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Evanston Insurance Co. v. Etcetera, Etc Inc.

United States District Court, M.D. Florida, Fort Myers Division

January 8, 2019

EVANSTON INSURANCE COMPANY, Plaintiff/Counterclaimant Defendant,
v.
ETCETERA, ETC INC., KLAS ETCETERA, LLC, and GOLF ETCETERA, INC., Defendants/Counterclaim Plaintiff.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff-counterclaim defendant Evanston Insurance Company's (“Evanston”) Motion for Summary Judgment (Doc. #52), filed on August 29, 2019. Evanston seeks summary judgment on the breach of contract counterclaim (Doc. #9, pp. 9-11) filed by Defendants-counterclaim plaintiffs Etcetera, Etc Inc., Klas Etcetera, LLC, and Golf Etcetera, Inc. (collectively “Etcetera”). Etcetera filed a Response in Opposition (Doc. #54) on September 12, 2019, to which Evanston filed a Reply (Doc. #57) on October 22, 2019, with the permission of the Court. (Doc. #56.)

         This is an insurance dispute arising from property damage to commercial property caused by Hurricane Irma. Evanston filed a declaratory judgment action (Doc. #1) seeking certain declarations, including that under the insurance policy “its liability for the loss is limited to any covered damages caused by Hurricane Irma.” (Doc. #1, p. 7.) Etcetera filed a counterclaim for breach of contract alleging that Evanston was obligated to pay the full loss amount, even if the full loss was not directly caused by Hurricane Irma, but failed to do so. (Doc. #9 at 8-11.) Evanston moves for summary judgment on Etcetera's breach of contract counterclaim, asserting that the covered loss amount was less than the policy's deductible amount, and therefore it owes Etcetera nothing under the insurance policy.

         For the reasons set forth below, Evanston's motion for summary judgment is granted.

         I.

         The material background facts are not in dispute. Effective July 25, 2017, Evanston issued a “named perils”[1] surplus lines[2]insurance policy (the “Policy”) on a certain vacant building and land in Charlotte County, Florida[3] (the “Property”). (Doc. #1-1). The Policy (#2AA121873) provided commercial property coverage and commercial general liability coverage. (Id.)

         On September 10-11, 2017, Hurricane Irma struck the area causing damage to the Property. Etcetera submitted a timely claim to Evanston for damage to the Property caused by Hurricane Irma.

         Charlotte County inspected the Property on October 25, 2017, and found the building was in danger of collapse. (Doc. #1-2, pp. 4-10.) On November 9, 2017, Charlotte County issued a “Notice of Unsafe Building” stating the building posed an immediate hazard to life or public safety. (Doc. #1-2). Charlotte County informed Etcetera they could either repair or demolish the building. (Id.). The Notice further informed Etcetera that if no action was commenced or completed within 30 days, the County would demolish the building. (Id.). One of Etcetera's retained professional engineers opined that the Property needed to be demolished. (Doc. #54-1, ¶ 7). Etcetera decided to demolish the building.

         By letter dated November 28, 2017, Evanston advised Etcetera that Evanston's own engineer determined that (a) the building could be repaired, (b) there was no reason to demolish the building, and (c) any decision to demolish the building would be a voluntary, uncovered loss under the Policy. (Doc. #1-3.)

         By letter dated December 29, 2017, Evanston again informed Etcetera that its investigation showed the building could be repaired, and that an estimate for repair of the damage caused by Hurricane Irma was less than the deductible amount under the Policy. (Doc. #1-4.) Evanston noted that while there was some covered loss due to the hurricane, the amount of that covered loss ($9, 334.67) was below the windstorm deductible amount ($24, 000). (Doc. #1, ¶17; Doc. #104.) Evanston informed Etcetera they could submit evidence reflecting a different damage total if they disagreed with Evanston's calculation. (Id.)

         On January 2, 2018, Etcetera, through counsel, notified Evanston that, although there was some pre-existing damage to the building, Hurricane Irma caused additional damage, which rendered the property a “total loss” under Florida's concurrent causation doctrine. (Doc. #1-5.) Evanston was not convinced.

         The building was demolished on February 14, 2018. (Doc. #54, ¶ 6.)

         II.

         Evanston's declaratory judgment action (Doc. #1), filed the same day the building was demolished, in part seeks a declaration that under the Policy “its liability for the loss is limited to any covered damage caused by Hurricane Irma.” (Doc. #1, p. 7.) Etcetera's Counterclaim similarly asserts that the Policy is a “named perils” policy “that covers direct physical losses to the Property caused by Windstorm or Hail.” (Doc. #9, ¶49.) Etcetera also claims, however, that Evanston is liable for the “direct physical loss caused by ...


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