In the latest installment of a coverage class action suit that has bounced between the Eleventh Circuit and the District Court in Florida, the insureds survived a motion for summary judgment.  See Mills v. Foremost Ins. Co., Case No. 8:06-CIV-986-T-17-MAP, 2009 U.S. Dist. LEXIS 8851 (Jan. 28, 2008).

    The insureds held a mobile home insurance policy with Foremost.  They sought coverage after their home and personal property were damaged by Hurricane Frances in 2004.  Although a partial payment was made by Foremost, there was no compensation for contractors' overhead and profit charges nor for taxes on materials. 

    The insureds filed suit on behalf of themselves and a class of all Foremost's mobile home insurance policyholders in Florida who submitted claims for hurricane damage to their mobile homes caused by four hurricanes in 2004.  In November 2006, the district court dismissed the suit with prejudice because the insureds lacked standing to represent the putative class based on the insureds' failure to allege the actual repair or replacement had been completed and that a claim for such replacement costs had been submitted. 

    The Eleventh Circuit reversed, finding the District Court erroneously treated the insurance coverage issues as standing issues.  Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir. 2008).  The insureds alleged hurricane damage and attempts to secure payment under the policy.  Thus, they clearly had standing to sue for damages under the policy.  Whether the complaint pled sufficient facts was related to whether they had stated a claim, not a standing issue.   The Eleventh Circuit also found the insureds had standing as putative class representatives.

    This present case considered Foremost's motion for summary judgment, again arguing the insureds had no standing to sue.  Moreover, they were not members of the class because the facts showed they had not incurred overhead and profit expenses in connection with the repair or replacement of their hurricane damaged property.   Bound by the Eleventh Circuit's decision, the District Court denied the motion.  Whether the withheld payments were covered by the policy concerned whether the complaint stated a claim and was not a standing issue.  Whether the insureds had incurred overhead and profit expenses in the repairs presented a genuine issue of fact, making summary judgment improper.