In The Yacht Club on the Intracoastal Condo. Ass’n. v. Lexington Ins. Co., – Fed.Appx. –, 2015 WL 106862, 2015 U.S. App. LEXIS 293 (11h Cir., Jan. 8, 2015), a unanimous panel of the Eleventh Circuit recently held that a Florida condominium association’s multi-million claim for extensive Hurricane Wilma damage was barred because the insured failed to give notice of loss for fully 55 months. The policyholder’s arguments that it was initially unaware that the damage exceeded the deductible and that it had created an issue of fact with respect to whether the presumption of prejudice had been rebutted because both parties were ultimately able to put up expert evidence of causation were unavailing.
The Yacht Club had 380 units in some 16 buildings, and its property was damaged by Hurricane Wilma on October 24, 2005. It had a $5,000,000 property policy with Lexington, but the Club’s board was initially of the opinion that the repairs would not exceed the policy’s $100,000 deductible and decided not to make a claim, though they subsequently imposed a $150,000 special assessment on residents to pay for the hurricane damage. Over the next year, however, residents complained of a host of problems with roofs, stucco siding, windows, and sliding glass doors, and that led the Club to hire an engineer in late 2006; his report attributed the roof damage to Wilma.
In late 2009, the Club finally secured a public adjuster, and he advised that the property had suffered significant damage from the storm and recommended making an insurance claim. Formal notice of loss was duly sent to Lexington on July 27, 2010, four years and seven months after the hurricane, and suit was filed three months later. The Club sought $6,208,910 from its insurer. Read more ›
Maria Nucci filed a personal injury action against Target, alleging that she fell on “a foreign substance” on the floor of one of the defendant’s stores. Her complaint contended that she sustained permanent injuries, aggravated pre-existing ones, and also experienced lost earnings and emotional pain and suffering. Prior to her deposition, Target’s attorneys reviewed her Facebook profile and found that it contained 1,285 photographs. She was questioned about some of them at the deposition itself, and she promptly took three dozen of the pictures down.
The policyholders owned a gas station and convenience store in Cherry Hill, New Jersey. The structure experienced moderate damage during a storm on August 14, 2011. Two weeks later on August 28th, the rear portion of the building collapsed during Hurricane Irene. There was a 72” corrugated metal culvert running underground near the rear of the structure, and this was corroded and decayed. Experts for both sides agreed that the deteriorated culvert sustained damage during the first storm and then partially collapsed after Irene, leading to extensive soil erosion; when the insurer’s expert examined the property two days after the storm, there was a hole 60’ long, 20’ wide, and 8’ deep behind the building.
(1) A man who fell asleep during Red Sox game at Yankee Stadium filed a lawsuit against ESPN and its announcers as well as Major League Baseball and the Yankees after he was shown napping on a live telecast of the game. According to his complaint, he suffered “substantial injury” to his “character and reputation” and “mental anguish, loss of future income and loss of earning capacity” as a result of the incident. His complaint seeks $10 million in damages.
Congress has a bad habit of larding important legislation like TRIA with wholly-unrelated provisions, and it was one of those that doomed reauthorization. When the Senate wrote its own reauthorization bill earlier this year, it proposed including a provision creating the National Association of Registered Agents and Brokers (NARAB), a non-profit clearinghouse made up of state insurance commissioners and insurance market representatives which would oversee and streamline the licensing of agents and brokers. Senator Tom Coburn (R-Okla.) was opposed, believing that to be a federal infringement on authority traditionally reserved for the individual states, and the Senate bill that was sent to the House on July 17th sunset NARAB after two years.
The House of Representatives’ Financial Services Committee sent a reauthorization bill to the House floor on June 20th, but it was never voted on by the full chamber. It had been passed out of the committee on a partisan 32-27 vote, and its sponsors evidently felt that it reduced the federal government’s backstop role too drastically to have any chance of passing the Senate. The upper chamber then passed a reauthorization bill of its own on July 17th by a 93-4 vote and sent it to the House, but it languished there until recently as TRIA’s expiration date grew ever closer.
Alfredo Mejia owned a home that was insured by Citizens Property Insurance Corporation, and he made a claim for damage, contending that it was caused by sinkhole activity. The insurer retained BCI, an engineering firm, and it denied liability after BCI concluded that the damage was not caused by a sinkhole. A breach of contract action followed.
Gregory Packaging manufactured and sold juice cups, and it was in the process of installing a refrigeration system at a new plant in Newman, Georgia when anhydrous ammonia was accidentally released into the facility, severely burning a subcontract worker. The plant was evacuated, and a remediation company was retained to dissipate the gas. That process took several days.
G & S Metal Consultants filed suit for property damage and business interruption loss after a steam explosion at a Georgia facility. After discovery was complete, the insurer, Continental Casualty, successfully sought permission to file an amended answer asserting additional affirmative defenses and a counterclaim based on alleged misconduct by G & S during the claim adjustment process that it had allegedly learned of during discovery, and the court reopened discovery to allow the policyholder to defend against the counterclaim. The insured then sought to question the carrier’s 30(b)(6) designee about reserves, and it filed a motion to compel after Continental’s attorneys objected to that line of questioning.