Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CLEARWATER KEY ASSOCIATION –

SOUTH BEACH II, INC.,

Plaintiff,

v. Case No. 8:25-cv-295-VMC-AAS

LEXINGTON INSURANCE COMPANY,

Defendant.

/

ORDER

This matter is before the Court on consideration of

Defendant Lexington Insurance Company’s Motion for Summary

Judgment (Doc. # 31), filed on November 14, 2025. Plaintiff

Clearwater Key Association - South Beach II, Inc., responded

on December 22, 2025. (Doc. # 38). Lexington replied on

January 9, 2026. (Doc. # 44). For the reasons that follow,

the Motion is denied.

I. Background

A. The Parties

Lexington issued an insurance policy for Clearwater

Key’s property located at 1430 Gulf Boulevard in Clearwater,

Florida (the “Property”), which was in effect from April 27,

2020, until April 27, 2021. (Doc. # 22-1 at 7-8; Doc. # 31-2

at ¶ 4). The Property is a nine-story, 95-unit condominium

building built in 1974. (Doc. # 31-3 at 51:11-16). The

Property still has its original cast-iron plumbing system.

(Id. at 59:19-22). The plumbing system has caused many leaks

at the Property since at least 2017. (Id. at 50:5-51:9; Doc.

# 31-9 at 45:20-47:9).

B. The Policy Terms

The policy generally does not cover loss or damage caused

by wear and tear. (Doc. # 22-1 at 29 – Causes of Loss –

Special Form § (B)(2)(d)(1)). However, if wear and tear

results in a “specified cause of loss,” the policy covers

“loss or damage caused by that ‘specified cause of loss.’”

(Id. at 29 § (B)(2)(d)). Water damage, which includes

“[a]ccidental discharge or leakage of water or steam as the

direct result of the breaking apart or cracking of a plumbing

. . . system or appliance” is a “specified cause of loss.”

(Id. at 36 § (G)(2)(c)(1)). “If loss or damage caused by or

resulting from covered water or other liquid, powder or

molten material damage loss occurs, [Lexington] will also

pay the cost to tear out and replace any part of the building

or structure to repair damage to the system or appliance

from which the water or other substance escapes.” (Id. at

35 § (F)(2)). The policy requires Clearwater Key to give

“prompt notice” of any “loss or damage to Covered Property.”

(Id. at 46 – Condominium Association Coverage Form §

(E)(3)(a)(2)).

C. The Subject Loss and Subsequent Plumbing Issues

On or around June 3, 2020, Clearwater Key’s maintenance

supervisor Gjergii Pjetri observed the subject loss – wet

carpet and drywall on the east side of the fifth-floor hallway

near Unit 504 – and reported it to the property manager,

Kathleen Day. (Doc. # 31-3 at 162:18-163:12, 168:2-22,

169:20-170:16, 172:6-11; Doc. # 31-9 at 11:14-19, 75:18-21,

82:19-23, 84:3-24). Mr. Pjetri repaired the portion of the

cast-iron plumbing system that was leaking onto the carpet

and drywall by removing the broken or cracked pipe and

replacing it with a new section of cast-iron pipe. (Doc. #

31-9 at 212:2-213:6). Clearwater also hired two companies to

perform water mitigation services and dry wall repair. (Id.

at Exhibits 2 and 3). The repairs were completed by August 5,

2020. (Doc. # 31-3 at 160:19-161:2).

Clearwater Key replaced various other sections of cast-

iron pipe at the Property from May 2021 through September

2022. (Doc. # 31-12 at 63:21-64:19, 71:5-72:22, 73:9-22,

73:25-74:22).

D. Reporting and Investigation of the Loss

Public adjuster Michael Michio contacted Ms. Day in

August 2022 as he believed the Property was having plumbing

issues. (Doc. # 39-4 at 16:14-17, 39:7-14, 48:21-25). Ms. Day

confirmed that the Property was having plumbing issues and

agreed to meet with Mr. Michio to discuss whether Clearwater

Key had grounds to file an insurance claim. (Id. at 42:20-

25, 43:20-44:19). In October or November 2022, Mr. Michio

inspected the Property. (Id. at 44:23-45:17, 47:20-48:18).

Mr. Michio then reviewed Clearwater Key’s insurance policy

and found a section which he “believe[d] provided them with

coverage.” (Id. at 54:24-55:4). Clearwater Key retained Mr.

Michio in January 2023. (Id. at 47:24-48:10, 53:12-16).

“On May 25, 2023, Clearwater Key, through its public

adjuster, notified Lexington for the first time it was making

a claim for a loss dated August 5, 2020, due to a pipe that

broke in a wall at the east end of the 5th floor hallway.”

(Doc. # 31-2 at ¶ 5). Clearwater Key later amended its

complaint to assert that the loss actually occurred on June

3, 2020, after it discovered an invoice from its water

mitigation contractor that listed June 3, 2020, as the date

of loss. (Doc. # 20 at ¶ 6).

Initially, Clearwater Key claimed “that they experienced

a water loss” in Units 209, 312, 505, 704, and 712 “due to

cast iron pipe failure.” (Doc. # 31-16 at App’x B at 1).

On May 30, 2023, Lexington’s claims adjuster, Jeremy Minter,

inspected the fifth-floor hallway of the Property with Mr.

Michio. (Doc. # 31-14 at 5:19-21, 7:20-8:4, 15:15-20, 16:3-

9). No damage was visible as the repairs had already been

completed. (Id. at 16:10-18:8). On June 16, 2023, Lexington

determined that the portion of the claim which was for the

cost of the replaced pipe was not covered by the policy and

that the portion of the claim which was for the water damage

on the fifth floor was below the deductible. (Id. at 23:21-

25, 25:18-27:20). By November 2023, Clearwater Key amended

its claim to assert that the entire cast-iron plumbing system

had failed. (Doc. # 31-16 at App’x B at 1; Doc. # 39-5 at

12:21-13:9, 14:5-17).

Lexington’s engineering expert, Justin Cox, P.E.,

inspected the Property in October and November 2023. (Doc. #

31-16 at Ex. 7 at 1). Mr. Cox’s report states as follows. Mr.

Michio told Mr. Cox that “there were ‘multiple ensuing loss

dates’ . . . following an initial leak in Unit 505.” (Id. at

2). However, Mr. Michio did not explain “how leaks occurring

at various times at the subject structure were related to

events on the reported date of loss.” (Id.). Although

Clearwater Plumbing had “performed multiple repairs to the

drain lines at the subject structure,” no documentation “for

prior leaks and history of repairs” was provided to Mr. Cox

(Id.). A “camera assessment of the drain line” by Lexington’s

plumbing expert, Tom Shell, revealed cracks in two of the

Property’s 40 cast-iron pipe stacks. (Id. at 4-5).

Photographs reportedly taken by Mr. Michio in September 2023

also showed another crack in the pipe stack serving the “-12

stack at Unit 712.” (Id.). Although “many of the reported

drain line leaks and resulting damaged finishes had been

repaired” prior to Mr. Cox’s site visit, Mr. Cox opined “that

multiple leaks in the vertical drain stacks had occurred at

the subject structure.” (Id. at 5). Mr. Cox opined that the

“presence of prior repairs to the drain stacks and interior

finishes and the lack of documentation provided to [his

company, EFI Global,] indicating the history of leaks and

plumbing repairs impeded EFI’s ability to determine the time,

extent, and location of leaks at the drain stacks at the

subject structure.” (Id.). Nevertheless, Mr. Cox opined that

the “leaks on the vertical cast-iron drain stacks occurred on

separate dates and were not related to a single event, but

occurred independently of one another.” (Id.). Mr. Cox

concluded that the “occurrence of leaks in the drain lines is

expected behavior as the structure continues to age” and that

“[m]aintenance of the drain lines is required to prevent

future leaks from occurring.” (Id.).

Lexington’s plumbing expert, Mr. Shell, visited the

Property twice in November 2023. (Doc. # 31-16 at App’x B at

1). Mr. Shell ran “a drain line camera through the 40 plumbing

vents on the roof of the condominium to inspect the entirety

of the cast iron vent and soil pipes.” (Id. at 1-2). After

watching each drain line video, Mr. Shell “was able to

determine that out of 40 cast iron pipe stacks, there are 2

cast iron pipes with cracks in them. The back-to-back bathroom

soil stack that serves the -04 units has” two longitudinal

cracks,” and “the back-to-back bathroom soil stack serving

the -03 units” also has a crack.” (Id. at 2). Mr. Shell opined

that, “[o]therwise, the cast iron pipe in the building is in

great condition.” (Id.). Mr. Shell further testified as

follows. He was able to adequately view inside the pipes at

the Property to form his opinions. (Doc. # 39-5 at 18:5-9).

Although “the best time” for Mr. Shell to have inspected the

pipes was “prerepair,” he could not say that the pipes were

in a substantially different condition at the time of his

inspection than at the time of the loss. (Id. at 20:5-16).

According to Clearwater Key’s plumbing expert, Ryan

Penna, who inspected the plumbing system in February 2024,

the loss was caused by “[a] failure in the cast iron pipe

caused by wear, tear and deterioration.” (Doc. # 31-4 at

32:20-24, 33:18-25). Mr. Penna stated that he was able to

determine the cause of the loss based on his video inspection

of the pipes and his review of a recording made by Mr. Michio;

it was not necessary for him to review historical and

maintenance documents or know when the problems with the

plumbing system began. (Id. at 33:8-17, 36:4-23, 45:11-46:4).

Mr. Penna further opined that the “cast iron sanitary drainage

system . . . serving the property has failed” due to “[w]ear,

tear and deterioration over time” and “must be replaced in

its entirety to prevent further damage.” (Id. at 46:12-15,

46:24-47:1).

Clearwater Key’s engineering expert, Sonny Gulati, P.E.,

who inspected the Property in August 2025, also opined that

as of June 3, 2020, the plumbing system had failed and needed

to be replaced. (Doc.# 39-6 at 44:9-11, 93:11-94:3). Mr.

Gulati explained that his forensic investigation was not

impeded by the five-year gap between the date of loss and his

inspection because he was able to review the photographs and

videos taken in 2023 as well as the plumbing and repair

invoices from 2020. (Id. at 68:6-70:22).

E. Procedural History

In the amended complaint, Clearwater Key alleges that

Lexington has breached its contractual obligation to “pay the

full amount caused by the loss.” (Doc. # 22 at ¶¶ 21, 27).

Clearwater Key asserts that the claims investigation revealed

that “the cast iron plumbing system throughout the property

had failed and needed to be entirely replaced.” (Id. at ¶

17). Clearwater Key claims that the cost covered by the policy

“for repair of ensuing losses and tear out and replacement of

the building to access the failed plumbing is approximately

$3,831,690.70.” (Id. at ¶ 23). Lexington filed an answer

denying the allegations and asserting affirmative defenses,

including that Clearwater Key failed to promptly notify

Lexington of the alleged loss. (Doc. # 26).

Lexington moves for summary judgment. (Doc. # 31).

Clearwater Key has responded (Doc. # 38), and Lexington has

replied. (Doc. # 44). The Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. There Is a Genuine Issue of Fact as to Whether

Lexington Was Prejudiced by Clearwater Key’s

Untimely Notice

Lexington argues that it is entitled to summary judgment

because Clearwater Key cannot rebut the presumption that

Lexington has been prejudiced by the untimely reporting of

the subject loss. (Doc. # 31 at 13-21). In response,

Clearwater Key argues that it timely notified Lexington of

the loss. (Doc. # 38 at 13-16). Alternatively, Clearwater Key

contends that Lexington was not prejudiced by the delay in

reporting the loss as an investigation immediately following

the loss would not have disclosed anything materially

different from what was disclosed in the delayed

investigation. (Id. at 16-21). The Court finds that factual

disputes as to whether Lexington was prejudiced by Clearwater

Key’s untimely notice preclude summary judgment.

“The failure of an insured to give a timely notice of

loss in contravention of a policy provision is a legal basis

for the denial of recovery under the policy.” LoBello v. State

Farm Fla. Ins. Co., 152 So. 3d 595, 598 (Fla. 2d DCA 2014)

(citation and internal quotation marks omitted). Under

Florida law, “the question of whether an insured’s untimely

reporting of loss is sufficient to result in the denial of

recovery under the policy implicates a two-step analysis.”

Id. at 599; see also Yacht Club on the Intracoastal Condo.

Ass’n, Inc. v. Lexington Ins. Co., 599 F. App’x 875, 879 (11th

Cir. 2015). “The first step in the analysis is to determine

whether or not the notice was timely given.” LoBello, 152 So.

3d at 599. “If the notice was untimely, then prejudice to the

insurer is presumed.” Id. “However, the presumption of

prejudice to the insurer may be rebutted by a showing that

the insurer has not been prejudiced by the lack of

notice.” Id. (internal quotation marks omitted).

“A determination that the notice was, in fact, timely

concludes the analysis with the first step.” Id. “However, if

the notice was untimely, then the analysis proceeds to the

second step.” Id. “In the second step, the insured must

overcome the presumption by proving that the insurer was not

prejudiced by noncompliance with the condition of timely

notice.” Id. “If the insured is unable to overcome the

presumption of prejudice, then the insurer will prevail on a

defense of untimely notice.” Id.

1. Notice

“The purpose of a provision for notice and proofs of

loss is to enable the insurer to evaluate its rights and

liabilities, to afford it an opportunity to make a timely

investigation, and to prevent fraud and imposition upon it.”

Id. at 598 (internal quotation marks omitted). However, “the

duty to notify is not per se triggered when the loss initially

occurs, or when the insured first discovers damage to their

property.” Sec. First Ins. Co. v. Visca, 387 So. 3d 313, 318

(Fla. 4th DCA 2024). “An event must be of sufficient

consequence to trigger an insured’s duty to provide notice.”

LoBello, 152 So. 3d at 599; see also Cordero v. Fla. Ins.

Guar. Ass’n, Inc., 354 So. 3d 1150, 1153 (Fla. 2d DCA 2023).

“[T]he duty to provide notice arises when a reasonable

person, viewing all available facts and information, would

conclude that an award implicating the policy is likely.”

Cordero, 354 So. 3d at 1153 (citation and internal quotation

marks omitted). “Stated another way, notice is necessary when

there has been an occurrence that should lead a reasonable

and prudent [person] to believe that a claim for damages would

arise.” Visca, 387 So. 3d at 318 (citation and internal

quotation marks omitted). “Prompt notice is not excused

because an insured might not be aware of the full extent of

damage or that damage would exceed the deductible.” Yacht

Club, 599 F. App’x at 880 (“Whatever concerns the Board had

about the extent of damage and its deductible are not relevant

under Florida law.”); see also 1500 Coral Towers Condo. Ass’n,

Inc. v. Citizens Prop. Ins. Corp., 112 So. 3d 541, 543 (Fla.

3d DCA 2013) (“When an insurance contract contains a provision

which applies to notice of the damage claim, an insured must

give notice of the loss that implicates a potential claim

without waiting for the full extent of the damages to become

apparent.”).

Here, the policy does not define what is “prompt” notice

of loss or damage. “It is well settled, however, that ‘prompt’

and other comparable phrases, like ‘immediate’ and ‘as soon

as practicable,’ do not require instantaneous notice.” Laquer

v. Citizens Prop. Ins. Corp., 167 So. 3d 470, 474 (Fla. 2d

DCA 2015) (quoting Cont’l Cas. Co. v. Shoffstall, 198 So. 2d

654, 656 (Fla. 2d DCA 1967)). “Rather, [n]otice is said to be

prompt when it is provided with reasonable dispatch and within

a reasonable time in view of all of the facts and

circumstances of the particular case.” Guzman v. S. Fid. Ins.

Co., 332 So. 3d 67, 70–71 (Fla. 2d DCA 2021) (citation and

internal quotation marks omitted). “[W]hether an insured has

given ‘prompt’ notice is generally a question of fact for the

jury.” Id. at 71. But “if the undisputed evidence will not

support a finding that the insured gave notice to the insurer

as soon as practicable, then a finding that notice was timely

given is unsupportable.” LoBello, 152 So. 3d at 600.

Clearwater Key argues that “a reasonable person would

not have concluded, in June of 2020, that the water damage to

the East end of the fifth-floor hallway would implicate an

insurance payment.” (Doc. # 38 at 14-15). Clearwater Key cites

Ms. Day’s testimony explaining that Clearwater Key did not

report the loss after it was discovered in June 2020 because

it “would not have met any deductibles or anything” so “there

was no reason to go through the song and dance of opening a

claim.” (Doc. # 31-9 at 99:7-100:11). Clearwater Key asserts

that its duty to notify Lexington was not triggered until on

or about February 23, 2024, when it received Mr. Penna’s

report and learned that its cast-iron plumbing system was

damaged beyond repair. (Doc. # 31-9 at 203:11-204:24).

Clearwater Key argues that “[b]efore that date, it cannot be

credibly argued that any reasonable person would have

understood that an insurance payout was likely under the

circumstances.” (Doc. # 38 at 15).

The Court is not persuaded. Although Clearwater Key may

not have been told that its entire plumbing system needed to

be replaced prior to February 2024, it is undisputed that

Clearwater Key was aware of the subject loss by June 3, 2020.

(Doc. # 31-3 at 162:18-163:12, 168:2-22, 169:20-170:16,

172:6-11; Doc. #31-9 at 11:14-19, 75:18-21, 82:19-23, 84:3-

24). Ms. Day’s concerns about the extent of the loss or the

deductible are not relevant in determining whether Clearwater

Key gave timely notice to Lexington. Yacht Club, 599 F. App’x

at 880; 1500 Coral Towers, 112 So. 3d at 543. Viewing the

record in the light most favorable to Clearwater Key, there

is “no reasonable interpretation of the evidence which will

support a finding that the notice of loss was given as soon

as practicable.” Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d

782, 785 (Fla. 3d DCA 1981) (“It should be borne in mind that

the insured could not wait until the full extent of the damage

to the aircraft was apparent, because the policy covered any

‘occurrence’ resulting in injury to the aircraft.”); see also

Yacht Club, 599 F. App’x at 877-78, 880-81 (finding no genuine

factual dispute that a condominium association failed to give

timely notice of hurricane damage to its insurer until nearly

five years later); 1500 Coral Towers, 112 So. 3d at 542-44

(same).

2. Prejudice

“In delayed notice cases, while prejudice to the insurer

is presumed, if the insured can demonstrate that the insurer

has not been prejudiced thereby, then the insurer will not be

relieved of liability merely by a showing that notice was not

given as soon as practicable.” Slominski v. Citizens Prop.

Ins. Corp., 99 So. 3d 973, 976 (Fla. 4th DCA 2012) (internal

citation and quotation marks omitted). “This burden shifting

is consistent with the burden shifting which occurs on a

motion for summary judgment when the movant has met the

initial burden of demonstrating the nonexistence of any

genuine issue of material fact.” Soronson v. State Farm Fla.

Ins. Co., 96 So. 3d 949, 953 (Fla. 4th DCA 2012). “The insured

has the burden to show the lack of prejudice if its insurer

lost the opportunity to investigate the facts of the claim.”

De La Rosa v. Fla. Peninsula Ins. Co., 246 So. 3d 438, 441

(Fla. 4th DCA 2018). “Whether the presumption of prejudice to

the insurer has been overcome is ordinarily . . . a separate

issue of fact.” Stark v. State Farm Fla. Ins. Co., 95 So. 3d

285, 288 (Fla. 4th DCA 2012) (internal quotation marks

omitted). “Before the trial court should grant summary

judgment, the record on such a motion should conclusively

foreclose[] the insured’s ability to overcome the presumption

[of prejudice].” Id. (internal quotation marks omitted).

Here, the testimony of Mr. Penna and Mr. Gulati create

genuine issues of material fact as to whether Clearwater Key

could overcome the presumption of prejudice caused by the

late notice to Lexington. Mr. Penna and Mr. Gulati both opined

that they were able to determine the cause of the June 2020

loss even though they did not conduct their own investigations

until well after the loss was reported to Lexington. (Doc. #

31-4 at 33:8-17, 36:4-23, 45:11-46:4; Doc. # 39-6 at 44:9-

11, 68:6-70:22, 93:11-94:3). Indeed, Lexington’s own plumber,

Mr. Shell, acknowledged that he was able to adequately view

inside the pipes during his investigation and that he could

not say whether the pipes were in a substantially different

condition in June 2020. (Doc. # 39-5 at 20:5-16). Although

Lexington’s engineer, Mr. Cox, opined that the “presence of

prior repairs to the drain stacks and interior finishes and

the lack of documentation . . . indicating the history of

leaks and plumbing repairs impeded [his] ability to determine

the time, extent, and location of leaks,” Mr. Cox nevertheless

was able to render an opinion as to the cause of the leaks.

(Doc. # 31-16 at Ex. 7 at 5).

Based on this evidence, a reasonable jury could conclude

“that an investigation conducted immediately following the

occurrence would not have disclosed anything materially

different from that disclosed by the delayed investigation.”

Ad Khan Props., LLC v. Clear Blue Specialty Ins. Co., No.

6:22-cv-1347-RBD-LHP, 2024 WL 3103609, at *5 (M.D. Fla. Apr.

5, 2024) (internal quotation marks omitted) (finding that

expert engineer’s testimony that he could determine the cause

of the damage almost two years after the loss created a

triable issue of fact on prejudice); see also Stark, 95 So.

3d at 288 (“Nicholson’s opinion that the insurer could still

have observed the ‘classic pattern of windstorm damage’ left

by Hurricane Wilma as late as 2010 suggested that the insureds

could convince a finder of fact that their noncompliance with

the notice provision did not prejudice the insurer by

depriving it ‘of the opportunity to investigate the facts’”).

The record does not “conclusively foreclose” Clearwater

Key’s ability to overcome the presumption of prejudice.

Stark, 95 So. 3d at 288 (internal quotation marks omitted).

Accordingly, Lexington is not entitled to summary judgment on

this basis.

B. Lexington Has Not Demonstrated that Clearwater Key

Seeks to Recover Damages Not Covered by the Policy

Alternatively, Lexington argues that Clearwater Key’s

multimillion-dollar claim for “‘tear out and access’ coverage

to access its entire plumbing system as a result of the June

2020 loss fails” because “the only damage that was alleged to

have occurred on the date of loss due to water or other

substance that escaped as a direct result from the breaking

apart or cracking of a pipe . . . was on the east end of the

5th floor hallway just outside Unit 504.” (Doc. # 31 at 24).

In response, Clearwater Key argues that the policy expressly

provides coverage for its claimed damages. (Doc. # 38 at 21-

22). The Court is not persuaded by Lexington’s contention.

“The question of whether a particular risk is covered by

an insurance policy is a question of law when the facts are

undisputed.” State Farm Fire & Cas. Co. v. Castillo, 829 So.

2d 242, 244 (Fla. 3d DCA 2002). “As such, to determine as a

matter of law whether [a plaintiff’s] loss is covered by its

insurance policy with [a defendant], the Court must first

assess whether genuine disputed issues of fact remain as to

the cause of the loss.” Marc E. Bosem MD PA v. Sentinel Ins.

Co., Ltd., No. 20-62205-CIV, 2022 WL 3154789, at *4 (S.D.

Fla. Jan. 3, 2022).

Here, Clearwater Key’s experts opine that the entire

plumbing system had failed and required replacement as of the

June 3, 2020, loss. (Doc. # 31-4 at 32:20-24, 33:18-25, 46:12-

15, 46:24-47:1; Doc. # 39-6 at 44:9-11, 93:11-94:3). In

contrast, Lexington’s engineering expert, Mr. Cox, opined

that the leaks after the June 3, 2020, loss were not related

and did not indicate a systemic failure. (Doc. # 31-16 at Ex.

7 at 5). Mr. Cox further opined that preventing future leaks

required maintenance of the pipes, rather than a complete

replacement of the system. (Id.).

“Because the parties have competing experts as to the

cause of the subject loss, summary judgment on the issue of

coverage is inappropriate.” Marc E. Bosem MD PA, 2022 WL

3154789, at *5. Genuine issues of material fact exist

regarding whether the damage for which Clearwater Key seeks

coverage was caused by a failure of the entire plumbing system

or was an isolated leak.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Defendant Lexington Insurance Company’s Motion for

Summary Judgment (Doc. # 31) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

18th day of February, 2026.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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