The insured Condominium Association had primary and excess coverage. See El-Ad Residences at Miramar Condo. Assoc. v. Mt. Hawley Ins. Co., 2009 U.S. Dist. LEXIS 92216 (S.D. Fla. Sept. 24, 2009). Significant property damage was caused by Hurricane Wilma. The insured alleged that three years after the hurricane, the insurers failed to adjust or settle claims for damages.
The insured filed suit seeking a declaratory judgment to determine the enforceability of the policies and the scope of the damage. Claims for breach of contract and the breach of the implied warranty of good faith and fair dealing were also included. The insurers moved to dismiss. The excess insurers aruged exhaustion of the primary insurance was a condition precedent to their liability. The court disagreed because it was not apparent from the face of the complaint and attached policies that it was beyond doubt that the insured could prove no set of facts in support of this claim.
Further, the insured was entitled to declaratory relief to determine whether it had a valid and enforceable right to coverage and the total damages sustained from Hurricane Wilma. Finally, although Florida recognized a cause of action for breach of implied warranty of good faith and fair dealing, here the claim was duplicitous of the breach of contract claim. Both relied on the same facts, i.e., that defendants failed to promptly determine the value of the insured's loss. Therefore, the breach of implied warranty claims were dismissed without prejudice.
