January 30, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • PHI Group, Inc. v. Zurich American Insurance Co., 22-30142, appeal from W.D. La.
    • Smith, J. (Jones, Smith, Graves), insurance, COVID-19
    • Affirming dismissal of helicopter services company in dispute arising from claim against its all-risk insurer to recover economic losses from the partial interruption of business during the pandemic.
    • The Court held that the requirement for “direct physical loss of or damage” to property as an element of any of the coverages in the policy precluded coverage, rejecting the plaintiff’s argument that the physical presence of the virus was sufficient. “The central issue is whether PHI sustained a ‘direct physical loss of or damage’ to its property caused by coronavirus particles on the surfaces and materials within its facilities. PHI is not the first business in the Fifth Circuit to make that claim. Each time, we have found that the presence of coronavirus particles in a facility does not trigger coverage under analogous physical loss or damage provisions.”
    • The Court held that the deletion of the term “virus” from the policy’s contamination exclusion did not require a different result. “PHI has not established any facts that indicate that coronavirus caused direct physical loss or damage, which remains at the crux of any recovery under its insurance policy. Regardless of the contamination exclusion, PHI does not have a plausible claim for coverage. An exclusion cannot create coverage that does not exist under the plain meaning of the policy.”

Unpublished

  • Griffith v. Lone Star FLCA, 22-10527, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), foreclosure
    • Affirming judgment in favor of lender on property dispute arising from foreclosure.
  • McCleery v. Speed, 22-30213, appeal from W.D. La.
    • per curiam (Elrod, Haynes, Willett), insurance
    • Affirming summary judgment and dismissal in favor of decedent’s children from his first marriage, on widow’s claims to be the exclusive beneficiary of three life insurance policies.
  • U.S. v. Briggs, 22-30305, appeal from W.D. La.
    • per curiam (Smith, Southwick, Douglas), criminal, sentencing
    • Affirming 96-month sentence on conviction of theft of firearms from a federal firearms licensee.
  • U.S. v. Bates, 22-60261, appeal from S.D. Miss.
    • per curiam (Stewart, Duncan, Wilson), criminal, Confrontation Clause
    • Affirming conviction of possession of a firearm by a felon, finding no abuse of discretion in trial court’s admission of audio recordings and related transcripts of phone calls to 911.