An association that holds the only policy may owe a duty to file the claim
An association that holds the only policy may owe a duty to file the claim
2026-09-15 · Mississippi · Courts
A Mississippi condominium association that is the only named insured on the master policy cannot dispose of a unit owner's damage claim by pointing at the maintenance schedule. Mortera v. Kona Villa Owners Association, Inc., No. 2023-CA-01297-COA, became final on February 18, 2026 when the Supreme Court dismissed its own grant of certiorari — leaving the Court of Appeals decision standing as binding law.1
A water heater, $59,000, and a policy the owner could not see
Gilberto Alarcon Mortera's condominium in Diamondhead took roughly $59,000 in damage when the water heater in the unit above his failed. The Kona Villa declaration names the association as the insured and designates it the “Insurance Trustee,” holding casualty proceeds “in trust… for the benefit of the unit owners.”
The association contacted State Farm, was told informally that interior repairs are a unit owner's responsibility, and declined to pursue the claim. It also refused to let the carrier give Mortera a copy of the policy.
Mortera had already been told by the federal courts that he could not sue the insurer himself. In Mortera v. State Farm, 561 F. Supp. 3d 684 (S.D. Miss. 2021), affirmed by the Fifth Circuit in 2022, the court found he lacked standing — while noting that the policy “does, however, extend coverage to certain property that Mortera alleges was damaged.” The circuit court then granted the association summary judgment by reading only the bylaws provision assigning water heaters to unit owners.
What the Court of Appeals held
Reversed and remanded. Westbrooks, J., wrote for the court: “the Association is not entitled to judgment as a matter of law through exclusive focus on the By-Laws provision placing the responsibility to repair and maintain water heaters on the unit owners.” And: “[b]ecause a factual dispute remains over the Association's status as a fiduciary, the circuit court's grant of summary judgment to the Association is reversed.”1
The distinction the court drew is the whole case. Who must repair a thing and who must pursue insurance for the loss it causes are two different questions, governed by two different parts of the instrument. A maintenance schedule allocates repair duty between the association and the owner. An insurance-trustee clause allocates something else: control of the claim, and with it the possibility of a fiduciary obligation to press it.
The procedural history is its own story
The route to finality was unusual and worth tracing, because it tells a board how seriously the Supreme Court took the question:
- May 20, 2025 — Court of Appeals reverses and remands.
- September 30, 2025 — rehearing denied.
- December 10, 2025 — the Supreme Court grants the association's petition for certiorari (Griffis, J., would deny).
- February 18, 2026 — the Court, “[u]nder Mississippi Rule of Appellate Procedure 17(f) and upon further consideration… finds that there is no need for further review and the writ of certiorari is dismissed on the Court's own motion” (Sullivan, J., all justices agreeing).
A cert grant followed by a Rule 17(f) dismissal leaves the Court of Appeals opinion intact and precedential. The association got review and then lost it without a merits opinion.
What this changes operationally
Read the insurance article before the maintenance article. Many Mississippi condominium declarations name the association as sole insured and insurance trustee, because that is how master policies are written. Under Kona Villa, that language is a potential fiduciary obligation, not just an administrative convenience.
An informal carrier phone call is not a coverage determination. The association here declined to pursue the claim on the strength of what an adjuster said. A denial in writing, or a claim actually tendered and refused, is a materially different record.
Refusing to give an owner the policy is a bad fact. Where the association holds the only copy and the owner has no standing to sue the carrier, withholding the document leaves the owner with no route to the coverage at all — which is precisely the position the fiduciary theory targets.
What to watch next
The case returns to the circuit court on the fiduciary question. What has not been decided is the scope of the duty: whether an insurance trustee must tender every arguably covered claim, or only act reasonably in deciding which to pursue. That is the line Mississippi still has to draw.
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