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Ocean View Towers Association, Inc. v. Qbe Insurance Corp

December 22, 2011

OCEAN VIEW TOWERS ASSOCIATION, INC. PLAINTIFF,
v.
QBE INSURANCE CORP., DEFENDANT.



The opinion of the court was delivered by: Robert N. Scola, Jr.united States District Judge

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on the Corrected Motion for Summary Judgment [ECF No. 41], filed by Plaintiff Ocean View Towers Association, Inc. ("Ocean View"), and the Partial Motion for Summary Judgment Regarding "Matching" or "Uniformity" and Replacement Cost Value [ECF No. 33], filed by Defendant QBE Insurance Corporation ("QBE"). The Court has carefully considered the Motions, the parties' arguments, the applicable legal authorities, and is otherwise fully advised in this matter. For the reasons more fully set forth below, the Court concludes that the Motions should be granted in part. Ocean View is entitled to summary judgment as to QBE's second and third affirmative defenses, and QBE is entitled to summary judgment on the issue of "matching" and Replacement Cost Value.

INTRODUCTION

This case arises from windstorm damage sustained by Ocean View to its condominium towers during Hurricane Wilma in October 2005. The present dispute concerns the extent to which Ocean View's property insurance policy with QBE affords coverage for certain claimed repairs. Ocean View seeks summary judgment as to QBE's second and third affirmative defenses, which respectively concern whether Ocean View materially breached the "Duties In The Event Of Loss Or Damage" provision of the insurance contract and whether it failed to comply with the policy's post-loss requirements. QBE in turn seeks a summary judgment determination that Ocean View is not entitled to coverage for undamaged property in order to ensure "matching" or "uniformity" after repairs, and also a determination that Ocean View is entitled only to Actual Cash Value ("ACV"), and not Replacement Cost Value ("RCV"), benefits under the policy. Before addressing these issues, the Court will briefly set out the undisputed material facts and the parties' arguments for and against summary judgment.

STATEMENT OF FACTS

Hurricane Wilma passed through South Florida on October 24, 2005, causing substantial damage to a number of properties throughout the region. Ocean View Towers, a condominium located Hallendale, Florida, was one such property. Ocean View obtained a property insurance policy, which included windstorm coverage, from QBE in 2005. The policy was in effect from May 11, 2005 until May 11, 2006. See Plaintiff's Local Rule 7.5(c) Statement of Material Facts [ECF No. 32], at ¶ 5 ("Pl.'s SMF"); QBE's Responses to Plaintiff's Statement of Material Facts [ECF No. 45], at ¶ 5 ("QBE's RSMF").

The insurance contract provided coverage for "direct physical loss of or damage to Covered Property," and imposed upon the insured certain duties in the event of a covered loss. See Form CP 00 17 04 02 of the Policy ("Coverage" provision), at 1. Among other things, the insured was required to promptly notify the insurer of any "loss or damage," to allow the insurer to inspect and investigate the premises, and to comply with certain specified requests if made by the insurer. See id. In relevant part, the policy provision imposing these obligations states as follows:

E. Loss Conditions

3. Duties In The Event Of Loss Or Damage

a. You must see that the following are done in the event of loss or damage to Covered Property:

(1) Notify the police if a law may have been broken.

(2) Give us prompt notice of the loss or damage. Include a description of the property involved.

(3) As soon as possible, give us a description of how, when and where the loss or damage occurred.

(4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination.

(5)At our request,give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.

(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records.

Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.

(7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.

(8) Cooperate with us in the investigation or settlement of the claim.

b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured's books and records. In the event of an examination, an insured's answers must be signed.

See id. at 9-10.

With respect to covered losses, the insurance contract provided Ocean View with RCV coverage, subject to certain terms. See QBE's Reply in Support of Partial Motion for Summary Judgment [ECF No. 59], at 7 ("QBE's Reply"). The "Replacement Cost" provision states, in relevant part, as follows:

G. Optional Coverages

3. Replacement ...


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