DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY a/s/o
DOROTHY ANDERSON, BETTY A. HOWARD, JEAN M. JARD, JANET
A. DOWDY and DEBORAH L. SMITH,
Appellants,
v.
PATRICK LOFTUS, DONNA LOFTUS, MICHAEL P. DEPINTO and
TATIANA DEPINTO,
Appellees.
No. 4D18-2192
[ August 7, 2019 ]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Paul B. Kanarek, Judge; L.T. Case No.
312016CA00174.
Paulo R. Lima and Elizabeth K. Russo of the Russo Appellate Firm, P.A.,
Miami, and Markcity, Rothman, Cantwell & Breitner, P.A., Fort
Lauderdale, for appellants.
Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and
Benjamine Reid of Carlton Fields Jorden Burt, P.A., Miami, for Appellees
Patrick and Donna Loftus.
TAYLOR, J.
Universal Property & Casualty Company (“Universal”) appeals a final
summary judgment in its subrogation action against the owners of a
condominium unit. Universal’s complaint sought to hold the owners of
the unit vicariously liable under section 718.111(11)(j), Florida Statutes,
for their tenants’ alleged negligence in causing water damage to a
downstairs unit owned by Universal’s insureds. Because the trial court
correctly concluded that section 718.111(11)(j) does not provide a
condominium unit owner with a private right of action against another
unit owner for the tortious conduct of the latter’s tenants, we affirm.
By way of background, Universal provided homeowners’ insurance for
a condominium unit owned by the insureds. A water leak in the upstairs
condominium unit caused damage to the insureds’ unit. The upstairs unit
was owned by the Loftuses (the “landlords”), who rented their unit to the
DePintos (the “tenants”).
Universal, as subrogee of the insureds, filed a two-count complaint
against the tenants and the landlords, seeking to recover the $24,628.27
it had paid to remedy the water damage to the insureds’ condominium
unit, plus the $500 deductible that the insureds had paid toward the loss.
Count I asserted a claim against the tenants for negligence. Count II
asserted a claim against the landlords on the theory that the landlords
were vicariously liable for their tenants’ negligence under section
718.111(11)(j), Florida Statutes.
Following some discovery, the landlords moved for summary judgment.
The landlords argued that: (1) section 718.111(11)(j) does not provide
Universal with a private cause of action against a condominium unit owner
for the alleged negligence of the unit’s tenants; and (2) the landlords were
not liable for negligence because neither they nor their tenants breached
any duty of care in maintaining the property.
The trial court granted the landlords’ motion and entered final
summary judgment, ruling that section 718.111(11)(j) did not make the
landlords vicariously liable to Universal for the negligence of their tenants.
The trial court did not reach the issue of whether the tenants were not
negligent as a matter of law. 1
On appeal, Universal argues that 718.111(11)(j) permits its subrogation
claim against the landlords in this case because the statute makes
condominium unit owners responsible for the cost to repair or replace a
fellow unit owner’s property that has been damaged by the negligence of
the former’s tenants.
By contrast, the landlords contend that the trial court correctly
interpreted section 718.111(11)(j) as not providing a private right of action
by a condominium unit owner against another unit owner for the latter’s
tenants’ negligence.
An issue of statutory interpretation is reviewed de novo. Bank of N.Y.
Mellon v. Glenville,
252 So. 3d 1120, 1126 (Fla. 2018).
“When the statute is clear and unambiguous, courts will not look
behind the statute’s plain language for legislative intent or resort to rules
1 Universal’s negligence count against the tenants remains pending below.
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of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of
Health,
898 So. 2d 61, 64 (Fla. 2005). However, a single part of a statute
should not be read in isolation. Citizens Prop. Ins. Corp. v. River Manor
Condo. Ass’n, Inc.,
125 So. 3d 846, 849 (Fla. 4th DCA 2013). Instead, “all
parts of a statute must be read together in order to achieve a consistent
whole.” Forsythe v. Longboat Key Beach Erosion Control Dist.,
604 So. 2d
452, 455 (Fla. 1992) (emphasis removed).
Whether a statute serves as the basis for a private cause of action is a
question of legislative intent. Curtis v. City of W. Palm Beach,
82 So. 3d
894, 895 (Fla. 4th DCA 2011). “[A] court may imply a private cause of
action only where the statutory scheme and statute itself indicate a
legislative purpose to do so.” Merkle v. Health Options, Inc.,
940 So. 2d
1190, 1197 (Fla. 4th DCA 2006).
A private right of action may be implied from a statutory provision that
would serve no useful purpose in the absence of a private right of action.
See Smith v. Piezo Tech. & Prof’l Adm’rs,
427 So. 2d 182, 184 (Fla. 1983).
For example, in Smith, the Florida Supreme Court held that a statute
prohibiting employers from discharging an employee in retaliation for
asserting a workers’ compensation claim created a statutory cause of
action for wrongful discharge.
Id. at 183–84. The court emphasized that
“because the legislature enacted a statute that clearly imposes a duty and
because the intent of the section is to preclude retaliatory discharge, the
statute confers by implication every particular power necessary to insure
the performance of that duty.”
Id. at 184.
Subsequently, in Murthy v. N. Sinha Corp.,
644 So. 2d 983, 985 (Fla.
1994), the Florida Supreme Court clarified that “legislative intent, rather
than the duty to benefit a class of individuals, should be the primary factor
considered by a court in determining whether a cause of action exists when
a statute does not expressly provide for one.” There, although the court
found that a qualifying agent for a corporation had a statutory duty to
supervise the corporation’s construction projects, the court concluded that
there was “no evidence in the language of the statute or the statutory
structure that a private cause of action against a qualifying agent was
contemplated by the legislature in enacting this statute.”
Id. at 986. Thus,
Murthy represented a break from the historical judicial practice of simply
looking “to whether the statute at issue imposed a duty to benefit a class
of individuals” and concluding “that a cause of action arose when a class
member was injured by a breach of that duty.”
Id. at 985.
With this backdrop in mind, we turn to the relevant statutory
provisions.
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Section 718.111(11), Florida Statutes (2014), which is part of Florida’s
“Condominium Act,” contains the insurance coverage provisions
applicable to condominium associations and their unit owners. 2
Section 718.111(11)(f) requires that every property insurance policy
obtained by the condominium association must provide coverage for “all
portions of the condominium property as originally installed or
replacement of like kind and quality,” as well as all approved alterations
or additions made to the condominium property, but must exclude
coverage for the unit owners’ personal property and the unit interiors,
which the unit owners are responsible for insuring. § 718.111(11)(f)1.–3.,
Fla. Stat. (2014). In simplified terms, section 718.111(11)(f) requires that
all condominium property outside of an individual unit must be insured
by the condominium association, but any property within the boundaries
of an individual unit and any insurance thereupon is the responsibility of
the unit owner.
Section 718.111(11)(j), which is the focus of this appeal, addresses
when repair and replacement costs for property damaged by an insurable
event are to be paid by the condominium association as a common expense
and when such costs are the responsibility of a unit owner:
(j) Any portion of the condominium property that must be
insured by the association against property loss pursuant to
paragraph (f) which is damaged by an insurable event shall be
reconstructed, repaired, or replaced as necessary by the
association as a common expense. In the absence of an
insurable event, the association or the unit owners shall be
responsible for the reconstruction, repair, or replacement, as
determined by the provisions of the declaration or bylaws. All
property insurance deductibles, uninsured losses, and other
damages in excess of property insurance coverage under the
property insurance policies maintained by the association are
a common expense of the condominium, except that:
1. A unit owner is responsible for the costs of repair or
replacement of any portion of the condominium property not
paid by insurance proceeds if such damage is caused by
intentional conduct, negligence, or failure to comply with the
2 The 2014 version of Chapter 718 was in effect at the time of the loss. Thus,
throughout this opinion, all references to Chapter 718 will be to the 2014 version
of the statutes.
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terms of the declaration or the rules of the association by a
unit owner, the members of his or her family, unit occupants,
tenants, guests, or invitees, without compromise of the
subrogation rights of the insurer.
2. The provisions of subparagraph 1. regarding the financial
responsibility of a unit owner for the costs of repairing or
replacing other portions of the condominium property also
apply to the costs of repair or replacement of personal property
of other unit owners or the association, as well as other
property, whether real or personal, which the unit owners are
required to insure.
§ 718.111(11)(j), Fla. Stat. (2014) (emphasis added).
Additionally, section 718.111(11)(g) states in relevant part:
1. All reconstruction work after a property loss must be
undertaken by the association except as otherwise authorized
in this section. . . .
2. Unit owners are responsible for the cost of reconstruction
of any portions of the condominium property for which the
unit owner is required to carry property insurance, or for
which the unit owner is responsible under paragraph (j), and
the cost of any such reconstruction work undertaken by the
association is chargeable to the unit owner and enforceable as
an assessment . . . .
§ 718.111(11)(g), Fla. Stat. (2014).
Here, the trial court correctly ruled that section 718.111(11)(j) does not
provide a condominium unit owner with a private right of action against
another unit owner for the “intentional conduct, negligence, or failure to
comply with the terms of the declaration or the rules of the association” by
the latter’s tenants or other occupants. Nothing in the language of this
statute or in the statutory structure indicates that a private cause of action
between unit owners was contemplated by the legislature in enacting this
statute.
Section 718.111(11)(j) simply defines when repair and replacement
costs for property damaged by an insurable event are to be paid by the
condominium association as a common expense, and when they are the
responsibility of a unit owner. As noted above, section 718.111(11)(j)
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essentially creates a general rule that all damages in excess of the
association’s property insurance coverage are a common expense of the
association.
Subparagraphs 1 and 2, in turn, set forth exceptions to this general
rule. The exception in subparagraph 1 states that a unit owner is
responsible for the costs of repair or replacement of any portion of the
condominium property not paid by insurance proceeds if such damage is
caused by the intentional conduct, negligence, or failure to comply with
the association’s declaration or rules by a unit owner or by a unit owner’s
family, occupants, tenants, or other invitees. The exception in
subparagraph 2 extends the first exception to include costs to repair or
replace personal property of other unit owners and any property that the
unit owners are required to insure.
When the exceptions in subparagraphs 1 and 2 apply, the repair and
replacement costs are not a common expense of the association but
instead are the responsibility of the unit owner. In other words,
subparagraphs 1 and 2 complete the sentence begun in subsection (11)(j)
and are simply exceptions to the general rule that repair and replacement
costs not covered by insurance are a common expense of the association.
Without question, by using the language “responsible for the costs,” the
statute imposes a duty on a unit owner to be responsible for “the costs of
repair or replacement of any portion” of an innocent unit owner’s property
not paid by insurance proceeds if such damage is caused by intentional
conduct or negligence of the former’s tenants. However, the existence of a
statutory duty does not answer the question of whether a breach of that
duty would give rise to a private right of action.
Here, the statute itself provides an enforcement mechanism under
subsection (11)(g), which allows reconstruction work to be undertaken by
the association and states that the cost of reconstruction work undertaken
by the association “for which the unit owner is responsible under
paragraph (j)” is chargeable to the unit owner and enforceable as an
assessment. § 718.111(11)(g), Fla. Stat. (2014). While this enforcement
mechanism is limited to circumstances where the association itself
undertakes the reconstruction work, the existence of a statutory
enforcement mechanism undermines Universal’s argument that we should
infer a legislative intent to create a private cause of action. This is not a
case where the statutory provisions of section 718.111(11)(j) would serve
no useful purpose in the absence of an implied right of action.
Subparagraphs 1 and 2 cannot be read in isolation to create statutory
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causes of action between unit owners whereby a unit owner may be held
vicariously liable to other unit owners for property damage caused by the
negligent and even intentional actions of the former’s tenants. Had the
legislature intended to create vicarious liability in such an expansive
fashion, it would have done so more clearly in the language and structure
of the statute. We cannot assume that the legislature intended to
authorize by implication such a judicial remedy in the context of a statute
addressing which repair and replacement costs for property damaged by
an insurable event are to be paid by the condominium association as a
common expense.
Universal’s argument is also problematic in that a unit owner’s
responsibility for damage caused by the negligent or intentional acts of the
owner’s tenants or occupants is limited to the costs “not paid by insurance
proceeds.” See § 718.111(11)(j)1., Fla. Stat. (2014). Universal argues that
although the landlords’ liability to Universal’s insureds might be limited
under section 718.111(11)(j) to the $500 “not paid by insurance proceeds,”
the landlords are nonetheless liable to Universal for the entire $25,128.27
sought by Universal. However, in putting forth this argument, Universal
ignores the plain language of the statute.
Even if section 718.111(11)(j) were interpreted as creating a private
right of action, nothing in section 718.111(11)(j) states that a unit owner
is responsible for the entirety of damages caused by the negligent or
intentional acts of the unit owner’s tenants or occupants. Section
718.111(11)(j) imposes responsibility on a unit owner for damage caused
by the negligent or intentional acts of the unit owner’s tenants and other
occupants, but this responsibility is limited to “the costs of repair or
replacement . . . not paid by insurance proceeds.”
Universal points to the statutory language “without compromise of the
subrogation rights of the insurer” in support of its argument. But this
language merely preserves an insurer’s preexisting subrogation rights.
This language does not give a subrogee greater rights than the insured
unit owner whose property was damaged. Instead, this language merely
prevents tenants or other occupants from arguing, as a defense to a
subrogation action, that the statute relieves them of responsibility for their
own tortious acts.
We emphasize that nothing in section 718.111(11)(j) compromises an
insurer’s right to bring a common law subrogation action alleging that a
tortfeasor is directly liable for the full amount of damages to an insured
unit owner’s property caused by the tortfeasor’s own negligence or
intentional conduct. We also emphasize that nothing in this decision
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compromises a unit owner’s right to bring a common law tort action
alleging that a tortfeasor is directly liable for any uncovered damages to
the owner’s property caused by the tortfeasor’s own negligence or
intentional conduct.
We merely hold that section 718.111(11)(j) was not intended to create
a statutory right of action whereby condominium unit owners (or their
insurers) may hold other unit owners vicariously liable for property
damage caused by the tortious acts of the latter’s tenants or occupants.
For the foregoing reasons, we affirm the trial court’s final judgment.
Affirmed.
LEVINE, C. J., and ROWE, CYMONIE, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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