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Can You Sue Individual Board Members of Your Condominium or Homeowner Association in Florida?

Wednesday, December 9th, 2009

Yes but it is unlikely you will win, particularly in the Fourth District Court of Appeal.

Back in 2006, a rather dramatic homeowner versus association battle was partially resolved in Berg v. Briddle Path Homeowners Association where the court addressed director and officer statutory immunity under the homeowner statute, Florida Statute Chapter 617.

The same issue arose, but was confronted more directly, in the recent case of Stephen and Marjorie Raphael v. Beach Point Condominium Association (Stevenson, Polen, and Gerber).  In this case, the condo owners were upset that balcony dividers were replaced with transparent dividers, thus reducing their privacy while allegedly improving other condo owners’ view.

To sue the condo board members directly, the plaintiff had to allege that there was fraud, criminal activity or self-dealing in order to overcome the directors’ statutory immunity in Florida Statute 607.831(1) and 617.0834(1).

The Panel held that there was no self-dealing or personal benefit simply because the board members voted for and approved alternations or improvements to the common areas which they, as owners, also enjoyed.

No Third Party Claim for Contribution Among Tortfeasors Post-2006 Amendment to F.S. 768.81

Sunday, May 31st, 2009

Can you still third party in a non-party tort feasor since the 2006 statutory abolishment of joint and several liability in Florida?

It appears not, according to T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair Inc. et al.

In this case, an employee of Wink was injured when he was working for Wink at T & S’ property.  The employee sued T & S, which promptly third party’ed in Wink claiming contribution.

Since 2006, however, Florida Statute 768.81 abolished joint and several liability.  Under the current law, the trial court can only enter judgment on the basis of a party’s percentage of fault.  Contribution can only be claimed by a party who has been made to pay more than its fair share.  So what happens with a contribution claim post-2006?

According to the Second DCA (Dakan, Altenbernd, and Fulmer), contribution claims were only allowed before because Rule 1.180 allowed third party actions against anyone who “is or may be liable.”  Courts were allowing contribution to be plead in the “main” tort case under this concept.

Not so now.  ”It is unlikely that T & S will be required to pay more than its pro  rata share” since F.S. 768.81(3) limits the trial court to judgment based upon a party’s fair share.  Thus, there’s no contribution claim — all pre-2006 cases are “not… overruled” but “they appear to have been rendered obsolete.”

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