After conducting a de novo review, we conclude that Elegant Slumming did present physical evidence in addition to testimonial evidence to show what happened to the lost property and therefore coverage is not barred by the policy exclusion.
#Elegant slumming store hours trial#
We find that the trial court erred in concluding that testimonial evidence, by itself, fulfills the “physical evidence” requirement of the policy. NGM also contends the trial court erred in finding the amount of Elegant Slumming's attorney's fees reasonable. NGM contends the trial court erred in finding that the property insurance policy at issue requires only “some evidence,” rather than “physical evidence,” to show what happened to lost property. (“Elegant Slumming”) in this property insurance coverage dispute. Caesar, Esquire of Young Conaway Stargatt & Taylor, LLP, Georgetown, Delaware for Appellee.īefore HOLLAND, JACOBS, and RIDGELY, Justices.ĭefendants–Below/Appellants, National Grange Mutual Insurance Company and The Main Street Insurance Group (collectively “NGM”) appeal from a Superior Court grant of summary judgment in favor of Plaintiff-below/Appellee Elegant Slumming, Inc. Heesters, Esquire of Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Wilmington, Delaware for Appellant.
Bennett, Esquire (argued) and Christian G. The judgment of the Superior Court is AFFIRMED.Ĭourt Below: Superior Court of the State of Delaware, in and for Sussex County, C.A.“When an act of judicial discretion is under review, the reviewing court may not substitute its own notions for what is right for those of the trial judge, if his judgment was based on conscience and reason, as opposed to capriciousness or arbitrariness.” Go to § 4102 provides that “he court upon rendering judgment against any insurer upon any policy of property insurance, as “property” insurance is defined in § 904 of this title, shall allow the plaintiff a reasonable sum as attorney's fees to be taxed as part of the costs.” We review an award of attorney's fees under an exception to the American Rule to determine if the trial court abused its discretion in awarding such fees.
In this case it is undisputed that a fee-shifting statute applies. Two categories of exceptions are fee-shifting statutes and equitable doctrines. Turning to the award of attorney's fees, we start with the principle that under the American Rule, prevailing litigants bear the responsibility of paying their own attorney's fees.Accordingly, we hold that that testimonial evidence, by itself, is insufficient to constitute the “physical evidence” intended by the coverage exclusion. “Physical evidence” means any article, object, document, record or other thing of physical substance. To find that a requirement of “physical evidence” is satisfied exclusively by testimonial evidence would be contrary to the plain and ordinary meaning of the term. When the language of an insurance contract is clear and unequivocal, a party will be bound by its plain meaning because creating an ambiguity where none exists could, in effect, create a new contract with rights, liabilities, and duties to which the parties had not assented. Clear and unambiguous language in an insurance policy should be given its ordinary and usual meaning.The court rejected this argument, finding that under that interpretation “there would always be physical evidence of what happened to the missing property.” The court found that the insured “produced no physical evidence to show what happened to ” and that its officers did not know when the property was taken or by whom, nor did the officers know what happened to the missing property. Its insurance policy also excluded coverage for loss of property “that is missing, but there is no physical evidence to show what happened to it, such as shortage disclosed on taking inventory.” The insured argued that its description of the laptops as “missing” was, in effect, physical evidence of what happened to them. The insured submitted a claim for the loss of fifty-seven laptops that it found to be missing while taking inventory. Boston, the insured was in the business of providing computer education and its business property included laptops. The Sixth Circuit confronted a similar issue in C.T.S.C.