Opinion
C.A. No.: 99C-06-187-FSS
Submitted: February 11, 2002
Decided: May 17, 2002
Upon Plaintiff's Motion for Reargument.
Colin M. Shalk, Esquire, Casarino Christman Shalk, Wilmington, Delaware, Attorney for the Plaintiff.
James F. Kipp, Esquire, Trzuskowski Kipp Kelleher Pearce, P.A., Wilmington, Delaware, Attorney for Defendant.
Jeffrey S. Goddess, Esquire, Rosenthal Monhait Gross Goddess, Wilmington, Delaware, Attorney for Defendant.
OPINION
By a timely motion, Plaintiff seeks reargument of the January 28, 2002 Opinion. The motion concerns three things not addressed explicitly. First, the Opinion does not mention pre-judgment interest. Second, the Opinion does not consider Plaintiff's demand for attorneys' fees under 18 Del. C. § 4102. Finally, the Opinion does not discuss Plaintiff's claim that the cost of relocating the evacuated residents is covered by the insurance policy's "extra expense" provision.
18 Del. C. § 4102: The court upon rendering judgment against any insurer upon any policy of property insurance, as "property" insurance is defined in § 904 of this title, shall allow the plaintiff a reasonable sum as attorney's fees to be taxed as part of the costs.
Id.
g. Extra Expense (1) We will pay necessary Extra Expense you incur during the "period of restoration" that you would not have incurred if there had been no direct physical loss or damage to property at the described premises, including personal property in the open (or in a vehicle) within 100 feet, caused by or resulting from a Covered Cause of Loss.
(2) Extra Expense means expense incurred: (a) to avoid or minimize the suspension of business and to continue "operations": (i) At the described premises; or (ii) At replacement premises or at temporary locations, including, relocation expenses; and costs to equip and operate the replacement or temporary locations.(b) To minimize the suspension of business if you cannot continue "operations". (c) To: (i) Repair or replace any property; or (ii) Research, replace or restore the lost information on damaged valuable papers and records; to the exit reduces the amount of loss that otherwise would have been payable under this Additional Coverage . . . . We will only pay for Extra Expense that occurs within 12 consecutive months after the date of direct physical loss or damage. This Additional Coverage is not subject to the Limits of Insurance.
A. Pre-Judgment Interest and Attorney's Fees
The court overlooked pre-judgment interest and attorney's fees, believing for the most part that they were the last dominos standing. The court silently assumed that counsel would come to terms on their own. The court will award pre-judgment interest on the Condominium Council's judgment. The court, however, agrees with Miller's Mutual that where a judgment is meant as reimbursement for outlays by the judgment-taker, the pre-judgment interest begins when the judgment-taker makes the payment for which it is being reimbursed, or on demand, whichever is later.In summary, for all reimbursable payments made by the Council before the date of demand, the pre-judgment interest in the statutory amount will be due from the date of demand. For all payments made after the date of demand, pre-judgment interest shall be due from the date of the payment. The court agrees with counsel that the pre-judgment interest calculation may be "daunting," but the court expects that counsel can complete the task. The court suggests, however, that the parties simply stipulate to a fair estimate. In any event, the court will award prejudgment interest and costs, including reasonable attorney's fees in its final judgment order. The court is waiting for the stipulation or submissions, described in the Opinion.
B. The "Extra Expense" Provision
The "extra expense," provision did not merit formal address, the court having taken it as "make weight" argument. While the Council helpfully took the chore upon itself and organized the evacuation, the Council was not in the business of providing housing and moving expenses for the condominium's residents when it bought its insurance. By the same token, the Council's relocation activities were not the sort of operations covered by the policy.
The Council is in the "business" of governing a condominium association. Its operations presumably include adopting by-laws, enforcing rules, keeping books, providing ordinary maintenance to the building and grounds, hiring and supervising necessary help, and so on. If the Council rented a temporary office after the condemnation, the damage award should include reasonable reimbursement for that expense. But the unit owners cannot look to the Council's business insurance to cover their personal moving expenses. The relocation and the reconstruction expenses are horses of different colors. Or, like the Opinion says, the relocation expenses are too collateral and they are not covered by the policy. The coverage provisions, including the "extra expense" and "operations" language are clear enough.
If they were hazy, the extent to which Millers Mutual limited its risks through its exclusions and "loss payment" clauses make the policy clarion: Millers Mutual never promised to reimburse the Council for the residents' relocation.
C. Summary
The Council is entitled to prejudgment interest from the day that the complaint was filed, costs and reasonable attorney's fees, as explained above. The Council is not entitled to reimbursement for any relocation expenses, except its own. The court is still looking forward to signing a final order.
IT IS SO ORDERED.