PIERRE, S.D. — The majority of the South Dakota Supreme Court on April 10 affirmed a trial court’s ruling in favor of an insurer after determining that an underlying suit arising out of the construction of a hog facility does not allege an occurrence under the farm liability policy (Delray Geidel v. De Smet Farm Mutual Insurance Co., No. 28627, S.D. Sup., 2019 S.D. LEXIS 29).
MIAMI — A Florida federal magistrate judge on April 17 recommended denying an insured’s motion to remand her lawsuit against her flood insurer and insurance agent, finding that the insured’s claim for breach of the insurance policy “plainly raises a substantial federal question” pursuant to 28 U.S. Code Section 1331, 28 U.S.C. § 1331, and there is supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367 (Esperanza Graveran v. Allstate Insurance Company, et al., No. 18-24510, S.D. Fla., 2019 U.S. Dist. LEXIS 65611).
HARTFORD, Conn. — In opinion scheduled to be released on April 23, the Connecticut Supreme Court answered “no” to the Second Circuit U.S. Court of Appeals’ certified question asking whether trial evidence was legally sufficient to support a jury’s finding that Connecticut's "continuing course of conduct" doctrine tolled the applicable three-year statute of limitations for an insurer to commence a negligence lawsuit against an independent adjuster (Essex Insurance Company v. William Kramer & Associates LLC, No. SC 20130, Conn. Sup., 2019 Conn. LEXIS 102).
MIAMI — Reversing and remanding a lower court’s order that granted an insured’s motion to compel appraisal of her Hurricane Irma damage, a Florida appeals panel on April 17 held that the insured did not comply with the post-loss conditions of a residential insurance policy (Safepoint Insurance Company v. Daisy Sousa, No. 3D18-1842, Fla. App., 3rd Dist.).
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on April 17 reversed a federal court’s finding that a site pollution legal liability insurer waived its subrogation rights under an onshore master services agreement (MSA) but affirmed the court’s dismissal of the breach of contract claim against the insurer for lack of personal jurisdiction (Halliburton Energy Services Inc. v. Ironshore Specialty Insurance Co., No. 17-20678 consolidated with No. 18-20239, 5th Cir., 2019 U.S. App. LEXIS 11255).
Panel Remands Superstorm
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on April 15 reversed a lower federal court’s grant of summary judgment in favor of an insurer on the question of whether the cause of the insured’s damage was an "external" force not covered under an all risks insurance policy, finding that “at the very least” there is a triable issue of fact as to whether the insured’s loss was fortuitous (Ingenco Holdings LLC, et al. v. Ace American Insurance Company, No. 16-35792, 9th Cir., 2019 U.S. App. LEXIS 10946).
BATON ROUGE, La. — A Louisiana appeals panel on April 12 held that a lower court erred in sustaining an insurance broker’s declinatory exception raising the objection of lack of subject matter jurisdiction and dismissing an insured’s petition for damages arising from flood damage, reversing the lower court (Gerard Duplantis v. Kevin Odom, et al., No. 2018 CA 1251, La. App., 1st Cir., 2019 La. App. Unpub. LEXIS 112).
SAN ANTONIO — An insured’s breach of contract and bad faith suit arising out of a property damage coverage dispute was properly removed to federal court by a homeowners insurer because it is clear from the insured’s complaint and presuit demand letter that the federal amount-in-controversy requirement has been met, a Texas federal magistrate judge said April 9 in recommending that the insured’s motion to remand be denied (Veronica Horton v. Allstate Vehicle and Property Insurance Co., et al., No. 19-140, W.D. Texas, 2019 U.S. Dist. LEXIS 61544).
FORT MYERS, Fla. — A Florida federal judge on April 9 granted in part a federal flood insurer’s motion to dismiss an insured’s state law claims for attorney fees in a coverage dispute over flood damage but refused to decide whether the insured can recover attorney fees under federal law (Yanetsi Collier v. Wright National Flood Insurance Co., No. 19-49, M.D. Fla., 2019 U.S. Dist. LEXIS 61017).
CHICAGO — An excess property and business interruption insurer claims in an April 5 complaint filed in Illinois federal court that it is entitled to rescind an excess policy issued to an insured poultry-processing company because the insured did not provide the excess insurer with accurate risk values of the properties for which it sought coverage (Arch Specialty Insurance Co. v. Koch Foods Inc., No. 19-2323, N.D. Ill.).
BIRMINGHAM, Ala. — An Alabama federal judge held March 27 that there are genuine issues of material fact as to a condominium association insured’s breach of contract claim as it relates to its roof loss caused by high winds and hail, denying the parties’ motions for summary judgment as to the claim (Cobblestone Condominium Association, Inc. v. Travelers Casualty Insurance Company of America, No. 16-00573, N.D. Ala., 2019 U.S. Dist. LEXIS 51128).
BEAUFORT, S.C. — South Carolina insureds and their wind and hail insurer on April 9 told a federal district court that they reached a settlement by compromise and sought dismissal of breach of contract and bad faith claims against the insurer arising from the insureds’ Hurricane Matthew damage (John Daniel, et al. v. South Carolina Farm Bureau Mutual Insurance Company, et al., D. S.C., No. 18-533).
FORT MYERS, Fla. — A federal flood insurer on April 8 filed a notice to remove Florida insureds’ breach of contract lawsuit arising from a September 2017 flood damage to the U.S. District Court for the Middle District of Florida (Adriana Mazzula, et al. v. American Strategic Insurance Corp., No. 19- 00215, M.D. Fla.).
INDIANAPOLIS — Ruling on dueling motions for partial summary judgment, an Indianapolis federal judge held March 30 that a fish farm’s loss is covered under the specific coverage for spoilage under an insurance policy’s Equipment Breakdown Coverage Endorsement but the insurer did not act in bad faith when handling the claim (Westfield Insurance Company v. TCFI Bell SPE III LLC, et al., No. 16-02269, S.D. Ind., 2019 U.S. Dist. LEXIS 54899).
NEW ORLEANS — Granting homeowners insurers’ motion to dismiss, a Louisiana federal chief judge on April 3 found that an insured’s property damage, including damage caused by moisture and evaporation, is derivative of the flooding on his property and, as a result, is barred from coverage (Matthew Spector v. USAA Casualty Insurance Company, et al., No. 18-8806, E.D. La., 2019 U.S. Dist. LEXIS 57946).
CENTRAL ISLIP, N.Y. — A New York federal judge on April 4 denied a federal flood insurer’s motion to quash an insured’s jury demand in a breach of contract lawsuit arising from Superstorm Sandy damage, finding that the insurer lacks a valid excuse for filing its motion more than four years after the insured filed its lawsuit (Long Beach Road Holdings LLC v. Foremost Insurance Company, No. 14-01801, E.D. N.Y., 2019 U.S. Dist. LEXIS 58379).
NEW ORLEANS — A Louisiana federal judge on April 3 granted a federal flood insurer’s motion for summary judgment in a lawsuit arising from two separate floods in Louisiana, finding that the insureds’ breach of contract claim fails because none of their proofs of loss satisfies their Standard Flood Insurance Policy’s (SFIP) proof-of-loss requirement (William T. Clark, III, et al. v. Wright National Flood Insurance Company, No 18-4852, E.D. La., 2019 U.S. Dist. LEXIS 57276).
MIAMI — A Florida federal judge on March 22 granted a federal flood insurer’s motion to dismiss insureds’ claims for prejudgment and post-judgment interest, attorney fees, costs and all other claims under Florida law, finding that they are preempted by federal law (Robert Britz, et al. v. Lexington Insurance Co., et al., No. 19-10034, S.D. Fla., 2019 U.S. Dist. LEXIS 49427).
TRENTON, N.J. — A New Jersey appeals panel on March 29 affirmed a lower court’s ruling that an insurer does not owe a restaurant insured additional coverage under an insurance policy’s “civil authority” provision for its business income losses arising from Superstorm Sandy damage (Maritime Park, LLC v. Nova Casualty Company, No. A-3554-17T2, N.J. Super., App. Div., 2019 N.J. Super. Unpub. LEXIS 712).