Zurich American Insurance v. ABM Industries, Inc.

397 F.3d 158, 2005 U.S. App. LEXIS 2120, 2005 WL 299700
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 9, 2005
DocketDocket No. 04-0445-CV
StatusPublished
Cited by1 cases

This text of 397 F.3d 158 (Zurich American Insurance v. ABM Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zurich American Insurance v. ABM Industries, Inc., 397 F.3d 158, 2005 U.S. App. LEXIS 2120, 2005 WL 299700 (2d Cir. 2005).

Opinion

CARDAMONE, Circuit Judge:

The terrorist attack on the World Trade Center complex in lower Manhattan- on September 11, 2001 brought about a harvest of bitter distress and loss. Of the complex, one stone was not left on another, it was all thrown down, bringing about, in addition to human casualties, the loss and destruction of businesses. It is the loss of one business that is the focus of this appeal.

Appellant ABM Industries Incorporated (ABM, appellant, or insured), an engineering and janitorial service contractor, provided extensive services at the World Trade Center complex (WTC or complex). ABM was insured against business interruption by appellee Zurich American Insurance Company (Zurich, appellee, or insurer). Zurich, as plaintiff, initiated the instant litigation by bringing a declaratory judgment action in the United States District Court for the Southern District of New York (Rakoff, J.) against ABM, asking the court to determine the extent of its liability to ABM resulting from the loss of the WTC. ABM had sought from Zurich business interruption (BI) insurance coverage for its losses.

ABM appeals from an order dated May 28, 2003 and final judgment entered on January 6, 2004 in the district court, denying its motion for partial summary judgment and granting such a motion in favor of Zurich. ABM contends the district court erred when it determined that, as a matter of law, ABM was not entitled to coverage under the Business Interruption provision, the Leader Property provision, the Civil Authority provision, and the Extra Expense provision of its insurance policy with Zurich. ABM also asserts that the district court abused its discretion when it granted Zurich’s motion to exclude evidence supporting a two-occurrence claim.

BACKGROUND

A. ABM Industries

ABM provided extensive janitorial, lighting, and engineering services at the World Trade Center. It operated the heating, ventilating, and air-conditioning (HVAC) systems for the entire WTC, essentially running the physical plant. ABM serviced the common areas of the complex pursuant to contracts with the owners Silverstein Properties and the Port Authority of New York and New Jersey.

Under these contracts ABM had office and storage space in the complex and had access to janitorial closets and slop sinks located on every floor of the WTC buildings. ABM also had effective control over the freight elevators. At the time of the attacks, it employed more than 800 people at the WTC, and its exclusive and significant presence at the complex allowed it to secure service contracts with nearly all of the WTC’s tenants. ABM also had service contracts with various building owners and tenants at 34 other locations in lower Manhattan.

In order to handle these enormous responsibilities at the WTC, ABM created and manned a call center to which tenants reported problems. ABM’s engineering department took complaints at the call center and dispatched its employees to remedy problems as they arose. Additionally, ABM developed complex preventative [162]*162maintenance schedules through state-of-the-art software that tracked the equipment in the WTC. These procedures allowed ABM to repair equipment before it malfunctioned.

B. The Insurance Policy

ABM procured insurance coverage from Zurich for properties serviced by ABM throughout North America under an insurance policy numbered MLP 8339383-05 (policy). The policy provides a blanket limit of $127,396,375, subject to various sublimits. Section 7.A(1) of the policy covers loss or damage to “real and personal property, including but not limited to property owned, controlled, used, leased, or intended for use by the Insured” (Insurable Interest provision). In addition to covering property damage, the policy also provides business interruption coverage under § 7.B(1) by insuring against “loss resulting directly from the necessary interruption of business caused by direct physical loss or damage, not otherwise excluded, to insured property at an insured location” (Business Interruption or BI provision). The blanket limit of $127,396,375 is the only applicable limit to the BI provision.

Relatedly, § 7.C(1) of the policy provides insurance coverage for extra expenses “incurred resulting from loss, damage, or destruction covered herein ... to real or personal property as described in [the Insurable Interest provision]” (Extra Expense provision). Section 7.C(2) defines “[ejxtra [e]xpense” as the “total cost chargeable to the operation of the Insured’s business over and above the total cost that would normally have been incurred to conduct the business had no loss or damage occurred.” This provision is subject to a $50,000,000 per-occurrenee sublimit.

The policy also contains three relevant time element extensions. First, § 7.F(2) of the policy provides extended coverage to actual losses sustained

due to the necessary interruption of business as the result of direct physical loss or damage of the type insured against to properties not operated by the Insured which wholly or partially prevents any direct supplier of goods and/or services to the Insured from rendering their goods and/or services, or property that wholly or partially prevents any direct receiver of goods and/or services from the Insured from accepting the Insured’s goods and/or services

(Contingent Business Interruption or CBI provision).

Second, § 7.F(4) of the policy “insures against loss resulting from damage to or destruction by causes of loss insured against, to property not owned or operated by the Insured, located in the same vicinity as the Insured, which attracts business to the Insured” (Leader Property provision). Finally, § 7.F(5) of the policy covers losses sustained “during the period of time when access to real or personal property is impaired by order or action of civil or military authority issued in connection with or following a peril insured against” (Civil Authority provision).

ABM’s claims under the policy arise out of the complete destruction of the WTC by the terrorist attacks of September 11, 2001. ABM declares it has lost, as a result of these events, all income that it derived from its operations at the WTC. Specifically, it asserts that it should be compensated for its lost income resulting from the destruction of: (1) equipment it owned and used to perform its janitorial and maintenance services; (2) its offices and warehouses in which ABM operated and stored its supplies; (3) the on-site call center; (4) the freight elevators, janitorial closets and slop sinks to which it had exclusive access; (5) the common areas in the WTC; and (6) [163]*163the spaces occupied by the tenants with whom ABM had contracts to provide services.

Moreover, ABM contends that the loss of the WTC resulted in a series of union negotiations and an increase in unemployment compensation claims and that it incurred additional expenses as a result. ABM also seeks coverage for losses stemming from police orders that prevented it from conducting operations at 34 locations in lower Manhattan after September 11.

C. Proceedings Below

In its complaint Zurich requested a declaration that ABM’s business interruption losses were subject to a $10 million per-occurrence limit of liability.

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397 F.3d 158, 2005 U.S. App. LEXIS 2120, 2005 WL 299700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zurich-american-insurance-v-abm-industries-inc-ca2-2005.