Guerrieri v. Cajun Cove Condom.

Full title: VINCENT GUERRIERI and KATHLEEN GUERRIERI, Plaintiffs, v. CAJUN COVE…

Court: Superior Court of Delaware, Sussex County

Date published: Apr 25, 2007

C.A. No. 04C-08-022 THG (Del. Super. Ct. Apr. 25, 2007)

Opinion

C.A. No. 04C-08-022 THG.

Submitted: December 14, 2006.

Date Decided: April 25, 2007.

David C. Hutt, Esquire, P.O. Box 690, Georgetown, DE 19947, attorney for Plaintiffs.

John A. Sergovic, Jr., Esquire, P.O. Box 875, Georgetown, DE 19947, attorney for Defendant.

MEMORANDUM OPINION

GRAVES, J

Pending before the Court are cross-motions for summary judgment which Vincent Guerrieri and Kathleen Guerrieri ("plaintiffs" and defendant Cajun Cove Condominium Council ("Council" have filed. This is my decision granting summary judgment in favor of plaintiffs.

In May 1989, plaintiffs purchased Unit 101 in Building 2 of Cajun Cove Condominium ("Condominium", Dewey Beach, Delaware. Plaintiffs both rented the unit and used it themselves during the times when it was not rented. Council is the unincorporated association that manages the business and affairs of the Condominium, a condominium regime consisting of eighteen (18) units created pursuant to the provisions of 25 Del. C., ch. 22 ("Delaware Unit Property Act" or ADUPA"). The condominium documents for the Condominium are comprised of the Declaration, recorded in Deed Book 1619, page 28, et seq.; the First Amendment to the Declaration, recorded in Deed Book 1631, page 149, et seq.; the Second Amendment to the Declaration, recorded in Deed Book 1633, page 69, et seq.; and the Code of Regulations, recorded in Deed Book 1619, page 83, et seq.

In October 1998, Council hired Phil Fitch, d/b/a Phil Fitch Builders ("Fitch" to reattach some siding on the exterior of the unit. Before this time, plaintiffs never experienced problems with their toilets.

On November 29, 1999, Custom Mechanical, Inc. ("Custom Mechanical"), a plumbing service provider, reported to Unit 101 to clear a blockage from plaintiffs' second floor powder room toilet. Plaintiffs were using the unit at this time and not renting it out. On June 20, 2000, Custom Mechanical once again reported to Unit 101 to clear a large stoppage in the pipes where Units 101 and 201 join together in the wall of Unit 101. The service person had to crawl under the unit and cut the pipes to clear the stoppage. The unit was being rented at the time of this event.

On June 26, 2003, plaintiffs arrived at the unit to discover the floors were covered with sewage. The sewage had been discharged from the toilet located in the second floor powder room. The sewage flowed everywhere throughout the unit and damaged the structure of plaintiffs' unit as well as plaintiffs' furnishings. Plaintiffs seek to recover costs incurred in repair and restoration, lost personalty and lost rental income. This amount totals approximately $70,000.00.

Plaintiffs reported this incident to Council on June 26, 2003, and to Council's insurance agent on June 27, 2003. The claims adjuster inspected the premises on June 28, 2003. The claims adjuster informed Council that Council's property insurance would not cover the damage to any common elements or to plaintiffs' unit. This denial was based on the provision in the Condominium's insurance policy explicitly excluding coverage for loss or damage caused directly or indirectly because of water back ups or overflows from a sewer, drain or sump as well as for loss or damage caused directly or indirectly from mold, mildew, fungus, spores or other microorganism of any type.

Council twice requested that its insurance agent appeal the claim to the Insurance Casualty Clearinghouse, which is an industry fact finder. The appeal was denied on both occasions. Council appealed the insurance company's denial of coverage to the Insurance Commissioner. That appeal was denied on January 23, 2004.

On or about June 26, 2003, plaintiffs hired Mr. Rooter to examine the septic pipe to determine what caused the overflow. A video of the pipe was taken. It is undisputed that Mr. Rooter's video of the pipe did not reveal any problems.¹

1 The Court will not consider comments accompanying the video stating that the number of turns and inadequate volume of water to flush the systemcould have caused a backup because these comments are unsworn.

On or about July 9, 2003, Council hired Custom Mechanical to repair the damage to the common elements.

Sean Hull, a plumber with Custom Mechanical, determined that one or two nails had been driven through the pipe into which sewage was deposited from both Unit 101 and Unit 201. This pipe, which caused the discharge of raw sewage into plaintiffs' condominium unit, was a common element. Mr. Hull testified to the following, which can be located at pages 42-3 of Transcript of Deposition of Sean Hull dated September 18, 2006. The cause of the clog was due to the configuration of the pipes with the combination of the nail(s). Even if the poor configuration of the piping had not existed, the nail(s) would have caused a backup. Paper and waste caught on the nail(s) protruding into the pipe; damage to Unit 101 was from the waste backing up from debris caught on the nail(s).

Council argues that a dispute of fact exists as to the cause of the backup; i.e., whether the configuration of the pipes caused it or the nail(s) caused it. This was not an "either/or" situation; the only evidence is that the nail(s) were a cause and the pipe configuration possibly was a contributing cause. No dispute exists that the nail(s) caused the backup.

On August 20, 2004, plaintiffs filed a complaint against Council and Fitch.

The claim against Fitch was based upon plaintiffs' contentions that when renailing the exterior side of the building, Fitch caused the nails to pierce the common plumbing pipes. Fitch filed a third-party complaint against two subcontractors. This Court dismissed the claims against Fitch in open court on October 20, 2006, and memorialized its rulings in a letter dated October 25, 2006. Guerrieri v. Cajun Cove Condominium, Del. Super., C.A. No. 04C-08-022, Graves, J. (Oct. 25, 2006) (" October Decision"). The Court assumed Fitch or his subcontractors hammered the nails into the pipe. However, the Court ruled the claims against Fitch failed because plaintiffs could not produce an expert to establish that a contractor or carpenter would have, or should have, known about the location of this pipe, that the nails were placed in the wrong location, that the standard of care in the carpentry or building trade requires some type of preliminary investigation, or that improper nails were used. This ruling rendered Fitch's third-party claims against his subcontractors moot. Thus, the only remaining defendant in this litigation is Council.

In their complaint, plaintiffs asserted against Council claims of negligence, trespass, and breach of contract. Council filed summary judgment motions as to these claims. The Court granted summary judgment as to the negligence and trespass claims in the October Decision. I summarize those rulings below.

In Count 3 of the complaint, plaintiffs alleged Council was negligent as to the performance of its duties and should have foreseen that nails driven into the drain pipe could result in damage caused by a sewage backup in the pipe. Plaintiffs conceded that they could not produce evidence that Council knew or should have known about the nails in the sewer drain pipe. Thus, they conceded that their negligence claim must be dismissed.

Count 4 was a trespass claim. Plaintiffs alleged that due to its negligence in the repair of the siding, Council caused sewage to leak into plaintiffs' unit. Since plaintiffs conceded the negligence claim, the Court concluded that a trespass claim based on that alleged negligence also must fail. Alternatively, the Court concluded the trespass was a result of the nail(s) and since plaintiffs could not establish Council was negligent as to the nail(s) or that Council caused the nail problem, summary judgment was appropriate.

The parties have filed cross-motions for summary judgment on the breach of contract claim. Plaintiffs argue that Council breached its contractual obligation in three ways. It breached its contractual obligation to maintain, repair and replace common elements; it breached its contractual responsibility for all incidental damages caused by work done at Council's request; and it breached its contractual obligation to obtain insurance to cover the incident at issue. Council has denied liability. Its first ground of attack is the assertion of the statute of limitations. Its second ground of attack consists of legal arguments against plaintiffs' claims. Council also advances an alternative tack, arguing plaintiffs' damages are limited.² I refused to grant summary judgment in October 2006 and required the parties to further flesh out their arguments. The parties have provided extensive briefing and developed numerous arguments. Because I decide Council breached the duty to maintain, repair and replace, I do not consider the other arguments. I do, however, appreciate the work that each party put into their briefs.

2 Council also had gone on the offensive by asserting a counterclaim wherein it sought reimbursement for its costs and expenses incurred in defending this action. In support thereof, Council maintained that plaintiffs had a duty to insure against losses or damages defects caused to their unit elements. This contention was based upon Council's assertion that the sewer line was a unit element. Because the facts have shown otherwise, Council has not pursued this counterclaim. Judgment is entered against Council on this counterclaim.

As the Supreme Court explained in Emmons v. Hartford Underwriters Insurance Company, 697 A.2d 742, 744-45 (Del. 1997):

A grant of summary judgment cannot be sustained unless there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. When opposing parties make cross motions for summary judgment, neither party's motion will be granted unless no genuine issue of material fact exists and one of the parties is entitled to judgment as a matter of law. [Footnotes and citations omitted.]

In this case, the parties assert some of the facts are disputed. The Court will determine if the facts are disputed and if so, if they are material, or it will determine, as it did with regard to the nail(s) issue, that there actually is not a disputed fact.

The Delaware Unit Property Act imposed obligations on Council to maintain, repair and replace the common elements. 25 Del. C. § 2211(1). It also is statutorily provided that the administration of the Condominium shall be set forth in the Code of Regulations, 25Del. C. § 2206, and the Code of Regulations shall provide for the maintenance, repair and replacement of the common elements as well as the payment of the costs thereof. 25 Del. C. § 2208(7). In 25Del. C. § 2210, it is provided that a failure to comply with Code of Regulations shall be grounds for an action for the recovery of damages by an aggrieved unit owner. The Code of Regulations at issue here met these statutory requirements.

As plaintiffs explain, "[t]o establish a claim for breach of contract, a party must prove the following three things: (1) the existence of a contract, whether express or implied; (2) the breach of an obligation imposed by that contract; and (3) the resultant damage to the plaintiff.VLIW Technology, LLC v. Hewlett Packard Co., 840 A.2d 606, 612 (Del. 2003)." Plaintiff's Reply Brief on the Parties' Cross-Motions for Summary Judgment at page 17.

Plaintiffs' starting premise is that the documents creating the Condominium (the Declaration, with amendments thereto, and Code of Regulations) constitute a contract between the unit owners and the developer initially and then the association/Council created under the DUPA's statutory framework. Council of the Dorset Condominium Apartments v. Gordon, 801 A.2d 1, 5 (Del. 2002); Goss v. The Coffee Run Condominium Council, Del. Ch., C.A. No. 18981-NC, Noble, V.C. (April 30, 2003) at 24.

In Article III, section 2(c) of the Code of Regulations, it is provided:

In addition to the duties imposed by this Code of Regulations or by any resolution of the Association of Owners that may hereafter be adopted, the Council shall have the power to, and be responsible for, the following:

***

(c) Providing for the operation, care, upkeep, replacement, maintenance and surveillance of all of the common elements and services of the condominium.

In Article V, section 6 of the Code of Regulations, which addresses

Maintenance and Repair, it is stated in pertinent part:

(a) By the Council. The Council shall be responsible for the maintenance, repair and replacement . . . of the following, the cost of which shall be charged to all owners as a common expense**:

(1) All of the common elements, whether located inside or outside of the units.

(2) All exterior walls and exterior surfaces. . . and all other portions of the units which contribute to the support of any building, such as the outside walls of a building. . . .

(3) The storm and sanitary sewer systems and appurtenances, all common element water and plumbing facilities, any portion of the water system and sewer system (not owned by the unit owner or private companies or public bodies supplying water and sanitary sewage to the units), and systems that are deemed common elements, including all conduits, ducts, plumbing, wiring and other facilities for the furnishing of such utility services into two or more units. . . .

***

(8) All portions of the common elements. ** Provided, however, if repair or replacement is caused by a loss covered by the Condominium Master Insurance Policy, the repair or replacement shall be performed through the Council as an uninsured loss, except that the deductible, if any, to be paid prior to the insurance proceeds being payable to the Council, shall be paid by the unit owner(s) benefiting most directly from the insured loss as determined and allocated to the unit owner(s) by the Council.

Thus, Council has the duty to maintain, repair and replace the common elements.

No dispute exists that the pipe which caused the contamination was a common element. "Common Elements" include "[t]he sanitary sewage facilities and water pipes up to the connectors for the individual units." Declaration at section 13(c), page 25. There is no dispute that nails were driven into the pipe from outside the building. There is no dispute that Council failed to maintain, repair or replace the sewer pipe which had the nail(s) in it. There is no dispute that the nail(s) caused the sewage backup and flooding of plaintiffs' unit. Plaintiffs suffered damages as a result of the breach. Thus, Council breached its contract. Nido v. Ocean Owners' Council, 378 S.E.2d 837 (Va. 1989) (Council had a contractual duty to correct the defects in the common elements).

Council has raised three issues in response to the above conclusions. The first is that the statute of limitations bars the claim. The second is that plaintiffs must have an expert to establish their case and have failed to produce one. The final is that the damages are limited.

Council argues that the three year statute of limitations set forth in 10 Del. C. § 8106 ³ bars this claim. It argues that even if it is assumed the installation of the siding is when the nail(s) were placed into the pipe, the time of the breach was no later than October 1998, which is when the siding work was completed. Thus, the statute of limitations ran in October 2001.

3 In 10 Del. C. § 8106, it is provided in pertinent part:

. . . [N]o action based on a promise, no action based on a statute, . . . shall be brought after the expiration of 3 years from the accruing of the cause of such action. . . .

As explained in Queen Anne Pier Condominium Council v. Raley, Del. Super., C.A. No. 85C-JA10, Lee, J. (Jan. 26, 1988) at 7, "[l]imitation statutes such as § 8106 are commonly known as 'accrual' statutes of limitation. Under this type of statute, the cause of action is deemed to have accrued at the time the . . . breach of contract was committed. [Citations omitted.]" This means, in general, that a cause of action does not accrue "at the time when actual damage results or is ascertained.' [Citation omitted.]" The Scott Fetzer Company v. Douglas Components Corporation, Del. Ch., C.A. No. 11, 327, Hartnett, V.C. (April 12, 1994) at 11, app. dism., 734 A.2d 640 (Del. 1999). ATraditionally, this means . . . the plaintiff's ignorance of that injury or loss does not toll the running of the statute." Queen Anne Pier Condominium Council v. Raley, supra. There, however, are exceptions to the general rule.

The first exception pertains to a continuous contract case. Council argues that doctrine is not recognized in the State of Delaware, and cites to Carr v. Town of Dewey Beach, 730 F. Supp. 591, 597-98 (D. Del. 1990). The citation to Carr v. Town of Dewey Beach, supra, is inappropriate, as that case dealt with tortious misconduct.

As explained in Matter of Burger, 125 B.R. 894, 901-02 (Bankr. D. Del.

1991):

[T]he statute of limitations does not typically run against a continuing cause of action until the termination of the contract. [Citation omitted.] Therefore, in cases of continuous contract and continuing breach, the statute begins to run only when full damages can be ascertained and recovered. Oliver B. Cannon Son, Inc. v. Fidelity Casualty Co. of New York, 484 F. Supp. 1375, 1390 (D. Del. 1980).

Accord Bridgestone/Firestone, Inc. v. Cap Gemini America, Inc., Del. Super., C.A. No. 00C-10-058, Ridgely, P.J. (May 23, 2002) at 23;Chaplake Holdings, Ltd v. Chrysler Corporation, Del. Super., C.A. No. 94C-04-164, Herlihy, J. (Jan. 13, 1999) at 63; The Scott Fetzer Company v. Douglas Components Corporation, supra at 12-13.

Although in some cases, whether a contract is continuous may be a question of fact, see Bridgestone/Firestone, Inc. v. Cap Gemini America, Inc., supra (dealing with construction contracts), there are situations, such as here, where no factual issue exists. Here, Council had an ongoing, continuous duty to maintain, repair and replace the damaged pipe. That duty was not met until Council had the pipe repaired by Custom Mechanical on or about July 9, 2003. It was only at that time that the damages could be ascertained. The suit filed on August 20, 2004 was timely.

Even if the Court did not apply the continuous contract doctrine, the complaint was timely filed under the time of discovery doctrine. This doctrine provides that the statute of limitations may be tolled Awhere the injury is 'inherently unknowable and the claimant is blamelessly ignorant of the wrongful act and the injury complained of.'" Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004), quoting Coleman v. PricewaterhouseCoopers, LLC, 854 A.2d 838, 842 (Del. 2004). As further explained in Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d at 319:

In such a case, the statute will begin to run only "upon the discovery of facts 'constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery' of such facts." [Citations omitted. Emphasis in original.]

The time of discovery rule applies to breach of contract cases.Marcucilli v. Boardwalk Builders, Inc., Del. Super., C.A. No. 99C-02-007 (May 16,

2002) at 11.

Council argues as follows. Plaintiffs were on notice of a problem with the common element in November 1999, when they first suffered a blockage in the second floor powder room. They discovered additional evidence of the problem when they required a second service call to clear a more substantial blockage on June 20, 2000. Thus, even using the latter date, the statute of limitations expired on June 20, 2003. Plaintiffs did not file suit until August 20, 2004.

I hold that as a matter of law, the two previous problems with this toilet were not sufficient to put plaintiffs on notice that the pipe needed repair and/or replacement. I reach this conclusion for several reasons. First, this was a seasonal rental unit. Two problems with a toilet are virtually negligible in such a situation. Second, Council's plumber worked on the system in 2000, and could not locate the problem. In fact, a video of the pipes after the June 23, 2003 episode did not reveal the problem. These facts do not provide any support for an argument that plaintiffs were on notice that the common element was damaged and a breach of contract had occurred.

Council's statute of limitations argument fails.

Council's next argument is that plaintiffs failed to produce an expert to establish their case. Originally, Council filed a motion in limine regarding the expert. This motion evolved to one for summary judgment; Council argues it is entitled to judgment as a matter of law because plaintiffs do not have expert testimony as to how the nail(s) came to be lodged into the septic pipe at issue.

It is irrelevant how the nail(s) came to be lodged in the septic pipe. They were there; they caused a blockage; and Council failed to repair or replace the pipe to fix the problem. That is what is relevant. An expert is not needed. This argument fails.

The next issues focus on whether there are any limitations on damages.

The black letter law regarding damages for a breach of contract is simple:

One who is injured by the breach of a contract is entitled to compensation for the injury received. The compensation should be such as will place him in the same position that he would have been in if the contract had been performed. The measure of damages is the loss actually sustained as a result of the breach of the contract.

J.J. White, Inc. v. Metropolitan Merchandise Mart, Inc., 107 A.2d 892, 894 (Del.Super. 1954). Accord Wilson v. Klabe Construction Co., Del. Super., C.A. No. 03A-09-001, Herlihy, J. (July 29, 2004) at 9;Adirondack Group, Inc. v. Braxton, Del. Super., C.A. No. 03A-08-010, Ableman, J. (May 19, 2004) at 17-18, aff'd, Del. Supr., No. 258, 2004, Ridgely, P.J. (Oct. 5, 2004).

Council argues various provisions of the Code of Regulations show there is a limitation on the ability to recover from Council and on the items for which plaintiffs may recover. Council argues that, in the end, even though it breached its duties, its only responsibility is to pay for the damage to the common elements. Plaintiffs are responsible for the damages they suffered.

As explained in Goss v. The Coffee Run Condominium Council, Del. Ch.,

C.A. No. 18981-NC, Noble, V.C. (April 30, 2003) at 24:

With the goal of ascertaining the parties' intent, I apply ordinary principles of contract interpretation to the language of the Declaration and the Code of Regulations, which are simply contracts among the unit owners created under the UPA's statutory framework. The language in these contracts will be accorded its ordinary meaning when it is plain and unambiguous. Furthermore, a court is precluded from resorting to extrinsic evidence to interpret contractual language which is plain and clear on its face, or to create an ambiguity. Finally, "[a] court must interpret contractual provisions in a way that gives effect to every term of the instrument, and that, if possible, reconciles all of the provisions of the instrument when read as a whole." [Citations and footnotes omitted.]

Council argues that various provisions in Article VII show that in the event of damage due to fire or other casualty, the owner affected is responsible for all damages not covered by insurance. In Article VII, Sec. 2(b), it is provided:

Assessments. If the proceeds of insurance are not sufficient to defray the said estimated costs of reconstruction and repair as determined by Council, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs thereof are insufficient, assessments shall be made against the owners directly affected by the damage or destruction, in proportion to their respective percentage interests, in sufficient amounts to provide payment of such costs. If insurance proceeds otherwise available to the Council require the payment of a deductible, the unit owners directly benefiting from the repair or replacement shall be specially assessed by the Council with the cost of such deductible in whole or in part as determined by the Council, and the special assessment shall be collectible in the same manner as common expenses.

I reject this argument. "Casualty" as defined as by Black's Law Dictionary 198 (5^th ed. 1979), which was the edition in effect at the time the Code of Regulations were recorded, is: "A disastrous occurrence due to a sudden, unexpected or unusual cause. Accident; misfortune or mishap; that which comes by chance or without design." In this case, the damages suffered were due to a breach of contract which resulted from Council not maintaining, repairing, and/or replacing a common element. The damages did not stem from an accident which came about by chance. Article VII does not apply to the situation at hand.

The documents do not limit the right to sue Council for property damages originating from the common area. See Nido v. Ocean Owners' Council, 378 S.E.2d at 837 (Va. 1989) (Under by-laws, "each unit owner voluntarily waived his right to sue the Council for property damage originating from the common area.") The documents also do not contain a clause shifting the risk of loss for this situation onto the unit owners. See Franklin v. Marie Antoinette Condominium Owners Association, Inc., 23 Cal. Rptr. 2d 744 (Cal.App. 2d Dist. 1993) (exculpatory clause in the Code of Regulations limited Association's liability for damages in the absence of gross negligence.)

In fact, the pertinent documents do not address what damages are recoverable if Council breaches its duties. Since the documents do not address damages for breach of the contract, the Court applies the general law regarding damages, which it set forth above.

The other limitation on damages I must examine is based on Council's argument that plaintiffs failed to mitigate their damages by not acquiring property damage insurance.

Even if the doctrine of mitigation of damages⁴ should apply, Council had the burden of proving plaintiffs failed to mitigate their damages. Tanner v. Exxon Corporation, Del. Super., C.A. No. 79C-JA-5, Stiftel, J. (July 23, 1981) at 11. First, Council would have to show that plaintiffs were required to obtain insurance. The Code of Regulations addresses plaintiffs' right to obtain additional property damage insurance for their own unit and their own benefit. Article VI, Sec. 3(a).⁵ This option stands in direct contrast to the requirement

4 It is required that the non-defaulting party act reasonable so that the damages are not unduly enhanced. Hanner v. Rice, Del. Super., C.A. No. 98A-11-013, Barron, J. (Jan. 3, 2000) at 8;Handelsgessellschaft mbH Co. v. Krapf Sons, Inc., Del. Super., C.A. No. 84C-JA-11, Gebelein, J. (Sept. 19, 1985) at 13.

5 In Article VI, Sec. 3(a), it is provided:

(a) Additional Insurance. Each unit owner shall have the right, at his own expense, to obtain additional insurance for his own unit and for his own benefit and to obtain insurance coverage upon his personal property and for his personal liability, provided that no unit owner shall be entitled to exercise his right to acquire or maintain such additional insurance coverage so as to decrease the amount which the Council, on behalf of all unit owners, may realize under any insurance policy which it may have in force on the property at any particular time or to cause any insurance coverage maintained by the Council to be brought into contribution with such additional insurance coverage obtained by the owner, and provided further that all such additional policies shall contain waivers of subrogation by the insurer as to any and all claims against the condominium, the Council, the unit owners and/or their respective agents ortenants.

in Article VI, Sec. 3(b) that each unit owner obtain flood insurance and to that in Article VI, Sec. 2(b) that each unit owner obtain its own liability insurance. Thus, there was no duty of plaintiffs to obtain property damage insurance. Additionally, or alternatively,⁶ Council would have to show that plaintiffs could have obtained coverage for the damages suffered. Council has not attempted to make such a showing.

6 The alternative would apply if it was found that reasonable people acquire property insurance even when not required to do so.

Finally, the Court briefly addresses damages. There are direct damages and consequential damages, both of which are actual damages. Consequential damages are those "'not directly flowing from the breach of the contract, but of which the defendant was aware would occur.'"ISTI Delaware, Inc. v. Townsend, Del. Super., C.A. No. 91C-08-017, Graves, J. (March 31, 1993) at 10, quoting Gebhart v. Martin, Del. Super., C.A. No. 89C-MY12, Lee, J. (Feb. 26, 1992). Certainly, plaintiffs are entitled to recovery for physical damages sustained to their unit's fixtures and chattels contained therein. Epps v. Park Centre Condominium Council, Del. Super., C. A. No. 95C-05-033, Quillen, J. (Aug. 18, 2000); Agassiz West Condominium Association v. Solum, 527 N.W.2d 244, 249 (N.D. 1995). The recovery of other damages, such as compensation for loss rental, shall be addressed at the inquisition on damages which will be scheduled.

In conclusion, I grant summary judgment in favor of plaintiffs and against Council as outlined above.

IT IS SO ORDERED.