A Palm Beach County condominium association’s $5 million hurricane damage claim was rejected and the case dismissed in favor of the Florida Insurance Guaranty Association.

Boca Bayou Condominium Association Inc. already obtained three payments for damages from Hurricane Wilma in 2005. Southern Family Insurance Co., the association’s insurer, paid $200,000, according to a summary judgment order issued by Circuit Judge Jack Cox on Aug. 12.

Southern Family later declared insolvency, and FIGA assumed its claims. FIGA hired an independent adjuster, Rocky Mountain Cat Inc., which estimated total damage of $3.38 million. After deducting the initial payment, FIGA cut Boca Bayou a check for the remainder, Cox’s order explained. On Dec. 4, 2006, Boca Bayou demanded another appraisal. Each side had its own appraiser. An umpire awarded more than $1.7 million in new money, Cox said. The state-created nonprofit paid again in 2008.

“The court finds that the contractually agreed-to appraisal process has been completed and that the disputed issue has been resolved by appraisal and payment,” Cox declared. “This court reserves jurisdiction to determine FIGA’s entitlement to attorney’s fees and costs,” he added.

Ronald E. D’Anna at McClosky D’Anna & Dieterle in Boca Raton represented Boca Bayou. He said he would ask for a rehearing and would recommend an appeal if unsuccessful.

“The sad part is the unit owners ultimately had to be assessed to repair the roofs, and that’s where the hardship lies,” D’Anna said.

He disagreed with Cox’s finding on a factual issue; only one of two schedules listing itemized damages was attached. FIGA’s original adjuster found every building sustained roof damage, he said. But the second FIGA adjuster determined only seven of 18 roofs were damaged.

“The association had a right to rely on FIGA’s adjusters when they said damage was suffered to all 18 roofs. FIGA should have been precluded, almost two years after the fact, from second-guessing its own appraiser,” D’Anna said.

Because of that issue, summary judgment was not appropriate, D’Anna claimed.

The case was before Cox because Boca Bayou filed a second amended complaint claiming it was still owed $5 million.

Not Enough

FIGA was represented by GrayRobinson attorneys Evan Appell, Jeffrey Kuntz and Philip Ward of Fort Lauderdale.

GrayRobinson submitted a supplemental memorandum to support its motion for summary judgment. It included details from the deposition of Boca Bayou’s corporate representative, Peter McNeal.

He testified the Boca Bayou board was told if the appraisers could not agree on any contested issue, the umpire becomes the ultimate decision maker. McNeal said he wasn’t present during talks between appraisers and lacked knowledge of the amounts considered.

McNeal also acknowledged a spreadsheet of itemized appraisal award accounted for every building.

Boca Bayou‘s appraiser, perhaps because he agreed with the result, did not lodge any objections during the appraisal process, Kuntz told the court.

“Boca Bayou’s grievance is simple. They believe that they weren’t getting enough money as a result of the appraisal award. Boca Bayou’s roofing consultant, Brian Barrows of MacBrady Associates, told Boca Bayou that the amount of new money awarded ‘was not enough money.’ Boca Bayou’s issue with the appraisal is that it wasn’t awarded every single penny it was seeking, and it wants the full amount of what Mr. Barrows is telling them they should be paid,” Kuntz concluded.

Source:  DBR