The recent decision in Mid-Continent Cas. Co. v Adams Homes of Northwest Florida, Inc., No. 17-12660, 2018 WL 834896 (11 Cir. Feb. 13, 2018) determined that loss of use claims—even where no physical damage to tangible property occurs—are potentially covered claims under CGL policies in Florida. Following in lockstep with the state of Florida, the Fourth District Court of Appeals in California held last month in Thee Sombrero, Inc. v. Scottsdale Ins. Co., 28 Cal. App. 5th 729, 239 Cal. Rptr. 3d 416 (Ct. App. 2018), that loss of use of a property in a particular capacity—even where the property is still currently in use by the insured in a different form—constitutes “property damage” for purposes of a CGL policy.
Thee Sombrero, Inc. (“Sombrero”) owned commercial property and, pursuant to a conditional use permit, permitted Sombrero’s lessees to operate the property as a nightclub called El Sombrero. Id. at 418-19. A company called Crime Enforcement Services (“CES”) provided security at the nightclub. Id. CES held a CGL policy of insurance issued by Scottsdale Insurance Company (“Scottsdale”) that provided coverage for “property damage” caused by an “occurrence”. Id. at 419. The CGL policy issued by Scottsdale defined “property damage” as either (a) “[p]hysical injury to tangible property, including all resulting loss of use of that property,” or (b) “[l]oss of use of tangible property that is not physically injured.” Id.
After a fatal shooting occurred on the property in 2007, the conditional use permit was revoked and replaced with a modified conditional use permit that only allowed the space to operate as a banquet hall. Id. Sombrero then filed an action against CES resulting in a default judgment for negligence and breach of contract. Id.
Subsequently, Sombrero filed the instant action against Scottsdale alleging that the loss of Sombrero’s ability to use the property as a nightclub constituted property damage within the meaning defined in the CGL policy issued by Scottsdale. Specifically, Sombrero presented evidence that the value of the property decreased from $2,769,231.00 to $1,846,153.00 because the property could no longer operate as a nightclub, and that this loss of value qualified as “property damage” for purposes of coverage. Id. The trial court disagreed finding that the claim against CES was for a pure economic loss and did not constitute “property damage” for purposes of the policy issued by Scottsdale. Id. at 420.
The California Court of Appeals reversed the decision of the trial court holding that “it defies common sense” to argue that the loss of the ability to use the property as a nightclub failed to qualify as loss of use that in turn constituted “property damage” under the policy. Id. at 421. The Court acknowledged contrary authority in Washington (Scottsdale Ins. Co. v. International Protective Agency, Inc., (2001) 105 Wash.App.244 [19 P.3d 1058](IPA)) with similar facts to the instant case, but found that the loss of a liquor license was not the same as the loss of use of the property in its original capacity. Sombrero, 239 Cal. Rptr. 3d at 422. Specifically, the Court found that a loss of the ability to serve liquor on the property was not tangible property, but rather was the loss of an entitlement. Id. Therefore, any loss of use of the liquor license was not loss of use of tangible property that would qualify as “property damage” for purposes of coverage. Id.
The Court refuted Scottsdale’s claim that “a right to occupy property is not a tangible property interest” finding that a lease is a conveyance of an estate in real property pursuant to California law and that because “[a] building is tangible [and] [d] irt is tangible.. .a lessee in possession has a tangible property interest in the leased premises.” Id. at 423. Notably, the Court emphasized that the complaint alleged that the loss of the permit right resulted in the loss of use of the property as a nightclub, which in turn reduced the economic value of the property. In stating the “correct principal,” the Court determined that “losses that are exclusively economic, without any accompanying physical damage or loss of use of tangible property, do not constitute property damage.”
The Sombrero decision widens the definition of “property damage” and thereby expands coverage under a CGL policy. Although this case did not arise out of a construction defect dispute, the points of insurance coverage could conceivably be applicable in future construction defect claims. Of course, the language of each CGL policy is controlling, which is why it is important to engage coverage counsel in the evaluation of these matters.