Covid-19 Related LAwsuits

Started by DennisG7 • 8 replies • 590 views

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DennisG7 (Georgia)
Posts: 155

Posted:

We are in the process of hiring full time pool monitors to comply with the state/county rules regarding Covid-19. Most of the rules, social distancing, limitations on # people in the pool, disinfecting, etc have changed little since the start. I am hopeful that when the latest Executive Order expires on Jun 12 we can get back to MOSTLY normal.

Having said that, we have spoken with two different HOA attorneys and our insurance company regarding the challenges in getting our amenities open. One question I've asked is whether any lawsuits or legal actions have taken place regarding Covid-19. Has anyone claimed that they caught it at a HOA amenity? Seems to me it would be hard to prove. The attorneys have indicated that they were unaware of any suits filed alleging that someone was infected at an HOA amenity. I was told that a couple of lawsuits had been filed by HOA members regarding the payment of annual assessments when the amenities were unavailable to them. In essence they want either not to pay or wanted some sort of rebate or lower payment. This information came from our insurance company.

Does anyone have knowledge of any actual lawsuits filed against an HOA as a result of Covid-19?

Stay safe.

DennisG7

MarkM19 (Texas)
Posts: 1,459

Posted:

Dennis,
Too early for the results of your question but I am sure people will try. The best we can do is have homeowners sign waivers when they enter the Pool area and warn them that they enter at their own risk. As someone who thinks about the worst thing that can happen all the time I have given this some actual thought. If I saw a lawsuit from a homeowner claiming that they got Covid from being in our Pool I would have our Attorney contact them and say that we are suing them for infecting the other people in the pool. We have key fob access and a sign in sheet so we could trace who this could have happened effected. This turns the tables on them as instead of them suing the HOA they may have 20 suits from others suing them if they brought the illness to our Community.

Who knows what will happen and only time will tell. Regarding your point about lack of Amenities and people wanting to short pay dues. This is a non starter because in most cases the Amenities did not go away they are restricted by the State or County and until they release must stay closed.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I agree with Mark that we're still in the early stages of this pandemic, so it's too soon to say one way or these other.

I haven't seen any actual lawsuits yet, and the legal opinions on the topic have been mixed. Here is an article from a Florida law firm that summarizes their recommendations:

https://www.jdsupra.com/legalnews/client-alert-coronavirus-what-88578/

The 4th point deals with assessments. It points out that a board has an obligation to collect assessments and no legal right to waive them. However, a board may choose to waive late fees and interest. As far as those who want their assessments lowered because the pool was closed, the obvious answer is that homeowners who don't use the amenities at all still have to pay their assessments in full.

I would recommend that all boards be diligent in following state and CDC guidelines, and publicize these guidelines and any board actions on the community's web site or newsletter. You probably won't be able to stop those who are determined to sue, but you'll help to ensure that their lawsuits have no merit.

GenoS (Florida)
Posts: 4,276

Posted:

That article is from March. Here's one from last week: DBPR Issues Emergency Order 2020-06 Causing More Confusion.

"The DBPR’s second attempt to address the global pandemic and at the same time clarify ambiguities for the thousands of community associations throughout the state, has generated heated debate amongst association attorneys and has left community associations with even more unanswered questions."

Tread lightly. The most interesting times still lie ahead. Talk of a "second wave" cracks me up considering we're still firmly in the grip of the "first wave". The number of new cases in Florida continues to go up every day. Not as fast, perhaps, but the number continues to climb. The number of confirmed cases can be totaled but the number of people who have recovered (or been hospitalized and then released) is unkown. So nobody knows how many people have it "today". That number's a secret.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Here are some articles from around the country that talk about re-opening amenities and the legal/insurance implications:

https://insurancenewsnet.com/oarticle/everyone-is-screwed-why-some-hoas-kept-their-pools-closed-despite-covid-19-reopenings#.Xs-wlTpKiiM

https://www.tcpalm.com/story/life/community/2020/05/27/coronavirus-and-condos-decision-reopen-close-amenities-should-not-taken-lightly-vero-beach-stuart/5219363002/

https://www.hoalawblog.com/la-county-orders-that-pools-may-reopen-as-of-may-26-2020-but-this-does-not-mean-that-an-hoa-can-just-open-the-gate-to-the-pool/

The last article mentions liability waivers, which sounds like an excellent idea.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By GenoS on 05/28/2020 1:25 PM Tread lightly. The most interesting times still lie ahead. Talk of a "second wave" cracks me up considering we're still firmly in the grip of the "first wave". The number of new cases in Florida continues to go up every day. Not as fast, perhaps, but the number continues to climb. The number of confirmed cases can be totaled but the number of people who have recovered (or been hospitalized and then released) is unknown. So nobody knows how many people have it "today". That number's a secret.

And of course we have the anticipated "third wave" when flu season arrives.

During today's press conference with our governor, amid news about further re-openings he mentioned that the R0 number in two counties adjacent to mine is now at 1.2. That means exponential growth again after we'd managed to flatten the curve during March and April. Earlier today I noticed that the parking lot of the small hair salon around the corner was full, when normally you'd see a couple cars at most. Oh well, at least folks will look *fabulous* in their coffins...

KellyM3 (North Carolina)
Posts: 2,239

Posted:

The advice we received has been quite vague....

If we stay closed, when executive orders allow reasonable reopening, then we're subject to being sued by dues payers (or legally threatened and incur attorney fees).

If we open, we could face a potential COVID-19 lawsuit that would be rather easy to win by following state guidelines BUT your insurance company wouldn't cover the legal defense fees.

So, there isn't a correct answer or a legally secure answer unless your state legislature enacts "Use at your own risk" liability protections for venues.

We are choosing to open the pool, Saturday, in accordance w/ state guidelines, new rules etc.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Myself, I would keep pools closed as long as possible. That said I realize many cannot nor do want to so I would arrange for some type of signed, liability waiver. Might be a pain having an "attendant" make sure everyone entering the pool area signs it but so be it.

On 2nd thought, I believe any two bit attorney could give the proper wording for a sign to be made up waiving liability and posted all over the pool area.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By KellyM3 on 05/28/2020 2:21 PM
...

So, there isn't a correct answer or a legally secure answer unless your state legislature enacts "Use at your own risk" liability protections for venues.
....

For what it's worth, in my state businesses are allowed to open but the burden is on them to make patrons obey the state's safe gathering guidelines. If I were on an HOA board, I would follow those same guidelines as much as possible - maybe run them past your association's insurance agent to make sure you've covered all your bases.

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