Mealey's Catastrophic Loss : Mealey's : Legal News & Analysis

Mealey's Catastrophic Loss

June 26, 2023
Panel Will Not Give Insurer ‘Another Bite At The Apple’ In Irma Coverage Dispute

ATLANTA — The 11th Circuit U.S. Court of Appeals concluded on June 23 that without expert testimony as to what a professional captain would have done differently to avoid harm to an insured’s yacht during Hurricane Irma, a jury would have had to speculate to rule for the insurer under Florida's anti-technical statute, affirming a summary judgment ruling in favor of the insured in a coverage dispute that is before the 11th Circuit for the second time.
June 26, 2023
Texas High Court Refuses To Review Ruling In Hurricane Harvey Coverage Dispute

AUSTIN, Texas —The Texas Supreme Court on June 23 denied a commercial property insurer’s petition to review an appeals court’s finding that a policy’s $4.5 million flood endorsement does not control the amount of coverage available for a nursing and assisted-living facility’s business income and extra expense losses resulting from Hurricane Harvey.
June 26, 2023
Magistrate Denies Insured’s Motion To Compel Appraisal Of Hurricane Sally Damage

MOBILE, Ala. — A federal magistrate judge in Alabama denied an insured’s motion to compel appraisal in a coverage lawsuit over Hurricane Sally damage to its 10 four-story residential condominium buildings in Gulf Shores, Ala., finding that appraisal is not appropriate at this time because the parties' dispute involves the cause of the insured’s loss and not just the amount of loss.
June 23, 2023
Insured Seeks Coverage For $14M In Losses Resulting From ‘COVID-19 Manifestations’

NEW YORK — The holding company for the U.S. interests of the Mandarin Oriental Hotel Group sued its “all risk” commercial insurers in a New York federal court, arguing that the “Special Perils Provision” in an endorsement of the policies provided coverage for its $14 million in business interruption/interference losses caused by infectious or contagious diseases that were “manifested by any person within a 5-mile radius of” its four hotels in Boston, New York, Miami and Washington, D.C.
June 23, 2023
Panel: Restaurants Allege Communicable Disease Event, Direct Physical Loss, Damage

LOS ANGELES — A California appeals panel held June 22 that restaurant insureds sufficiently asserted the existence of a covered communicable disease event and direct physical loss or damage under their property insurance policy, reversing a lower court’s judgment against the insureds in their breach of contract and bad faith coverage lawsuit arising from the COVID-19 pandemic.
June 23, 2023
Court Erred In Compelling Arbitration Of $7M Hurricane Ida Suit, 5th Circuit Told

NEW ORLEANS — An insured tells the Fifth Circuit U.S. Court of Appeals in its appellant brief that a Louisiana federal court erred by compelling arbitration of a dispute over its claims for $7 million in damages caused by Hurricane Ida and for bad faith against its foreign and domestic insurers, arguing that its domestic insurers cannot circumvent an anti-arbitration clause under Louisiana law.
June 20, 2023
Condo Association Moves To Substitute FIGA For Insolvent Insurer In Coverage Row

BRADENTON, Fla. — A condominium association that sued its now-insolvent insurer for breach of contract in a Florida court for refusal to pay all alleged storm-related losses moved to substitute the Florida Insurance Guaranty Association (FIGA) for the insurer, asserting that FIGA is “obligated for the covered claim” because it arose before the insurer’s adjudication of insolvency.
June 20, 2023
Magistrate: Insured’s Discovery Approach In Irma Suit ‘Resembles A Shotgun Blast’

FORT MYERS, Fla. —A federal magistrate judge in Florida denied a condominium insured’s motion to compel discovery in a bad faith lawsuit seeking coverage for property damage caused by Hurricane Irma, finding that the insured’s broad discovery requests “necessarily capture a host of documents that would have little to no relevance” and its approach “resembles a shotgun blast,” which is not what Federal Rule of Civil Procedure 26 envisions.
June 19, 2023
Panel: Fact Issue Exists As To Whether Full Policy Limit Applied In Hurricane Suit

ATLANTA — A Georgia appeals court held June 16 that genuine issues of fact remain regarding whether a commercial property insurance policy provided wind-driven rain coverage up to the full policy limit, partly reversing a lower court’s ruling in a coverage dispute over Hurricane Florence damage to a DoubleTree hotel.
June 16, 2023
Judge: Insureds Not Entitled To Additional Benefits In Colorado Wildfire Dispute

DENVER — A federal judge in Colorado found that insureds failed to demonstrate a genuine issue of fact regarding their entitlement to additional benefits under a homeowners insurance policy, granting the insurer’s motion for summary judgment in the insureds’ breach of contract and bad faith coverage lawsuit arising from damage caused by the East Troublesome Fire.
June 15, 2023
Majority Vacates Insurer’s Motion To Invoke Appraisal In Hurricane Matthew Suit

TALLAHASSEE, Fla. — A majority of a Florida appeals court on June 14 vacated a lower court’s order granting an insurer’s motion to invoke appraisal and abate litigation of a Hurricane Matthew coverage dispute and remanded for further proceedings, finding that the insurer’s participation in litigation was inconsistent with its right to an appraisal.
June 14, 2023
N.J. Panel Affirms Ruling In Insurers’ Favor In Coronavirus Coverage Suit

TRENTON, N.J. — A New Jersey appeals court on June 13 affirmed a lower court’s grant of summary judgment in favor of primary and excess insurers in insureds’ lawsuit seeking coverage for its business losses arising from governmental orders closing the operation of their boardwalk amusement and entertainment businesses in response to the coronavirus, finding that the insureds did not satisfy the coverage prerequisite that they incurred “direct physical loss or damage” to their property and coverage is separately barred under the policies' pollution/contamination exclusion.
June 13, 2023
11th Circuit Dismisses Insurer’s Appeal In Hurricane Irma Appraisal Dispute

ATLANTA — The 11th Circuit U.S. Court of Appeals on June 12 affirmed a lower federal court’s grant of a condominium association insured’s motion to compel appraisal of building damage caused by Hurricane Irma, dismissing the insurer’s appeal for lack of jurisdiction.
June 13, 2023
Breach Of Contract, Bad Faith Claims Fail Against Claims Adjuster, Judge Says

LAKE CHARLES, La. — Breach of contract and bad faith claims against an insurance claims adjusting company cannot proceed because under Louisiana law, a claims adjuster owes no duty to an insured, a Louisiana federal judge said in dismissing the claims against the adjusting company.
June 12, 2023
Louisiana Panel Partly Affirms, Partly Vacates Ruling In Sinkhole Coverage Dispute

BATON ROUGE, La. — A Louisiana appeals panel affirmed the part of a lower court's judgment granting insurers’ motion for summary judgment in a coverage dispute arising from a sinkhole that developed after the collapse of a salt mine cavern, vacated as moot the portion of the lower court’s judgment sustaining the insurers’ peremptory exception of no cause of action and awarded the insurers $5,000 in attorney fees.
June 07, 2023
Expert On Insurance Coverage Suit Admitted, But Judge Rules Certain Claims Fail

GULFPORT, Miss. — A Mississippi federal judge ruled that an expert retained by a woman contesting the amount her home insurer was willing to pay to resolve a claim for storm damage may testify but granted in part the insurer’s motion for summary judgment.
June 07, 2023
Florida Majority Reverses Directed Verdict Granted To Insurer In Hurricane Irma Suit

LAKELAND, Fla. — A Florida appellate court panel majority found that a homeowners insurance policy placed the burden to establish depreciation on the insurer, reversing and remanding a directed verdict in favor of the insurer in a breach of contract lawsuit arising from roof damage caused by Hurricane Irma.
June 06, 2023
California Judge Enters Judgment On Special Jury Verdict In Insurer’s Favor

LOS ANGELES — A Los Angeles County Superior Court judge entered judgment on a jury’s special verdict in favor of a commercial property insurer in the insureds’ breach of contract coverage lawsuit arising from the coronavirus pandemic after the jury found last month that SARS-CoV-2 did not cause any direct physical loss or damage to the insureds’ hotel on or before June 1, 2020.
June 06, 2023
Judge Dismisses Tulane’s Suit Seeking Coverage For Losses Arising From Coronavirus

NEW ORLEANS — Three days after the administrators of the Tulane Educational Fund filed a stipulation of dismissal, a federal judge in New Orleans on June 5 dismissed the fund’s declaratory judgment and bad faith lawsuit seeking coverage for its medical catastrophe expense (MCE) claim and evacuation expenses (EE) resulting from the COVID-19 virus.
June 06, 2023
11th Circuit Affirms $9.3M Jury Verdict Against Insurer In Hurricane Irma Dispute

ATLANTA — The 11th Circuit U.S. Court of Appeals on June 5 concluded that the evidence on the record was sufficient to sustain a jury’s $9,280,000 verdict in favor of an insured in a breach of contract lawsuit seeking coverage for Hurricane Irma damage to its assisted living facility, affirming a lower federal court’s refusal to grant the insurer’s motion for a new trial.
June 05, 2023
Health Care System Insured Fails To State Claim Above $1M Already Received, Panel Says

CHICAGO — The Seventh Circuit U.S. Court of Appeals on June 2 held that a Wisconsin-based health care system insured did not state a claim for coverage beyond the $1 million it already received under its all-risks insurance policy’s limited coverage provision for communicable diseases, affirming a lower court’s ruling in favor of the insurer in a coverage dispute over the insured’s alleged $85 million in losses arising from the coronavirus pandemic.
June 05, 2023
Insured Retains Standing To Seek Enforcement Of Policy, Florida Panel Says, Reverses

DAYTONA BEACH, Fla. — A Florida appeals panel concluded on June 2 that a lower court erred in ruling that an insured lacked standing to sue her property insurer for Hurricane Irma damage because she assigned all of her rights to a contractor, finding the scope of the insured’s assignment is limited to the work that was performed by the contractor, which was none, and, therefore the insured retains standing to sue.
June 02, 2023
No Coverage Owed For Horse Racing Track Owner’s COVID-19 Losses, Panel Affirms

PHOENIX — The Ninth Circuit U.S. Court of Appeals on June 1 affirmed a lower federal court’s dismissal of a horse racing track owner’s lawsuit seeking coverage for its losses arising from the coronavirus pandemic, finding that the contamination exclusion unambiguously bars coverage.
June 02, 2023
Dismissal Of Breach Of Contract, Bad Faith Suit Was Error, Panel Majority Says

DALLAS — The majority of the Texas Fifth District Court of Appeals reversed and remanded a trial court’s dismissal of a breach of contract and bad faith suit brought against a homeowners insurer after determining that the insurer failed to show that the insureds’ claims have no basis in fact.
June 01, 2023
Majority: Order Compelling Appraisal, Staying Irma Suit Not Immediately Appealable

ATLANTA — A majority of the 11th Circuit U.S. Court of Appeals held May 31 that a lower federal court’s compelling appraisal and staying a Hurricane Irma coverage dispute pending the appraisal is an interlocutory order that is not immediately appealable under 28 U.S. Code Section 1292(a)(1), 28 U.S.C. § 1292(a)(1), or under the Federal Arbitration Act, dismissing the insured’s appeal for lack of appellate jurisdiction.