HOA Insights: Common Sense for Common Areas

036 | Avoiding A $1Million HOA Insurance Claim

January 15, 2024 Hosts: Robert Nordlund, Kevin Davis, Julie Adamen Season 1 Episode 36
HOA Insights: Common Sense for Common Areas
036 | Avoiding A $1Million HOA Insurance Claim
Show Notes Transcript Chapter Markers

Are you up against a huge HOA claim? Learn these key strategies to help you handle large insurance claims and how to avoid them!
✅ Is a Reserve Study right for you? 👉 https://www.reservestudy.com/

Are you an HOA board member grappling with large insurance claims or potential lawsuits? In this episode, we’re getting into the complexities of handling significant insurance claims in HOAs, drawing lessons from a real-life case of a $1 million lawsuit. Kevin Davis shares his experiences and insights on noise pollution issues, legal disputes, and the importance of addressing reputational damages in community associations. Get practical advice on managing legal issues, maintaining civility in board meetings, and effective conflict resolution in your HOA. Plus, learn how to avoid common pitfalls that lead to costly mistakes.

Chapters from today's episode: Avoiding a $1M HOA Insurance Claim

00:00 Intro to preventing a big HOA insurance claim
02:40 Is Noise a Liability Problem?
05:00 A Real $1 Million Case
09:11 Traits of Reputational Damage
11:13 Old VS New HOA Board
12:15 The Insurance Provider Perspective
15:05 Suing as a 3rd Party VS Same Party
16:51 Defamation Vs Libel
17:32 Intentional & Willful Acts
18:21 What Insurances Will Do
20:51 What’s Happened to HOAs
22:17 The Solution
26:35 How Words Matter in the HOA Board
29:23 Behavior is The Culprit

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Robert Nordlund, PE

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And that's the solution to these problems here. The solution to the problem is sitting down and trying to work through them without reacting by anger without his negative emotions that comes out at us today, more so than ever have done before. When we talk about reputational damages Robert, we talk about this is the one area that's impacting a lot of because we all want to be heard. We all want to be recognized. We all want to matter today, we will walk through associations and with pride. But if all of a sudden, somebody start pointing out to us that it's our fault, that all of a sudden, we're not prideful anymore. We feel we were damaged, and we feel damaged to the tune of whatever the amount of money we feel we're damaged to.

HOA Insights:

Common Sense for Common Areas exists to help all 2 million volunteer board members nationwide have the right information at the right time to make the right decisions for their future. This podcast is sponsored by four companies that care about Board Members Association insights & Marketplace, Association Reserves, Community Financials, and Kevin Davis Insurance Services. You'll find links to their websites and social media in the show notes. Hi, I'm Robert Nordlund of association reserves am Kevin Davis of Kevin Davis Insurance Services. And this is HOA Insights, where we promote common sense for common areas. Well, welcome to episode number 36, where we'll be speaking with insurance expert and regular co host Kevin Davis, to talk about some examples of the things you can do to prevent a big insurance claim at your association. But before we get going, I want to encourage everyone to check out episode number 35, which was another popular board hero episode, a story of a board member serving on a dysfunctional board. Parts of that episode might unfortunately sound familiar to many of you. If you missed any other prior episodes, take a moment after the end of this program to subscribe to this podcast on any of the most popular podcast platforms. You can also listen from our podcast website, www.hoainsights.org, or watch on our YouTube channel. And if you have a hot topic, a crazy story or a question you'd like to have us address, leave us a voicemail at 805-203-3130 or send us an email at podcast@reservestudy.com. So Kevin has become our habit so let's start today's program with an audience question. And this is from Fred in Austin, Texas. Two of our owners, neighbors, have a long standing disagreement about noise. And they don't really like each other. It's getting heated. Is that an association liability problem? It's a huge problem for associations because right now, noise has developed into one of the big problems out there with pickleball. Oh, good point pickleball makes a lot of noise out there. And everybody's expanding associated with putting pickleball courts out there. And theyre noisy. Also, you know, you want to expand some of the common areas. So they put child lots lots out there. They're noisy also. And guess what we live in a time now where everything bothers us. Elevators are making a lot more. That doesn't make it a lot more noise, but the people are noticing the noise, the elevators make the bing and the doors closing the door closing opening. So right now, it's becoming a problem. Now from an insurance point of view. This is most important part of it is that a lot of insurance policies says that noise is a pollutant and is not covered on your insurance policy. So know what you are and aren't covered by Yeah, exactly. So noise is a problem in the community associations, as long as you talk to your insurance professional, again, we always talk about community association is unique. It's a unique world we live in, okay, because you have a property manager, you have board of directors who are volunteers, and they rely on professionals. You have to have a professional who focuses in on community associations and they understand that noise is a big problem. Because you have people with hardwood floors don't have What's that specialize without the soundproofing. People have children. So we see noise as atrophied. And so you have to make sure that if you have an insurance policy, that noise is not a pollutant under that insurance policy because it is, it's not covered under your insurance policy. Got it Okay. Well, yeah, there's so many I'm so glad we have you on the program. I want to pull back something last time we spoke episode 32. By my notes, you spoke about reputational damage. And the topic we want to or the title of today is avoiding a $1 million insurance claim Can you kind of open the door tell us a story about a real case that resulted in sure a big award and what can we learn from that? reputational damages it just to remind everybody, that loss of excellent standing in my community is reputational damages. You know, I've lived the Community Association. I could walk through I have pride. I'm a board member, I'm a past board member, like a walk through a pride but because we are being treated today, reputational damages comes into play. So that's reputational damages. Okay, okay. So now here's a situation where we have a former board member, or is looking for a million dollars and a letter of apology to be read at a board meeting, a suing because he libel, slander, intentional, infliction of emotional distress, all these different things, because the current board said he was self dealing, unlawful enrichment, and in the act, he act in his own interest, not in the interest of the association. So the current board is blaming all the problems of today on the board member. Got it. Okay, so now, let's so I am the I Am the prior past past board member who's who now is filing a lawsuit against the current board. Yeah, because people are saying, we heard what you did five years ago, and they're walking around you in the hallway, or blaming all sorts of problems on you. Exactly. And this is the situation here is that I the past board member, I'm proud of what I did. What I did the most important thing I did when I was on the board was repair the self facing porches, because self facing porches were destroyed by the sun. And I took a special assessment. And we agreed as the board to do the self facing porches only now, five years later, guess what happens? They don't like the the self facing porches look better than all the other porches on there. And they blame me they think I'm the one that's incompetent I'm the one that did the bad job. I'm the one who wasn't worthy. I'm the one. And so now I will wait. Did you also have a south facing unit? And so you got one of the new ones? Yes, I Oh no, Ha. Unlawful enrichment says that I was the one that my unit is worth a lot more than everybody else's unit. It was coincidence, but it's unfortunate Coincidence. Unfortunate coincidence that would happen. Yeah. So now all of a sudden, I'm looking around the association and saying that current board up there, they're not doing their job, they are enforcing the rules, you know, they're not doing the thing they should be doing, you know, people parking in visitors parking, you know, the pool hours not being kept, right. I want to get back when the board of directors, because when I was on the board of directors guess what we did? we took care of business. Yeah. And the east, the west and the north, balconies are deteriorating, and they need my expertise to help get another special assessment to get those done exactly because of current board issues to do what they should be doing. So I take pride in some walking by the association, and that current board of directors is blaming me for all the problems this new board is facing. Because now guess what, they have to replace all the other porches, that weren't because now they have deteriorated to the point where, you know, you can't have uneven in association. So now I'm the one that they're saying is incompetent, didn't know what he was doing, you know, and a lot of all things that I acted in my own interests, because now my association might be worth a little more my unit, maybe worth a little bit more than everybody else's unit. So now here we have a perfect misunderstanding that can happen to any association. Right? Because you have a board of directors who did their job back then that current board who's then who disagree with what that old board has done, and you can put anything in their special assessment, parking, rules. The old board feels entitled, because he thought he did a good job. The new board says no unlawful enrichment. You know, you were you didn't know what you were doing. You act in your own self interest, all these different words that are buzzwords that says, you know, reputational damages, I've been damaged. And remember, we talked about reputational damage is that 4 things has to happen, you know, for me to have suffered damages, libel, slander, defamation, Okay, number one, you have to either be accused of committing a crime or be accused of having some kind of infectious disease like remember when we had COVID You say, if you blame somebody saying somebody had COVID. That's a no, no. Okay. You have to have lack of integrity or competence, engage in inappropriate sexual conduct. Those are the four things that says I can be I can hold them accountable. Okay, for reputational damages. That's a busy week for somebody. But guess what, we live in a community associations and we've heard about all these different things that board of directors have accused other people of doing and other people have accused board members of doing and that's the problem with reputational damages. Here I am, Board of Directors did this great job of taking a special assessment instead of repairing everybody's porches. I only replaced the ones that were damaged. Okay, five years later. Okay. Was that a great Was that the best plan of action? That's a good question. On one hand, physically, it was only the south ones that needed it. And money's always tight. And so you phased it into South ones first. We'll do the other ones later. Arguably a good plan. But you need a follow up plan. You need phase two or phase 2-3-4. Yeah, they then we get into disagreements. Okay. Yes. And that's what the problem is now, in the world we live in now, again, five years ago, we had this disagreement, we probably could sit down and work it out and go, you know, you're right. Let's now start working on other phases. Let's do to the north, the east, the West, we could bet special assessment. But our goal is to make sure that the association look and feel better, so that we all can feel good in our community. That was five years ago today, guess what? Now we blame we criticize, you know, we judge, right? You're just talking about the human dynamics of it. That's it. Okay, that's it. So instead of us working together as a team to figure out what the plan is, we judge we blame and we criticize, and that's what I'm doing right now. I'm saying that current board is incompetent, that current board, you know, doesn't know what they're doing. They shouldn't be paired the other porches a long time ago, I set a plan up in place to do it. And they didn't listen to me. Now, five years later, they're blaming me because we didn't do the job that was necessary. And the current board is the one that really should be handling the job properly. So I'm really upset because I'm being mistreated. I'm not being heard. And I'm being damaged. I want a million dollars in a letter apology. Okay, so now all of a sudden, to now the board president, it's the summons and complaint, a lawsuit. And the first thing he does is a smart thing. He goes to his lawyer and says, What do I do now? He calls the insurance agent and said insurance. Guess what? We have a lawsuit against a prior board member suing the current board member saying that unjust enrichment, he acted out of his own interest. So will you please handle the lawsuit for us? I'm the insurance provider. I look at this thing. I see three concerns right off the bat. There's a billion dollar judgment. They're looking for billion dollars in damages and letter of report a letter of apology. So far as I'm concerned, do I Where do I do I see a million dollars in damages out there. First question is this. I had the current Board of Directors being sued by a past board member. When you buy an insurance policy, you buy an insurance policy that's on behalf of the insured, which is the board of directors, though this is the issue here. You Robert, you live in your home, you have a nice home and you have a beautiful wife who I've met. Now all of a sudden she's not happy with you. Because all of a sudden she looks at Zillow, the value of that unit and your value of your home had diminished by $100,000. Okay, and guess who's fault it is Robert? Probably mine, of cours its your fault, yeah. Because you didn't paint, when she asked you to paint. You didnt take the trash out, and you didn't get the landscaper in. So now all of a sudden she looks to you and says Robert because of you. We lost $100,000 in our home. You gotta you gotta work harder now, Robert, so that we can we remind the audience that this is the hypothetical situation. Okay, all right. Now, your wife can sue you. But now from an insurance point of view, where you say you bought a insurance policy on behalf of your home, you and your wife are covered under that policy. If a third party sues you. So now the third party comes in and says I've been damaged I came in and slipped and fell on your property. That's why it doesn't cover you. Well, it's the same problem in the condo. We had that first board member, the past board member is suing a current board member is like your wife is suing you. So that's the first thing and that's the major problem right off the bat is that you got one party is suing the other party for a million dollars who both belong to the same policy. So board member board member there was obviously a slice of time in between Exactly. Let's say you were divorced from your wife. And now your wife looks at Zillow, and said, Whoah wait a minute now. You know, we've been divorced five years ago, five years ago, our home was worth $1.2 million. Now theyre worth a million. Because you did a bad job. That lousy scoundrel that's Yes. One more on the long list of things that I hated about it. Okay. Exactly its the same principle. You still bought the policy for you because you are living in there it's your policy. It's the homeowners policy. Now even though you're divorced or separated these separated, you're still suing your capacity as that husband who screwed up. And that's the same thing is the capacity. If that if the board would have sued the other person, not at the capacity as a board member, but just as a guy living in there and said, I don't like what's being done, different ballgame. Got it. Okay, because then he's an outside party. He's a homeowner, or a neighbor, who says this, this community association used to be a nice place used to be a nice neighbor. And now it's just a slum and it is bringing my home values down. Exactly. In fact, a perfect example is the two people before who fought over the noise. Now all of a sudden, one of those people was a past board member who got upset, and he wanted to come back when the board and make all these changes. Now he's talking about a whole different story there. So Kevin, my brain is spinning. This is a good point. So let's be right back after a quick break to hear from one of our sponsors. Is your HOA or condo self managed and you don't want to work as hard volunteering? Are you full managed and looking to save money? Are you looking to split the accounting from a manager's role for better service? Let community financials handle the monthly accounting for you. We collect dues, pay bills, produce financial reports, include portals and help with other support services, all while providing awesome service. We'd love the opportunity to help you make your community accounting stress free with our industry leading systems and expert team. Visit our website communityfinancials.com to learn more. And we're back. Well, Kevin, we were talking about this situation. And you talked about there's three things and the first thing that we were talking about was in your illustration of my wife and I which you were not listening on the telephone that was a hypothetical. You can't sue yourself. That's a complication. Insurance is not the answer. So what were the other two? Okay, talk there was three issues. So the second one is defamation. Okay, we see there's defamation and libel, slander, loss of my standing in the community. So was he really defame In other words, we talked about unlawful enrichment, we're talking about an act in his best interest. So we talked about a misunderstanding there. So we're looking at situation where, okay, from an insurance point of view, it's a misunderstanding. He didn't go out there. There's no documentation there. So there between libel and slander libel, if this written down, if it's in writing, then we have a problem. Both is the slander or words that were heard, then I'm saying that, okay, it may not cost that much money, maybe we can settle it for a lot less than a million dollars. The third thing is we're looking at things like intentional infliction of emotional distress, willful and wanted acts. Okay. Those were also said in the complaint. We see things like intentional and willful, we don't insure those at all. There we go comes back to insurances for accidents, not for willful if I take my car, and I am angry, and I ran it into something. That's not an accident. That's a willful act. Yeah. Okay. Yes. And don't forget, and we talked about reputational damages, you committed a crime, you have sex, you've done these things should have done, some of these things can be willful And talking about intentional. Now, what we know right now, what we've heard this kind of misunderstanding between, but we don't know the whole story, but I feel comfortable from an insurance point of view. But I will also reserve my right if I am wrong. So what will happen is that I'll send the board a letter that says Guess what we will provide a defense. But we may not pick up intentional acts, willful unwanted acts. So at the end of the day, that million dollar suit out there. We know right now, we may only pick up a half a million dollars, because it was a willful act. It wasn't an accident. Yeah. So we may do is go to the board and say guess what board, because it's willful because it was intentional. You acted outside the scope. You were intentional. We will kick in a quarter million dollars, maybe 300,000 hours, but you board will have to pay the other$700,000 to get to that amount. Ouch. Yes. And are they is that a personal obligation or is at on the association and special assessment time? A It depends. It's hard to say if it's intentional, because it could be intentional for maybe two or three board members thid is all of a sudden now it's the judge time and it could be to the insurer's time and say, listen, what we're going to do to get this thing out of the way. You know, before even the judgment comes in, you kick in some money and we'll kick in some money and will settle it for 700,000 Not for the million they want as long as you do that letter of apology. So this negotiation part between the insurance provider and the Board of Directors because you are an intentional willful let's not go to court does that go to we don't want to go to a jury. Because every expensive it gets Even worse, you come out punitive damages. You talk about a lot of different things. However, in this situation here, we probably come in and say, Listen, from what we've heard so far. We don't think it really raised the level of something that's really intentional, that bad because it's a misunderstanding. He wanted to be on board. You did some things, but it could just happen because of routine, a meeting, you what he what the proxies and he didnt get the proxies in timely manner. We hear that a lot. You know, election disputes happens a lot of times. So we got to back it up on this one. But we will also send you a note saying we may not if that thing goes to trial and find out there's intentionality there, got it. intentionality is a big deal. And if they were the ones misbehaving, it keeps them coming back to misbehaving, behavior. And you spoke about that earlier, where it's a matter of, is it loss of tolerance? Is it loss of patience? And is this the COVID has just changed the way we're dealing with each other? Yeah, we react. And that's the problem, instead of taking a step back, taking a breath, we react everything. So now all of a sudden, this person who I believe made a bad decision by only doing the south facing porches. Now he wants to get back when a board and he was wrong, then he's wrong. Now, why'd I want him on my board? And we've talked about it. And we had a discussion about him in our board meeting. And I don't know how I got out. Now I got out that, you know, I choose him all these different things. And I didn't really mean accusing him of all these things, but he has value unit is worth more than it was before worth what in mind. So I don't believe that's right. And I believe that's wrong. So now again, it goes back to that communication. Five years ago, we could sit down and talk to each other. Today, I'm going to blame you. Because of my problems. The current board is saying, if you would have did your job five years ago and replace all the porches, I would not be in a situation today. Yeah, but this board member is saying, hey, five years ago, we had no money. And we could only afford South facing and they were the worst ones. Yes, I had a south facing unit. And so yes, one of my my unit got done. But you guys forget that the south facing porches were in bad shape. And I would just love to help you with my experience. Get the north east and west ones going. So that's perfect. And that's the solution to these problems here. The solution to the problem is sitting down and trying to work through them without reacting without anger without his negative emotions that comes out at us today. More so than ever have done before. We talk about reputational damages. Robert, we talked about this is the one area that's impacting a lot of because we all want to be heard. We all want to be recognized. We all want to matter today. We will walk through associations and with pride. But if all of a sudden, somebody start pointing out to us that it's our fault, that all of a sudden, we're not prideful anymore. We feel we were damaged. And we feel damage to the tune of whatever the amount of money we feel we're damaged to. Yeah, well, I get defensive. If it's a misunderstanding. That's a misunderstanding. But if someone is accusing me, I'm going to feel hurt, I'm going to feel harmed. And I'm going to talk to my wife about it. And she's gonna say, Should we talk about an attorney, and then it just escalates, especially when you use the word unjust enrichment, because it wasn't like they he hid the fact that he was living there. They knew from day one that he was living there. And they all agreed that this is a decision we're going to make is different. If he all of a sudden you find out years later that Oh, well. Guess what he never admitted that he was living there. Again, when it comes to things like conflict of interest, you just say guess what? I live in one of the south facing porches. And my porch was damaged more so than anybody else, maybe with a corner where the sun shines more than anybody else's. So you disclose that from the beginning. And he said he disclosed it from the beginning. So all of a sudden, you know, he's now more angry than it was before because he disclosed it. He knew that he people come after him later one and he disclosed it. But again time. Five years later, nobody remembers the disclosure. Nobody remembers the things that he did. Yeah, Kevin, in my world, it so often happens. We're doing the reserve study. And it's phase one, phase two, phase three, and phase one is older, and it needs to get painted first. And when suddenly, of course, two of the board members live in phase one, and it hurts them to say the truth. And the truth is phase one needs to get painted. And yes, I live there but we don't have enough money to paint everything and get everything on the same schedule. So let's paint phase one this year. Let's and maybe this is one of the keys. Let's paint phase two next year, phase three the year after and put a plan together. So they're clearly working for the association. Not for themself. Is that part of the solution? Yes, definitely part of solution and his solution to the person who filing a lawsuit and from his point of view, he outlined these things and again is the current board of directors who failed? Not only didn't listen to the other board member, but he's one to put that fence up, you know, our, instead of communicating that wall goes up, then they talked about they think they are the bad guys and I'm the good guy, if he were to took time out and said, Let's sit down and talk about this, because it's not that I'm agreeing with you, but we need to hear you out. And let's have a board meeting decide. And he wanted to come back on the board. Let's invite him on back when the board or say guess what, right now we have no positions available. But guess what we want you to run for the board want you to come back to the board. So it is now a decision from the board of directors to say, Guess what, we have to stop reacting, take a step back and say, let's work together. I like that civility. Kevin, we've started to hear more from our podcast audience about the dysfunction at their associations. And I read through those emails, we listen to the the voicemails, and it, there's some hard stories about what is and isn't going on the bad things that are going on the good things that are not going on. And I think you touched on it. So much of it is taking a step back being civil about it, the board needs to listen needs to think and say hey, let's not make a fight out of this. And in this case, the prior board member, not make a fight out of it. If they can find that middle ground and start working with each other. Is that what we're talking about here? I think it is. And I think from the board's fault, the board has to be able to learn that words matter. And one of the worst is more important is that that old board was incompetent. They stole money. You know, when you start saying things like they they lack integrity. Those are things are, quote fighting words that they say, you know, those are words that crossed the line between now and civility. But that's when you can be held responsible. So you take a step back and go okay, you know, you know how easy it is for people to say, not only that, but I heard he's having sex with the manager too. Ah gee. You know, I mean, it's what happens and boards of directors right? I heard this, and I heard that that's what creates the problem. And it's human associations. I heard, I guess, you know, what, the reserve account is a lot lower than it should be. I heard that, you know, he has a new car now. Yes these are the things that matter. These are things that matter. More so than other things, you know, we get bad and judge people for for that, you know, mowing the lawn are the things that we get met our wives get mad at us about things right now. But there's a lie that don't cross, you know, once we cross we see it across that line more and more today. Because that anger that's built up, there's a low level depression that go throughout these community associations with recognize it and say, Let's not react, let's take a deep breath and say, All right, what's going on? That's spent a few minutes, let me hear your issues. Let me hear you. Because at the end of the day, we all want to matter. We all want to be heard. And if we do that, guess what happened? It would never been a million dollar lawsuit. And I never would have been a letter of apology, because I would have been heard and things would have been okay. Yeah. Well, again, one thing that said the lights flashing and my brainers they were not focusing on the community, what are the needs of the community, the prior board member was thinking, I want to do these for these. So I want to do these good things for the association. I want to help. But the current board was blaming rather than saying, Oh gee yes, we could use his help. We don't live in a perfect world. There's going to be minor mistakes. You use the word perfect misunderstanding. But if we can focus on the community, what does the community need to move forward? Rather than blaming the past rather than blaming the current We have to watch out for blaming, judging and criticizing? That's the three things that we do. All you know, we do instinct, instinctively to protect ourselves. You know, we protect ourselves automatically when somebody comes after us. We want to protect ourselves and not take a step back. And listen, we need to take a step back and listen. Okay, well, Words matter. Kevin, fantastic, great time spent with you. Any closing thoughts to add as a wrap up. Behavior, behavior behavior, we have to understand that a lot of these million dollar lawsuits that we talked about the next several months has to do with behavior, not because of an accident, not because your roof was leaking or because your storm blew away or because somebody it is because of behavior. If we can change behavior, guess what we can do? Lower the cost of your insurance. We can lower the temperature in these associations, we can really make a big difference in our in your life, but we can save some time and save money and all resources. So we have to be able to communicate more effectively and make short people are being heard because at the end of the day, they want to matter, and we all want to be heard. I like that. Thanks, Robert. Thank you, Kevin. We hope you learned some HOA insights from our discussion today that helps you bring common sense to your common area. Look forward to another great episode next week. You've been listening to HOA Insights, Common Sense for Common Areas. You can listen to the show on our podcast website, hoainsights.org, or subscribe on any of the most popular podcast platforms. You can also watch the show on our YouTube channel. Check the show notes for helpful links. If you liked the show, and want to support the work we do, you can do so in a number of ways. The most important thing you can do is to engage in the conversation, email your questions or voice memos to podcast@reserve study.com Or leave us a voicemail at 805-203-3130. If you gain any insights from the show, please do us a HUGE favor by sharing the show with other board members you know, you can also support us by supporting the brands that sponsor this program. Please remember that the views and opinions expressed by the podcast do not constitute legal advice. You'll want to consult your own legal counsel before making any important decisions. Finally, this podcast was expertly mixed and mastered by Stoke Light Video and Marketing. With Stoke Light on your team, you'll reach more customers with marketing expertise that inspires action. See the show notes to connect with Stoke Light.

Intro to Avoiding A $1M HOA Insurance Claim
Is Noise a Liability Problem?
Traits of Reputational Damage
Old VS New HOA Board
The Insurance Provider Perspective
Suing as a 3rd Party VS Same Party
Defamation Vs Libel
Intentional & Willful Acts
What Insurances Will Do
What’s Happened to HOAs
The Solution
How Words Matter in the HOA Board
Behavior is The Culprit