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noting that "[m]ost of the issues raised by [plaintiff] would be appropriate if it had filed its own motion for summary judgment, but are procedurally improper when included in a response brief to [defendant's] motion for summary judgment"
Summary of this case from WealthMark Advisors Inc. v. Phx. Life Ins. Co.Opinion
CASE NO.: 11-60601-CIV-SEITZ/SIMONTON
04-30-2012
SUMMIT TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING MOTION FOR HEARING
THIS MATTER is before the Court on Defendant QBE Insurance Corporation's Motion for Partial Summary Judgment [DE-69]. QBE seeks partial summary judgment on discrete legal issues, including whether Summit Towers is barred from recovering damages to windows and sliding glass doors and whether Summit Towers can recover Replacement Cost Value for property it has not replaced or repaired. Summit Towers argues that QBE is not entitled to partial summary judgment on any basis, noting that factual disputes exist and the law does not support such a request. The Court has considered the motion, Summit Towers' Response [DE-83], QBE's Reply [DE-92] and the record evidence. As discussed below, because QBE failed to come forward with undisputed evidence to support a judgment as a matter of law, the Court must deny QBE's motion.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, "summary judgment is appropriate where there 'is no genuine issue as to any material fact' and the moving party is 'entitled to a judgment as a matter of law.'" See Alabama v. North Carolina, 130 S.Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). "Summary judgment is particularly suited to cases of insurance coverage because the interpretation of a written contract is a matter of law to be decided by the court." Int'l Ship Repair & Marine Servs., Inc. v. N. Assur. Co. of Am., 2011 WL 5877505, at *4 (M.D.Fla. Nov. 23, 2011). At the summary judgment stage, the Court must view the evidence in the light most favorable to the nonmoving party, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970), and it may not weigh conflicting evidence to resolve disputed factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007).
II. FACTUAL BACKGROUND
QBE's motion for summary judgment is noteworthy in its disregard for both the Federal Rules of Civil Procedure and the Local Rules for the Southern District of Florida. Those rules require a party's statement of material facts filed in support of a motion for summary judgment to contain specific citations to supporting materials in the record. S.D. Fla. L.R. 7.5(c)(2); Fed. R. Civ. P. 56(c)(1)A). The purpose of requiring a party to come forward with such evidence is to allow a court to determine if the evidence of record establishes the absence of a genuine issue of material fact. See Alabama v. North Carolina, 130 S.Ct. 2295, 2308 (2010). A party frustrates that purpose when it submits a lengthy factual narrative completely devoid of record citations. See Def.'s Mot., pp. 1-3. When QBE does provide record citations, it merely directs the Court to an entire exhibit. In the five pages of "facts" submitted in support of the motion, QBE cites three documents: (1) the Declaration of Condominium (Ex. A); (2) Commercial Property Insurance Policy (the "Policy") (No. QF2310-08) (Ex. B); and Excerpts of the Moye Estimate (Ex. C). Def.'s Mot., pp. 1-5 [DE-69]. Despite the length of these exhibits - almost 200 pages - QBE fails to provide pin point cites, choosing instead to cite to an entire exhibit. See Def.'s Mot., p. 5, ¶7 [DE-69].
The problem with QBE's approach is best illustrated by examining the first legal issue raised by the instant motion. QBE seeks a legal determination that the Policy does not provide coverage for damage to windows and sliding glass doors. To set the stage for the legal interpretation of the policy language, QBE identifies two relevant facts:
3. In 2009, Plaintiff submitted a Sworn Statement in Proof of Loss to QBE in the amount of $13,032,017.31 less the deductible for a total claim of $11,047,269.31 for damages resulting from Hurricane Wilma.Id. at p. 3. The only other detail QBE provides in its background section is that a majority of Summit Towers' claim involves damages to windows and sliding glass doors. Id. at p. 2. QBE provides nothing beyond this general description of damages to sliding glass doors and windows that comprises some undetermined amount of Summit Towers' total damage claim. QBE does not specify the location of a single glass door or window for which Summit Towers seeks damages - either the location within the building or within a particular unit. Nor does it provide evidence indicating whether the sliding glass doors and windows were installed by the developer or whether they were installed by individual unit owners. While the Court recognizes the interpretation of the Policy is a question of law, that does not excuse the complete lack of facts necessary for the Court to apply the Policy in order to render a judgment as a matter of law. Despite the paucity of factual evidence submitted by QBE, the issues framed by parties' papers can still be addressed to the extent discussed below.
4. Plaintiffs claim for damages includes windows and sliding glass doors.
III. LEGAL ANALYSIS
QBE raises four discrete legal issues on which it seeks an entry of summary judgment. The Court will address each issue seriatim.
A. SUMMIT TOWERS' DECLARATION OF CONDOMINIUM BARS RECOVERY FOR SLIDING GLASS DOORS AND WINDOWS
QBE first posits that Summit Towers' claim for damages to sliding glass doors and windows is "barred" by Summit Towers' Declaration of Condominium. Def.'s Mot., pp. 8-9. QBE directs the Court to language in the Declaration of Condominium that tasks individual unit owners with the maintenance and repair of sliding glass doors and windows. Id. at p. 8. From this language, QBE concludes that Summit Towers "made the decision to exclude windows and sliding glass doors from insured property ... the Association was charged to insure." Id. at p. 9. QBE cites no case law in support of its interpretation, but concedes that two decisions from this District involving QBE policies have found coverage for sliding glass doors and windows. Id. at 9, n.1 (citing Royal Bahamian Ass'n. v. QBE Ins. Corp., 750 F. Supp. 2d 1346 (S.D. Fla. 2010); Mayfair House Ass'n, Inc. v. QBE Ins. Corp., No. 07-80628, 2008 WL 4097663 (S.D. Fla. Aug. 29, 2008)).
Perhaps recognizing that it has tried unsuccessfully on at least two prior occasions to advance this argument, QBE devoted less than two pages of analysis and argument to this issue. Def.'s Mot., pp. 8-9 [DE-69]. The abbreviated analysis neither explains how the Declaration of Condominium can "bar" coverage for windows and sliding glass doors under the Policy nor provides support for the conclusion that Summit Towers decided to exclude windows and sliding doors from property the Association was required to insure. Had QBE properly briefed the issue, the starting point for the analysis would have been the language of the Policy. The Policy defines and describes the covered property as the Building and identifies the circumstances when it is necessary to consult the Declaration of Condominium to determine what is encompassed by the term Building, and thus covered under the Policy. The Policy provides that the term Building also includes:
f. Any of the following types of property contained within a unit, if your Condominium Association Agreement requires you to insure it:
g. Fixtures, installations or additions, owned by unit-owners, and located inside individual units,[sic]:
(1) Initially installed in accordance with the original plans and specifications, or replacements of like kind or quality as those initially installed; or
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h. Any other portion of the condominium property, if your Condominium Association Agreement requires you to insure it[.]Policy, Sect. B.1.f-h [DE 69-3, pp. 44-45 of 57]. Nothing in this Policy language provides a mechanism for "barring" coverage of sliding glass doors and windows under the Policy as a result of the Declaration of Condominium. Rather, the language of the Policy involving the Declaration of Condominium is inclusive, and expands coverage under the Policy to include property that the Declaration of Condominium charges the Association with insuring.
To the extent that QBE meant to argue that the Declaration of Condominium does not extend coverage under the Policy to sliding glass doors and windows, that argument must also fail. As set forth above, the Policy covers additional types of property so long as the Condominium Association Agreement required the Association to insure the property. Id. While QBE would have the Court focus on whether the Condominium Association Agreement required the unit owner to maintain and repair certain property, that is not the relevant question under the Policy. The question is whether the Condominium Association Agreement required the Association to insure specific property - here the sliding glass doors and windows.
Turning to the Condominium Association Agreement in this case, the Declaration of Condominium [DE 69-1 and 69-2], Section XII is entitled "Insurance Provisions." Under the heading, "Casualty Insurance," the Declaration of Condominium provides:
Purchase of Insurance. The Association shall obtain [ ] Insurance, insuring all of the insurable improvements within the Condominium (including the fixtures and other equipment in the units initially installed by the Developer, but not including personal property supplied or installed by unit owners or others, nor the carpeting in the units, nor, where applicable, the screening on any screened portion of a unit or on a limited common element which is reserved for the exclusive use of a certain unit)[.]Def.'s Mot., Ex. A, p. D-14 [DE 69-1, p. 14 of 64]. With respect to "fixtures and equipment" located in the units, the Declaration of Condominium explains that the phrase includes:
...interior doors of any type or nature, including sliding glass doors where applicable, windows, screening and glass, all exterior doors, including glass doors, including the glass of same and the operating mechanism[.]Id. at D-23 [p. 24 of 64]. Thus, reading these two provisions together, the plain language of the Declaration of Condominium required Summit Towers to insure the sliding glass doors and windows in the units. Because the Declaration of Condominium required Summit Towers to insure those items, they are included within the term "Building" under the Policy and are therefore covered. See Policy, Sect. B.1.f-h [DE 69-3, p. 46 of 57].
The question remains of course, whether the windows and sliding glass doors were installed by the developer or replacements of like kind. Because the catchall provision (h.) also provides coverage, however, the Court need not make that determination at this time.
Despite this plain and unambiguous language, QBE attempts to avoid the inescapable import of this language by arguing that sliding glass doors constitute "Limited Common Elements", which Summit Towers was not required to insure under the Declaration of Condominium. There are at least two flaws with this argument. First, QBE failed to establish that sliding glass doors are "Limited Common Elements" under the Declaration of Condominium. The Declaration defines "Limited Common Elements" as:
Limited Common Elements, means and includes those common elements which are reserved for the use of a certain unit or units, to the exclusion of all other units[.]Id. at p. D-1, ¶E [DE 69-1, p. 1 of 64]. The Declaration further specifies that "limited common elements .. are shown and located on the surveys annexed hereto as Exhibit No. 1." Id. at D-25 [DE 69-1, p. 24 of 64]. On the attached surveys, balconies and storage areas are labeled "(L.C.E.)," but no such designation is given to windows and sliding glass doors. See Ex. A, [DE 69-2, pp. 5-20 of 66]. Additionally, while it appears that sliding glass doors and windows are not Limited Common Elements, even if they were, there is no support for QBE's suggestion that Summit Towers was not required to insure Limited Common Elements. QBE failed to cite a single provision of the Declaration that excludes Limited Common Elements from Summit Towers' insurance obligations. Accordingly, no support exists for QBE's interpretation of the Declaration of Condominium. The Court will therefore deny QBE's motion for summary judgment on this legal issue.
Parking spaces are also identified as limited common elements. See Ex. A, ¶ 13 [DE 69-2, p. 4 of 66].
To the extent that the paragraph entitled "Limited Common Elements" includes a reference to sliding glass doors, the Court does not equate the mere mention of sliding glass doors in that paragraph as an intent to include sliding glass doors in the definition of "Limited Common Elements." The same paragraph specifically mentions the maintenance and repair of exterior light bulbs and balconies adjacent to units. Despite the discussion of sliding glass doors, exterior light bulbs and balconies, only balconies are specifically identified as limited common elements. Ex. A, D-25 [DE 69-1, p. 24 of 64]. --------
B. SUMMIT TOWERS IS NOT ENTITLED TO "MATCHING" OR "UNIFORMITY" OF ITS WINDOWS AND SLIDING GLASS DOORS
QBE seeks summary judgment that Summit Towers is not entitled to "matching" or "uniformity" of undamaged property after repairs to damaged property. In response, Summit Towers maintains that it has made no request for "matching" or "uniformity" of undamaged property, and only seeks coverage for property damaged by Hurricane Wilma. Pl.'s Resp., p. 9 [DE-83]. Accordingly, there is no need for a summary judgment on this issue as it has not been asserted and cannot be in dispute. QBE's motion is therefore denied.
C. SUMMIT TOWERS IS NOT ENTITLED TO REPLACEMENT COST VALUE FOR ANY ITEM THAT HAS NOT BEEN REPAIRED OR REPLACED
Turning to what appears to be the third issue for which QBE seeks an award of summary judgment, it is not clear to the Court what legal determination the parties seek. QBE initially argues that Summit Towers can only obtain Replacement Cost Value ("RCV") for repairs it actually made to the buildings. In response, Summit Towers maintains that QBE is partially correct, but a jury can award Actual Cash Value ("ACV") and then Summit Towers can come back, at some later time, after the ACV has been paid and obtain the previously withheld deprecation, which would convert the ACV to RCV. Summit Towers also notes that to the extent QBE's argument relates to the repair or replacement of glass, all of this discussion is irrelevant because glass is never valued at RCV or ACV under the Policy. Most of the issues raised by Summit Towers would be appropriate if it had filed its own motion for summary judgment, but are procedurally improper when included in a response brief to QBE's motion for summary judgment. The Court will now address the one legal issue QBE has raised as its third issue for partial summary judgment.
QBE seeks summary judgment as to any claim by Summit Towers for RCV for any damaged item that Summit Towers has not repaired or replaced. Def.'s Mot., pp. 12-13 [DE-69]. QBE directs the Court to an estimate prepared by Moye Construction, Inc., as evidence of the damages that Summit Towers seeks to recover, which includes some property that has been repaired. Def.'s Mot., p. 5, ¶8, Ex. C [DE-69]. QBE did not provide the entire estimate, electing instead to provide the Court an incomplete document emphasizing the portion identifying property that has been repaired or replaced. Id. at Ex. C. QBE failed to provide the remainder of the estimate or make clear which property items Summit Towers seeks payment of RCV. Despite the apparent concession by Summit Towers that recovery of RCV benefits is unavailable where it has not first repaired or replaced the damaged property, see also Buckley Towers Condo Ass'n v. QBE Ins. Corp., 395 Fed.Appx. 659, 665 (11th Cir. 2010), the evidence of record is not sufficient for an award of summary judgment. QBE's failure to provide undisputed facts about the nature and extent of damages that Summit Towers actually seeks to recover on a RCV basis prevents the Court from entering summary judgment on this issue.
D. PLAINTIFF IS NOT ENTITLED TO ORDINANCE AND LAW COVERAGE FOR ANY ITEMS NOT REPAIRED WITHIN TWO YEARS OF LOSS OR DAMAGE
QBE also seeks summary judgment for any damages Summit Towers seeks to recover based on upgrades required by law. Because any such "code upgrade" must be repaired or replaced within two years, and Summit Towers has not repaired or replaced any window or sliding glass door almost seven years after Hurricane Wilma, QBE maintains that summary judgment is appropriate on this issue. QBE's motion, however, provides no facts concerning what portion of Summit Towers' damage claim consists of code upgrades. Def.'s Mot., pp. 5-6 [De-69]. The motion is therefore denied as to this issue. QBE's shortcomings, however, do not prevent the Court from discussing additional problems readily apparent in Summit Towers' papers. First, Summit Towers never addressed or responded to QBE's argument that the Ordinance and Law Coverage, and its two year requirement, apply to the entire Policy, including Section E.8.C. While the Court's interpretation of the Policy would indicate that this provision is no longer in the Policy, even assuming the subsection remains in the Policy, it appears that it would be subject to the Ordinance and Law Coverage's requirement that all code repairs occur within two-years of loss or damage. Policy, Sect. E.4.a.(2) [DE 69-3, p. 8 of 57]. Second, the Court remains unconvinced by Summit Towers' argument that safety glazing material is the same as high wind impact resistant glass. See Ocean View Towers Condo Ass'n v. QBE Ins. Corp., Case No. 11-60447, 2011 WL 6754063, *11 (S.D. Fla. Dec. 22, 2011)(J., Scola). While the posture of the case does not permit resolution of these legal issues at this time, the Court notes them here to inform the parties' trial preparations
IV. CONCLUSION
Based on the forgoing, it is
ORDERED that
(1) Defendant QBE Insurance Corporation's Motion for Partial Summary Judgment [DE-69] is DENIED.
(2) Summit Towers' Motion for Hearing [DE-85] is DENIED.
DONE and ORDERED in Miami, Florida this 30th day of April, 2012.
/s/_________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE cc: All Counsel of Record