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Park Plaza Condominium Association v. The Travelers Indemnity Co. of America

United States District Court, D. Montana, Great Falls Division

March 25, 2019

PARK PLAZA CONDOMINIUM ASSOCIATION, Plaintiff,
v.
THE TRAVELERS INDEMNITY COMPANY OF AMERICA, PHOENIX INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, AND THE TRAVELERS COMPANIES, INC., Defendants,

          ORDER

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         The Court conducted a hearing on all pending motions on February 20, 2019. Plaintiff Park Plaza Condominium Association (Park Plaza) was represented by Anders Blewett, Esq. Defendants (collectively referred to as "Travelers") were represented by James T. Derrig, Esq. and Jon A. Wilson, Esq. The Court granted some of the motions and denied some of the motions for the reasons stated in open court. The Court took some of the motions under advisement. The Court will rule on the motions that were taken under advisement in separate orders or at trial. This Order summarizes the rulings of the Court during the hearing.

         IT IS HEREBY ORDERED:

         1. Park Plaza's First Motion for Partial Summary Judgment (Doc. 79) is GRANTED in part, and TAKEN UNDER ADVISEMENT in part, as follows:

a. The motion is GRANTED with respect to Issue No. 1 (fortuitous occurrence). The Court has determined that wind and wind-driven precipitation may qualify as a fortuitous occurrence. Wind and wind-driven rain would qualify as a fortuitous occurrence if Park Plaza can show that it did not know in April 2009, that the wind or wind-driven rain would cause the type of loss for which it now seeks to recover damages from Travelers.
b. The portion of the motion relating to Issue No. 2 (loss-in- progress defense) is TAKEN UNDER ADVTSEMENT. The Court will address the loss-in-progress defense at trial after the record is more fully developed. The Court intends to instruct the jury on the loss-in-progress defense.
c. The motion is GRANTED with respect to Issue Nos. 3 and 4 (wind and wind-driven precipitation as separate and distinct causes of loss). The Court has determined that wind and wind-driven precipitation may qualify as separate and distinct causes of loss that are not subsumed by any of the policy exclusions relied upon by Travelers.

         2. Park Plaza's Second Motion for Partial Summary Judgment (Doc. 82) is GRANTED in part, DENIED in part, and TAKEN UNDER ADVISEMENT in part, as follows:

a. The motion is DENIED with respect to Issue No. 1 (concurrent cause doctrine). The Court has determined that the efficient proximate cause rule governs this case. The Court will instruct the jury on the efficient proximate cause rule as defined under Montana law.
b. The motion is GRANTED with respect to Issue No. 2 (the meaning of the phrase "events occurring during the policy period" as used in Section F.8 of Travelers' policy). The Court has determined that the phrase "events occurring during the policy period" as used in Section F.8 of the Travelers' policy is ambiguous when applied to the progressive and incremental loss that occurred in this case. The Court must construe the phrase broadly in favor of coverage. The Court has determined that when wind or wind-driven precipitation causes a continuing and progressive loss that continues through multiple policy periods, the wind or wind-driven precipitation would qualify as an "event occurring" during each policy period.
c. The portion of the motion relating to the Issue No. 3 (the continuous trigger rule) is GRANTED to the following extent. Park Plaza is not required to prove the monetary loss attributable to a particular wind or wind-driven precipitation event. Park Plaza is not required to prove the specific monetary loss that occurred during a particular policy period. Park Plaza need only prove that wind or wind-driven precipitation caused a monetary loss in excess of $2, 500 during a particular policy period.
d. The motion is DENIED with respect to Issue No. 4 (application of a single deductible). The Court will ask the jury to determine, for each of the nine policy periods, whether Park Plaza has suffered a loss in excess of $2, 500 for which wind and/or wind-driven precipitation was the efficient proximate cause. If the jury determines that such a loss in excess of $2, 500 has occurred during a particular policy period, the $2, 500 deductible for that policy period will be triggered,

         3. Park Plaza's Third Motion for Partial Summary Judgment (Doc. 91) is GRANTED in part, DENIED in part, and TAKEN UNDER ADVISEMENT in part, as follows:

a. The motion is DENIED with respect to Issue No. 1 (professional negligence) and is DENIED with respect to Issue No. 2 (applicable professional negligence standard). The Court has determined that the exclusion in Section B.3.C.2 of Travelers' policy does not require proof of professional negligence.
b. The portion of the motion relating to Issue No. 3 (the defective materials exclusion in Section B.3.C.3 of Travelers' policy) is TAKEN UNDER ADVISEMENT. The Court will rule on this issue at trial after the record has been more fully developed.
c. The motion is GRANTED with respect to the Issue No. 4 (the weather conditions exclusion in Section B.3.a. of Travelers' policy). Travelers has conceded that the weather ...

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