Disputed evidence on whether the property damage was caused by wind or flood related to Hurricane Katrina was at issue in C.R. Pittman Constr. Co., Inc. v. Nat'l Fire Ins. Co. of Hartford, 2011 U.S. App. LEXIS 20002 (5th Cir. Sept. 30, 2011).
Pittman Construction had equipment for pumping units stored both inside and outside of its warehouse in New Orleans. Its "all risks" policy, issued by National Union, was in place when Hurricane Katrina struck. The equipment was damaged. When National Union refused to provided coverage, Pittman Construction sued. The parties disputed whether the damage was caused by rain and wind or by the excluded peril of flooding.
Both parties moved for summary judgment. Pittman Construction submitted an affidavit by its owner, Jay Pittman, Jr. Mr. Pittman stated he was present at the warehouse when Katrina hit, and that wind tore off parts of the side and roof of the warehouse, allowing rain to destroy the insured property before any flooding occurred. An employee's affidavit stated after wind blew away a tarp covering generators in the construction yard, rain destroyed the generators. In support of its motion for summary judgment, National Union contended the failure of the levee system had caused flooding that destroyed Pittman Construction's equipment. The district court granted National Union's motion for summary judgment and dismissed Pittman Construction's suit.
The Fifth Circuit reversed, in part. The district court failed to consider the Pittman affidavits because they were self-serving. Although they were arguably self-serving, the Pittman affidavits were not wholly conclusory, but were based on personal knowledge and created a fact issue as to the cause of the damage to the equipment. Therefore, granting summary judgment to National Union was improper.
