             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-793

                                  Filed: 1 May 2018

Buncombe County, No. 15-CVS-04173

ANN HARDY PORTER, TRUSTEE OF THE ANN HARDY PORTER LIVING
TRUST, DATED MARCH 9, 2000; JANET S. WILKINS; MARY ANN CASE;
VIRGINIA W. HAYES; SYBEL B. HOFFMAN; KATHLEEN HANDLEY, TRUSTEE
OF THE HANDLEY LIVING TRUST; PHILLIPS CUTRIGHT AND KAREN
CUTRIGHT; KARL LEBER AND HEIDI A. LEBER; PHYLLIS LANGTON,
TRUSTEE OF THE DR. PHYLLIS A. LANGTON REVOCABLE TRUST, DATES
MAY 1 2001; Plaintiffs,

            v.

BEAVERDAM RUN CONDOMINIUM ASSOCIATION, Defendant.


      Appeal by Plaintiffs from order entered 31 March 2017 by Judge Alan Z.

Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 25

January 2018.


      Adams Hendon Carson Crow & Saenger, P.A., by E. Thomison Holman, for the
      Plaintiffs.

      Cranfill Sumner & Hartzog LLP, by John W. Ong, for the Defendant.


      DILLON, Judge.


      Plaintiffs   are   owners   of   residential    condominiums   in   Beaverdam

Run (the “Community”), located in Buncombe County. Plaintiffs brought this action

seeking a declaration that the Community’s owners’ association, Beaverdam Run

Condominium Association (the “Association”), is required to maintain flood insurance
                          PORTER V. BEAVERDAM RUN CONDO. ASS’N.

                                         Opinion of the Court



for its buildings located in a flood zone. The trial court entered an order granting

summary judgment in favor of the Association and denying Plaintiffs’ request for

declaratory judgment. For the following reasons, we reverse and remand for action

consistent with this opinion.

                                           I. Background

        The Association has a board of directors elected by the owners of units in the

Community and is governed by a declaration (the “Declaration”). The Community

consists of sixty-six (66) buildings. Five of these buildings are located within a flood

zone as designated by the Federal Emergency Management Agency (“FEMA”). Each

Plaintiff owns a unit in one of these five buildings.1

        From approximately 2006-2012, the Association maintained flood insurance on

each of the five buildings containing Plaintiffs’ units. In 2012, the Association decided

not to renew the flood insurance policy, citing concerns regarding cost and the

allocation of the expense among the other members of the Association.2                              The

Association notified all owners in the Community of its decision not to renew the flood

insurance policy in a detailed letter, in accordance with the terms of the Declaration.

The Association declined Plaintiffs’ subsequent requests that the Association resume

purchasing and maintaining flood insurance on the five buildings.


        1  There are ten individuals who own units in the five buildings. Nine of the ten individuals are
plaintiffs in this action. Seven of the ten plaintiffs are parties on appeal.
         2 The Association also declined to renew insurance policies protecting against mechanical

equipment breakdown, earthquake, and acts of terrorism.

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      In September 2015, Plaintiffs filed a complaint seeking a declaratory judgment

from the trial court regarding the Association’s obligation to maintain flood

insurance. The Association filed an answer and a motion for summary judgment.

      In March 2017, the trial court entered an order granting the Association’s

motion for summary judgment and dismissing Plaintiffs’ complaint with prejudice.

Plaintiffs timely appealed.

                                II. Standard of Review

      We review a trial court’s grant of summary judgment de novo. Forbis v. Neal,

361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). Summary judgment is proper if “the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56.

                                     III. Analysis

      Plaintiffs’ sole argument on appeal is that the trial court erred in granting the

Association’s motion for summary judgment, contending that the Association does, in

fact, have a duty to maintain flood insurance in Plaintiffs’ buildings.

                    A. The Condominium Act and the Declaration

      Resolution of this appeal requires examination of both Section 47C-3-113 of the

North Carolina Condominium Act (the “Condominium Act”) and the Declaration.




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        Section    47C-3-113       of   the    Condominium         Act    requires     a   residential

condominium association to maintain insurance “against all risks of direct physical

loss commonly insured against,” so long as the insurance is “available,” specifically

providing as follows:

                [T]he association shall maintain, to the extent available:

                (1) Property insurance on the common elements insuring
                against all risks of direct physical loss commonly insured
                against including fire and extended coverage perils. . . .

N.C. Gen. Stat. § 47C-3-113(a) (emphasis added).3 The statute further provides that

“[i]f the insurance described in subsection (a) . . . is not reasonably available, the

association promptly shall cause notice of that fact to be [communicated] . . . to all

unit owners.       The declaration may require the association to carry any other

insurance, and the association . . . may carry any other insurance it deems

appropriate to protect the association or the unit owners.” N.C. Gen. Stat. § 47C-3-

113(c) (emphasis added).

        The Declaration contains two sections which govern the Association’s purchase

of insurance: Section 8.1 provides generally that the Association is to maintain

insurance coverage in accordance with N.C. Gen. Stat. § 47 C-3-113 to the extent that

such insurance is “reasonably available,” and Section 8.2 addresses property


        3 Subsection (d) mandates that “[i]nsurance policies carried pursuant to subsection (a) must
provide that [] [e]ach unit owner is an insured person under the policy with respect to liability arising
out of his [or her] interest in the common elements or membership in the association[.]” N.C. Gen.
Stat. § 47C-3-113(d).

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insurance specifically and provides that the Association is to maintain property

insurance against “all risks of direct physical loss.” Specifically, these provisions

state as follows:

             Section 8.1 Coverage. To the extent reasonably available,
             the Board shall obtain and maintain insurance coverage,
             as a common expense in accordance with Section 47C-3-113
             of the Condominium Act and as set forth in this Article. If
             such insurance is not reasonably available, and the Board
             determines that any insurance described herein will not be
             maintained, the Board shall cause notice of that fact to be
             hand-delivered or sent prepaid by United States mail to all
             Unit Owners at their respective last known addresses.

             Section 8.2 Property and Casualty Insurance. The
             Association shall procure and maintain property and
             casualty insurance on the Common Elements and Units
             insuring against all risks of direct physical loss, including
             fire and extended coverage, for and in an amount equal to
             the full replacement value of all structures within the
             Condominium, including all personal property and
             improvements thereto except for such personal property
             that is contained in but not attached to the Unit and is
             owned by the Owner personally.

(Emphasis added). The Declaration also explicitly provides that in the event of a

conflict between the terms of the Declaration and the Condominium Act, “the

provisions of the [Condominium Act] shall control.”

            B. The Association’s Obligation to Maintain Flood Insurance

      For the reasons below, we conclude that the Association is obligated by the

Declaration and the Condominium Act to maintain insurance against all risks of

direct physical loss which are commonly insured against, to the extent that such


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insurance is reasonably available. We further conclude that flood is a risk of direct

physical loss which is commonly insured against for residential buildings located in

a FEMA-designated flood zone. Accordingly, we conclude that the Association has an

obligation to provide flood insurance for the Community’s buildings located within

the FEMA flood zone each year when such insurance is reasonably available.

                               1. “Risk of Direct Physical Loss”

       We conclude that damage by flood is a “risk of direct physical loss” to property. 4

Indeed, our Supreme Court has instructed that in the context of insurance policies,

“[t]he term ‘all risks’ is not to be given a restrictive meaning.” Avis v. Hartford Fire

Ins. Co., 283 N.C. 142, 146, 195 S.E.2d 545, 546 (1973) (emphasis added).

       The Association essentially argues that (1) the phrase “all risks of direct

physical loss” is limited in the Declaration by the phrase which follows, “including

fire and extended coverage [perils]” and (2) the risk of flood is not a risk of fire or a

risk commonly understood as an “extended coverage” peril. The Association relies

heavily on an affidavit from the attorney who drafted the Declaration.                       In the

affidavit, the attorney essentially stated that flood is not an “extended coverage peril”

and that the peril of flood is not “commonly insured against in property and casualty



       4  The standard FEMA flood insurance policy covers a “residential condominium building” for
“direct physical loss by or from flood to [the] insured property[.]” Residential Condominium Building
Association     Policy,     FEMA       National     Flood    Insurance     Program,    available   at
https://www.fema.gov/media-library-data/1449522834627-6207ff14ab3d19b2a8d43b3aa6f6607d/F-
144_RCBAP_SFIP_102015.pdf (emphasis added).



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insurance policies.”5       However, the question is not whether the risk of flood is

commonly insured against only in property and casualty insurance policies; rather,

the question is whether the phrase “all risks of direct physical loss” is limited to only

risks associated with fire and extended coverages.

       We conclude that the phrase “all risks of direct physical loss” is not limited by

the phrase “including fire and extended coverage [perils].” Had the intent been to

limit the Association’s obligation to maintain only those coverages contained in a

standard fire and extended coverages policy, the Community’s declarant could have

stated as such. Our Supreme Court has consistently noted that the word “including”

indicates an intent to enlarge, not limit, a definition. See Polaroid Corp. v. Offerman,

349 N.C. 290, 300-01, 507 S.E.2d 284, 292 (1998), abrogated on other grounds by

Lenox, Inc. v. Tolson, 353 N.C. 659, 548 S.E.2d 513 (2001); N.C. Turnpike Auth. v.

Pine Island, Inc., 265 N.C. 109, 120, 143 S.E.2d 319, 327 (1965) (“The term ‘includes’

is ordinarily a word of enlargement and not of limitation.”); see also Samantar v.

Yousuf, 560 U.S. 305, 317 (2010) (“[U]se of the word ‘include’ can signal that the list

that follows is meant to be illustrative rather than exhaustive.”).

                                2. “Commonly Insured Against”




       5 We note that to the extent the trial court’s order relied upon the attorney’s legal opinion in
concluding that the Association’s motion for summary judgment should be granted, that reliance was
misplaced. It is the trial court’s duty to resolve issues of law.

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        We further hold that “flood” is a risk of direct physical loss that is “commonly

insured against” for residential buildings located in flood zones. FEMA is responsible

for administering the National Flood Insurance Program (“NFIP”), which was created

by the United States Congress “in order to make flood insurance available on

reasonable terms and conditions to those in need of such protection.” Guyton v. FM

Lending Services, Inc., 199 N.C. App. 30, 37, 681 S.E.2d 465, 471 (2009) (internal

marks omitted) (citing 42 U.S.C. § 4001).                       Plaintiffs’ response opposing the

Association’s motion for summary judgment included documentation from the NFIP

showing that from 2006-2015, the program administered over five million flood

insurance policies in each calendar year. At the time of the writing of this opinion,

FEMA’s flood policy statistics show that there are approximately 134,126 flood

policies in force in the State of North Carolina.6 Approximately 1,062 of these policies

are in force in Buncombe County, where the Community is located.

        FEMA’s Flood Insurance Manual details the methods of insuring residential

condominiums. The manual provides that only a condominium’s association may

purchase      flood     insurance      coverage       on    a    residential      building     and     its



        6 Policy Statistics Country-Wide, FEMA National Flood Insurance Program, available at http://
bsa.nfipstat.fema.gov/reports/1011.htm. We take judicial notice of these statistics pursuant to Rule
201 of the North Carolina Rules of Evidence. N.C. R. Evid. 201 (“A judicially noticed fact must be . . .
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.”); see also State v. Wright, 290 N.C. 45, 51-52, 224 S.E.2d 624, 628 (1976) (taking judicial
notice of statistics on the operation of North Carolina’s superior courts compiled by the Administrative
Office of the Courts); State v. Southern Ry. Co., 141 N.C. 46, 54 S.E. 294 (1906) (taking judicial notice
of the rules and regulations adopted by the United States Department of Agriculture).

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contents – individual unit owners are not eligible to purchase flood insurance through

the NFIP. And due to federal lending regulations, owners of properties in special

flood hazard areas are required to purchase flood insurance as a condition of receiving

a federally backed mortgage. See 42 U.S.C. § 4012. In practice, this means that any

time a buyer purchases a property in North Carolina located in a special flood hazard

area by way of a mortgage from a federally regulated lender, the property generally

must be protected by a flood insurance policy. See U.S.C. § 4012(b)(2) (“A Federal

agency lender may not make . . . any loan secured by improved real estate . . . in an

area that has been identified [] as an area having special flood hazards and in which

flood insurance has been made available under the National Flood Insurance Act[.]”).

At least one Plaintiff in this action has been unable to sell her unit, despite having

an accepted offer to purchase, because the contract was dependent on the buyers

obtaining a loan and they were unable to do so because the property was not covered

by a flood insurance policy.7

                                  3. “Reasonably Available”

       Finally, for the following reasons, we hold that the Association’s obligation to

maintain flood insurance coverage on the Community’s buildings located in a FEMA




       7Of course, this requirement might not affect a cash buyer or a mortgage issued by a private
mortgage company which is not ultimately sold on the secondary market to a federally regulated
lender.

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flood zone is not absolute for all time. Rather, we hold that the Association only has

the obligation so long as flood insurance is “reasonably available.”

      The Declaration provides that the Association is required to obtain insurance

coverage only to the “extent reasonably available.”

      The Declaration also states that the Association shall obtain insurance

coverage “in accordance with Section 47C-3-113 of the Condominium Act[.]” The

Condominium Act provides that an association “shall maintain [insurance], to the

extent available.” N.C. Gen. Stat. § 47C-3-113(a)(1). In interpreting this statutory

provision, we are guided by the Official Comment to the statute, included with the

printing of the Condominium Act. See Miller v. First Bank, 206 N.C. App. 166, 171,

696 S.E.2d 824, 827-28 (2010) (stating that “commentary to a statutory provision can

be helpful in some cases in discerning legislative intent[,]” and where comments are

“included with the printing of the statute[,] . . . [they are] relevant in construing the

intent of the statute”); see also Crowder Const. Co. v. Kiser, 134 N.C. App. 190, 206,

517 S.E.2d 178, 189 (1999) (“Consistent with the practice of our Supreme Court, we

have given the Commentary ‘substantial weight[.]’ ”). The Official Comment to N.C.

Gen. Stat. § 47C-3-113 clarifies that “[s]ubsections (a) and (b) provide that the

required insurance must be maintained only to the extent reasonably available. This

permits an association to comply with the insurance requirements even if certain




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coverages are unavailable or unreasonably expensive.” N.C. Gen. Stat. § 47C-3-113

(official comment).

                                     IV. Conclusion

       Flood is a hazard which is commonly insured against for residential properties

located in a FEMA flood zone. Whether flood continues to be a hazard “commonly

insured against” and whether such insurance is “reasonably available” are to be

determined by the Association in the course of its diligent and good-faith execution of

its duties. See N.C. Gen. Stat. § 47C-3-103 (“In the performance of their duties, the

officers and members of the executive board shall be deemed to stand in a fiduciary

relationship to the association and the unit owners and shall discharge their duties

in good faith, and with that diligence and care which ordinarily prudent [persons]

would exercise under similar circumstances in like positions.”). We note that in the

event the Association, in any given year, determines in the affirmative to both

questions, the Declaration requires that such insurance be maintained as a common

expense. Indeed, the buildings are owned by all of the unit owners in common.

       In the present case, the issue of whether the Association made the proper

determination based on the circumstances of the Community in any given year is not

before us. Rather, Plaintiffs requested a declaratory judgment to resolve the issue of

whether, in general, the Association is obligated to maintain flood insurance on any

of its buildings located in a flood plain.



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                                 Opinion of the Court



      Accordingly, we hold that the trial court erred in granting the Association’s

motion for summary judgment. Although there was no genuine issue of material fact,

the Association was not entitled to judgment in its favor as a matter of law.

Therefore, we reverse and remand for proceedings consistent with this opinion.

      REVERSED AND REMANDED.

      Judges STROUD and INMAN concur.




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