60 So. 3d 110
La. Ct. App.2011Background
- Katrina damaged Safeguard Storage Properties' New Orleans area facilities and disrupted its operations at Heritage Plaza; Safeguard sought coverage and damages, including lost business opportunities for 37 proposed stores over 39 years.
- Safeguard had pre-Katrina plans for 12–15 new locations per year and, post-Katrina, claimed numerous potential developments in multiple markets were curtailed.
- Heritage Plaza sustained about $30 million in damages; Safeguard relocated its call center to Chicago and its accounting team to Atlanta due to the loss.
- Safeguard pursued declaratory judgment and damages against Donahue Favret Contractors, Inc., Mapp Construction, and insurers, including claims for lost business opportunities under excess and primary layers.
- The trial court granted partial summary judgment on lost opportunities against most insurers, denied Safeguard's motion on coverage for development losses, and later issued an amended judgment excluding Lloyd's from the insurers group, which this Court later nullified as a substantive change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lost business opportunities are recoverable as actual loss or are speculative. | Safeguard argues it incurred actual losses from unbuilt stores within the recovery periods. | Insurers contend the projected opportunities are speculative and not proven losses. | Genuine issues of material fact exist; recovery is possible. |
| Whether the period of recovery should include Initial and Extended periods as defined by the policy. | Safeguard contends a longer initial and extended period applies, potentially beyond policy expiration. | Court should limit to two defined periods with a maximum overall duration. | Initial and Extended periods exist; dates are fact questions; extended duration not beyond one year after induced restoration. |
| Whether the amended judgment excluding Lloyd's from the defendants was a substantive change and therefore null. | Amendment corrected mislabeling but did not alter substance; jurisdiction divested under Article 2088. | Amendment was a substantive change; permissible under Article 1951 or null. | Amendment null; reversed and remanded on this point. |
| Whether Slips governed by Marsh Manuscript Form or Lloyd's Slips were binding as to Safeguard's coverage. | Slips and Marsh Manuscript Form were intended to bind coverage; Beazley/Marsh negotiations show intent. | Binder language is ambiguous; no final policy issued; need trial to assess intent. | Genuine issues of material fact exist regarding binding intent; writ denied in part, granted in part. |
| Whether the trial court properly denied Lloyd's partial summary judgment on whether Slips govern coverage. | Slips were intended to bind the Marsh Manuscript Form; binder evidence supports this. | Binder is incomplete; policy not finalized; intent is unresolved. | Writ denied; issues of fact remain for trial. |
Key Cases Cited
- Paragon Lofts Condo. Owners Ass'n, Inc. v. Paragon Lofts, L.L.C., 55 So.3d 970 (La.App. 4th Cir. 2011) (amendments cannot alter substance of judgment; amendment rules)
- Harvey v. Traylor, 688 So.2d 1324 (La.App. 4 Cir. 1997) (jurisdiction divested on appeal; substantive changes prohibited)
- Wagenvoord Broad. Co. v. Blanchard, 261 So.2d 257 (La.App. 4 Cir. 1972) (use of collective nouns; context matters in judgments)
- Ellwest Stereo Theatres, Inc. v. Davilla, 436 So.2d 1285 (La.App. 4 Cir. 1983) (lost profits admissibility and proof standard for recoveries)
- Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055 (La.App. 4 Cir. 1984) (reasonableness and detail required for lost profits)
- Bonin v. Westport Ins. Corp., 930 So.2d 906 (La. 2006) (interpretation of insurance policy terms; ordinary meaning vs. technical)