A fire caused damage to a condominium complex. Owners of residential units in the complex alleged that the fire was started by another unit owner named Anthony Siracusa. They sued him for damages.
Siracusa moved for summary judgment, asserting that the other unit owners were barred from bringing suit against him. He relied on two provisions of the condominium trust documents. The first provided:
Each unit owner is solely responsible to obtain his or her own insurance coverage in appropriate kinds and amounts to insure his or her unit, personal effects and contents, unit improvements and coverage for the Condominium Trust's deductible as well as insuring for liability and all such other coverages which said Unit Owner desires.
The second provision required that any insurance obtained by unit owners must waive the right of subrogation against other unit owners.
In Koch v. Siracusa, 2016 WL 872932 (Mass. Super.), a Superior Court judge disagreed that the provisions barred unit owners from bringing a claim against another unit owner.
The court held that the first provision is a message to unit owners that failure to purchase insurance is at their own peril but does not foreclose their claims against other owners.
The court held that the requirement to waive subrogation if insurance is procured does not preclude unit owners from suing each other for losses that are not covered by insurance. (Indeed, that is not what subrogation means. Subrogation is means by which an innocent third party, such as an insurer, can recover from a tortfeasor for losses the third party paid. The insurer stands in the shoes of the insured who has already been compensated. That is not the situation in this case; the unit owners are merely bringing a claim for losses they have suffered, not standing in the shoes of someone else who suffered a loss who they in turn compensated.)