HD Law Partners Blog

Sadly, many Florida homeowners and condominium associations are being given the same disappointing answer from their insurance companies after suffering significant damage from Hurricane Irma: the insurance company thinks that patchwork repairs are enough to fix the problem, while contractors indicate that a complete replacement is necessary.

Unfortunately, these battles are now preventing many from moving forward and getting property damage addressed, leading to many to turn to attorneys to assist with ensuring that the insured’s rights under the insurance policy are enforced.

One of the most common issues we hear about is being provided different instructions by different people from the insurance companies, and having to resend flood insurance claims several times as a result. Although many insurance agents sell these flood policies, a lot of them still do not have experience with the national flood insurance, which can lead to issues later on in getting claims addressed.

One of the biggest concerns that many couples who share children have is how divorce could possibly affect their children; specifically, whether pursuing a divorce could interfere with their child’s ability to afford a college education. Below, we discuss how you can prevent your divorce from interfering with this important aspect of your family’s life.

Everyone Should Have a Plan

According to a recent study by Ameritrade, two-thirds of married couples do not have a financial plan in place, even in the event of a spouse’s death. With college costs increasing approximately three percent per year and four out of 10 marriages ending in divorce, this is beyond shocking. The average cost to attend a public, in-state school is $20,770 per year, and a private college costs approximately $46,950. Thus, even without the prospect of divorce, parents need to plan in order to afford college, especially because immediate family costs usually trump saving funds for a college education.

It is easy to be bombarded by information here and there about how divorce leads to more complicated financial circumstances. However, if you do it right—and work with the right attorney—you can complete the process without placing a financial strain on your family. Below, we discuss some of the pointers to keep in mind as you approach the divorce process:

Interview Several Different Attorneys

 Make sure that you do your homework when it comes to selecting your divorce attorney. Don’t just take one person’s recommendation or work with the first person who comes up online; instead, interview several different attorneys and note who is paying attention, providing you with detailed information on how billing works, etc.

Trust your intuition when it comes to deciding who you are comfortable with. If you sign an engagement letter, make sure that you and your attorney are very clear on what the hourly rate will be. Also make sure to ask whether the attorney works with any junior attorneys and/or paralegals, as that can sometimes lower the overall costs.

According to recent reports, the top 20 property insurers in Florida were served with more than 10,000 lawsuits over hurricane Irma claim denials just between January and March, reflecting a more than 61 percent increase from last year.

Universal Property & Casualty Co.—Florida’s largest insurer—noted that the company has received close to 80,000 Hurricane Irma-related claims, including many from Broward, Miami-Dade, and Palm Beach counties. In addition, Irma-related claims account for close to 60 percent of all new claim-related litigation filed against Citizens Property Insurance Co. (the second largest insurer in Florida).

Inadequate Recovery Also Remains an Issue

Not all of these claims involve outright denials; a good percentage also involve challenges to the companies’ decisions about the scope of damages, arguing that the amount paid to homeowners was inadequate. A good percentage also involved the determination that policyholders were owed nothing at all because the loss calculated did not surpass the policy deductible.

It seems like every day, there are disputes between homeowners associations and its members, even though these disputes are supposed to be avoided by specific, detailed covenants and restrictions agreements residents agree to when they buy into these associations.

There are always going to be circumstances under which homeowners associations and property managers must take emergency action in order to secure the safety of the entire community. However, as highlighted by a recent news article, residents aren’t always happy about these actions, and sometimes resort to suing the association.

This Particular Proposal

In this particular circumstance, the association found itself in need of taking traffic enforcement into its own hands and proposed sanctioning residents if they were caught speeding because the local police department could not possibly manage the issue on its own, given the breadth of their jurisdiction. Under this proposal, repeat offenders could even have the bar codes that get them into the community suspended, forcing them to wait for a security guard to let them in. A first offense would simply produce a warning, but any other subsequent offense could result in a resident’s barcode being suspended.

A lawsuit that concluded this spring highlights an important potential liability for homeowners associations around the country: playgrounds. One homeowners’ association in particular was hit with a $20 million jury award after a teenager was injured on the property’s playground.

Reportedly, the 42-pound crossbar of the swing set fell on the boy sitting on the swing set due to corrosion at the connection points, causing him serious injuries. Reportedly, not only had the homeowners association previously experienced three swing set failures on this playground, but they also did not arrange for any inspections or regular maintenance.  Unfortunately, the homeowners association only had $2 million in liability insurance coverage, and $10 million out of the total $20 million award was entirely attributed to punitive damages.

Previous Incidents plus Failure to Maintain Equals Trouble

Divorce has become more and more common for individuals who are 50 or older (sometimes called a “gray divorce”). The rate of divorce amongst this age group has roughly doubled since the 1990s, and for those 65 and older, it has tripled.

However, that doesn’t mean that there’s a ‘one-size-fits-all’ approach developing; because being comfortable after retirement is of paramount importance for those approaching retirement, there are some dos and don’ts when it comes to divorcing later in life, which we discuss in greater depth, below. In general, whatever funds a couple has accrued in their 401(k) plans, 403(b) or 457 accounts, individual retirement accounts, pensions, etc. will be divided, and therefore, there are some steps to take to protect yourself.

IRA Transfers

First and foremost, any and all IRA transfers need to be done properly, and with the assistance of an attorney who has experience in Qualified Domestic Relations Orders (QDROs), specifically. If they are not done properly, you can be subject to significant penalties and taxes.

More often than not—especially in states like Florida, where golfing is quite popular—windows within a homeowners’ and condo associations are damaged by the golf balls that fly in from nearby golf courses. In many of these associations, the golf course is private and open to those in the association adjacent to it. When someone buys into the community, they automatically become a member, and can use the course.

When something like this happens, who is responsible; the association, the golfer, the homeowner, or another party? Below, we discuss this liability, and who can be held responsible for it, in greater detail.

Liability Waivers in Association Documents

Most homeowners’ associations are protected in instances like these precisely because they have built a waiver of liability into the associations’ documents and under a legal theory known as “assumption of risk.” The language will typically say something to the effect of “owners assume all risks associated with errant golf balls and hereby agree not to pursue any claims against the association, golf club, or any other party other than the golfer.” Thus, paying for the damage or filing an insurance claim is often the responsibility of the owner.  This is akin to individuals who have residences near airports, but are frustrated by the noise; it can be difficult to successfully file a lawsuit based on that noise nuisance, given that the homeowner presumably chose the home, and knew it was near an airport.

According to the Palm Beach Post, with Florida only one and a half months away from the next hurricane season, less than 57 percent of Hurricane Irma insurance claims have been closed with insurance payments, leaving many home and business owners at a loss, wondering if they will ever hear back on their insurance claims, and whether perhaps those claims will be denied due to the $8.6 billion backlog on them.

In addition, industry officials recently acknowledged that they may have underpaid on tens of thousands of claims they declared closed after September. For example, Florida state-run Citizens Property Insurance just reopened more than 24,000 Hurricane Irma claims to review as more information has become available.

With so many Florida property owners feeling abandoned and on their own, insurance companies are now concerned about litigation. In particular, it is of concern that many claims are declared closed in the first place, only to be reopened once legal concerns are expressed.

When it comes to figuring out whether a homeowners’ association is liable for damage, it largely depends upon a) what caused the damage and b) the declaration of condominium.

Take, for example, windows in Florida homeowners’ associations that started leaking after Hurricane Irma: As a general rule, any damage done by a hurricane falls on the responsibility of the association and its insurance policy.

The Law in Florida

The Florida Legislature requires lower or stable insurance premiums for associations in order to protect the safety, health, and welfare of Florida citizens. This includes adequate property insurance for full insurable value, replacement cost, or similar coverage, and this includes coverage sufficient to the probable maximum loss for communities for a 250-year windstorm event.

Determining Cause Is Key

However, figuring out if the leaks are actually due to the hurricane—or something else—can sometimes be challenging, and typically requires that the member consult with a professional to determine the cause of the damage. If, in fact, the damage was due to the hurricane, then the association is likely responsible for making repairs and the member would need to cover anything associated with the repair, such as the paint, window coverings, etc.