void. The allegations in every case will vary based on the
specific facts. However, the general claims are that the insurance company breached
the contract by not timely adjusting or paying out on the claim. Other claims for failure
of the insurer to comply with state statutes or for statutory bad faith may exist but
would have to be considered on a case-by-case basis. Setting up the bad faith claims
by going through the statutory Civil Remedy Notice process is part of this process. If
you find yourself in litigation against the insurer, then several defenses will be raised.
The first one will be pre-existing damage. Not covered. Also, the association failed
to cooperate with the requirements under the policy, and therefore the insurer was
relieved from paying. Whether an insured cooperated with the policy or not is a very
fact specific issue. However, if the insurer can prove that the association failed to
cooperate, then no payment is due under the policy. This is the reason that cooperation
to the extent possible with the insurer’s investigation of the claim is important.
An insurer may allege fraud in the proof of loss, in examination under oath, or in
the insurance application. If fraud is proven, then the entire claim may be reduced
to zero. There is no room for exaggeration in pursuing your claim. The safest course
of action is to be conservative in presenting the claim. This means taking care in the
presentation of a proof, of being truthful in any testimony given, and understanding
that presenting your claim improperly could have a negative impact on not just a
small part of your claim but the whole claim.
CONCLUSION
In addition to claims against the insurance company for breach of the insurance
contract, there may be claims against other parties as well. Given the size of the
deductibles involved, there could be claims for construction defects as to the developer,
general contractor, or other contractors, i.e., roofing company for an improperly
constructed roof. There could also be significant litigation against parties who did
repair work in which work was done improperly. Remember, pursuing an insurance
claim is not as easy as it sounds. We would all love for the insurance company to be
presented with a claim and then simply write a check. However, the reality is that in
sizeable claims the insurance company will use the policy to evaluate claims. The
best advice for anyone making a claim is to be prepared, be accurate, and put together
a team including counsel who understands such claims.
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4

INSURANCE REMINDERS
FOR CONDO ASSOCIATIONS
AT START OF HURRICANE SEASON
by Laura Manning-Hudson
With hurricane season now underway, Florida condominium associations
should take the time to ensure that they and their owners are
prepared for a storm. In addition to ensuring that hurricane shutters are
operational and all of the necessary supplies are on hand, associations
should communicate with owners about insurance and liability under
state law.
Florida law requires associations to maintain insurance for all
portions of the condominium property as originally installed in
accordance with the original plans and specifications, as well as
alterations or additions made to the condominium property. Personal
property, including floor, wall and ceiling coverings (i.e., paint, wallpaper,
wood flooring), electrical fixtures, appliances, water heaters, water
filters, built-in cabinets and countertops, and window treatments including
curtains, drapes, blinds, and similar window treatment components,
located within a unit or that unit’s limited common elements, and which
serve only that unit, are not covered by the association’s insurance policies.
Unit owners are responsible for maintaining their own insurance coverage
for these items.
At the start of every hurricane season, association board members
or property management should photograph and/or video all of the main
public areas of the condominium property. These images could become
vitally important in the event that a storm strikes and claims are filed.
Associations should also take the time to store copies of their wind, flood
and property insurance policies in waterproof cases in a secure location.
If possible, digital copies should also be stored in several computers and
devices.
It is also good practice for associations to develop a hurricane policy
and distribute it to residents each year reminding them of all the things
they need to do to prepare for hurricane season, including ensuring that
shutters are operational, moving all furniture inside before they leave
for the summer, and taking pictures of their personal property to keep as
record evidence in the case of a storm. Importantly, that hurricane policy
should also include a reminder of the importance of maintaining their
own homeowner’s insurance policies to cover their personal property
within their units and their limited common elements. This communication
may also be used to request updated owner and resident contact
information, including cell phone numbers.
In the event of a loss, there could be a lot of work to be done, and it
is advisable to consult with the association’s legal counsel and insurance
consultants to assist in reporting and filing any necessary claims.
By taking all of these preparations, associations can ensure that all
of their insurance matters are in order and they are ready for any stormrelated
claims that may arise.
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Free CEU Courses & Seminars for Licensed Community Association
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