Opinion
Civil Action No. 02-3588 c/w 04-624, Section "N" (4).
February 10, 2005
ORDER AND REASONS
Presently before the Court are Felham's motion for partial summary judgment and/or motion to strike (Rec. Doc. No. 311), and Halter's motion for partial summary judgment (Rec. Doc. No. 312). These motions address Zurich's defense that the policy it issued is void by virtue of a breach of the duty of utmost good faith, i.e., uberrimae fidei, allegedly owed under general maritime law. Felham's motion to strike, and Halter's request for relief in its motion for partial summary judgment based on the timeliness of Zurich's assertion of this defense, have been rendered moot by this Court's Orders (Rec. Doc. Nos. 370 and 403) allowing Zurich to amend its answers to assert defenses of uberrimae fidei premised upon the stability problems allegedly plaguing the M/Y Ulysses at the time of the July 2, 2002 fire. Accordingly, those requests are DENIED as MOOT.
Felham's motion for partial summary judgment and the remaining relief sought by Halter's motion are GRANTED IN PART and DENIED IN PART. The Court agrees that Louisiana state law, La.R.S. 22:619, not the general maritime doctrine of uberrimae fidei, controls the issue of whether a marine insurance policy is void by reason of an insured's alleged misrepresentation and/or failure to disclose material facts during the application process. See Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 886-890 (5th Cir. 1991) (applying Texas law); North American Specialty Ins. co. v. Parra, 1996 WL 592744, *2-3 (E.D. La. 10/11/96) (Vance, J.) (applying Louisiana law); Insurance Co. of North America v. West of England Shipowners Mut. Ins. Assn., 890 F. Supp. 1302, 1305-06 (E.D. La. 7/14/95) (Vance, J.) (same). Given that the policy in question was first issued on October 1, 1997, and the alleged misrepresentations and/or failure to disclose by Halter regarding the vessel's stability did not occur until approximately three years later, the Court finds no justification for voiding the policy based on Halter's disclosures during the policy application process.
With regard to disclosures that were made or allegedly should have been made after the policy was issued, and construction on the Ulysses had commenced, the materials submitted to the Court to date suggest that, while Zurich may be able to justify a limitation of the extent of its coverage, it will have a difficult order of proof at trial in having all coverage under its policy declared void ab initio. Nevertheless, the Court is not able to determine, based on the submissions presently before it, that no genuine issue of material fact exists and that Halter and Felham are entitled to judgment as a matter of law.