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730 Bienville Ptnrs., Inc. v. Assurance Co. of Am.

United States District Court for the Eastern District of Louisiana

September 30, 2002, Decided ; September 30, 2002, Filed; October 1, 2002, Entered

CIVIL ACTION NO. 02-106 SECTION "F"

Opinion

ORDER AND REASONS

Before the Court are cross-motions for summary judgment. For the reasons that follow, defendant's motion is GRANTED and plaintiff's motion is DENIED. 1

I. Background

This dispute arises out of the denial of insurance coverage after the 9/11 tragedy. The plaintiff, 730 Bienville Partnership, Ltd. 2 asserts that the defendant, Assurance Company of America, wrongfully denied its claim for [*2]  coverage under a commercial property insurance policy. Bienville maintains that the standard policy contained additional business income coverage (the Civil Authority Extension) for business losses where the physical damage was remote from the insured's premises. Bienville filed their claim under this provision after the Federal Aviation Administration closed all the United States airports after the September 11, 2001 terrorist attacks. Assurance denied Bienville's claim. As a result, Bienville sued in state court and Assurance removed the lawsuit based on federal question and diversity jurisdiction. Both parties now move for summary judgment to determine whether the policy provision at issue provides coverage for plaintiff's damages.

II. Cross Motions for Summary Judgment

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party [*3]  is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

The Court emphasizes that ] the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "if the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50. Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). [*4]  Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence.  Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in evaluating the summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

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2002 U.S. Dist. LEXIS 18780 *; 2002 WL 31996014

730 BIENVILLE PARTNERS, LTD. VERSUS ASSURANCE COMPANY OF AMERICA

Subsequent History: Later proceeding at 730 Bienville Ptnrs., LTD v. Assurance Co. of Am., 67 Fed. Appx. 248, 2003 U.S. App. LEXIS 8570 (2003)

Prior History: 730 Bienville Ptnrs., Ltd. v. Assurance Co. of Am. Int'l, 2002 U.S. Dist. LEXIS 13004 (E.D. La., Apr. 15, 2002)

Disposition:  [*1]  Defendant's motion for summary judgment dismissing plaintiff's claims granted. Plaintiff's cross-motion for summary judgment denied.

CORE TERMS

coverage, non-moving, airports, genuine, hotels, cancellation, cross-motion, ambiguity, diversity, closure, flights, guests

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, General Overview, Legal Entitlement, Materiality of Facts, Appropriateness, Energy & Utilities Law, Discovery, Exploration & Recovery, Judgments, Burdens of Proof, Evidentiary Considerations, Scintilla Rule, Evidentiary Considerations, Motions for Summary Judgment, Opposing Materials, Supporting Materials, Contracts Law, Contract Interpretation, Ambiguities & Contra Proferentem, Insurance Law, Policy Interpretation, Ambiguous Terms, Coverage Favored, Defenses, Ambiguities & Mistakes, Claim, Contract & Practice Issues, Construction Against Insurers, Unambiguous Terms, Ordinary & Usual Meanings, Plain Language, Technical Constructions & Meanings