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Assurance Co. of Am. v. BBB Serv. Co.

Court of Appeals of Georgia

December 2, 2003, Decided

A03A2074

Opinion

 [*35]   [**7]  PHIPPS, Judge.

BBB Service Company, Inc., owner of several Wendy's Old Fashioned Hamburgers restaurants in Florida and Georgia, sued its insurance company, Assurance Company of America, charging the insurer with breach of contract in rejecting its claim for loss of business income. After a bench trial, the court entered judgment in favor of BBB. In this second appearance of this case before this court, 1 Assurance contends that the judgment was not supported by evidence. Because the record shows otherwise, we affirm.

On September 13, 1999, Brevard County, Florida, issued an order, signed by the Chairman of the County Commission, declaring a state of local emergency "because of the serious threat to the lives and property of residents [***2]  of Brevard County from Hurricane Floyd. . . . Because of the uncertainty of the path of devastating winds and storm surges," certain persons were ordered to evacuate. Pursuant to the order, BBB closed its Brevard County restaurants and evacuated the area.

BBB later submitted a claim to Assurance, stating that it had been unable to do business for two and a half days, that it had incurred business losses, and that it was entitled to be paid pursuant to the policy's "Civil Authority" clause. In that clause, Assurance had agreed,

We will pay for the actual loss of "business income" you sustain and necessary "extra expense" caused by action of civil authority that prohibits access to your premises due to direct physical loss of or damage to property, other than at the "covered premises," caused by or resulting from any Covered Cause of Loss. This coverage will apply for a period of up to 4 consecutive weeks from the date of that action.

Assurance rejected the claim on the ground that the evacuation order was issued due to the threat of damage to property, not due to  [**8]  actual damage to property as required by the cited provision.

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265 Ga. App. 35 *; 593 S.E.2d 7 **; 2003 Ga. App. LEXIS 1495 ***; 2003 Fulton County D. Rep. 3692

ASSURANCE COMPANY OF AMERICA v. BBB SERVICE COMPANY, INC.

Subsequent History:  [***1]  Reconsideration Denied January 7, 2004. Certiorari Applied For.

Writ of certiorari denied, Motion denied by Assurance Co. of Am. v. BBB Serv. Co., 2004 Ga. LEXIS 378 (Ga., May 3, 2004)

Prior History: Action on policy. Fulton Superior Court. Before Judge Barnes.

Assurance Co. v. BBB Serv. Co., 259 Ga. App. 54, 576 S.E.2d 38, 2002 Ga. App. LEXIS 1620 (2002)

Disposition: Affirmed.

CORE TERMS

evacuation, civil authority, insured premises, summary judgment, property damage, storm

Civil Procedure, Trials, Bench Trials, Appeals, Standards of Review, Clearly Erroneous Review