United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon Defendant,
Scottsdale Insurance Company's Motion for Judgment as a
Matter of Law (JNOV) or, in the Alternative, Motion to Amend
Judgment (“Defendant's Motion”) [ECF No.
146], filed April 6, 2018; and Plaintiff, Nabil Hach Al
Luch's Motion to Correct Jury Verdict and Judgment
(“Plaintiff's Motion”) [ECF No. 152], filed
April 25, 2018. Plaintiff filed a Response
(“Plaintiff's Response”) [ECF No. 154] to
Defendant's Motion, to which Defendant filed a Reply
(“Defendant's Reply”) [ECF No. 156].
Defendant also filed a Response (“Defendant's
Response”) [ECF No. 155] to Plaintiff's Motion, to
which Plaintiff filed a Reply (“Plaintiff's
Reply”) [ECF No. 157]. The Court has carefully
considered the parties' submissions, the record, and
matter arises out of an insurance Policy (see Ex.
J-1 [ECF No. 140-1] 2-38) issued by Defendant to Plaintiff,
providing property damage coverage for Plaintiff's
restaurant. The Court assumes the reader's knowledge of
the intricate facts as discussed in prior Orders (see,
e.g., February 16, 2018 Order [ECF No. 105]), but
provides a brief background for the purpose of this Order.
evening of Friday, April 15, 2016, water began pouring from
the ceiling into Plaintiff's restaurant, damaging the
building, its air conditioning unit, and Plaintiff's
audio equipment, and forcing Plaintiff to discontinue the
dinner service and close his restaurant for the night.
(See February 16, 2018 Order 2 (citations omitted)).
Policy states Scottsdale will pay for “direct physical
loss of or damage to [Plaintiff's property] . . . caused
by or resulting from any Covered Cause of loss.”
(Policy 8 (alterations added)). “Covered
Causes of Loss” are defined as “direct physical
loss unless the loss is excluded or limited” in the
Policy. (Id. 26). In a section entitled
“Limitations, ” the Policy states
1. [Scottsdale] will not pay for loss of or damage to
property, as described and limited in this section. In
addition, [Scottsdale] will not pay for any loss that is a
consequence of loss or damage as described and limited in
c. The interior of any building or structure, or to personal
property in the building or structure, caused by or resulting
from rain, snow, sleet, ice, sand or dust, whether driven by
wind or not, unless:
(1) The building or structure first sustains damage by a
Covered Cause of Loss to its roof or walls through which the
rain, snow, sleet, ice, sand or dust enters . . . .
(Id. 31 (alterations added)).
section entitled “Exclusions, ” the Policy
[Scottsdale] will not pay for loss or damage caused by or
resulting from . . . . Collapse, including . . . (1) An
abrupt falling down or caving in; (2) Loss of structural
integrity . . . or . . . (3) Any cracking, bulging, sagging,
bending, leaning, settling, shrinkage or expansion as such
condition relates to (1) or (2) above.
(Id. 28-29 (alterations added)). The Policy then
clarifies “[t]his exclusion . . . does not apply . . .
[t]o collapse caused by . . . [w]eight of rain that collects
on a roof.” (Id. 29 (alterations added)).
submitted to Defendant a claim under the Policy for the
damage caused by the water intrusion. (See February
16, 2018 Order 4). On September 14, 2016, Defendant informed
Plaintiff it would not be providing coverage for
Plaintiff's loss because Defendant had determined the
causes of the loss to be interior rainwater damage due to
wear and tear, deterioration, and cracking of the roof
surface; all of which Defendant believed were excluded from
coverage under the Policy. (See Id. 4-5).
March 8, 2017, Plaintiff filed his Complaint (see
[ECF No. 1-3] 4-14) in state court asserting breach of
contract for Defendant's failure to pay under the
Policy. Defendant removed the ...