Mid-Continent Casualty Co. v. Basdeo (742 F. Supp. 2d 1293, 2010)

United States District Court for the Southern District of Florida 2010-09-27

Citations

Full opinion text

ORDER

DONALD L. GRAHAM, District Judge.

THIS CAUSE came before the Court upon the Report of the Magistrate Judge [D.E. 251] regarding Defendant/Counter-Claimant Southgate Gardens Condominium Association, Inc.’s Motion for Summary Judgment on the Amended Complaint [D.E. 107], Defendant Guitree Basdeo’s Motion for Summary Judgment on the Amended Complaint and on the Counter-claim [D.E. 106], and Plaintiff Mid-Continent Casualty Company’s (“Mid-Continent”) Motions for Summary Judgment on Counts I and II of the Amended Complaint and on its Affirmative Defenses to the Counterclaim [D.E. 111].

THE MATTER was assigned to the Honorable United States Magistrate Judge Robin S. Rosenbaum upon an Order of Referral from District to Judge William J. Zolch [D.E. 243],

Upon review of the pleadings, and in a very through analysis, the Magistrate Judge issued the instant eighty-eight (88) page Report [D.E. 251] recommending that Mid-Continent’s Motion for Summary Judgment on Counts I and II [D.E. 112] be DENIED; that Mid-Continent’s Motion for Summary Judgment on its Affirmative Defenses [D.E. Ill] be DENIED with respect to its Sixth, Seventh, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses and be DENIED AS MOOT with regard to its Ninth Affirmative Defense; that Defendant Southgate’s Motion for Summary Judgment [D.E. 107] be GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it to Count III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint, and be DENIED as it relates to its Counter-claim and its affirmative defenses set forth in paragraphs 44 and 47 of Southgate’s Answer; and that Defendant Basdeo’s Motion for Summary Judgment [D.E. 106] be GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it to Count III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint.

Defendants Southgate and Basdeo filed joint objections to the Magistrate Judge’s Report [D.E. 256]. Although Defendants do not object to the ultimate rulings on the Summary Judgment counts, Defendants do object to certain findings of undisputed facts that Defendants assert are disputed by record evidence and omissions of certain facts that Defendants assert should be considered undisputed. Defendants request that certain revisions be made to the Report [D.E. 256]. The Court notes that while there may exist record support for some of the facts that Defendants now assert in their objections, the Court will not make these proposed undisputed factual findings because the statements of material facts failed to cite to the applicable record support and therefore violated the Local Rules. The Court also notes that while there appears to be an inconsistent finding regarding Mid-Continent’s failure to comply with the FCAS on page 55 of the Report, the Court concludes that this is a scrivener’s error. The Court finds that the ultimate conclusion regarding Mid-Continent’s failure to comply with the FCAS is correct. Finally, the Court does not find Defendants’ objection and request to include the Report reference to Bontempo v. State Farm Mutual Automobile Insurance Company, 604 So.2d 28 (Fla. 4th DCA 1992) to be meritorious. Rather, the Court finds Jones v. Florida Ins. Guar. Ass’n, Inc. (“FIGA ”), 908 So.2d 435, 442-43 (Fla.2005) to be instructive.

Plaintiff, Mid-Continent, also filed objections to the Magistrate Judge’s Report [D.E. 257]. Specifically, Plaintiff asserts that the Magistrate Judge: l)erred in finding that statutory estoppel precludes summary judgment for Mid-Continent; 2) erred in denying summary judgment to Mid-Continent based upon First State’s violation of the Policy’s cooperation clause; 3) erred in finding that Southgate is a named insured or otherwise qualifies as an insured under the policy; and 4) erred in finding that three occurrences took place and a $3 million applicable limit of liability coverage.

The Court finds that Plaintiffs objections are without merit. Specifically, the Court agrees, for the reasons set forth in the Magistrate Judge’s detailed Report, that: 1) Mid-Continent is statutorily es-topped from invoking its coverage defense; 2)First State’s failure to cooperate was not, as a matter of law, so prejudicial as to completely release Mid-Continent from its obligations under the Policy; 3) Southgate is a “Named Insured” under the Mid-Continent policy; and 4) three occurrences transpired each resulting from a separate force, distinguishable in time and space, and each subject to a $1 million cap for total liability limit of $3 million.

THE COURT has reviewed the entire file and the record. The Court has made a de novo review of the issues that the objections to the Magistrate Judge’s Report and Recommendation present and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that United States Magistrate Judge Rosenbaum’s Report [D.E. 251] is RATIFIED, AFFIRMED and APPROVED in its entirety. It is further

ORDERED AND ADJUDGED that Mid-Continent’s Motion for Summary Judgment on Counts I and II [D.E. 112] is DENIED. It is further

ORDERED AND ADJUDGED that Mid-Continent’s Motion for Summary Judgment on its Affirmative Defenses [D.E. Ill] is DENIED with respect to its Sixth, Seventh, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses is DENIED AS MOOT with regard to its Ninth Affirmative Defense. It is further

ORDERED AND ADJUDGED that Defendant Southgate’s Motion for Summary Judgment [D.E. 107] is GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it relates to Count III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint, and is DENIED as it relates to its Counter-claim and its affirmative defenses set forth in paragraphs 44 and 47 of South-gate’s Answer. It is further

ORDERED AND ADJUDGED that Defendant Basdeo’s Motion for Summary Judgment [D.E. 106] is GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it to Count III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint.

REPORT AND RECOMMENDATION

ROBIN S. ROSENBAUM, United States Magistrate Judge.

These matters are before the Court upon an Order of Referral [D.E. 243] from district judge concerning Defendant/Counter-Claimant Southgate Gardens Condominium Association, Inc.’s Motion for Summary Judgment on the Amended Complaint [D.E. 107], Defendant Guitree Basdeo’s Motion for Summary Judgment on the Amended Complaint and on the Counter-Claim [D.E. 106], and Plaintiff Mid-Continent Casualty Company’s Motions for Summary Judgment on Counts I and II of the Amended Complaint and on its Affirmative Defenses to the CounterClaim. [D.E. Ill, D.E. 112], Defendant Basdeo’s Motion to Amend Her Motion for Summary Judgment [D.E. 115]; Defendants’ Motion to Strike Affidavit and Errata Sheet of Keith Nye [D.E. 208], Defendant Southgate’s Motion to Join Basdeo’s Motion for Summary Judgment [D.E. 147], and Defendant Basdeo’s Motion to Join Southgate’s Motion for Summary Judgment [D.E. 142]. The Court held a hearing on August 17, 2001, where the parties presented argument.

Upon careful consideration of the record in this matter and oral argument, and being otherwise duly advised in the premises, I recommend that Mid-Continent’s Motion for Summary Judgment on Counts I and II [D.E. 112] be DENIED; that Mid-Continent’s Motion for Summary Judgment on Its Affirmative Defenses [D.E. Ill] be DENIED with respect to its Sixth, Seventh, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses and be DENIED AS MOOT with regard to its Ninth Affirmative Defense; that Defendant Southgate’s Motion for Summary Judgment [D.E. 107] be GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it relates to Counts III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint, and be DENIED and as it relates to its CounterClaim and its affirmative defenses set forth in paragraphs 44 and 47 of South-gate’s Answer; and that Defendant Basdeo’s Motion for Summary Judgment [D.E. 106] be GRANTED as it relates to Counts I and II of Mid-Continent’s Amended Complaint, DENIED as it relates to Counts III and IV of Mid-Continent’s Amended Complaint, and DENIED AS MOOT as it relates to Count V of Mid-Continent’s Amended Complaint.

I. Background

In 2005 Hurricane Wilma inflicted significant damage on the buildings and units located at Defendant/Counter-Claimant Southgate Gardens Condominium Association, Inc. (“Southgate”). To repair the damage to the buildings and units, South-gate hired building contractor First State Development Corporation (“First State”).

Following numerous problems with First State’s performance and substantial alleged damage resulting from First State’s activities, Southgate fired First State in 2006. Subsequently, in 2007, Southgate and Defendant Guitree Basdeo (“Basdeo”), an individual unit owner at Southgate, filed separate complaints in Florida state court against First State asserting, among other allegations, breach of contract, negligence, and conversion. When First State failed to appear or file a notice in the state cases, after motions by Southgate and Basdeo, the state court entered default judgments regarding liability (but not damages) against First State.

Because First State had an insurance policy with Plaintiff/Counter-Defendant Mid-Continental Casualty Company (“Mid-Continent” or “Plaintiff’) during First State’s services to Southgate, Mid-Continent filed this lawsuit for declaratory relief seeking an order announcing that Mid-Continent owed no duty to defend or indemnify First State from the state court judgments and alternatively limiting coverage under the insurance policy at issue. Subsequently, Defendant Southgate filed a Counter-Claim seeking a declaratory judgment finding, essentially, the opposite.

II. Preliminary Matters

Before addressing the parties’ Motions for Summary Judgment, the Court pauses to announce its rulings on the various other pending motions relating to the Motions for Summary Judgment. Because these matters relate to the Motions for Summary Judgment, the Court addresses them in this Report and Recommendation, even though pursuant to the Order of Referral, the Court issues its actual orders on these motions separately.

A. Defendant Basdeo’s Motion to Amend Her Motion for Summary Judgment [D.E. 115]

Defendant Basdeo filed her Motion for Summary Judgment. [D.E. 106]. Later the same day, Defendant Basdeo filed a Motion to Amend the Motion for Summary Judgment [D.E. 115] and attached exhibits to the Motion. Both the original Motion for Summary Judgment and the Motion to Amend appear to be the same in all respects except that the Motion to Amend attaches exhibits. No party has objected to Basdeo’s Motion to Amend, and the Motion to Amend was timely filed. In view of these facts, by separate Order, the Court GRANTS Basdeo’s Motion to Amend the Motion for Summary Judgment. Thus, the Court considers Basdeo’s Motion for Summary Judgment as filed at D.E. 115.

B. Defendant Southgate’s Motion to Join in Defendant Basdeo’s Motion for Summary Judgment [D.E. 128] and Defendant Basdeo’s Unopposed Motion to Join in Defendant South-gate’s Motion for Summary Judgment [D.E. 142]

Defendant Southgate filed its Notice of and Motion to Join in Defendant Basdeo’s Motion for Summary Judgment [D.E. 128]. In its Notice and Motion, Defendant Southgate represented that Defendant Basdeo consented to Southgate’s Motion, but Plaintiff opposed the Motion. See id. Subsequently, Plaintiff notified the Court that it had no objection to Defendant Southgate’s Motion. See D.E. 147. In addition, Defendant Basdeo filed her Notice of and Motion to Join in Defendant Southgate’s Motion for Summary Judgment, and stated that both Defendant Southgate and Plaintiff consented to Basdeo’s Motion. See D.E. 142.

Upon review of the filings and in view of the lack of objection to each Defendant’s separate Motion, by separate Order, the Court GRANTS both Defendant South-gate’s Notice of and Motion to Join in Defendant Basdeo’s Motion for Summary Judgment [D.E. 128] and Defendant Basdeo’s Unopposed Notice of and Motion to Join in Defendant Southgate’s Motion for Summary Judgment [D.E. 142],

C. Compliance with Local Rule 7.5, S.D. Fla.

In Mid-Continent’s Response to Basdeo’s Statement of Facts, Mid-Continent argues that Basdeo failed to file a statement of undisputed material facts in support of her Motion for Summary Judgment [D.E. 115] in accordance with Local Rule 7.5(c), S.D. Fla., and requests that the Court deny Basdeo’s Motion for Summary Judgment on this basis alone. See D.E. 167 at 1. Alternatively, Mid-Continent parsed out into separately numbered paragraphs what it viewed as each material fact of the proposed facts that Basdeo set forth in her Motion for Summary Judgment, and attached it to its filing as “Exhibit A.” See D.E. 167 at 1; Exhibit A, D.E. 167-1 at 1-7. Thereafter, Mid-Continent provided a specific response to each of the separately numbered paragraphs of facts it set forth in Exhibit A. D.E. 167 at 2-8.

Local Rule 7.5, S.D. Fla., requires, in relevant part, as follows:

(a) Motions for Summary Judgment. Motions for summary judgment shall be accompanied by a memorandum of law, necessary affidavits, and a concise statement of materials facts as to which the movant contends there exists no genuine issue to be tried.

(c) Statement of Material Facts. The statement of material facts submitted ... in support of ... a motion for summary judgment shall:

(1) Not exceed ten (10) pages in length;

(2) Be supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court; and

(3) Consist of separately numbered paragraphs.

S.D. Fla. L.R. 7.5. Upon review of Defendant Basdeo’s Motion for Summary Judgment and Basdeo’s submissions in the docket, the Court agrees that Defendant Basdeo did not meet the requirements of Local Rule 7.5, S.D. Fla. First, Basdeo has identified nothing that she has filed in support of her Motion for Summary Judgment as a statement of undisputed material facts. Second, while Basdeo did set forth a section entitled “Factual Background” in her Motion for Summary Judgment [see D.E. 115 at 1-6], this section fails to separate facts into individually numbered paragraphs and does not contain specific references to the record to support each and every one of the facts alleged.

The Court enjoys discretion to strike Basdeo’s Motion for this reason alone. Nevertheless, Co-defendant Southgate’s Motion for Summary Judgment does comply with the Local Rules, and Defendants have joined each other’s Motions for Summary Judgment. Moreover, the two Motions are substantially similar. Thus, the Court would consider Southgate’s Motion even if it were to decline to address Basdeo’s Motion. Under these particular circumstances, while the Court does not condone violations of the Local Rules, the Court finds that the best use of its resources weighs against striking Basdeo’s Motion for violation of this particular Local Rule.

Instead, the Court considers Basdeo’s Motion and “Factual Background” to the extent that Basdeo, Southgate, or Mid-Continent has identified support in the record for the contentions contained therein. Should Basdeo have failed to cite record support for any fact and should neither of the other parties have otherwise set forth support for a factual proposition, however, under Local Rule 7.5(c), the Court will not consider the proposed fact. For ease of discussion and in the absence of any objection by Basdeo to Mid-Continent’s rendition of Basdeo’s contentions of undisputed material facts set forth in Exhibit A to Mid-Continent’s Response to Basdeo’s Statement of Facts in her Reply [see D.E. 197, 205], the Court refers in this Report and Recommendation to the separately numbered paragraphs of facts articulated in Exhibit A as though it were Basdeo’s Statement of Undisputed Facts [D.E. 167-1].

Along the same lines, while no party has brought this matter up, Local Rule 7.5(b), S.D. Fla., requires of parties opposing a motion for summary judgment that they submit a “single concise statement of material facts as to which it is contended that there exists a genuine issue to be tried,” and Local Rule 7.5(c) specifies that such statement must be “supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court.” Furthermore, where the Court finds that the movant’s statement of facts is supported by the evidence in the record, “[a]ll material facts set forth in the movant’s statement ... will be deemed admitted unless controverted by the opposing party’s statement. ...” L.R. 7.5(d), S.D. Fla.

Upon review of Defendant Basdeo’s, Defendant Southgate’s and Plaintiffs respective Oppositions to the opposing parties’ statements of undisputed material facts, the Court notes that these Oppositions fail to provide evidentiary support for each and every fact offered in opposition to the facts set forth in the proponents’ various material statements of undisputed fact. Thus, in accordance with Local Rule 7.5, where a party has failed to direct the Court to evidentiary support in the record for any proposed contravening material fact, the Court deems the corresponding proposed uncontroverted material fact admitted for purposes of the Motions for Summary Judgment, provided that the Court finds the statement of material fact at issue to be supported by the evidence.

D. Defendants Southgate and Basdeo’s Joint Motion to Strike [D.E. 208]

In Defendants’ Joint Motion to Strike, Defendants assert that an Affidavit by Keith Nye [see D.E. 114-17] filed in support of Plaintiffs Motion for Summary Judgment, and an errata sheet for Nye’s deposition testimony [see D.E. 163], should be stricken. D.E. 208. The Court addresses each issue in turn.

1. Affidavit of Keith Nye

According to Defendants, Nye’s original Affidavit was unsigned, and it was neither signed nor notarized by an authorized officer. As a result, Defendants urge, Nye’s Affidavit failed to comport with Rule 56(e), Fed.R.Civ.P. While Defendants acknowledge that Plaintiff has now submitted an executed copy of the Affidavit [see D.E. 207-1], Defendants assert that they are still prejudiced because the Court could have decided the Motion on an unsigned affidavit, as originally submitted by Plaintiff.

Under Rule 56, Fed.R.Civ.P., affidavits supporting or opposing summary judgment must be made on personal knowledge and must set forth facts that would constitute admissible evidence. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir.1999); Fed.R.Civ.P. 56. As a result, “[u]nsworn statements ... should not be ‘considered] in determining the propriety of summary judgment.’ ” McCaskill v. Ray, 279 Fed.Appx. 913, 915 (11th Cir.2008) (quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980)); see also Beard v. Green, 2010 WL 411084, *10 (S.D.Fla. Jan. 29, 2010) (striking unsworn statement in support of the opposition to motion for summary judgment); Wallace v. City of Tarpon Springs, 2007 WL 128839, *5 (M.D.Fla. Jan. 12, 2007) (same).

After review of the signed and notarized Nye Affidavit filed on January 13, 2010, the Court declines to grant Defendants’ Motion to Strike the Affidavit. Explaining that it had filed the unsigned version of the Nye Affidavit inadvertently, Plaintiff ultimately filed a properly executed Nye Affidavit that was signed and notarized on November 16, 2010, prior to the date of Plaintiffs original submission of its Motion for Summary Judgment on November 23, 2009. To the extent that Defendants suggest that late production of the signed Affidavit prejudiced them because the Court could have decided their Motions on the unsigned version, the Court rejects this argument as moot because no decision had been issued as of the time of the filing of the signed version.

The Court finds that the Nye Affidavit as filed on January 13, 2010, properly meets standards set forth in Rule 56, Fed. R.Civ.P. Thus, the Court substitutes the properly executed Nye affidavit at D.E. 207-1 for the deficient one at D.E. 114-17. See Hetrick v. Ideal Image Devel. Corp., 2008 WL 5235131, *8 (M.D.Fla. Dec. 13, 2008) (denying in part motion to strike unsigned affidavit where party subsequently noted that it had inadvertently filed the unsigned version of the affidavit and provided properly executed affidavit).

As a second basis for striking Nye’s Affidavit, Defendants argue that the Affidavit attempts to create a genuine issue of material of fact in that it allegedly conflicts with the prior deposition testimony of Nye, whom Mid-Continent presented in both his individual capacity and in his capacity as Mid-Continent’s Rule 30(b)(6), Fed. R.Civ.P., witness. Specifically, Defendants object to paragraph 6 and part of paragraph 18 of the Affidavit, contending that these aspects of the Affidavit directly contradict Nye’s prior deposition testimony.

In the Eleventh Circuit, “ ‘[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact [for summary judgment], that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ Such an affidavit would be a sham.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003) (quoting Van T. Junkins & Assocs., Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984) (emphasis added by McCormick Court)). As a result, where the offering party fails to set forth a valid explanation for the change, a court may strike the offending portions of the affidavit. Id. at 656-658.

In order to be stricken as a sham, an affidavit must be inherently inconsistent. See, e.g., Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) (citing to Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir.1986)). When an affidavit contains a satisfactory explanation of the contradictions between it and the affiant’s earlier testimony, or when newly discovered evidence furnishes a good-faith basis for any inconsistency between the two, however, the Court may consider such an affidavit. See, e.g., Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir.1985).

Pursuant to this standard, this Court has conducted a detailed review of Nye’s deposition transcript and his Affidavit and finds that paragraphs 6 and 18 of Nye’s Affidavit do not contradict his deposition testimony. In paragraph 6 of Nye’s Affidavit, Nye states, “Prior to [August 14, 2007] ..., no unit owners other than Bogosian[] had advised Mid-Continent of their claim against First State.” D.E. 207-1 at 2, ¶ 6; see also ¶ 5. In support of their Motion to Strike the Nye Affidavit, Defendants point to the following Nye deposition testimony as conflicting with the statement in paragraph 6:

Q: If you receive a notice of a claim and you send out a field adjuster to investigate that claim and your field adjuster is then notified by the claimant that there are additional and other claimants, then I just want to confirm, you consider that to be notice of the claim, is that correct.

NYE: Yes.

D.E. 115-2 at 19:8-17 (“Notice Response”). Defendants also direct the Court to the following Nye testimony regarding Lydia Hollander, an independent adjuster hired by Mid-Continent to investigate Bogosian’s claim, and assert that it, too, conflicts with paragraph 6:

Q: ... According to Lydia Hollander’s report, on October 17th, 2006, ... Mid-Continent had knowledge that wind-driven rain had gone into units other than Mr. Bogosian’s, correct?

NYE: Yes.

D.E. 115-2 at 119:18-25 (“Hollander Response”). Additionally, Defendants point to Bogosian’s deposition testimony for the proposition that Bogosian notified Hollander on December 22, 2006, that Bogosian planned to bring claims on behalf of South-gate Gardens Condominiums against Mid-Continent.

The Court does not agree with Defendants that Nye’s statement in paragraph 6 is inconsistent with Nye’s deposition testimony. First, the Court does not consider Bogosian’s testimony in the analysis since Bogosian’s testimony does not bear on whether Nye contradicted himself.

Second, Nye’s Notice Response during his deposition regards the ways in which he understands Mid-Continent to receive “notice of a claim” in general, whereas Nye’s Affidavit speaks to whether Nye, on behalf of Mid-Continent, received notice of a specific claim. Thus, no contradiction between the two statements exists.

Second, while Nye’s Hollander Response in his deposition testimony indicates that Nye was aware that wind-driven rain had entered units other than Bogosian’s, contrary to Defendants’ suggestion, this response does not suggest that unit owners other than Bogosian had advised Mid-Continent of their claims against First State. Indeed, later in his deposition, Nye testified that Mid-Continent had no knowledge that any other unit owners planned on making any claims. See D.E. 115-2 at 120:1-9. As a result, the Court finds that paragraph 6 of Nye’s affidavit does not conflict with Nye’s deposition testimony.

Next, the Court turns to the disputed portions of paragraph 18 of Nye’s Affidavit:

18. As a result of the insured’s lack of cooperation, Mid-Continent was unable to fully investigate or defend these matters. For example, it was unable to ... obtain the insured’s version of what damage, if any[,] was caused by First State ... to Southgate, the condition of the Southgate Gardens or individual units as of November 1, 2009[,] ... or First State’s complete job file which was the best evidence of whether First State may have hired sub-contractors to perform any of the work that was allegedly

D.E. 207-1 at 3-4, ¶ 18. Defendants contend that this statement contradicts Nye’s testimony that Mid-Continent (1) was able to determine that First State had direct responsibility to perform the roofing; (2) was able to determine that First State hired a sub-contractor to assist in repair work; (3) was able to determine that First State had left open certain portions of the roof (mansards) causing damages; (4) was able to learn about First State’s work on interiors to the Southgate Gardens property; (5) was able to learned through a statement from First State about wind-driven rain that had entered the buildings; and (6) acknowledged that Hollander had inspected the property twice before November 1, 2009.

The Court disagrees. First, comparison of the challenged portions of paragraph 18 with the parts of Nye’s deposition testimony to which Defendants direct the Court reveals nothing inherently inconsistent in the two. The fact that Mid-Continent may have been able to make certain determinations and learn of some details regarding the Southgate Gardens claim does not necessarily mean that Mid-Continent was able to investigate the Southgate Gardens claim fully. Similarly, none of the determinations, knowledge, or acknowledgments cited by Defendants demonstrate that Mid-Continent was able to obtain First State’s version of “what damage, if any[,] was caused by First State ... to Southgate, the condition of the Southgate Gardens or individual units as of November 1, 2009[,] ... or First State’s complete job file.” Nor do any of Defendants’ citations indicate that Mid-Continent ever suggested that anything other than First State’s complete job file would have provided the best evidence of whether First State may have hired sub-contractors to perform any of the work that was allegedly defectively performed. Because the Affidavit does not conflict with Nye’s deposition testimony, striking is not appropriate.

Moreover, review of Nye’s deposition reveals that his Affidavit is actually consistent with his deposition testimony. More specifically, although Nye acknowledged in his deposition that Mid-Continent received from other sources some information that it sought originally from First State, Nye never asserted that based on such information, Mid-Continent could complete its investigation of the claims at issue, and Nye confirmed that it needed First State’s assistance to investigate the claim, consistent with paragraph 18 of his Affidavit. See D.E. 115-2 at 105:13-17; 59:16-24; 72:1-9; 91:5-21; 104:16-20; 160:4-162:8; 108:13-17.

For example, while Nye confirmed that during First State’s cooperation on the Bogosian claim investigation, First State acknowledged that wind-driven rain had entered the buildings after First State started its work on the property and that First State had left the mansard portion of roofs open, Nye also affirmatively stated in his deposition that Mid-Continent could not rely upon First State’s initial cooperation on the Bogosian claim in investigating the Southgate Gardens claim. See D.E. 115-2 at 108:13-17. Furthermore, in his deposition, Nye explained that because Mid-Continent was unable to schedule an inspection with Southgate, Mid-Continent could not establish why water had entered the buildings. See D.E. 115-2 at 59:16-24.

Similarly, Nye affirmed in his deposition that Mid-Continent needed First State’s files in order to discover the specific work First State performed at Southgate Gardens and any problems associated with its work, and Mid-Continent could not obtain such information without First State’s cooperation. See D.E. 115-2 at 91:5-21; 160:4-161:13; 108:2-17. As represented by Nye in his deposition, First State never provided such information. See D.E. 108:2-12.

Nye further stated that because First State never allowed Mid-Continent to review its files, Mid-Continent could not fully determine what the buildings looked like before First State began its work in order to determine the extent of damages allegedly caused by First State, as opposed to damages caused by the hurricane that precipitated Southgate’s hiring of First State. See D.E. 115-2 at 72:1-9; 104:16-20; 160:4-162:8. Although Nye recognized in his deposition that First State informed Hollander that it had used sub-contractors, Nye’s deposition testimony indicates that because First State did not provide its files, Nye did not know if there were any contracts regarding work or the contents of those contracts necessary to investigate a claim. See D.E. 115-2 at 160:4-18; 91:5-20. Finally, to the extent that Nye confirmed in his deposition that Hollander visited the property, Nye stated that Hollander only performed a “general overview” during her visit and did not perform an inspection. See D.E. 115-2 at 62:10-63:11. In short, Defendants have not demonstrated a basis for striking Nye’s Affidavit; accordingly, by separate order, Defendants’ Motion is DENIED in this regard.

2. Keith Nye’s Errata Sheet for His Deposition Testimony

In their Motion to Strike as it pertains to Nye’s errata sheet, Defendants argue that Nye’s errata sheet for his deposition should be stricken because it fails to comply with Rule 30(e), Fed.R.Civ.P. According to Defendants, Plaintiffs attorney received Nye’s deposition transcript on November 8, 2009, and Plaintiff filed the unsigned, uncertified errata sheet on December 30, 2009 [see D.E. 163]. As a basis for striking the errata sheet, Defendants contend that Plaintiff produced the Nye errata sheet well after the 30-day deadline and failed to provide a signed and certified errata sheet, in contravention of the requirements set forth in Rule 30(e), Fed.R.Civ.P. Defendants also assert that the Nye errata sheet attempts to change Nye’s deposition testimony substantively in a manner that affects the heart of Plaintiffs case and violates the scope of Rule 30(e). According to case law, Defendants contend, Rule 30(e) does not allow for substantive changes to deposition testimony through the submission of errata sheets.

In its Opposition to Defendants’ Motion, Plaintiff argues that Nye’s errata sheet complies with the requirements of Rule 30(e) and that the errata sheet does not substantively change Nye’s testimony. Moreover, contrary to Defendants’ position, Plaintiff asserts that Rule 30(e) permits a party to make substantive changes to a deposition transcript through the submission of an errata sheet. In this regard, Plaintiff urges that the plain language of Rule 30(e) and the case law of the Eleventh Circuit allow for substantive changes. Plaintiff also contends that Nye’s errata sheet changes do not contradict his deposition testimony. Along with the filing of its Opposition, Plaintiff provided a signed and notarized errata sheet for Nye dated January 29, 2010, that it represents was sent to the court reporter from Nye’s deposition. See D.E. 232-4.

The Court starts by looking to Rule 30(e), which provides,

(1) ... On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) ... The officer must note in the certificate [that must accompany the record] ... whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

Id. The plain language of the rule requires that the deponent provide the errata sheet within thirty days of being notified that the transcript is available, and failure to do so can constitute grounds to strike an errata sheet. See Welch v. Mercer University, 304 Fed.Appx. 834, 838 (11th Cir.2008) (on appeal for grant of summary judgment against plaintiff, the court of appeals affirmed the lower court’s striking of plaintiffs deposition errata sheet for failure to provide the errata sheet within thirty days of production of the transcript to plaintiff as required by Rule 30(e)); Ross v. City of Perry, Ga., 2009 WL 3190450, *6 (M.D.Fla. Sept. 30, 2009) (finding submission of errata sheet 98 days after sheet was due was time-barred and striking errata sheet for failure to comply with Rule 30(e)).

The 30-day requirement set forth in Rule 30(e) seeks to prevent any abuse or unfair surprise for the benefit of all parties. “[I]f a deponent is going to change his/her testimony in ‘form or substance,’ the parties need to know that promptly to guide subsequent discovery efforts and trial preparation.” In re Kugel Mesh Hernia Repair Patch Litigation, 2010 WL 678092, *2 (D.R.I. Feb. 24, 2010) (striking errata sheet, in part, for failing to meet 30-day deadline set forth in Rule 30(e)).

Turning to Defendants’ Motion, the Court finds sufficient grounds to strike the Nye errata sheet. Applying Rule 30(e), Fed. R. Civ. P., to the facts of this case, the Court finds that the filing of Nye’s errata sheet on December 30, 2009, 59 days after Defendants’ undisputed representation of the delivery date of a copy of Nye’s deposition transcript to Plaintiffs counsel on November 8, 2009, violates the 30-day requirement set forth in Rule 30(e). Compounding the Rule 30(e) transgression, the December 30, 2009, Nye errata sheet was unsigned and uncertified. While Plaintiff later provided a signed and notarized version of Nye’s errata sheet to Defendants, the signed and notarized version of the Nye errata sheet reveals a signing date of January 27, 2010 — more than 86 days after delivery of the transcript to Plaintiffs counsel, and even further outside the 30-day requirement set forth in Rule 30(e). Nor did Plaintiff make any attempt to provide an explanation or otherwise establish good cause for the out-of-time production of the Nye errata sheet.

The deadline for submission of Nye’s errata sheet was December 8, 2009, within the December 28, 2009, discovery deadline in this case. Had Plaintiff timely provided the errata sheet by December 8, 2009, any questions regarding the substantive nature of Nye’s errata sheet changes could have been addressed as part of the discovery process. Instead, however, Plaintiff submitted the errata sheet on December 29, 2009 — the day after discovery in this matter closed. This is precisely what the 30-day deadline seeks to prevent.

Thus, the Court strikes the errata sheet for failure to comply with the 30-day rule. See Welch, 304 Fed.Appx. at 838; Ross, 2009 WL 3190450, at *6. As the Court strikes Nye’s errata sheet on this basis, the remainder of Defendants’ arguments concerning Nye’s errata sheet are moot.

In sum, the Court denies Defendants’ Motion to Strike as it seeks to exclude the Nye Affidavit and will consider the Nye Affidavit in determination of the pending Motions for Summary Judgment. On the other hand, the Court grants Defendants’ Motion to Strike as it requests to strike the Nye errata sheet and shall not consider the errata sheet in the determination of the pending Motions for Summary Judgment. Thus, by separate order, the Court DENIES IN PART and GRANTS IN PART Defendants’ Motion to Strike [D.E. 208],

III. Undisputed Material Facts

The Court now turns to the pending Motions for Summary Judgment and sets forth the undisputed material facts.

On October 24 and 25, 2005, Hurricane Wilma struck South Florida and caused damage to some of the buildings at South-gate. D.E. 167-1, ¶ 4; D.E. 114, ¶1; D.E. 108, ¶ 1. In order to repair the damage caused by Hurricane Wilma, Southgate hired First State. D.E. 114, ¶ 2. On or about November 1, 2005, First State issued an invoice to Southgate for “tarping.” D.E. 108, ¶ 2; D.E. 114-3. The invoice indicated that the work for which it was billing was completed on November 1, 2005. D.E. 114-3. Subsequently, on November 11, 2005, First State entered into a contract with Southgate to remove and replace the roofs of the Southgate buildings, remove debris, and “re-do interior as scoped by ins[urance] co[mpany] & contractor.” D.E. 114-2.

Upon First State’s arrival at Southgate, First State attempted to place tarps on the buildings to protect them against damage. D.E. 114, ¶ 4; D.E. 160-1 at 21; D.E. 118-1 at 42. The tarps placed by First State were either inadequate or did not stay in place. D.E. 114, ¶ 5; D.E. 160-1 at 21; D.E. 118-1 at 42. As a result, water entered the unit of Wane Bogosian (“Bogosian”). D.E. 114, ¶ 5. Bogosian’s unit is located in Building 11 of Southgate Gardens. D.E. 167-1, ¶ 13.

In attaching the tarps, First State caused holes to be made in the roofs of buildings at Southgate, leading to additional interior damage. D.E. 108, ¶ 3; D.E. 118-1 at 42, 73, 107, 111. First State also left the mansards open. D.E. 167-1, ¶ 8. In addition, the peeled back condition of the roofing left the interior of the buildings exposed to the elements, and some rain entered through those openings. D.E. 108, ¶ 18.

Prior to Southgate’s hiring of First State, Mid-Continent entered into a contract of insurance with First State, policy number 04-GL-000608900 (“Policy”). D.E. 167-1, ¶ 11; D.E. 108, ¶¶5-6. The Policy was in full force and effect from October 28, 2005, through October 28, 2006. D.E. 108, ¶ 7. On the contract, the address of First State is listed as 1562 N.E. “Qwayside” Terr., Miami, FL 33138. D.E. 167-1, ¶ 46. At the time of the claim, First State was insured by Mid-Continent under the Policy. D.E. 114, ¶ 7. On September 11, 2006, Bogosian presented to Mid-Continent a claim for damages allegedly stemming from First State’s work. D.E. 114, ¶ 6; D.E. 108, ¶ 8.

Mid-Continent opened a claim for Bogosian on September 15, 2006, under the claim number 1900313, and assigned the matter to Jeff Lewis (“Lewis”), a senior adjuster in Mid-Continent’s Tampa branch office. D.E. 114, ¶ 8; D.E. 108, ¶ 9. When Lewis interviewed Bogosian, Bogosian stated that First State had torn off the roof of his building in either July or August and had not repaired the roof properly. D.E. 114, ¶ 9. As a result, Bogosian complained, portions of his unit that had not previously been damaged by Hurricane Wilma subsequently sustained damage from water intrusion. D.E. 114, ¶ 9.

In addition, Lewis contacted Ronald Green and David Perry of First State. D.E. 114, ¶ 10; D.E. 114-10 at ¶4. On September 20, 2006, First State informed Lewis that First State denied any wrongdoing, and the company refused to complete Mid-Continent’s standard building questionnaire that it uses when investigating a claim or to provide any other documentation to Lewis. D.E. 114, ¶ 11. Furthermore, First State denied responsibility for any of the damages in Bogosian’s unit and advised Lewis that First State did not want Mid-Continent’s assistance. D.E. 114, ¶ 19. In response, Lewis notified the insured of its obligation to cooperate in the investigation of the Bogosian claim and sent letters on October 4 and 25, 2006, reserving its rights. D.E. 114, ¶ 12; D.E. 114-11; D.E. 114-12.

After Lewis met with First State, on October 4, 2006, Lewis hired Frontier Adjusters (“Frontier”) to assist in the investigation of the Bogosian claim. D.E. 114, ¶ 13; D.E. 108, ¶ 10; D.E. 167-1, ¶¶ 14, 16. Frontier assigned Lydia Hollander (“Hollander”) to investigate Bogosian’s claim. D.E. 167-1, ¶ 15; D.E. 114, ¶ 14.

According to Hollander’s October 17, 2006, report, Hollander met with David Perry, CEO of First State, and interviewed him at First State’s office. D.E. 167-1, ¶ 19; D.E. 108, ¶ 11; D.E. 121-1 at 61-67. Hollander stated in her report that Perry provided her with the names of the construction superintendent, Bobby Cimino, and the job foreman, Justin Ahern, for the Southgate project. D.E. 108, ¶ 11. She further indicated in her report that Perry identified the Southgate property manager as Kerry Friedman (“Friedman”) of Phoenix Management. D.E. 108, ¶ 11.

Hollander also stated that according to Perry, First State’s assignment was based on the insurance proceeds to be paid by Southgate’s insurance company, Aspen Insurance Company (“Aspen”). D.E. 108, ¶ 11. Additionally, Perry represented to Hollander that he had conducted a walk-through of the property with Aspen. D.E. 108, ¶ 11. As set forth in Hollander’s report, Perry stated that First State had direct responsibility for the roofing. D.E. 108, ¶ 11. Furthermore, Perry informed Hollander of the identity of a sub-contractor named MVM, part of J & J Drywall, whom Perry indicated First State hired to do truss repairs and the balance of the sheathing and shingle work to the roofs. D.E. 108, ¶ 11. Hollander’s report also noted that Perry stated that First State agreed to repair any additional damage that may occur inside the units at no additional charge to Southgate. D.E. 108, ¶ 11. Finally, Perry informed Hollander that “wind[-]driven rain has gone into the units, including [Bogosian’s unit] ....” D.E. 167-1, ¶20; D.E. 108, ¶ 12.

In her report, Hollander documented that the day after the meeting with Perry, she met with another individual representing First State and examined a portion of First State’s job file consisting of some permits and violations. D.E. 114, ¶ 14. Hollander requested that First State prepare copies of these documents and make the entire job file available for her review. D.E. 114, ¶ 14. First State, however, never did either, despite Hollander’s renewed requests in writing and by phone. D.E. 114, ¶ 14.

In the same October 17th report, Hollander stated that on or about October 11, 2006, she met with Wanda Murtadha (“Murtadha”), who identified herself as a director on the board of Southgate. D.E. 167-1, ¶ 17. According to Hollander’s report, during the meeting, Murtadha stated to Hollander that 94 units at Southgate had been damaged “either because of Hurricane Wilma or during the construction.” D.E. 167-1, ¶ 18.

The October 17th report also detailed the inspection that Hollander conducted at the Southgate property. Hollander stated that on October 11, 2006, she inspected Bogosian’s unit and the portion of the roof over Bogosian’s unit of Building 11 with property adjuster Frederick Barrie. D.E. 108, ¶ 13. Barrie accompanied Hollander to the Southgate property to write the estimate of damages and to take photographs. D.E. 167-1, ¶ 35; D.E. 114, ¶ 15. While on the roof of the building, Barrie and Hollander caused photographs of the surrounding buildings to be taken and subsequently caused comments to be written regarding the pictures. D.E. 108, ¶ 14; D.E. 168, ¶ 14. Some of the comments stated, “peeled back felt east,” “peeled back felt,” “pulled back felt,” “all 7 roofs are peeled back,” and “peeled back eye level.” D.E. 108, ¶ 14; D.E. 167-1, ¶ 23; D.E. 122-1 at 7-16. Hollander also remarked, “Attached are several photos of the roof of Building II. In the background, you will see some photos of other roofs. I did not see any tarps available on the property nor were any of the buildings tarped in the event of further rain. I also noted what appeared to be dried out and/or rotten wood as part of the sheathing underneath the roof deck (photo 6 on Page 4 of the photo report).” D.E. 167-1, ¶ 22.

In the preparation of his damages estimate regarding Bogosian’s unit, Barrie was not asked to separate the damages caused by Hurricane Wilma from the damages caused by First State. D.E. 167-1, ¶ 36. The estimate included damage to Bogosian’s personal property and to the interior of the unit. D.E. 114, ¶ 15.

In November of 2006, Mid-Continent, through delivery to Hollander, received a copy of the Southgate and First State contracts for hurricane repairs. D.E. 108, ¶ 19. Additionally, on or about December 22, 2006, Hollander spoke to Bogosian over the telephone, and Bogosian stated that “he is now the President of the Association,” and that “he would be filing claims against First State ... on behalf of the Association.” D.E. 167-1, ¶ ¶ 24, 25; D.E. 108, ¶ 21; D.E. 114, ¶ 17. At that time, Hollander asked Bogosian for case numbers of any lawsuits, and he stated that none had been filed yet. D.E. 114, ¶ 17.

Basdeo testified that as of November 2006, Southgate members had not “seen [First State] for months ....” D.E. 166, ¶ 11; D.E. 123-1 at 30-31. On December 29, 2006, in a letter to First State, Robert Kaye, Southgate’s attorney, formally terminated its contract with First State for “its on-going material breaches of [the] ... contract” and opined that “the property has experienced significant damages as a result of the negligence of First State ....” D.E. 108, ¶22; D.E. 114, ¶34. Kaye also directed First State to notify its insurer of Southgate’s claim. D.E. 114, ¶ 34. Although Kaye instructed First State to inform its insurer, First State never provided this letter to Mid-Continent. D.E. 114, ¶ 34.

At the time that Southgate ended its contract with First State, First State had not completed its work. D.E. 114, ¶ 35. In fact, Southgate had to hire three other contractors to finish the exterior and interior repairs. D.E. 114, ¶ 35.

During the course of her investigation, Hollander became aware that units at Southgate other than that of Bogosian may have sustained damage allegedly as a result of First State’s work. D.E. 114, ¶ 17. Although as of December 22, 2006, Hollander confirmed that no lawsuits had been filed, as set forth in her February 28, 2007, report, Mid-Continent nevertheless decided to investigate these potential claims. D.E. 114, ¶ 17. On July 9, 2007, Mid-Continent opened a separate claim file under number 190053 for the potential claim of Southgate. D.E. 108, ¶ 28; D.E. 114, ¶ 17. When unit owners other than Bogosian later made claims, Mid-Continent used this same number for them. D.E. 114, ¶ 17.

Mid-Continent requested that Hollander investigate the potential non-Bogosian Southgate-related claims. D.E. 114, ¶ 18. Her new assignment included attempting to contact the insured, obtaining copies of any lawsuits filed against First State, and conducting an investigation with HSA Engineers & Scientists (“HSA”), an engineering firm retained by Mid-Continent, to determine the cause of the alleged damage suffered by Southgate and unit owners other than Bogosian. D.E. 114, ¶ 18.

On March 12, 2007, Mid-Continent retained HSA. D.E. 114, ¶ 19. From March until July, Hollander attempted to arrange for an inspection of Southgate and the individual units. D.E. 114, ¶ 19.

During this period, on June 12, 2007, Hollander sent a letter on behalf of Mid-Continent to Bogosian which offered to settle his claim against First State for $20,193.19. D.E. 108, ¶ 24. Based on Hollander’s investigation, Mid-Continent settled Bogosian’s claim for $20,193.19 (not including any loss of use) prior to the filing of any lawsuit by Bogosian. D.E. 114, ¶ 16; D.E. 167-1, ¶ 38. As a condition of the settlement, Mid-Continent required Bogosian to sign a release and to have Southgate sign a release because the settlement was based, in part, on repairs to property for which Southgate might have some responsibility. D.E. 108, ¶ 27.

In its description of how Mid-Continent processes claims, Mid-Continent indicated that its standard operating procedure includes the elevation of claims from the regional branch offices to Mid-Continent’s home office if a denial of the claim is recommended based on coverage issues. D.E. 108, ¶25. Mid-Continent did not elevate the Bogosian claim to its home office or dispute the Bogosian claim based on any coverage issues. D.E. 108, ¶ 26.

On or about July 18, 2007, Defendant Basdeo and other individuals she believes are similarly situated to her filed a lawsuit against First State in the Circuit Court of the Judicial Circuit in and for Broward County, Florida (“Basdeo State Case”). D.E. 167-1, ¶ 39. Basdeo contends that First State damaged roofs, the interior of her unit, and her personal possessions. D.E. 114, ¶ 24.

The return of service for the Basdeo State Case complaint notes that service was executed on “Judy Brodsky” as First State’s “Registered Agent” on July 19, 2007, at 5415 NW 24th Street, Suite, 108, Margate, FL 33063. D.E. 114, ¶27. “Judy Brodsky” is not listed as the registered agent for First State. D.E. 114, ¶ 28.

In the Basdeo State Case, Basdeo filed a class action complaint against First State and others, including Southgate, who was ultimately dismissed from the case. See D.E. 1 at 22. Among other claims, the Basdeo State Case pursued a count of negligence against First State, based on allegations that “personal chattels [such as washers, dryers, refrigerators, and other household appliances] belonging to [Basdeo] and Class members were taken and removed from the interiors of condominium units and removed from the construction site” while First State had control of the construction site. D.E. 1 at 49, ¶¶ 89-91.

In addition, the Basdeo State Case complaint alleged breach of contract against First State. Among other allegations in this count, the complaint averred, “Roofing at the condominium complex was still in need of repair in December 2006, and considerable collateral damage had subsequently occurred due to condominium units being exposed to the elements.... ” D.E. 1 at 45, ¶ 73. The complaint further catalogued damages, noting, among others, “expenses to be incurred associated with additional structural repairs now necessary as a result of the damage done to [Basdeo and the class’s] condominiums due to long-term exposure to the elements, and costs associated with replacing the personal property taken from their condominium homes....” Id. at 45-46, ¶ 77.

Prior to the filing of the Basdeo State Case in July 2007, neither First State nor any other unit owner advised Mid-Continent of a claim against First State based upon First State’s work at Southgate. D.E. 114, ¶26. Although First State gave a statement to the media about the Basdeo State Case on August 6, 2007, First State never sent a copy of the complaint in the Basdeo State Case to Mid-Continent, and it did not request that Mid-Continent furnish First State with a defense. D.E. 114, ¶ 29, 30.

Returning to Mid-Continent’s actions with regard to Southgate and the unit owners’ claims, according to a July 19, 2007, report prepared by Hollander, in furtherance of her investigation, Hollander and Dana Race (“Race”), an engineer from HSA, carried out a “a general overview of pretty much all of buildings” of the South-gate property on July 13, 2007. D.E. 167-1, ¶ 33; D.E. 108, ¶ 29; D.E. 121-1, 53-60. At the time that Hollander and Race visited the property on July 13, 2007, they had intended to conduct a detailed inspection over a three-day period starting on August 14, 2007, in order to attempt to complete Mid-Continent’s investigation of Southgate and the individual unit owners’ potential claims. D.E. 114, ¶ 19. Additionally, Hollander stated in this July 19th report, “As you know we were never able to make any secondary contact with ... [First State]; their representative was totally non-responsive to my phone calls.” D.E. 167-1, ¶ 32.

Although Hollander and Race had intended to inspect Southgate on August 14, 2007, on August 3, 2007, Southgate’s attorney, Dennis Bailey, advised Hollander by e-mail that the unit owners of Southgate had filed suit and that his client, South-gate, would be filing a cross-claim in that suit. D.E. 114, ¶ 20. In light of the pending litigation, Bailey wrote, “Consequently, I must rescind our offer to allow you to perform inspections outside the Florida Rules of Civil Procedure.” D.E. 114, ¶ 20.

Without the completion of the inspection and production of certain other requested information from Southgate, Race stated he could not prepare a report and make any determination of the amount or cause of damages to Southgate or to any of the unit owners. D.E. 114, ¶ 21. During Hollander’s handling of the Southgate and Bogosian claims, Hollander did not contact any of the unit owners to find out whether they had any claims. D.E. 167-1, ¶ 34.

Upon learning on August 3, 2007, that a lawsuit may have been filed against First State, Mike Duke (“Duke”), on behalf of Mid-Continent, sent a reservation-of-rights letter to First State on August 8, 2007. D.E. 108, ¶ 31; D.E. 114, ¶ 22; D.E. 114-23. In the August 8th letter, Duke advised First State that it was Mid-Continent’s understanding that two separate lawsuits had been filed against First State, one by Southgate and the other by the unit owners. D.E. 114, ¶22; D.E. 114-23. Further, Duke stated in the letter that Mid-Continent had been unable to obtain copies of these lawsuits and that “in the event First State ... is looking for Mid-Continent ... to assist in the defense of this suit, it is imperative that immediately upon receipt of said suit that [First State] forward the suit to Mid-Continent ... as soon as possible.” D.E. 114, ¶ 22; D.E. 114-23. The letter also sought the cooperation of First State in Mid-Continent’s investigation. D.E. 108, ¶ 31; D.E. 114-23. As of August 6, 2007, Mid-Continent had knowledge that First State might not be using the address 5415 N.W. 24th Street, Suite 108, Margate, Florida 33063, anymore. D.E. 108, ¶30. Nevertheless, Mid-Continent sent the August 8th reservation-of-rights letter to First State at that address. D.E. 167-1, ¶ 45; D.E. 109-1 at 123-24.

Meanwhile, in late July and early August 2007, Mid-Continent attempted to acquire a copy of the lawsuit allegedly filed by the unit owners from Southgate’s counsel and from the court file, but was unsuccessful in obtaining a copy from either source. D.E. 114, ¶ 25. Although the Basdeo State Case previously named Southgate as a party, Southgate’s counsel never provided a copy of the Basdeo State Case complaint to Hollander. D.E. 114, ¶ 25. On August, 22, 2007, Basdeo filed a Motion for Default against First State in the Broward County case. D.E. 167-1, ¶ 43; D.E. 114, ¶ 23.

Then, on September 19, 2007, Southgate filed its own complaint seeking damages against First State in Florida state court (“Southgate State Case”). D.E. 108, ¶ 32; D.E. 114, ¶ 31. The affidavit of service for the complaint in the Southgate State case represents that service was made on “Jane Doe” on behalf of First State November 30, 2007. D.E. 114, ¶ 37. It further attests that the process server visited the following four locations to serve the complaint on First State: 5115 N.W. 65th Terr., Coral Springs, Florida; 5415 N.W. 24th Street at Suites 107, 108, and 109, Margate, Florida; 1562 N.E. Quayside Terrace, Miami, Florida; and 1512 N.E. Quayside Terr., Miami, Florida. D.E. 114, ¶ 37.

The Southgate State Case complaint alleged that First State had inflicted damage on Southgate in the following ways, among others:

12 .... [M] embers of the Plaintiff Southgate ... are incurring ... future expenses associated with replacing the personal property wrong[f]ully taken from their condominium residences by Defendant First State ....

24 .... Defendant First State subjected Plaintiff Southgate ... to considerable wrongful conversion of private property and/or significant and material collateral damage had subsequently occurred due to condominium units being exposed to the elements which directly and/or proximately caused or contributed to the cause of harmful bacterial growth inside the residences and Defendant First State failed to treat said harmful condition in a workmanlike manner.

35. The manner in which the agents and/or employees of Defendant First State performed work on or involving the property of Plaintiff Southgate ... to further the interests of Defendant First State, at all time[s] material to this Complaint, unnecessarily damaged the property of Plaintiff Southgate ... beyond the actual work inherently involved in the contracted activities.

D.E. 114-1.

Returning to the Basdeo State Case, on October 3, 2007, Joe M. Mitchell (“Mitchell”), Basdeo’s attorney at the time, notified Mid-Continent of the Basdeo State Case and the granting of her August 22, 2007, motion for default. D.E. 167-1, ¶ 43; D.E. 114, ¶ 33. This was the first time that Mid-Continent received a copy of the Basdeo State Case or the initial default. D.E. 114, ¶ 33. Mitchell represented that service of the amended complaint in the Basdeo State Case took place on December 20, 2007. D.E. 114, ¶ 33.

On January 24, 2008, Southgate’s counsel notified Mid-Continent of the South-gate State Case. D.E. 108, ¶ 34; D.E. 114, ¶ 36. Prior to receipt of the January 24, 2008, facsimile containing a copy of the complaint and affidavit of service, Mid-Continent had no knowledge that a suit had been filed against First State. D.E. 114, ¶ 38; D.E. 114-33. First State never sent a copy of the Southgate State Case to Mid-Continent, and it made no request of Mid-Continent to defend it in the matter. D.E. 114, ¶ 32. At no time from the receipt of the lawsuit in the Southgate State Case has Mid-Continent hired an attorney to enter an appearance on behalf of First State to defend it in the Southgate State Case. D.E. 108, ¶ 36. In reference to the Southgate State Case, Mid-Continent’s attorney stipulated in the course of the instant litigation, “Southgate’s Complaint in part alleges an occurrence” under First State’s policy with Mid-Continent. D.E. 108, ¶ 35.

On February 29, 2008, attorney Ronald L. Kammer (“Kammer”), on behalf of Mid-Continent sent a letter to First State at 5415 N.W. 20 Street, Suite 108, Mar-gate, Florida 33063. D.E. 108, ¶ 39; D.E. 114, ¶ 40. The letter asked First State whether it wanted Mid-Continent to appoint counsel to defend First State in the Basdeo and Southgate matters. D.E. 114, ¶ 40. Kammer represents that he sent this letter to the same address as reflected on the return of service of the Basdeo State Complaint. D.E. 114, ¶ 41.

On the same date, Kammer sent a letter to Bailey, Southgate’s counsel, advisi