Time Keeps on Slippin', Slippin', Slippin'
As we enter the seventh year of this quarantine (feels like it doesn’t, it?), we are now accustomed to offices, stores, etc. being closed. Cities, states, and the federal government have made numerous efforts to help with rent, mortgages, and other debt. Courts across the country are closed and many pending cases are frozen for the time being. Some courts are taking efforts to freeze the statute of limitations on certain claims while other courts have specifically dictated that statutes of limitation are NOT frozen.
Due to the global pandemic, Associations might think it is safe to assume that businesses and the courts will not be strict with respect to deadlines, and they might be right, but when it comes to insurance, I wouldn’t bet on it. In fact, even if the courts are closed or statutes of limitation are frozen, Associations could still lose a potential insurance claims because most insurance policies are governed by a contractual limitation period, not a statutory limitation period. And in general, only the parties to a contract can waive contractual provisions. Most policies contain either a one-year or two-year limitation period. If your Association discovered property damage in the last year or two and were contemplating whether to bring a first party insurance claim, you should note that the clock is ticking on that claim regardless of any quarantine delays.
My advice is to continue analyzing any potential claim. If the Association is even considering the possibility of a claim, it might be worthwhile to reach out to the Association’s insurers and ask for a “tolling agreement.” This is a contractual agreement with the insurer where both parties agree to voluntarily freeze the limitations period. We’ve done numerous tolling agreements with insurers. If your Association would like to discuss this option, feel free to give us a call. I’ll be here, longingly looking out my window, watching the days turn into years….