I recently had a fire that started in my condo unit. The water damage from the Fire Dept ruined all six units in my section it is an old vintage building in Chicago. Our by-laws have this clause:5. Waiver. Each unit owner hereby waives and releases any and all claims which hemay have against any other unit owner, the Association, its officers, members ofthe Board, the Declarant, the Management agent of the building, if any, and theirrespective employees and agents, for damage to the common elements, the unitsor to respective employees and agents, for damage to the common elements, theunits, or to any personal property located in the units or common elements, causedby fire or other casualty to the extent that such damage is covered by fire or otherform of casualty insurance.Does that pretty much mean the other owners can't file claims against me or my insurance?
State/Country relating to question: United States
Hello Customer,Yes it does. The language is clear and straight forward that unit owners waive any claims against other units for damage caused by fire. And water damage from the fire Department would be considered part of "fire" damage. But there is an important proviso, and that is that they only waive such claims "to the extent that the damage is covered by insurance."If a particular unit owner does not have their own insurance, then they can still make a claim against you.Or if they do have insurance, but if the insurance only covers a certain amount of damage, and the damage is more than that amount they can still make a claim against you for the difference. So, for example if they have $50,000 in fire or casualty coverage, and the fire caused $100,000 in damage, they would be able to make a claim against you for the $50,000 that is not covered.I hope this answers your question.Thomas
OK, but the Association requires owners to have insurance. There is no penalty if they don't? There is another clause:3. Public Liability and Property Damage Insurance. The Board of Managers shall acquire, as a common expense, and shall have the authority and duty to obtain, comprehensive public liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the property in amounts deemed sufficient in the judgement of the Board of Managers, insuring the Board of Managers, the unit owners’ association, the management agent, and their respective employees, agents, and all persona acting as agents. The developer shall be included as an additional insured in his capacity as unit owner and board member. The unit owners shall be included as additional insureds but only with respect to that portion of the premises not reserved for their exclusive use. The insurance shall cover claims of one or more insured parties against other insured parties. The insurance shall contain a waiver of any rights to subrogation by the insuring company against any of the above-named insured persons.Does this mean the condo association is supposed to have other insurance to cover claims by owners and what if they didn't have it?
If there is another provision in by-laws which required unit owners to maintain their own insurance, then yes they would be precluded from bringing any claim against you. The provision you quoted is a little vague to me. Although it is titled "Public Liability and Property Damage", the body of the provision actually makes no mention of Property Damage insurance. it only seems to require public liability insurance. And public liability and property damage insurance are really two different types of insurance. Public liability insurance covers incidents where members of the public who come onto the property are injured. So, I'm not sure you would be able to rely on this provision to defeat any claims against you by unit owners.Thomas
But what about:The insurance shall cover claims of one or more insured parties against other insured parties. The insurance shall contain a waiver of any rights to subrogation by the insuring company against any of the above-named insured persons.
But "the" insurance they are talking about is vague to me because in the body of the provision it only mentions "public liability" insurance, which is really a difference type of insurance than property/fire insurance. What I am basically saying is that since this provision is a little vague and ambiguous, the other side may be able to argue that you can not rely on it to prevent claims against you.ThomasThomas
Ok here is the other clause:4. Unit Owner Insurance. Each unit owner shall be responsible for his own insurance on his personal property in his own unit, his personal property stored elsewhere on the property, and his personal liability to the extant not covered by the liability insurance for all the unit owners obtained by that Board as hereinbeforeprovided.Is that sufficient to stop any claims against me personally?
Only for claims for damage to their personal property. This requirement to maintain insurance only requires them to insure their personal belongings inside the unit; not for damage to the unit itself.So, for example they would not be able to recover from you damage caused to their TV by the water damage. But I would assume that most unit owners carry property damage insurance on their units. And if they do, you would be protected by the first provision you mentioned - the #5 Waiver.Thomas
Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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