McCarter & English on Fifth Circuit Panel Affirms Award of Lost Business Income Based on Post-Loss Economic Conditions

McCarter & English on Fifth Circuit Panel Affirms Award of Lost Business Income Based on Post-Loss Economic Conditions

Mark Villanueva   By Mark D. Villanueva, Associate, McCarter & English, LLP

The Fifth Circuit Court of Appeals in Berk-Cohen Assocs. v. Landmark Am. Ins. Co., 2011 U.S. App. LEXIS 14911 (5th Cir. July 20, 2011) recently considered whether an insured may recover for business interruption losses based on a post-Hurricane Katrina increase in the rental housing market.  The Court affirmed the District Court's ruling, and held that it was appropriate to consider increased demand on the rental market that resulted from Hurricane Katrina when calculating lost income.  Although an exclusion in the policy barred the insured from recovering for flood damage to its own property, the policyholder was reimbursed for the missed opportunity to take advantage of favorable rental market conditions that resulted from flooding caused by Hurricane Katrina.

Download a free copy of the Lexis unenhanced version of the Berk-Cohen Assocs. v. Landmark Am. Ins. Co., 2011 U.S. App. LEXIS 14911 (5th Cir. July 20, 2011).

Hurricane Katrina Flood New Orleans

Mark Villanueva is an associate in the Insurance Coverage Practice Group at McCarter & English, LLP and is based in the firm's Philadelphia, Pennsylvania office. Mr. Villanueva represents policyholders seeking coverage for a wide variety of claims, including employment practices liability, advertising injury, directors' and officers' liability, and construction related bodily injury. In addition to insurance coverage litigation, Mr. Villanueva litigates complex commercial disputes, and has also defended clients against claims of medical malpractice. He has coordinated, managed, developed strategy, and actively litigated cases in both state and federal court.

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