Insurance May Not Cover for COVID-19-Related Claims Arising from Use of Reopened Common Area Facilities
Community association managers and board members are accustomed to dealing with unrealistic expectations of residents. As common area facilities – particularly swimming pools – have been closed in response to public health orders and liability concerns related to COVID-19, conflicts are continuing to occur relating to whether such facilities can legally and safely be reopened. There are many issues to consider, including whether an association will be able to comply with applicable orders and guidelines issued by federal, state, and local authorities. These orders and guidelines are not always uniform, and are changing frequently with developing science on risk factors for exposure to the virus.
Many have observed that science is not the only factor affecting changes in policies regarding the virus; politics and public opinion have also resulted in differing approaches to risk assessment and reduction. Strong opinions are being expressed, often with righteous indignation, on all sides of virus-related issues. Many board and managers will have already received “demands” that common area facilities be reopened – immediately! “We pay for the pool! If we can’t use it we shouldn’t have to pay assessments! We won’t live in fear! We’re adults and don’t need your protection! Guidelines aren’t laws!” Other residents don’t want to get close to any common area facilities until we have a better handle on the virus.
The uncertainties and conflicting points of view present an ongoing challenge to boards to balance the interests of owners, residents, and the association itself. One very important consideration is whether COVID-19-related claims will be covered by the association’s insurance. The answer is: probably not, so caution is warranted.
While we haven’t seen yet seen any COVID-19 claims or resulting denials of coverage, it appears likely such claims resulting from use of common area facilities may arguably be subject to typical coverage exclusions or limitations. General liability insurance policies often exclude or limit coverage for claims relating to communicable diseases or viral, biological, bacterial or microbial infections and hazards.
While it may be difficult for a claimant to prove that they were infected through use of common area facilities, associations and board members will still be required to defend against such claims. There are limitless potential scenarios a COVID-19 claim might present. Any claims will need to evaluated on a case-by-case, fact-specific manner. But if there is no potential for coverage under the insurance policy, the insurer may have no duty to defend the claim. This could present a real financial burden, since the association will have to fund its own defense, even if the claim is unsuccessful. If the claimant wins, the association could be on the hook for the judgment.
On the other hand, it’s possible the association or board members could be sued by members claiming common area facilities should be (or should have earlier) reopened. Claims not involving personal injuries may potentially be covered under the association’s “D&O” (Directors and Officers) insurance policy. We’ll know better once such a claim is presented.
Decisions about reopening facilities should be made based on applicable public health orders and guidelines, rather than pressure being applied by owners and residents. Boards must keep up to date on applicable orders and guidelines so that risks can be balanced and addressed appropriately based on the best available information. Associations are required to comply with public health orders, and from a risk management standpoint should comply with all applicable guidelines, as they will serve as the minimum standards for evaluating whether the association met its standard of care to act reasonably in the management of the common area. Associations should consult with their insurance agents and should review their existing policies carefully. Kriger Law Firm can assist associations and managers in navigating these uncharted waters.
Steven Banks, Esq.
When your association receives a records request under Civil Code Section 5200 et seq, the first thing to analyze is the timeline for inspection of the records requested. Section 5210 of the Civil Code outlines the various timeframes for delivery or inspection of the records requested, and each category of records has its own corresponding time period. Because a failure to timely and adequately respond to records requests carries a statutory penalty of up to $500 per request, the Association should work quickly to analyze its time to respond.
After analyzing the timeline, the Association should determine if there are any exceptions to the records request that may apply. For example, the attorney-client privilege exception that applies to nearly any communication, contract, and invoice between an association and its attorney. Other types of association vendors, even those that do collections for the association, may not be afforded that type of protection from disclosure of documents under Civil Code Section 5200 et seq.
The Association should recall the general rule of thumb that homeowners are only entitled to inspect individual information if it pertains directly to that homeowner’s property or assessment account. Homeowners have no right to inspect their neighbor’s assessment ledger or interior architectural applications. Some exceptions may be made for exterior architectural modifications, such as when a neighbor’s signature is required as part of the architectural application process.
Be aware that records other than minutes of regular meetings – which remain subject to inspection forever – association records requests only pertain to records from the current fiscal year and the previous two fiscal years. For an Association whose fiscal year begins July 1, it can exclude documents created prior to July 1, 2017.
Finally, the Association should consider what information may be redacted and advise the homeowner who made the request of the redaction costs. Associations may charge $10 per hour for redaction up to $200 total. Be careful not to exceed this total, lest the Association be accused of limiting access to documents and overcharging for this work.
Following these basic steps and understanding the Association’s obligations under Civil Code Section 5200 will save the Association quite a bit of headache in the long run. If your Association needs any assistance with responding to a records request, please do not hesitate to contact our office.
Southern California superior courts are beginning the process of reopening following COVID-19 pandemic closures. The reopening process differs from county to county. Courts are now accepting new filings and certain types of motions are being heard. New and pre-closure filings are being processed. However, given backlogs and reduced staffing, considerable delays are anticipated. Courts are encouraging parties to resolve lawsuits and discovery disputes informally to ease backlogs. In litigation matters, written discovery is still taking place. Depositions and mediations are being held remotely. However, it appears that civil jury trials are still a long way off.
The following paragraphs generally summarize the present status of Southern California courts serving Kriger Law Firm clients on civil matters based on a review of court-published information.
SAN DIEGO COUNTY
San Diego Superior Court has resumed services effective May 26, 2020, but only persons needing emergency services can enter the courthouse. Social distance and must wear a mask and be screened by temperature reading before entering any court facility Many of the court’s usual activities are being handled online, over the phone or through video conference. Emergency needs (temporary restraining orders, etc.) can still be handled in person.
Civil jury trials are presently not being scheduled. All scheduled jury trials have been suspended and are continued for a period of at least 60 days. Previously set hearings, including trials, have been vacated and must be rescheduled after “meeting and conferring” (remotely, of course) with the opposing party. All hearing dates in limited civil cases and small claims cases have been vacated and will be re-scheduled by the court. Parties will be notified of new hearing dates and times, including information on how to appear at the hearing. Ex parte hearings can be scheduled but are only held telephonically.
Face coverings and social distancing are required of all persons entering Riverside County Superior Court facilities. All non-essential functions are suspended; only specific limited emergency matters are presently being heard. Many court locations are closed or have limited hours through June 12, 2020. Court staff answering phones and monitoring e-mails are limited, so expect lengthy wait times and delays. Only certain documents relating to emergency and essential matters are being processed; all other documents submitted will not be reviewed or filed until the court resumes normal operations.
All unlimited civil jury and court trials set have been vacated; trial dates are replaced with trial setting conferences at the same time and department. Limited civil trials are suspended until July 20, 2020. Certain civil matters such as temporary civil restraining orders, requests to renew restraining orders, ex parte applications, and stipulations, are being accepted. All other civil matters and hearings, except for post-trial motions, are being continued. All small claims hearings are postponed for 90 days. Notice of new hearings will be mailed by the Court. The Court Clerk’s Offices for small claims matters are closed.
The Court plans to summon jurors for appearance dates beginning in mid-June for a limited number of criminal trials that may start at that time, using health and safety protocols developed with the Riverside County Public Health Officer. Counsel or self-represented parties will be notified when cases are set for a hearing and whether participants will be required to appear in-person or telephonically.
SAN BERNARDINO COUNTY
San Bernardino Superior Court started gradually reopening on May 29th with modified service hours. New hearing dates and notices are being sent to attorneys and parties. Face coverings and social distancing are required. Persons are not allowed to enter the courthouse unless their case is being heard or their filing is being accepted inside. Alternative filing options include outside service windows and drop box locations. Filing documents, making payments and other court business may be accomplished by mail or fax .
Civil restraining orders remain in effect until new hearing dates are rescheduled. Time-sensitive and essential ex parte civil matters are being heard telephonically.
LOS ANGELES COUNTY
An order closing Los Angeles Superior Court courtrooms and delaying trials and non-essential matters has been extended through June 10th. All clerk’s offices are now slated to reopen on June 15th. At that time, the Court will offer telephonic and online options to conduct court business. To enforce social distancing, in-person services will require a prescheduled appointment.
When the Court reopens to the public on June 15, all persons will be required to wear face masks or facial coverings to enter any courthouse or courtroom. The only exceptions will be for a documented medical condition or excuse, or an ADA accommodation approved by the Court. Even then, persons entering may be restricted to a specific time of the day or be required to make an appointment.
Steven Banks, Esq.
Some Animals are More Assistive than Others: HUD Issues New Guidelines regarding Disability Accommodation Requests Involving Assistance Animals
It’s been almost a decade since the U.S. Department of Housing and Urban Development (“HUD”) last issued guidelines regarding assistance animals. Since then, use of assistance animals has increased considerably, as have efforts by some to exploit ambiguities, leading to news stories about emotional support peacocks and kangaroos. In the absence of clear guidance from HUD, HOAs have struggled with issues relating to accommodation requests involving assistive animals, such as the type and amount of documentation that can be required, particularly where a disability or a disability-related need for an animal isn’t clear. The issue has been a fertile ground for complaints and lawsuits. In fact, HUD says almost 60% of federal Fair Housing Act (“FHA”) complaints concern denial of reasonable accommodations and disability access. Of those, complaints regarding denial of assistance animal requests are among the most commonly received by HUD and are “significantly” increasing.
Fortunately, HUD has recently issued new guidelines for service animals and assistance animals under the FHA, which replace HUD’s prior 2013 guidelines. The new guidelines provide more clarity about acceptable assistance animals and about the application process through which requests for their use are reviewed. While the new guidelines do not modify present federal law or regulations, their use is “strongly” encouraged by HUD and will hopefully improve the application process for both applicants and HOAs. The new guidelines are broken into two sections: (1) “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act”; and (2) “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.”
The first section primarily sets forth best practices regarding determining if the animal in question qualifies as a “service animal” under federal law or is otherwise a support animal or other type of assistance animal that needs to be accommodated. The guidelines provide an outline of acceptable inquiries of applicants, depending on whether disabilities are readily observable. Details are also provided regarding when and in what manner accommodation requests can be made. Of note is HUD’s observation that in its experience, documentation (certificates, registrations, licensing documents, etc.) purchased from internet websites “is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.” The guidelines also differentiate between animals traditionally kept in households and “unique” animals. For approval of the latter, the requestor has the “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” The guidelines helpfully point out that “reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.”
The second section is intended to help disabled individuals document their need for an assistance animal. This includes helping them explain to their health care professionals the type of information HOAs may need to evaluate their request, particularly when their disability or disability-related need for an accommodation is not readily observable. The section also notes that HOAs cannot require health care professionals to use a specific or notarized form, verify statements under penalty of perjury, or provide a diagnosis or other detailed information about the applicant.
Kriger Law Firm routinely assists its community association clients throughout Southern California on assistance animal issues. We encourage you to review the new HUD guidelines in detail. The new HUD guidelines are available online for download at: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
Steven Banks, Esq.