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Fountain Powerboat Indus. v. Reliance Ins. Co.

United States District Court for the Eastern District of North Carolina, Eastern Division

June 20, 2000, Decided ; June 20, 2000, Filed

NO. 4:00-CV-5-H(4)

Opinion

 [*554] ORDER

This matter is before the court to determine certain legal issues that must be resolved before moving the appraisal process forward in this insurance contract dispute. Both parties have filed memoranda with the court outlining [**2]  their respective positions; therefore, this matter is ripe for ruling.

STATEMENT OF THE CASE

Plaintiff filed the complaint in this action in Beaufort County Superior Court on December 22, 1999. Plaintiff's first claim for relief asserted breach of insurance contract and plaintiff's second claim for relief asserted bad faith by defendant for its refusal to pay plaintiff's claims. Defendant timely removed this action to federal court.

In April 2000, the court conducted a Rule 16 conference with the parties. As a result of this conference, the court appointed an umpire to assist with the appraisal process of plaintiff's insurance claims. The court also established a time-line to guide the resolution of this matter. However, before completion of the appraisal process, the court must determine the meaning of certain policy provisions contained in the insurance policy issued to plaintiff by defendant.

STATEMENT OF THE FACTS

Plaintiff Fountain Powerboat Industries, Inc. is the parent company of Fountain Powerboats, Inc., (jointly referred to as "Fountain") which manufactures, distributes and sells boats and boating equipment. Fountain's manufacturing facility and headquarters [**3]  are located off of Whichard's Beach Road in Washington, North Carolina. Whichard's Beach Road is the only road leading to the Fountain facility. The sole means of reaching Whichard's Beach Road is United States Highway 17, which runs north and south.

On September 15, 1999, Hurricane Floyd struck eastern North Carolina dumping heavy, record-setting rainfall and causing devastating flooding throughout many of the eastern counties. The only roads leading to the Fountain facility, Whichard's Beach Road and Highway 17, were flooded for days according to reports filed by the North Carolina Department of Transportation ("D.O.T."). According to the D.O.T., Whichard's Beach Road was closed from September 16 to 25. 1

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119 F. Supp. 2d 552 *; 2000 U.S. Dist. LEXIS 20644 **

FOUNTAIN POWERBOAT INDUSTRIES, INC., Plaintiff, v. RELIANCE INSURANCE COMPANY, Defendant.

Disposition:  [**1]  Court found Fountain's motion for resolution of disputed legal issues. Court found that the policy provides for Fountain's period of loss due to business interruption to some point past September 25, 1999. Court found that Reliance obligated to pay Fountain's attorney fees incurred in determining the loss payable, to include expenses after the filing of the present lawsuit, expenses incurred in preparing for and attending the claim preparation conferences, and expenses for presenting the instant legal question to the court for determination. Court found that the services of Allan Klotsche were those of a consultant and covered by the policy.

CORE TERMS

business interruption, ingress, egress, adjuster, insured, expenses, preparation, coverage, negotiated, parties, court finds, hurricane, restore, length of time, loss payable, physical loss, no loss, consultant, flooded, insurance contract, contends, umpire, peril, interruption, investigate, construe, asserts, damaged, covers

Contracts Law, Defenses, Ambiguities & Mistakes, General Overview, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Contract Interpretation, Ambiguities & Contra Proferentem, Ambiguous Terms, Business & Corporate Compliance, Industry Practices, Unfair Business Practices, Claims Investigations & Practices