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Rigby Enterprises LLC v. Westchester Surplus lines Insurance Co.

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

January 15, 2020

RIGBY ENTERPRISES LLC, Plaintiff,
v.
WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Defendant.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. 41) filed on December 11, 2019, and Defendant's Corrected Response in Opposition (Doc. 49) filed on January 9, 2020. For the reasons below, the Motion is denied.

         BACKGROUND

         This case involves an insurance coverage dispute for damages to Plaintiff's luxury tennis academy and boarding school in Naples, Florida from Hurricane Irma. Plaintiff-insured Rigby Enterprises LLC alleges that Westchester Surplus Lines Insurance Company breached its coverage obligations to Rigby under a commercial insurance policy for Defendant's failure to compensate Rigby in the full amount of its damages and loss resulting from Hurricane Irma.

         Plaintiff now moves for partial summary judgment in its favor, raising one argument - that the undisputed evidence shows that Defendant undisputedly breached the contract by making a payment 46 days late under the Policy. Westchester states that the parties never agreed as to the amount of loss and therefore Westchester was under no obligation to pay under the terms of the Policy.

         In support of summary judgment, Rigby relies on the purportedly unambiguous Loss Payment clause of the Policy, which provides a 30-day deadline that Westchester did not meet. The “Loss of Payment” provision provides:

4. Loss Payment
a. In the event of loss or damage covered by this Coverage Form, at our option, we will either;
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or damaged property, subject to b. below; . . .
b. the cost to repair, rebuild, or replace does not include the increased cost attributable to enforcement of or compliance with any ordinance or law regulating the construction, use or repair of any property.
c. We will give notice of our intentions within 30 days after we receive the sworn proof of loss . . .
g. We will pay for covered loss or damage within 30 days after we receive the sworn proof of loss, if you have complied with all of the ...

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