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Jjd Associates of Palm Beach v. American Empire Surplus Lines Insurance Company

November 22, 2011

JJD ASSOCIATES OF PALM BEACH, LTD., PLAINTIFF,
v.
AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Daniel T. K. Hurley United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant's motion for summary judgment [DE # 22]. The motion has been fully briefed, see DE # 36, 37, and oral arguments were held on November 15, 2011. The motion is now ripe for review.

I.

The Court has removal jurisdiction over the instant proceeding because it is an action that is subject to removal pursuant to 28 U.S.C. §1441(b) and one over which this Court would have original diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Venue is proper in this Court because it was removed from the Florida Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida.

II.

Summary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of meeting this exacting standard, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970), and all facts and inferences from the record are viewed in the light most favorable to the non-moving party. See Matsuhita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)

This action arises out of an insurance policy provided by Defendant, American Empire Surplus Lines Insurance Company ("American Empire"), to Plaintiff, JJD Associates of Palm Beach, Ltd. ("JJD"). The policy was in effect on October 8, 2009 when the covered property was allegedly burglarized and vandalized. After JJD provided Defendant with notice of the loss and a proof of loss as required by the policy, Defendant denied coverage on the basis that the vandalized property was vacant, as defined by the policy, at the time of the loss and therefore exempt from coverage pursuant to section E.6. of the Building and Personal Property Coverage Form. Section E.6.a.(1)(b) states:

When this policy is issued to the owner or general lessee of a building, building means the entire building. Such building is vacant unless at least 31% of its total square footage is: (i) rented to a lessee or sub-lessee and used by the lessee or sublessee to conduct its customary operations; and/or (ii) Used by the building owner to conduct customary operations.

Notice of Removal, at 40 [DE # 1]. The policy goes on to state in part E.6.b.:

If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs: (1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss:

(a) Vandalism . . . (e) Theft; or (f) Attempted theft. Id.

A.

Differing interpretations of building, premises, and property are the crux of the parties' disagreement as to whether the property at issue was vacant for sixty days prior to the loss. The covered property is a shopping center, of sorts, that includes seven sub-properties. At oral argument, the parties represented that the some of the sub-properties are adjoined, while others are detached. The sub-property that suffered the loss at issue is identified in the policy as premises number six, a restaurant located at 7440 Lake Worth Road ("premises ...


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