Arbor Mall, LLC v. American Empire Surplus L. Ins. Co.

Full title: THE ARBOR MALL, LLC v. AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY

Court: United States District Court, E.D. Louisiana

Date published: Oct 29, 2007

CIVIL ACTION, NO. 06-7661, SECTION "K"(1) (E.D. La. Oct. 29, 2007)

Opinion

CIVIL ACTION, NO. 06-7661, SECTION "K"(1).

October 29, 2007

ORDER AND OPINION

STANWOOD DUVAL JR., District Judge

Before the Court is the motion for summary judgment filed on behalf of defendant American Empire Surplus Lines Insurance Company (American Empire) (Doc. 18). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons assigned, denies the motion for summary judgment.

American Empire issued a commercial insurance policy for a shopping center located at 545 North Causeway Approach in Mandeville, Louisiana. The Arbor Mall, LLC filed suit seeking to recover for wind damage sustained by that shopping center during Hurricane Katrina. The policy contains the following pertinent provisions:

3. Duties In The Event Of Loss Or Damage

a You must see that the following are done in the event of loss or damage to covered property

. . .

(2) Give us prompt notice of the loss or damage include a description of the property involved

(3) As soon as possible, give us a detailed description of how, when and where the loss or damage occurred

(4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in settlement of the claim . . .

(5) At our request, give us complete inventories of the damaged and undamaged property include quantities, costs, values and amount of loss claimed

(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records.

Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records

(7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim You must do this within 60 days after our request. We will supply you with the necessary forms.

(8) Cooperate with us in the investigation or settlement of the claim.

b We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including the insured's books and records in the event of such an examination, . . . .

. . .

COMMERCIAL PROPERTY CONDITIONS

D LEGAL ACTION AGAINST US

No one may bring a legal action against us under this Coverage Part unless

1. There has been full compliance with all of the terms of this Coverage Part. . . .

(Doc. 18-5).

American Empire seeks summary judgment contending that the suit should be dismissed as premature because plaintiff has failed to fully comply with the terms of the insurance policy cited above. The Court need not analyze whether plaintiff has in fact complied with the policy requirements. Assuming arguendo that plaintiff failed to fully comply with the conditions of the policy cited by defendant, American Empire is nonetheless not entitled to the relief sought. American Empire has not alleged that any prejudice flowed to it from plaintiff's alleged failure to comply with the conditions of the policy. Absent prejudice, the Court declines to dismiss the suit. See Trosclair v. CNA Insurance Company, 637 So.2d 1168, 1169 (La.App. 4^th Cir. 1994; Kinchen v. Dixie Auto Insurance Company, 343 So.2d 263, 265 (La.App. 1^st Cir.).