Sometimes you read an opinion and ask why the case was ever filed. What was the plaintiff thinking? This was my impression in reading Vu v. National Fire Indemnity Exchange, Civil Action No. 07-6529, 2008 U.S. Dist. LEXIS 58820 (E. D. La. Aug. 4, 2008).
The insureds' business, located in New Orleans, was damaged by Hurricane Katrina. National Fire provided commercial property insurance, but denied coverage based on an exclusion for flood damage.
The insureds sued and National Fire moved for summary judgment. The insureds opposed the motion by contending there was a issue of material fact as to whether their personal property was damaged solely by flood waters. The insureds relied on pictures which purported to demonstrate that the roof was damaged and that rain water must have come through the roof damaging clothing hung above the flood line. Another picture showed a front window pane was broken during the storm. The insureds asserted that this large opening meant wind and wind driven rain caused damage to some property prior to the flood waters. Therefore, the insureds argued although most of the personal property was subsequently damaged by flood waters, an issue of material fact existed as to whether the property was first damaged by wind and wind-driven rain.
The Court initially noted the policy excluded damage caused by wind-driven rain. In addition, the policy had an anti-concurrent causation, excluding water damage regardless of any other cause or event that contributed concurrently or in any sequence to the loss. The pictures alone did not raise a genuine issue of material fact as to whether the damage depicted was caused by a covered event (wind) and not excluded under the express language of the policy (flood.) Accordingly, National Fire's motion for summary judgment was granted.
