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The Council of Unit Owners of Windswept Condo. Ass'n v. Schumm

Superior Court of Delaware, Sussex

November 20, 2013

The Council of Unit Owners of Windswept Condo. Ass'n,
Ocean Atlantic Assocs. VII LLC

Submitted: October 10, 2013.

Victoria K. Petrone, Esquire, Logan & Petrone, LLC One Corporate Commons, Counsel for Plaintiff.

Natalie M. Ippolito, Esquire, Benjamin C. Wetzel, III, Esquire, Wetzel & Associates, P.A., Counsel for Defendant/Third-Party Plaintiff.

William E. Manning, Esquire, James D. Taylor, Esquire, Whitney W. Deeney, Esquire, Saul Ewing, LLP, Counsel for Third-Party Defendant.

Dear Counsel:

Before the Court is Defendant Robert Schumm's ("Schumm's") Motion for Summary Judgment, filed in this breach of contract action brought by Plaintiff The Council of Unit Owners of Windswept Condominium Associates (the "Council"). For the reasons set forth herein, Schumm's Motion is GRANTED.


The facts, viewed in the light most favorable to the non-moving party, are as follows. Windswept Condominium ("Windswept") is a residential complex located at the Peninsula of the Indian River Bay in Millsboro, Delaware. Windswept consists of eleven buildings comprising 177 Units. Schumm is the owner of Windswept Unit 1202 ("Schumm's Unit") and has been since its construction in 2006. Like many of the residents at Windswept, Schumm is a "summer-weekender" whose primary residence is elsewhere.[1]

In June of 2010, lightning struck Building One of Windswept causing a destructive fire. The most significantly damaged Units were 1101 and 1201, with the floor having been burned out and caving in. Schumm's Unit was located on the second floor of Building One, next to Unit 1201 and above Unit 1101 and Unit 1102. Schumm's Unit sustained mostly smoke and soot damage. As a result, the carpeting, some drywall, two bathtubs and the master bathroom vanity were removed from Schumm's Unit.

The Council retained Royal Plus Fire & Restoration ("Royal Plus") to repair and reconstruct Building One. The Royal Plus renovation was led by project manager Michael Kohut ("Kohut"), who began reconstruction in late January or early February of 2011. At the commencement of the reconstruction, Kohut noticed water damage to the subfloor of Schumm's Unit. Subsequently, Windswept contacted Broadpoint Consulting Group ("Broadpoint"), which in turn brought in MacIntosh Engineering ("MacIntosh"), to conduct a site investigation to further evaluate the subfloor damage. Their investigation revealed approximately 900 square feet of severely damaged and delaminated AdvanTech, subflooring material. The Council received reports from MacIntosh and Broadpoint which recommended pressure testing all the existing plumbing from within Schumm's Unit and the floors above, including the fire suppression system, to determine the water and moisture source.

Subsequently, Kohut and Royal Plus plumber, John Tallent ("Tallent"), performed pressure testing within Schumm's Unit; however, the fire suppression system was unable to be tested. No leaks were detected in the water supply lines nor were any cracks found in the drain pipes. Additionally, there were no visible water stains evidencing water leakage. The existing piping from the floors above Schumm's Unit were not tested.

Furthermore, Royal Plus closely examined the plumbing within Schumm's Unit. Specifically, Schumm's master bathroom shower (the "shower") was investigated. Initially, the shower drain was tested and it was found not to leak. In order to determine if the shower pan itself was cracked, the pan was filled with approximately one-and-a-half inches of water with the drain plugged. It showed no signs of a leak. With the water still in the pan, Kohut proceeded to stand in the shower pan in an attempt to mimic a person taking a shower. Once again, the shower pan did not leak. Next, additional water was added to the shower pan and the water was purposely splashed onto the shower walls. Yet again, water did not leak. Finally, the shower pan was filled to the rim with water and the water was moved back and forth. As a result, water appeared to leak from beneath the shower pan. Ultimately, an inspection showed evidence of a hairline crack in the shower pan. The crack was located in what would have been the front left-hand corner of the shower pan, extending from near the top of the shower pan to within approximately one inch of the bottom of the shower pan. The cracked shower pan was deemed the cause of the water damage to Schumm's Unit and the Unit below.

Since Building One was open to the elements and time was of the essence, the Council retained Royal Plus under a separate contract to perform the repairs and renovations of Schumm's Unit and the Unit below. The cost of repairs amounted to $154, 832.91. Meanwhile, the Council pursued insurance coverage for such repairs. Ultimately, coverage was denied pursuant to policy language "excluding water damage that occurs over a period of 14 days or more."[2] Subsequently, Schumm received an invoice from Windswept in the amount of $154, 832.91 (the "Assessment") with the description, "Reimbursement for Sub-floor Claim to Windswept" with a due date of November 3, 2011. Schumm refused to reimburse Windswept.

Consequently, on August 9, 2012, the Council filed a complaint against Schumm claiming breach of contract and seeking reimbursement for the costs incurred to repair Schumm's Unit and the Unit below. Schumm filed a Third-Party Claim against developer Ocean Atlantic Associates, VII, LLC ("Ocean Atlantic") on September 19, 2012. On August 20, 2013, Schumm moved for summary judgment pursuant to Superior Court Rule of Civil Procedure 56. On September 19, 2013, Ocean Atlantic responded to Schumm's Motion adopting Schumm's arguments in support of summary judgment, but denying liability.


Despite vigorous briefing, the parties' contentions can be whittled down to one principal argument: whether the record supports a causal connection between Schumm's Unit and the water damage found within Schumm's Unit and the Unit below. For this reason, the parties' contentions have been narrowed to address this particular issue.

A. Schumm

Schumm maintains summary judgment is appropriate and must be granted because the Council failed to prove his shower pan leaked or identify that the source of alleged water originated from his Unit. In response to Council's claim that Schumm's faulty shower pan was the source of water, Schumm argues that "it has been proven time and again that the shower pan in fact did not leak."[3] Schumm begins by directing the Court to the deposition of Kohut, who was asked about the alleged leaking cracks:

Q: Okay. So what then made you think it was a crack, you know, that the water came through a crack?
A: I don't recall saying there was a crack.
Q: Okay, maybe I misunderstood something.
A: No, earlier I had mentioned a crack where we had thought, and that's why I stood in the tub.
Q: Okay. So you stood in the tub, and I don't want to put words in your mouth so correct ...

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