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Jury: Insured Incurred $4 Million In Covered Hurricane Wilma Damages Under Excess Policy

FORT LAUDERDALE, Fla. - (Mealey's) A jury in the U.S. District Court for the Southern District of Florida on Jan. 30 found that a Florida property manager insured incurred $4 million in covered losses from Hurricane Wilma, rendering a verdict against the excess insurer following a 10-day trial (Banta Properties Inc. v. Arch Specialty Insurance Company, No.10-61485, S.D. Fla.).

(Jury verdict form available.  Document #51-120209-015V.)


Hurricane Wilma  

Banta Properties Inc. alleged that its multiple-building apartment complexes sustained damages as a result of Hurricane Wilma. 

Banta sought coverage for the loss from its primary insurer, General Star Indemnity Co., which tendered its $2.5 million policy limits in March 2008.  Banta then unsuccessfully sought coverage from its excess insurer, Arch Specialty Insurance Co. 

On Aug. 17, 2010, Banta sued Arch in the U.S. District Court for the Southern District of Florida for breach of contract and sought a declaration that it is owed excess coverage for its Hurricane Wilma loss. 

Arch moved for summary judgment. 

Untimely Notice 

Relying on Kroener v. Fla. Ins. Guar. Ass'n (63 So. 3d 914, 916 [Fla. 4th DCA 2011]), Arch argued that Banta made an untimely notice of its claim. 

On Nov. 22, 2011, Judge William P. Dimitrouleas denied the insurer's motion. 

"The Court need not reach the issue of whether a reasonable fact-finder could find that Banta's notice was timely when its insurance policy required 'immediate' notice but its claim did not 'accrue' until more than two years later, because as the next section of this Order describes, even assuming that the notice was untimely, Arch is still not entitled to summary judgment," the judge said.  


The judge concluded that there is a genuine issue of material fact regarding whether the excess insurer was prejudiced by a delay in reporting the claim.  

The judge noted that the fact-finder could find that Arch's access to more than 30,000 pages of pictures, expert reports and other documents gave it "substantial information," which removed any potential prejudice that could have arisen from an untimely notice. 

Jury Verdict 

After a 10-day trial, a jury returned a verdict in favor of Banta.  

The jury found that although Banta did not give a timely notice of its claim to Arch, it overcame any prejudice alleged by the excess insurer.  

The jury concluded that Banta's covered damages under the excess insurance policy are $4 million. 

Jay Kim, Brian Lee Lerner and Gregory Charles Ward of Ward Kim Vaughan & Lerner in Fort Lauderdale represent Banta.  Lauren Diane Levy of Butler Pappas Weihmuller Katz Craig in Miami represents Arch. 

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