Blog Archives

Eleventh Circuit Becomes Second Federal Appellate Court To Hold No Coverage For COVID-19 Business Losses

Posted on September 01, 2021 by Alycen A. Moss, Elliot Kerzner

In the second federal appellate ruling on Covid-19 business losses, the Eleventh Circuit has joined the Eighth Circuit in holding that they do not trigger coverage because they do not involve “physical loss” or “physical damage” to property. In Gilreath Family & Cosmetic Dentistry Inc. v. Cincinnati Insurance Co., No. 21-11046, Slip. Op. (11th Cir. Aug. 31, 2021), the insured dentistry practice canceled routine and elective dental procedures at the beginning of the Covid-19 pandemic in response to state orders and CDC recommendations. Because these procedures made up the bulk of its business, the insured lost a substantial portion of its usual income. To recover that lost income, the insured filed a claim for business interruption coverage with its insurer.…

Appraisal Process Tolls Contractual Suit Limitation Period Even For Non-Covered Claims

Posted on June 28, 2021 by Alycen A. Moss, Elliot Kerzner

The Eleventh Circuit Court of Appeals recently held that, under Georgia law, an appraisal process tolled a commercial property policy’s two-year contractual suit limitation period even for non-covered claims. In Omni Health Solutions, LLC v. Zurich Am. Ins. Co., No. 19-12406, 2021 WL 2025146 (11th Cir. May 21, 2021) (unpublished), the insured filed a property insurance claim with its insurer, reporting hail damage to the roof of its medical facility in Macon, Georgia, and water intrusion. The policy required the insurer to give notice of its intentions with respect to a claim within 30 days of receiving a sworn proof of loss. Following a protracted appraisal process, the insured sued the insurer in Georgia superior court for breach of contract…

Eleventh Circuit Holds Attorneys’ Fees Are Not Warranted Where Policyholder Filed Suit Instead of Undergoing Appraisal

Posted on April 23, 2019 by Chad A. Pasternack

The Eleventh Circuit, in J.P.F.D. Investment Corp. v. United Specialty Insurance Co., recently affirmed a district court’s denial of statutory attorneys’ fees to a policyholder that, to resolve a disagreement over the amount of loss, filed suit against its insurer instead of participating in appraisal.[1] In Florida, policyholder attorneys are often quick to file lawsuits against insurers in order to trigger statutory fee shifting. Florida Statutes § 627.428 provides: (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court . . . shall adjudge or decree…

Eleventh Circuit: Inventory Computation Exclusion Bars Alabama Employee Theft Claim

Posted on September 3, 2015 by Dick Bennett

In February, we reported on an Alabama federal court decision that barred an insured from recovering for employee theft where the only evidence of shortage was a comparison between computer records and a physical inventory conducted after the malefactor had been discharged. On August 6th, a unanimous panel of the Eleventh Circuit affirmed in W.L. Petrey Wholesale Co. v. Great Amer. Ins. Co., 2015 U.S. App. LEXIS 13738, 2015 WL 4646599 (11th Cir., Aug. 6, 2015). The judges held that the policy’s inventory computation exclusion was unambiguous and that inventory computation evidence was only admissible to prove the amount of loss after the existence of loss had been shown by other means. As we noted earlier this year, the insured…

Tagged with: Alabama, Eleventh Circuit, Employee Dishonesty, Inventory Computation
Posted in Conditions, Exclusions, Theft or Dishonesty

Eleventh Circuit: Sinkhole Loss in Florida Must Impair the Property’s Structural Integrity to be Covered

Posted on April 1, 2015 by Dick Bennett

Effective in 2005, Florida statutes defined “sinkhole loss” to mean “structural damage to the building, including the foundation, caused by sinkhole activity,” and they left the all-important term “structural damage” undefined. Homeowner’s policies issued in the state employed that formulation until May 17, 2011, when Florida adopted a much narrower five-part definition of structural damage that applied to policies affording coverage for sinkhole loss, and many courts construing the 2005 language held that the term “structural damage” meant nothing more than “damage to the structure.” Several weeks ago in Hegel v. First Liberty Ins. Corp., 778 F.3d 1214 (11th Cir., Feb. 27, 2015), a unanimous Eleventh Circuit panel held: (1) that defining structural damage to mean any “damage to the…

Tagged with: Eleventh Circuit, Florida, Structural Damage
Posted in Direct Physical Loss or Damage, Homeowners Coverage, Sinkhole

Current Florida Sinkhole Statute Held to Apply Even Though Policy Used Prior Statute’s Formulation

Posted on August 27, 2014 by Dick Bennett

Florida adopted a stringent, five-part definition of what constitutes a covered sinkhole loss in 2011, but many policies continue to employ the 2005 statutory formulation which merely defined “sinkhole loss” as “structural damage to the building, including a foundation, caused by sinkhole activity” and importantly left the term “structural damage” undefined. The result was that Florida courts split into conflicting camps with respect to how such a contract of insurance should be read; the Middle District for example, held for policyholders in two cases and for the carrier in a third, as reported in a prior post that can found here. When one of the former decisions recently reached the Eleventh Circuit, the Court of Appeals determined that the language…

Tagged with: Eleventh Circuit, Florida
Posted in Homeowners Coverage, Sinkhole