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 alleged negligence of their tenants.

Universal appealed, asserting that Section 718.111(11)(j) permitted its subrogation claim against the landlords in this case because the statute made condominium unit owners responsible for the cost to repair or replace a fellow unit owner’s property that was damaged by the negligence of the former’s tenants.

The Appellate Court’s Decision

The appellate court affirmed.

In its decision, the appellate court found that the trial court had correctly ruled that Section 718.111(11)(j) did 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. The appellate court explained that nothing in the language of this statute or in the statutory structure indicated that a private cause of action between unit owners was contemplated by the legislature in enacting the statute.

According to the appellate court, Section 718.111(11)(j) imposed 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 was limited to “the costs of repair or replacement . . . not paid by insurance proceeds.”

The statutory language “without compromise of the subrogation rights of the insurer” preserved an insurer’s preexisting subrogation rights, according to the appellate court, but did “not give a subrogee greater rights than the insured unit owner whose property was damaged.”

The appellate court emphasized that nothing in Section 718.111(11)(j) compromised an insurer’s right to bring a common law subrogation action alleging that a tortfeasor was 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 and nothing in its decision compromised a unit owner’s right to bring a common law tort action alleging that a tortfeasor was directly liable for any uncovered damages to the owner’s property caused by the tortfeasor’s own negligence or intentional conduct.

In conclusion, the appellate court held 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.”

The case is Universal Property & Casualty Ins. Co. v. Loftus, No. 4D18-2192 (Fla. Ct. App. Aug. 7, 2019). Attorneys involved include: 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.