Lucas v. Mickel, No. 0100878 (May 6, 1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is an action brought by plaintiff owner of Unit #59 of Artillery Hill Condominium against the defendant Artillery Hill Association. Plaintiff owned a unit in which he had never lived but in fact rented or leased to others. The unit was vacant from October 1989 to March 1990. Just prior to March when the unit was to be leased, plaintiff's unit was damaged by water flowing from pipes that had burst due to lack of heat caused by a shut off of electricity due to causes unknown. The circuit breaker unit for the condo unit in question was located on an exterior wall unbeknownst to plaintiff. The unit suffered $11,735.99 in damages. The company insuring the condo association paid for all of the damage with the exception of a $1,000 deductible. Defendant requested reimbursement from the Association for this sum. After a hearing, the Association Board refused to pay the same.

Section 23.2 of the condominium declaration provides that the cost of repair or replacement in excess of insurance proceeds shall be a common expense. Here, however, the insurance proceeds paid all but the deductible of the policy. Section 19.3(F) provides that the association, after notice of hearing may assess a common expense exclusively against an owner if the expense was caused by misconduct of the owner. After notice and hearing, the association refused to reimburse plaintiff for his payment of the $1,000 deductible finding that the damage was due to plaintiff's negligence in not keeping the premises heated while the condo was vacant for over 90 days.

Plaintiff having failed to sustain his burden of proof by preponderance of credible evidence, judgment enters for defendant.

KULAWIZ, J.