Legal Q&A: Hurricane Irma Damages? Make a Claim Soon

Also: A lot of vendor contracts have a clause called a limitation of liability, which sounds as if they’re not responsible for anything. Is that binding? NAPLES, Fla. – Question: I continue to see trucks with roof tiles driving all around town, assuming they are lingering claims from Hurricane Irma. […]

Also: A lot of vendor contracts have a clause called a limitation of liability, which sounds as if they’re not responsible for anything. Is that binding?

NAPLES, Fla. – Question: I continue to see trucks with roof tiles driving all around town, assuming they are lingering claims from Hurricane Irma. Our condominium buildings suffered some damage and some owners are demanding that the board file an insurance claim, but we are unsure if we had enough damage. Is it too late? – R.A., Naples

Answer: It is almost too late. Hurricane Irma arrived in September of 2017. The deadline to file an insurance claim is effectively three years from the date of the event, which means the deadline is imminent. If you believe you sustained wind damage from the storm, you should certainly consider whether it is appropriate to file a claim, particularly if neighboring communities suffered similar conditions and filed a claim.

We have experienced a surge in inquiries at our office as the deadline approaches. Our recommendation is to consult a licensed attorney, contractor, or adjuster to consider your options. In any event, if you are going to do something, it should be swift.

Question: We are a no pet community and some short-term renters are bringing a dog and claiming the dog is an emotional support animal. The tenant emailed us a certificate stating that the dog is registered as a service animal. Do we need to allow this exception? – L.D., Bonita Springs

Answer: I would need to know more to properly answer the question, but the most likely answer is no, you would not be required to allow this exception based solely on these facts. Initially, it is important to understand that there are two different laws potentially at play here. There is the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA). Most private condominium associations are not subject to the ADA because that law, in this context, would apply to public accommodations. Most private condominiums are private residential communities and therefore are governed only by the FHA. The analysis on which law applies can be cumbersome, so you should not assume that you are exempt from the ADA just because you are a residential condominium. I would recommend you consult a licensed Florida attorney to help you through this analysis.

The applicable law is important because a certificate printed online indicating that the dog is a service animal implies that the dog is registered as an animal under ADA and thus it may be inapplicable even if it is reliable. Most certificates of registration that I have viewed are not reliable as they permit the pet owner to pay a fee and obtain a certificate and a badge without any independent verification. In other words, most of these websites require the individual to certify that he/she is disabled and requires an assistance animal without any verification by a health care professional.

As the industry for emotional support registrations has evolved, however, there are now packages available where you can pay a bigger fee and have a phone or online consultation with a health care provider in a different state and they provide a semi-custom letter.

The U.S. Department of Housing and Urban Development (HUD) recently released some position statements in which it finds that some internet-based documentation is unreliable as a basis to determine if an individual is entitled to an accommodation under the Fair Housing Act. Specifically, the publication states, “in HUD’s experience, documentation from websites that sell certificates, registrations, and licensing documents and animal gear for animals to anyone who answers certain questions or participates in a short interview and pays a fee is not sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

This is mirrored in recent Florida legislation providing that out-of-state practitioners may provide supporting information if “such out-of-state practitioner has provided in-person care or services to the tenant on at least one occasion.”

We have known for some time that condominium and homeowners’ associations are permitted to request reasonably reliable documentation from a health care provider when the disability is unknown. This shift, however, seems to now focus on whether the health care provider has sufficient personal knowledge to provide an opinion.

I agree with the advocates who promote emotional support animals as a viable and necessary medical tool. Unfortunately, we also routinely encounter abuses of these laws from people who just want to bring their pets. These recent shifts will change each analysis and each request should be reviewed on a case by case basis and reviewed by a Florida licensed attorney. Based on the above, however, the short answer to your question would be that the certificate alone would not be sufficient to require an exception to your pet rules.

Question: We are receiving bids to embark on a major renovation project. Three out of the four contracts include a section called limitation on liability and it seems that they are liable for nothing under any circumstance. Is this binding? T.R., Marco Island

Answer: This is a great question as these exculpation clauses are finding their way into more and more contracts. Most of these provisions are drafted 1) so that the vendor is never liable for special damages such as lost profits; and 2) the vendor can only be liable up to the amount of any fee paid. For example, if the fee is $200,000 and the vendor negligently monitors the crane and it collapses, the vendor would at least attempt to argue that it is only responsible for $200,000 out of millions of dollars of potential damages. Depending on who is at fault and how many parties are involved, your association could be left holding the bag for the remainder of the damage even though the vendor is at fault.

Other contracts attempt to limit liability based on insurance amounts. In other words, the contract attempts to provide that the vendor can never be responsible for damages which exceed available insurance. Although you would think that a lot of insurance would likely cover any potential claim, you also have to be careful because these provisions can be drafted so that they turn on whether insurance actually covers the claim. If the vendor lets the insurance lapse or if the vendor has an insurance policy with lots of holes in coverage, there could be no coverage and therefore no liability depending on the specific language of the exculpatory clause.

The actual enforcement of these clauses can be questionable, but the bigger issue is that you should be addressing these issues before the contract is signed.

Attorney Steven J. Adamczyk is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2020 Journal Media Group

Lorrie R. Pedigo

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