Second Attempt at Same Argument Fails

Insured Must Reside at Dwelling for Homeowners Policy Coverage to Apply

Barry Zalma
Posted on June 6, 2023 by Barry Zalma

DOING THE SAME THING TWICE AND EXPECTING A DIFFERENT RESULT IS THE DEFINITION OF INSANITY

Second AttemptPhoto byBarry Zalma

Plaintiff alleged that, on October 28, 2020, Hurricane Zeta caused significant damage to his property. Plaintiff alleged that Southern conducted an inspection which constituted “satisfactory proof of loss,” but that Southern failed to adjust the claim or provide compensation to Plaintiff following the inspection. Plaintiff alleged that he was forced to hire his own experts, and repair estimates. He was not paid and sued.

In Todd M. Korbel v. Republic Fire And Casualty Insurance Company And Southern Underwriters Insurance Company, No. 2:21-CV-2214, United States District Court, E.D. Louisiana (May 31, 2023) resolved the dispute.

BACKGROUND

Plaintiff sued seeking damages. Southern generally denied the allegations and asserted a number of affirmative defenses including that Plaintiff did not “reside” at the Property, and that he is therefore not entitled to coverage under the Policy.

APPLICABLE LAW

Residence under the Policy

The plain, ordinary and generally prevailing meaning of the word “reside” requires more than purchasing a home or intending to move into it. Plaintiff argued that he received mail, including correspondence from Southern, at the Property, that he paid water and electric bills for the Property in his name, that he was at the Property every day performing work or checking on the Property, that he had stored some belongings at the Property, and that he had a homestead exemption on the Property.

As the Fifth Circuit has previously explained to Plaintiff himself in a previous lawsuit, this evidence is insufficient to create an issue of material fact as to whether Plaintiff resided in or at the Property. In an earlier case Plaintiff brought similar claims for damages and statutory bad faith penalties under Louisiana law after a house that he had purchased, but not moved into, was damaged during Hurricane Katrina. The insurer raised the same lack of coverage defense to Plaintiff’s claims for certain damages, arguing that Plaintiff did not reside at the property as was required under the insurance coverage contract.

Although Korbel clearly spent a great deal of time working on the house and intended it to be his residence in the future, this evidence was insufficient to establish residence. Given that Plaintiff kept only a minimal amount of furniture there and did not engage in leisure activities at the house, but rather went to the Property to work on or check on the house the facts establish he did not reside there.

In fact, Plaintiff admitted in his deposition that he did not move into the Property but was still living at another location at the time the Property was impacted by Hurricane Zeta. Accordingly, Plaintiff did not ‘reside’ at the Property, and is not entitled to coverage under the Policy.

ZALMA OPINION

Homeowners policies require that the insured reside at the premises that is the subject of the policy. Since the evidence established Korbel did not reside at the premises but only visited for purposes other than residence and it was in no condition to live in, he did not meet the requirement of residence as he did not in a previous case he brought to the Fifth Circuit Court of Appeals. He could have purchased a policy for a property in the course of construction but did not. Once he lost with the same argument it was unwise to make the same losing argument to the to the USDC that had failed on an appeal to the Fifth Circuit.

(c) 2023 Barry Zalma & ClaimSchool, Inc.