WH Holdings LLC v. Ace American Insurance Company

Filing 226

ORDER denying 201 Motion for Summary Judgment filed by plaintiffs. Signed by Judge Jay C. Zainey. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WH HOLDINGS, LLC, ET AL.

CIVIL ACTION

VERSUS

NO: 07-7110

ACE AMERICAN INSURANCE CO.

SECTION: "A" (5)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
201) filed by Plaintiffs, WH Holdings, LLC, AXIS US Insurance
Co., XL(Bermuda) Ltd., Lloyds of London, and Swiss Re
International SE (collectively “Plaintiffs”).
American Insurance Co. opposes the motion.

Defendant ACE

The motion, noticed

for submission on February 13, 2013, is before the Court on the
briefs without oral argument.

For the reasons that follow, the

motion is DENIED.
I.

BACKGROUND
This suit was originally filed in state court by WH

Holdings, LLC against ACE American Insurance Co. to recover for
damage sustained at the Ritz-Carlton New Orleans as a result of
Hurricane Katrina.

ACE had issued a builder’s risk policy to

Gootee Construction Co., which had been doing renovation work at
the Ritz when Katrina hit.
October 19, 2007.

ACE removed the suit to this Court on

ACE has always maintained that WH Holdings was

not an insured under its policy.

In the summer of 2010, the
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parties filed cross motions on the insured status issue, and on
September 24, 2010, the Court granted ACE’s motion for summary
judgment, concluding that WH Holdings was not an insured.
Doc. 149).

(Rec.

Plaintiffs appealed, and the Fifth Circuit vacated

the ruling and remanded the case with instructions to the Court
to consider certain extrinsic evidence.

WH Holdings, LLC v. ACE

American Ins. Co., 481 Fed. Appx. 894 (5th Cir. 2012).

Discovery

is now complete and the case is scheduled for trial on May 23,
2013.

(Rec. Doc. 187).

The re-urged cross motions for summary

judgment on coverage will not be addressed, however, as part of
this Order and Reasons.
Via the instant Motion for Summary Judgment Plaintiffs seek
an order declaring as a matter of law that Hurricane Katrina
caused damage totaling $3,264,812.54 to the Ritz-Carlton.
Plaintiffs contend that representatives of Gootee Construction
Co. and Pascal Architects conducted detailed and lengthy
assessments of the damage to the Ritz and they concluded that the
damages due to Katrina were $3,264,812.54.

Plaintiffs contend

that ACE’s adjuster made only a perfunctory evaluation of the
damages and therefore ACE cannot prove that the quantum of
damages totaled anything other than $3,264,812.54.
II.

DISCUSSION
Summary judgment is appropriate only if "the pleadings,
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depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," when viewed in the light
most favorable to the non-movant, "show that there is no genuine
issue as to any material fact."

TIG Ins. Co. v. Sedgwick James,

276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

A dispute about a

material fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Id. (citing Anderson, 477 U.S. at 248).

The court must draw all

justifiable inferences in favor of the non-moving party. Id.
(citing Anderson, 477 U.S. at 255).

Once the moving party has

initially shown "that there is an absence of evidence to support
the non-moving party's cause," Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with "specific
facts" showing a genuine factual issue for trial.

Id. (citing

Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).

Conclusional allegations and

denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial.
Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Plaintiffs are not entitled to judgment as a matter of law
on the damages issue.

In order to grant Plaintiffs the relief
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that they seek the Court would be called upon to weigh the
evidence, and determine that Plaintiffs’ witnesses are more
credible and trustworthy than ACE’s--the necessity of which
renders summary judgment inappropriate.

Moreover, it is readily

apparent from even a cursory review of ACE’s opposition that
material issues of fact preclude summary judgment on the damages
issue.
In sum, if Plaintiffs prevail on the coverage and rankings
issues, which are the subject of the parties’ separately filed
cross motions for summary judgment, then the issue of damages
will be resolved via a trial on the merits.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec.
Doc. 201) filed by Plaintiffs, WH Holdings, LLC, AXIS US
Insurance Co., XL(Bermuda) Ltd., Lloyds of London, and Swiss Re
International SE is DENIED.
March 13, 2013
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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