Versai Management Corp. v. Clarendon America Insurance

597 F.3d 729, 2010 U.S. App. LEXIS 3479, 2010 WL 572532
Court of Appeals for the Fifth Circuit·Decided February 19, 2010·No. 08-30874·Published·Cited by 56 cases

Opinion

PER CURIAM:

Appellant Versai Management Corporation (Versai) appeals the district court’s grant of summary judgment in favor of Appellees Clarendon America Insurance Company (Clarendon) and Employers Fire Insurance Co. (EFIC) on (1) Versai’s contract claims for unpaid insurance proceeds for property damage, business interruption, replacement costs, and code compliance upgrades; and (2) Versai’s claims that EFIC and Clarendon violated Louisiana law by failing to promptly settle claims and by misrepresenting the terms of their policies. Versai also asks this court to find that the district court abused its discretion by denying Versai’s motion to extend the deadline for filing expert reports. We affirm in part and reverse in part.

I.

Versai manages the Versailles Arms Apartments in New Orleans. Versailles Arms Apartments are federally subsidized through the Department of Housing and Urban Development. The apartments consist of fifty residential buildings, each consisting of four first-floor apartments and four second-floor apartments. Forty-nine of the buildings suffered extensive damage during Hurricane Katrina during August of 2005 and were rendered uninhabitable until the property was repaired. The fiftieth building was destroyed in a natural gas explosion during the storm. Following the disaster, Versai notified its insurers of the hurricane damage to the property and submitted claims with the assistance of its retained private adjusters and contractors.

In February of 2006, Versai retained SCC Ventures, L.L.C., to conduct repairs on the property. That month, SCC Ventures estimated that the repairs would cost $17,878,326. Lloyds of London, which provided $2.5 million in “all risk” property insurance, paid its policy limits in full in April of 2006. Versai’s flood insurance provider, the Standard Fire Insurance Company, was originally party to this suit but settled its claims with Versai for approximately $6 million. The remaining defendants, Clarendon and EFIC, together provided “non-flood” insurance on the apartments in excess of the $2.5 million provided by Lloyds, and this coverage was limited to a maximum recovery of $13,411,288. The Clarendon and EFIC policies follow the same terms of the underlying Lloyds Policy, but provided ex *734 cess coverage once the Lloyds insurance limits were met.

Versai promptly notified all of its insurers about the losses and damage sustained to the Versailles Arms Apartments after Hurricane Katrina. Agents and adjusters for the insurers inspected the property throughout 2005 and 2006. Clarendon and EFIC’s joint adjuster, Bill Adams of McLarens Young International, submitted a number of reports to EFIC and Clarendon throughout early 2006. On May 26, 2006, Adams submitted a report stating that the companies owed Versai an undisputed sum of $2,972,991.38 each, and an insurer-produced proof of loss for this amount was then submitted. Clarendon issued its check for $2,972,991.38 on July 27, 2006, and EFIC issued its check for the same amount on August 1, 2006. On August 23, 2006, Versai presented EFIC and Claredon with a sworn statement in proof of loss, which was not prepared by the insurance companies, for the amount of $6,082,882.69 each. The companies did not submit additional payment.

In September of 2007, the original $17,878,326 estimate of the cost to repair the premises increased by approximately ten million dollars to include the costs of compliance with updated building codes, which would require additional repairs. No payments for code compliance were rendered. In December of 2007, Clarendon and EFIC each issued checks to Mark Carrier, Versai’s public adjuster, for $255,498 for additional items of physical damage and business interruption. These checks were made payable to Versai, Versai’s mortgage holder, and “Recov.” (Recovery Management) — the adjusting business Carrier owned. Versai contends that Carrier forged the requisite endorsements and stole the money. By the end of 2008, the only completed repairs to the Versailles Arms Apartments consisted of demolishing portions of the property, gutting certain areas, re-framing parts of the structure, and repairing some of the roofing. Versai entered into a contract to sell the apartments to Peltier Gardens, L.L.C., but the deal ultimately fell through. Versai has since retained ownership of the apartments.

On August 25, 2006, Versai filed suit against Clarendon and EFIC, alleging that Clarendon and EFIC had not paid the full amount due under the excess non-flood policies for property damage, business interruption loss, replacement costs, and code compliance upgrades. Versai claimed that these failures amounted to breaches of contract, breaches of the duties of good faith and fair dealing, and violations of Louisiana Revised Statutes sections 22:1892 and 22:1973. The trial date was originally set for November 12, 2007, but was reset to September 2, 2008 upon the parties’ joint motion for continuance. Versai filed a consent motion to continue on May 30, 2008, but the court denied it. Versai failed to produce expert reports in advance of the May 30 deadline, but approximately one month after the deadline passed, Versai moved the court to extend the deadline. The court denied the extension. In July of 2008, EFIC and Clarendon moved for summary judgment on all claims. Versai opposed the motion with affidavits from various fact witnesses, and later filed a motion to continue based on its discovery of Carrier’s alleged theft. The district court granted summary judgment for EFIC and Clarendon on all claims, concluding that Versai had failed to present evidence showing a genuine issue of material fact. Versai has since filed a timely appeal urging the court to reverse the grant of summary judgment on all claims.

II.

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Versai Management Corp. v. Clarendon America Insurance, 597 F.3d 729, 2010 U.S. App. LEXIS 3479, 2010 WL 572532 (5th Cir. 2010).

597 F.3d 729 (Versai Management Corp. v. Clarendon America Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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