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Insured's claim for hot water for lack of hot water



Coran Albert appealed the district court's decision to grant a summary judgment in favor of GeoVera Specialty Insurance Company and dismissed his claim for insurance coverage because the property was vacant for 90 days prior to the loss. I D oucet Services, LLC v. Coran Albert, et al. Nos. 21-223, Louisiana Court of Appeals, Third Circuit (October 13, 2021), the Court of Appeal was asked to ignore the exclusion.

FACTS

Mr. Albert was sued by Doucet Services, LLC, for payment for remediation work performed at the rental as a result of damage that occurred when a pipe burst during severe cold weather on January 18, 2018 or thereabouts. party claims against GeoVera who seek coverage and payment according to their insurance. GeoVera, in turn, submitted a request for a summary judgment, claiming that the coverage was excluded under the insurance, as the rent had been vacant for more than thirty days at the time of the claim. The district court granted GeoVera's request for a summary judgment and rejected Mr Albert's allegations against it with prejudice.

POLICY

The current policy states according to section I, subsection D, paragraph 2.h :: 19659008] If the dwelling where damage occurs has been "vacant" for more than 30 days in a row before loss or damage, we will (1) Do not pay for any loss or damage caused by any of the following hazards, even if they are covered causes of loss:

. . . .

(d) Water damage

The policy further defines "vacancy" as "the dwelling lacking the necessary amenities, adequate furnishings or tools and services to allow the occupancy of the dwelling as dwelling."

The policy clearly requires three things (amenities, furnishings and tools and services) in order for a home not to be vacant according to its express terms. The absence of any of these requirements would make the home vacant. A simple reading of the policy further indicates that if the rent was missing any of the three items for more than thirty days prior to a loss due to water damage, GeoVera would not pay for any damages caused by the loss.

GeoVera proved that the rent lacked two of these requirements, as the rent lacked both hot water and suitable furnishings.

ANALYSIS

The interpretation of an insurance policy is normally a matter of law. An insurance policy is an agreement between the parties and should be interpreted using the general rules of interpretation for contracts set forth in the Louisiana Civil Code. An insurance shall not be interpreted in an unreasonable or strained manner in order to enlarge or limit its provisions beyond what is reasonably conceivable in its terms or in order to reach an absurd conclusion.

A moving party has the right to summarize the judgment when it shows that there are no genuine issues of substantive fact and that it “is entitled to a judgment in law. Appellate courts review summary judgments according to the same criteria that govern a district court's assessment of whether a summary judgment is appropriate. In the decision on an application for a summary judgment, the judge's role is not to evaluate the weight of the evidence or to establish the truth of the case, but instead to determine whether there is a genuine question of triable facts. All doubts should be resolved in favor of the non-mobile party.

A fact is essential whether it potentially ensures or prevents recovery, affects a plaintiff's ultimate success or determines the outcome of the legal dispute. A real issue is the one that reasonable people can agree on; if reasonable persons could only reach a conclusion, a trial in that matter is not necessary and a summary assessment is appropriate.

Although the rent had water and electricity, Albert acknowledged in the deposit that gas was not connected at the time of the damage. He stated that it had been without gas service for about ninety-eight days before the pipe burst. He further stated that the water heater for the home was gas, which means that hot water was not possible for the rental at the time of the accident in January 2018.

Lafayette Municipal Code Art. III, § 26-432 (2020) adopts the language of the International HVAC Code, Chapter 6, § 607.1, which reads: used for bathing, washing, culinary purposes, cleaning, laundry or building maintenance. “Since the home lacked gas, it therefore necessarily lacked hot water. Thus, it is clear that the rent lacked all the necessary amenities to allow the occupancy of the residence as a residence in the city of Lafayette. This fact made the rent vacant according to the policy at the time the damages were incurred.

Furthermore, the clear language of the policy states that a home would be considered "vacant" if it lacks "sufficient furnishings. and that it remained vacant until Jontelle Hersey moved in on June 1, 2018. He stated that there was no furniture in the home when the water damage occurred in January 2018, and that the home had not been furnished since Mouton moved out in September 2017.

Because there was no furniture at all in the rent for more than three months at the time the damage caused the claim., it was clear to the Court of Appeal from the simple language of the insurance that the lack of adequate furnishings in the rent gives a separate and additional reason why the rent was "vacant" according to the terms of the insurance policy for more than thirty days at the time of the damage.

The rental property had no tenant living in it, no hot water or furniture for almost 100 days. before damage was caused by the freezer tube. Under the express terms of the policy, it is therefore clear that the rent was vacant for more than thirty days when the damage occurred and that coverage for the water damage in question was therefore excluded. We can not find any error in the district court's grant of GeoVera's request for a summary judgment.

For the above reasons, the decision of the Court of Appeal is hereby confirmed. The costs of this appeal are hereby assessed against Albert.

It is astonishing that this simple, clear and easy-to-understand insurance policy resulted in a trial, let alone an appeal. This seems to have been a total waste of time for the insurer, the insured and the court.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, bad faith insurance and insurance fraud almost as much for insurers and policyholders.

He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance and claims management attorney and more than 54 years in the insurance industry.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurance companies and their indemnity staff to become liable for insurance.

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