Busch Properties, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant National Union's motion for summary judgment (ECF #55) is GRANTED. IT IS FURTHER ORDERED that plaintiff BPl's motion for partial summary judgment (ECF #66) and all remaining motions are DENIED as moot. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 10/31/2014. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
BUSCH PROPERTIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
Case No. 4:12CV2318 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs motion for partial summary judgment
and defendant's motion for summary judgment. The motions have been fully briefed and
are ripe for disposition. For the following reasons, the Court will grant defendant' s
motion and deny plaintiffs motion as moot.
This case involves a dispute over coverage for Busch Properties, Inc. (BPI) under
commercial general liability policies that National Union Fire Insurance Company of
Pittsburgh, Pa. (National Union) issued. BPI was the property manager for
condominiums at the Kingsmill Resort (Kingsmill) in Williamsburg, Virginia, a gated
residential golf community. National Union was the general liability insurance carrier for
BPI from September 1, 1994 to July 1, 2004. In 2003, BPI personnel became aware of a
serious mold problem inside the condominium development at Kingsmill.
According to BPI, the primary cause of the mold was determined to be the use of
impermeable vinyl wallpaper which prevented moisture in the walls from escaping,
thereby providing a fertile climate for mold to develop and spread inside the walls of the
units. BPI, as the property manager, had selected and installed the vinyl wallpaper in the
units at Kingsmill. As a result, BPI believed that it faced significant exposure from
potential claims by unit owners and resort guests alleging property damage or bodily
On December 1, 2003, BPI notified its insurers, including National Union, of the
problem. BPI informed its insurers, including National Union, that its proposed strategy
was to proactively remediate the problem. BPI alleges it paid remediation costs of
approximately $11.3 million to address the damage caused by the mold problem. BPI
claims the policies cover costs it was obligated to pay to remediate mold in the
condominiums at Kingsmill. National Union has not reimbursed BPI for any portion of
the remediation costs.
BPI filed this lawsuit on December 17, 2012 alleging claims of breach of contract
and vexatious refusal to pay. National Union admits that BPI provided notice regarding
the alleged mold problem and its efforts to remediate the affected units. National Union
contends, however, that it did not consent or otherwise agree to BPI's remediation plan.
National Union filed a counterclaim for declaratory relief alleging that coverage for the
remediation costs that BPI seeks to recover is limited or unavailable under the terms of
the 1994 and 2003 policies. BPI and National Union have each filed summary judgment
motions seeking declarations as to coverage under the policies at issue.
Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
"there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter oflaw." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
burden is on the moving party. City ofMt. Pleasant, Iowa v. Associated Elec. Co-op.
Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden,
the nonmoving party must do more than show that there is some doubt as to the facts.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth affirmative evidence and
specific facts by affidavit and other evidence showing that there is a genuine dispute of a
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477
U.S. at 324. "A dispute about a material fact is 'genuine' only 'if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party."' Herring v.
Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477
U.S. at 248). "[T]he mere existence of some alleged factual dispute between the parties
will not defeat a motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Anderson, 477 U.S. at 247-48. A party resisting
summary judgment has the burden to designate the specific facts that create a triable
controversy. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir.
2004). "Because 'the interpretation and construction of insurance policies is a matter of
law, ... such cases are particularly amenable to summary judgment."' Bituminous Cas.
Corp. v. Scottsdale Ins. Co., 1:12CV84 SNLJ, 2013 WL 5739034, at *2 (E.D. Mo. Oct.
22, 2013) (quoting John Deere Ins. Co. v. Shamrock Indus., Inc., 929 F.2d 413, 417 (8th
Interpretation of Insurance Contracts
As the parties agree, Missouri law governs the interpretation of the insurance
policies in this diversity case. Id. (quoting St. Paul Fire & Marine Ins. Co. v. Missouri
United Sch. Ins. Council, 98 F.3d 343, 345 (8th Cir. 1996)). Under Missouri law, "the
interpretation of an insurance contract is generally a question of law, particularly in
reference to the question of coverage." D.R. Sherry Const., Ltd. v. American Family Mut.
Ins. Co., 316 S.W.3d 899, 902 (2010). Unless an ambiguity exists, the policy must be
enforced as written. Am. States Ins. Co. v. Mathis, 974 S.W.2d 647, 649 (Mo.App. E.D.
1998). "Under Missouri law the plaintiff has the burden of showing that the loss and
damages are covered by the policy; the defendant insurer has the burden of demonstrating
the applicability of any exclusions on which it relies." Mathis, 974 S.W.2d at 649.
Defendant's Motion for Summary Judgment
The Court has reviewed the statements, the responses, and the supporting
documentation, and, where appropriate, will accept facts as supported by appropriate
admissible evidence. In accordance with Local Rule 4.01 (E), all matters set forth in the
movants' statement of facts are deemed admitted unless specifically controverted by the
opposing party. The following facts are undisputed.
The Kingsmill condominiums were built near Williamsburg, Virginia between
1982 and 1992. In 2003, Kingsmill included 192 units. 1 BPI administered a rental
program and acted as property manager for non-resident owners of some of the Kingsmill
units. Non-resident owners participating in the rental program retained BPI as their rental
agent under a rental agreement.
As rental agent, BPI required owners participating in the rental program to have
vinyl wallpaper in their units. At the time BPI recommended the use of vinyl wallpaper,
it was very common in the resort industry. The hotel and hospitality industry did not
appreciate any risks of using impermeable finishes, such as vinyl wallpaper, until the
During the summer of 2003, BPI employees discovered mold in certain units at
Kingsmill. 2 In October of 2003, BPI discovered crumbling drywall and a wall full of
mold after a mirror fell off of a wall. BPI' s expert believes that the mold at issue began
causing property damage in December of 2002 and continued causing damage until
remediated. However, he does not know at what rate the mold grew within and among
the buildings or which buildings were damaged first.
On October 17, 2003, Kingsmill notified certain owners that "[r]ecently, in the
course of our on-going renovation of the units at Kingsmill, a significant amount of mold,
mildew and moisture damage was discovered. This led to a resort-wide inspection,
The pleadings and exhibits in this matter reference 192 units and 196 units. This
discrepancy is immaterial.
There is a dispute as to exactly when the mold was discovered but the exact date is
immaterial for the Court's decision.
which revealed the presence of such conditions in many Kingsmill units." On October
24, 2003, Kingsmill sent a letter to owners that attributed the mold to excessive rainfall
and a recent hurricane with an accompanying power outage. The letter discussed
remediation plans, stating that all rental rooms would remain closed until remediated, that
rooms would be emptied, "affected drywall" would be removed, and HVAC units would
be inspected and cleaned if necessary. The letter also discussed Kingsmill' s plans to
renovate all rental units.
BPI required all owners to execute a Consent and Authorization ("Consent") 3
prior to BPI remediating the mold. The Consent provided that the abatement of mold
would be done at no cost to the owners. Further, the Consent provided, among other
things, that it did not obligate BPI to proceed with the remediation project, that BPI did
not admit liability, and that the owners gave irrevocable and blanket consent to BPI to
take whatever actions it deemed necessary to remediate the mold. The Consent did not
provide for a general release of claims the owners might have against BPI. BPI began
requesting that owners execute the Consent by October 31, 2003.
BPI did not receive any claims from property owners, nor were any lawsuits filed
against it, related to the mold issue. BPI did not enter into any settlement agreements
with any of the property owners regarding the mold remediation. BPI received two
letters from attorneys for unit owners in response to the Consent and a letter from an
There are two Consent forms, one submitted to the rental program owners and one
submitted to the non-rental program owners. The Consent forms are substantially the
same and are collectively referred to as the Consent.
attorney for a Kingsmill homeowners' association. The letters from the attorneys from
the unit owners expressed concerns about the form and content of the Consent. The letter
from the attorney for the homeowners' association expressed a number of concerns about
the extent and cause of the mold infestation and the means of remediation.
BPI began remediation related activity by November 25, 2003. On December 1,
2003, BPI first notified National Union of the Kingsmill mold problem. The remediation
process extended into 2004. BPI did not finish gutting units until sometime after midMarch 2004. The remediation was substantially completed in June or July 2004.
National Union issued Umbrella Liability Policy BE 309 14 12 for the policy
period of September 1, 1994 to July 1, 2003 (the 1994 policy). The 1994 policy provides
up to $25 million of specified coverage in excess of underlying insurance. The 1994
policy is excess to underlying comprehensive general liability insurance with a $2 million
limit of liability each occurrence for property damage, a $2 million aggregate limit of
liability for certain property damage, and a $22 million aggregate limit of liability for
property damage arising out of completed operations. National Union issued Commercial
Umbrella policy BE 2860272 for the policy period July 1, 2003 to July 1, 2004 (the 2003
policy). The 2003 policy provides up to $50 million of specified coverage in excess of
underlying insurance. The 2003 policy is excess to underlying general liability insurance
with a $5 million retained limit.
By letter dated June 18, 2008, National Union addressed coverage under the two
National Union policies. The letter noted that National Union did not have evidence that
BPI was legally obligated to pay damages or incurred liability imposed by law in
connection with the Kingsmill mold remediation as would be required for the policies to
provide coverage. Additionally, the letter requested information to facilitate its coverage
investigation. On December 17, 2012, BPI filed this lawsuit.
National Union raises five issues in its motion for summary judgment. The Court
will address only the first issue as it is dispositive. National Union contends BPI is not
entitled to coverage for the costs to repair property damaged by mold because it cannot
show, as required by the policies at issue, that it was "legally obligated to pay" for such
damages. The 1994 policy provides that National Union must pay only those sums
"which the Insured shall become legally obligated to pay as damages for liability
imposed upon the Insured by law, or liability assumed by the Insured under contract ...
." The 2003 policy provides that National Union must pay only those sums "that the
Insured becomes legally obligated to pay by reason of liability imposed by law or
assumed by the Insured under an Insured Contract because of ... Property Damage .... "
National Union argues that BPI is not entitled to coverage for costs to repair property
damage based on its bare assertion that it was liable. Relying on D.R. Sherry
Construction, Ltd. v. American Family Mutual Insurance Co., 316 S.W.3d 899 (Mo.
2010), National Union maintains that, under Missouri law, a legal obligation to pay for
insurance purposes requires at least a settled claim against the insured that gives rise to a
legally enforceable obligation.
In response, BPI argues that it need only show it faced potential legal liability to
satisfy the "legally obligated prong" in the policies and that no claim, lawsuit, or
settlement was necessary to trigger coverage. 4 BPI argues National Union misstates the
decision in D.R. Sherry Construction, Ltd. According to BPI, the court in D.R. Sherry
Construction, Ltd. recognized that a formal claim, judicial determination, or formal
settlement agreement is not necessary where there is evidence the insured was legally
obligated to a third party. Contrary to BPI's argument, the court in D.R. Sherry
Construction, Ltd. held that the plaintiff was "legally obligated to pay damages" to a third
party because of a claim and a settlement agreement. Specifically, the court held:
After American Family informed Sherry that it would not undertake further
investigation [of] the claim until the homeowners filed a lawsuit, Sherry
repurchased the home pursuant to a settlement agreement. A settlement agreement
is a contract that creates legally enforceable obligations. Because of the settlement
agreement, Sherry legally was obligated to pay damages to the homeowners.
D.R. Sherry Construction, Ltd., 316 S.W.3d at 906. Missouri law, therefore, recognizes a
claim and a settlement agreement as sufficient to establish that an insured is "legally
obligated to pay damages."
In other states, the Court notes divergent judicial views on what is required to
establish that an insured is "legally obligated to pay damages." In Builders Mut. Ins. Co.
v. Dragas Mgmt. Corp., 793 F.Supp.2d 785, 796-97 (E.D. Va.2011) vacated on other
grounds, 497 Fed.Appx. 313 (4th Cir.2012), the court held that the term "legally
obligated to pay as damages" under a CGL policy requires a final judgment or a
Additionally, BPI contends National Union's corporate representative admitted it need
only show potential legal liability to satisfy the legally obligated language in the policy
and that National Union is bound by that admission. Any such "admission" would be a
legal conclusion and does not constitute a binding admission. See R & B Appliance
Parts, Inc. v. Amana Co .. , L.P., 258 F.3d 783, 787 (8th Cir. 2001) (finding that
manufacturer is not bound by legal conclusion testified to in a corporate representative
settlement as a result of a lawsuit. The court noted that this position had been taken by a
number of courts that have considered this issue. Id. (citing Permastee/isa CS Corp. v.
Columbia Cas. Co., 377 Fed.Appx. 260, 264- 65 (3d Cir. 2010) (unpublished) (citing
Bacon v. Am. Ins. Co., 330 A.2d 389, 393 (NJ.Super. Ct. Law Div.1974)); Detroit Water
Team Joint Venture v. Agric. Ins. Co., 371 F.3d 336, 339 (6th Cir. 2004) ( "[T]he term
' legal obligation' requires either a judicial determination ofliability or a settlement
between the insurer, insured, and the claimant."); Stanford Trading Co. v. Nationwide
Mut. Ins. Co. , 237 F.3d 631 , 2000 WL 1701741 (5th Cir. 2000) (per curiam)
(unpublished table decision); Klein v. Fid. & Deposit Co. ofAm., 700 A.2d 262, 271
(Md.Ct. Spec.App.1997) (holding letters which warned that claims were imminent were
not sufficient to show a "legal obligation" to pay)). The court discussed two other cases
with similar holdings - Cincinnati Insurance Co. v. Crossmann Communities
Partnership, No. 05-470- KSF, 2008 WL 852133, at *5 (E.D. Ky. Mar. 28, 2008) ("[T]he
court is reluctant to say that a written demand alone, without the coercive force of a
lawsuit, can be considered a process that could result in the insured being ' legally
obligated to pay. '") and Nationwide Mutual Insurance Co. v. Regional Electric
Contractors, Inc., 680 A.2d 547, 552 (Md.Ct. Spec.App. 1996) (holding that ifthe insurer
was "obligated to indemnify Regional before Regional was found to be ' legally obligated
to pay,' [it would] expand the policy' s coverage to an extent contemplated neither by
[the insurer] nor by Regional.").
Builders Mut. Ins. Co. noted that some courts have held that "legal obligation"
does not require a determination of liability by a court or consent by the insurer. For
example, in Potomac Ins. ofIllinois v. Huang, No. 00-4013-JPO, 2002 WL 418008, at
*10 (D. Kansas March 1, 2002), the court held that an insured may recover sums paid as
part of a reasonable settlement made in good faith. In Potomac, the court stated "wellsettled Kansas law ... allows an insured to recover amounts paid to settle a covered
claim if the settlement is reasonable in amount and made in good faith. The insured bears
the initial burden to prove a prima facie case by producing evidence of the good faith and
reasonableness of its settlement." Id. (internal quotation marks and citations omitted).
Additionally, "in cases of environmental pollution and its regulation by state and federal
entities, the courts have been more willing to find sums paid to remediate damage done to
specific property or to pay into a state cleanup fund to be the result of 'legal obligation.'"
Builders Mut. Ins. Co., 793 F .Supp.2d at 795 (citing Colonial Gas Co. v. Aetna Cas. &
Sur. Co., 823 F.Supp. 975, 979 (D.Mass.1993) (holding that when an insured voluntarily
paid into an environmental settlement fund, "requiring an insured to go through the
motions of inviting and answering a lawsuit when having no genuine defense would be
contrary to the public policy of guarding the courts against unnecessary litigation."
(internal quotation marks and citation omitted)); Bausch & Lomb Inc. v. Utica Mut. Ins.
Co. , 330 Md. 758, 625 A.2d 1021, 1032 (Md.Ct.App.1993) (holding that because Bausch
& Lomb was subject to a strict liability environmental statute, it was "legally obligated"
to pay response costs for compliance with that statute)).
The foregoing cases stand for the proposition that, at a minimum, the courts with
the broadest view of "legally obligated to pay as damages" require the insured to show
potential liability and a reasonable, good faith settlement agreement. The exception
appears to be cases involving environmental cleanup where there is a statutory or
regulatory mandated cleanup. See Central Illinois Light Co. v. Home Ins. Co., 213 Ill.2d
141, 174-75 (2004) (insured operating under legal obligation when it participated in
voluntary cleanup when confronted with assertion by EPA that it intended to enforce
strict liability statute on insured for contaminated property); Bausch & Lomb Inc. v. Utica
Mut. Ins. Co., 625 A.2d 1021, 1032 (Md. Ct. App. 1993) (holding that because plaintiff
was subject to a strict liability environmental statute, it was "legally obligated" to pay
response costs undertaken in regulatory context); but see Certain Underwriters at Lloyd's
ofLondon v. Superior Court, 16 P.3d 945, 951(Cal.2001) (holding that "insurer's duty
to indemnify the insured for 'all sums that the insured becomes legally obligated to pay
as damages' is limited to money ordered by a court" and does not include expenses
assessed in administrative proceedings under state environmental statute in connection
with cleanup and abatement of contamination in soil and groundwater). Requiring a
settled claim, except in environmental cleanup cases where the legal obligation is
mandated by statute, also serves the purpose of providing the insurer with an opportunity
to investigate and weigh in on the claim and protect the insurer's interest as established
by the insurance policy.
In this case, BPI did not settle any potential or formal claims or lawsuits. It is
undisputed that none of the property owners made any claims or filed any lawsuits
against BPI related to the mold issue at Kingsmill. It is also undisputed that BPI did not
enter into any settlement agreements with, or obtain any releases of claims from, the
property owners with regard to the mold remediation undertaken by BPI at its own cost.
In essence, BPI proposes that this Court depart from existing case law and hold that
"legally obligated to pay as damages" does not require a settled claim or a settlement or
judgment arising from a lawsuit, but instead simply requires BPI to show potential legal
liability and voluntary payment of alleged damages without a release or settlement
agreement. This position is supported neither by existing Missouri law nor by any other
states that have considered this issue. Further, it would be unreasonable for an insured to
be able to unilaterally obligate an insurer to pay damages where there has been no
protection of the insurer' s interest. Without a settled claim or a settlement or judgment
arising from a lawsuit, BPI cannot show it was "legally obligated to pay by reason of
liability imposed by law." As a result, there is no coverage under the insurance policies.
BPI argues another basis for coverage - that its promise to remediate triggered
coverage under the policy language "liability assumed by the Insured by contract." BPI
contends that it made a promise to remediate the mold and pay 100% of that cost orally
and in writing. BPI claims that the oral promise was made to unit owners during a
meeting and confirmed in the Consent form submitted to the owners for the mold
It is clear, however, that the Consent does not constitute liability assumed by the
Insured under contract. The Consent, which was submitted to the owners, expressly
stated it did not obligate BPI to remediate the mold, did not constitute an
acknowledgment or admission of liability, and did not include a release or settlement of
any potential claim the property owner might have against BPI. The Consent forms
submitted to the unit owners, National Union' s exhibits I and J, are set forth in full
following this memorandum and order. Contrary to BPI's claim, the Consent did not
contractually obligate BPI and did not assume liability under contract. The Consent is
nothing more than the property owner's authorization for BPI to proceed with the
abatement project in its sole and absolute discretion. As a result, BPI cannot show that it
was legally obligated to pay damages by reason of liability assumed under contract and,
therefore, there is no coverage under the insurance policies.
Finally, BPI argues that National Union is not entitled to summary judgment
because it pied as an affirmative defense that National Union is equitably estopped from
asserting that BPI was not legally obligated. According to BPI, if National Union
believed coverage under its policy required receipt of a written claim or a formal
settlement agreement, and that BPI would forfeit coverage by proceeding without waiting
for formal claims, it was required to say so. BPI argues that because National Union
neither said nor did anything to indicate it was not in full agreement with BPI' s
remediation plan, National Union is now estopped from denying coverage on the basis
that BPI was not legally obligated to pay. BPI contends this is a case of estoppel by
"Equitable estoppel arises from the unfairness of allowing a party to belatedly
assert known rights on which the other party has, in good faith, relied thereby and
become disadvantaged." Tinch v. State Farm Ins. Co., 16 S.W.3d 747, 751 (Mo. App.
E.D. 2000). "The elements of estoppel are (1) an admission, statement, or act
inconsistent with the claim afterwards asserted and sued upon, (2) action by the other
party on the faith of such admission, statement, or act, and (3) injury to such other party,
resulting from allowing the first party to contradict or repudiate the admission, statement,
or act. American Eagle Waste Industries, LLC v. St. Louis County, 379 S.W.3d 813, 82728 (Mo. bane 2012) (internal quotation marks and citation omitted). "There must be a
representation made by the party estopped and relied upon by another party who changes
his position to his detriment." Co mens v. SSM St. Charles Clinic Medical Group, Inc.,
258 S.W.3d 491, 496-97 (Mo.App. E.D. 2008). "The representation may be manifested
by affirmative conduct in the form of acts or words, or by silence amounting to
concealment of material facts." Id. at 497. The doctrine of equitable estoppel is not a
favorite of the law and will not be applied lightly." Farmland Industries, Inc. v. Bittner,
920 S.W.2d 581, 583 (Mo.App. W.D. 1996). "It can only be used when each element
clearly appears, and the burden of proof is upon the party asserting it to establish the
essential facts by clear and satisfactory evidence." Id. "The doctrine of estoppel may not
be employed to create coverage where it otherwise does not exist." Tinch, 16 S.W.3d at
BPI has not presented any evidence in support of its claim of equitable estoppel. It
has not offered evidence that it relied to its detriment on National Union's alleged failure
to tell BPI of the requirement of a legal obligation to pay. Nor has it offered evidence
that its decision to remediate the units, which occurred before BPI notified its insurers,
was contingent on National Union providing coverage for the costs. Nor has it shown
that it relied on National Union's silence in continuing to remediate the units after it
notified its insurers. Therefore, BPI has not established a genuine dispute of a material
fact in support of its equitable estoppel argument on the coverage issue so as to preclude
All other pending motions
There are seven additional pending motions in this matter including plaintiffs
motion for partial summary judgment, four motions to exclude expert testimony, motion
to bifurcate trial, and defendant's motion for leave to supplement summary judgment
record. All remaining pending motions are denied as moot.
In sum, this Court finds that BPI cannot show, as required by the policies at issue,
that it was legally obligated to pay damages for any property damaged by the mold in the
units at Kingsmill. Therefore, there is no coverage under the insurance policies at issue
and National Union is entitled to judgment as a matter oflaw.
IT IS HEREBY ORDERED that defendant National Union' s motion for
summary judgment (ECF #55) is GRANTED.
IT IS FURTHER ORDERED that plaintiffBPl's motion for partial summary
judgment (ECF #66) and all remaining motions are DENIED as moot.
A separate Judgment will accompany this Memorandum and Order.
Dated this 31st day of October, 2014.
RENTAL PROGRAM OWNER'S
Consents and Authorizations
The purpose of this document Is to allow Busch Properties, Inc. d/bla Klngsmlll
Resort (•KJngsmllr) t() detennlne·as promptly as possible the level of support and
agreed upon p&rticipatlon of the condominium owners who lease units In connection
with the operation of.the .Kingsmlll rental program (the •Rental Program•) fot Klngsmlll's
proposal for the abatement of mold and removal and disposal of mold contaminated
material, and subsequent renovation of the condominium units that participate in the
Rental Program. Please complete this fonn and retum it via facsimile transmission to
Biii Nnc:>n at (757) ~22 by 5:00.p.m. on November 1·0, 2003. The original
should b8 sent Via fimt class mail to:
The Kingsmill Resort
1010 Kingsmill Road
Williamsburg, Virginia 23185
Unit Number(s):_ _
NAMES OF ALL TITLED OWNERS (Please print):
Condominium Association (Please check the appropriate block):
D Conference Center Condominium Association
D Padgett's Ordinary Condominium Association
o Padgett's Ordinary Condominium Association, Phase Ill
O Pelham's Ordinary Condominium Association
The Undersigned(s) hereby:
Represent that the Undersigned Is the owner of the above-referenced unit
Authorize Kingsmill to hire contractors in their own name or on my behalf tQ
abate mold and remove and dispose of mold contaminated material from the
Under91and that the •tament.wlll be done at · o coet to the Unde11lgned
and that If requlnld by·Klnglrnln, thi Underllgned agl'88 to"*' into a
contract with a~~ by Klnglml tor abat8mlnt of mold and ·
removal and dllpolaJ of mold oontamlnated. mmrlal In .the unit baled ·upon
the undel'ltandlng that ttte COit of such work wtll be paid by KlngsmUI.
Authortza the removal from 1he Unit and etorage of au ftxturel, tumllhingl
and other perlOn&I property contained In the Unit (the •PerlonaJ Property")
Including, but not limited to, cabinetry, furntturw and carpet (If not dllpoaed of
pursuant to Paragraph V) at KlngemiU'a e>epenl8.
Authorize the diapoeal of any and an Items contaminated by mold Including.
but not ~lmlted to, drywall, fbcturM, tum~. fumltura,
carpet. and Window
treatments. The determinatlonl of mold contamination removed, Ind
remediation ahaH be made by Klngamftt, In Klngsmllra.eote and ·abadute
Understand that tht1 coneent and authorization doel not obUgata KlngsmlU to
proceed with the ·abatement project, renovation project or Rental Program
should Klngamlll determine, In Klngemill'a lole and ablolut8 diecratlon, not to
proceed for any reuon Including, but not llmltecl to, that It tm not l'8C8lved ·
the required COnaentl and authorlzatlonl or IUblequent documentation from ·
the i-aqullite number of other ownera of other.u• In the b.ir condominium
·developments which make up the Rental Program•
Understand and agree that KJngamHra ofter to:abate and remove all mQld
from the Unit doel not conatttute an aclcnowledgment or adm~ of lllbllity
by Klngamlll with 1'8g8rd to the exlatenoe of mold In the Unft or an/·moldrelat8d damage.
Understand and agree that the aequenee and method of the work and access
to the Unit during abatement and remediation lhall be Wlder the •xclu•iw
control of Klngemlll or Ila authorized rwpr111ntatlve •
Understand and agree that I must make anangementa to retrieve end/or .
dllpole of the Peraonal Property upon notice tram KlnglmUI. In the event the
Underllgned tan or refu• to retrtew ancrOr dllpoM of th8 P8'ICNI Properly.
Klf9mlU may Continue~ atcn 1he Pereorial Property at my expenae or
dlepoll cf auch pet'IOl181 propertv u Klngll'nlll d11me flt.
Agree to partlclpat8 In the renovation program bued upon the terma outlined
1n K1ngemlr1 l9tter cf October 24, 200-1 for a,. renovation of participating. .·
oondomlnlum un1t1·1n the Rental Piogrmn which I undemand wl be more
fulty detailed In 1ublequent dooumentallon In U. ooml~ ••lea.
Agree to execute such other documents as may be necessary to allow the
abatement, renovation and the Rental Program tO proceed as proposed :by
Direct the condominium association referenced above to participate In
Klngsmllrs mold abatement plan and likewise authorize Klngsmill to
remediate mold infestation 8nd damage to the common elements of my
My consent Is hereby given and deemed delivered In The Commonweatth of
In executing this document I understand that it is intended to be lrrevoeable and
a blanket consent and authorizatiOn which aUoWs Kingsmill either .directly or on my
behalf, at Klng$mllrs sole cost and expense, to take whatever $ctlons i1 deems
necessary to abate mold and remove mold .contaminated material from the
Signatures of All Titled Qwners:
.2·__:.;J!.:::?···· "'''''-:·•·.::l\.-lc~!:!mi!""~'·•~~--·'~·',..;"""';ymr~·Jit-".t-•....~¥-~~";~,- ·,;~~,~ ·,;~.-;~.ir,".:-...,,_
NON-RENTAL PROGRAM OWNER'S
Consents and Authorizations
KINGSMILL RESORT CONDOMINIUMS
The purpose of this document is to allow Busch Properties, Inc. d/b/a Kingsmill
Resort ("Klngsmill•) to determine as promptly as possible the level of support and
agreed upon participation of the condominium owners for Kingsmill's proposal for the
abatement of mold and removal and disposal of mold contaminated material from the
below referenced condominium$ including the below referenced unit (the ·unit").
Please complete this form and retum it via facsimile transmission to Biii Nason at
(757) 514-5322 by 5:00 p.m. on November 10, 2003. The original should be sent via
first class mail to: .
The KingsmUI Resort
1010 Kingsmlll Road
WHllamsburg, Virginia 23185
Unit Number(s):,_ ____...---""............-..-------..
NAMES OF ALL TITLED OWNERS (Please print):
Condominium Association (Please check the appropriate block):
Conference Center Condominium Association
Padgett's Ordinary Condominium Association
Padgett's Ordinary Condominium Association, Phase Ill
D Pelham's Ordinary Condominium Association
The Undersigned(s) hereby:
Represent that the Undersigned is the owner of the Unit
Authorize Kingsmlll to hire contractors in their own name or on my behalf to
abate mold and remove and dispose of mold contaminated material from the
,. ,, . . .. ..-- ··•....
....,..._.... . .... . . .
Understand that the abatement will be done at no cost to the Undersigned
and that if required by Kingsmill, the Undersigned agree to enter into a
contract with a contractor selected by Kingsmill for abatement of mold and
removal and disposal of mold contaminated material in the Unit based upon
the understanding that the cost of such work will be paid by Kingsmm.
Authorize the removal from the Unit and storage of all fixtures, furnishings
and other personal property contained in the Unit (the •Personal Property")
Including, but not limited to, cabinetry, furniture and carpet (if not disposed of
pursuant to Paragraph V) at Kingsmill's expense.
Authorize the disposal of any and all items contaminated by mold including,
but not limited to, drywall, fixtures, furnishings, furniture, carpet, and window
treatments. The detenninations of mold contamination removed, and
remediatiOn shall be made by Kingsmlll, in Kingsmill's sole and absolute
Understand that this consent and authorization does not obligate Klngsmill to
proceed with the abatement project, renovation project or Kingsmlll's rental
program should Kingsmill detennine, In Kingsmlll's sole and absolute
discretion, not to proceed for any reason including, but not limited to, that It
has not received the required consents and authorizations or subsequent
documentation from the requisite number of other owners of other units In the
four condominium developments which make up the Klngsmlll's rental
Understand and agree that KingsmUl's offer to abate and remove all mold
from the Unit does not constitute an acknowledgment or admission of liability
by Kingsmill with regard to the existence of mold In the Unit or any moldrelated damage.
Understand and agree that the sequence and method of the work and access
to the Unit during abatement and remediation shall be under the exclusive
control of Klngsmftl or its authorized representative.
Agree that Kingsmill's obligations and responsibilities shall be as outlined In
the Removing the Mold, what is covered and what is not covered sections of
Kingsmill's letter of October 31, 2003.
Agree to execute such other documents as may be necessary to allow the
abatement to proceed as proposed by Kingsmill.
Direct the condominium association referenced above to participate in
Kingsmlll's mold abatement plan and likewise authorize Klngsmill to
remediate mold Infestation and damage to the common elements of my
. ~ ....... ...,.. . ···- . . ···-- ·- '" '*' "' ...... .
My consent is hereby given and deemed delivered in The Commonwealth of
In executing this document I understand that it is Intended to be irrevocable and
a blanket consent and authorization which allows Kingsmill either directly or on my
behalf, at KlngsmUl's sole cost and expense, to take whatever actions it deems
necessary to abate mold and remove mold contaminated material from the
Signatures of All Titted Owners:
·~· · ~
. .... .. , ... ..... .,"" ... . . . ..
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