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Motion to Dismiss in Property Damage Case

Jarred S. Dichek | November 1, 2017

Jarred S. Dichek, of the Miami office, prevailed on a Motion to Dismiss for Failure to Include an Indispensable Party in a case which involved a claim for water damage caused by a leak to several areas of the Insured’s property. The Insurer accepted coverage for floor, ceiling, and wall coverings only and denied additional coverage based on Florida Statute § 718.11 and the policy.

In part, Florida Statute § 718.111, requires a homeowners association to carry insurance on all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications and all alterations. In addition, the statute specifies that this insurance must exclude all personal property within the unit or common elements, and floor, wall, and ceiling coverings which are the responsibility of the unit owner and should be insured by the unit owner. If the association had insurance in compliance with Florida law, then the insurer’s policy would be excess coverage only for damages to the property, where other coverage existed.

The carrier subpoenaed the homeowners association to determineif they had the required insurance. However, the homeowners  association was evasive and refused to comply with the subpoena or advise if they had the required insurance. Jarred requested the Plaintiff bring the homeowners association into the lawsuit, as they would likely be the primary insurer, if they had the required insurance. The Plaintiff refused to do so and as a result, Jarred filed a Motion to Dismiss arguing that the association per their by-laws likely obtained the statutorily required insurance and thus they were the primary insurer and an indispensable party.

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