United States District Court, M.D. Florida, Fort Myers Division
EVANSTON INSURANCE COMPANY, Plaintiff/Counterclaimant Defendant,
ETCETERA, ETC INC., KLAS ETCETERA, LLC, and GOLF ETCETERA, INC., Defendants/Counterclaim Plaintiff.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
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.)
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.
reasons set forth below, Evanston's motion for summary
judgment is granted.
material background facts are not in dispute. Effective July
25, 2017, Evanston issued a “named
perils” surplus linesinsurance policy (the
“Policy”) on a certain vacant building and land
in Charlotte County, Florida (the “Property”).
(Doc. #1-1). The Policy (#2AA121873) provided commercial
property coverage and commercial general liability coverage.
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.
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.
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.)
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.)
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.
building was demolished on February 14, 2018. (Doc. #54,
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 ...