United States District Court, D. Delaware
For JAM Transportation Inc., Plaintiff: John S. Spadaro, LEAD ATTORNEY, John Sheehan Spadaro, LLC, Hockessin, DE.
For Harleysville Mutual Insurance Company, Defendant: Stephen P. Casarino, LEAD ATTORNEY, Casarino, Christman & Shalk, P.A., Wilmington, DE; Jason M. Kurtz, PRO HAC VICE; Michael R. Nelson, PRO HAC VICE.
LEONARD P. STARK, UNITED
STATES DISTRICT JUDGE.
At Wilmington this 9th day of April, 2013:
Following the Court's March 28, 2012 ruling (D.I. 13), Plaintiff, JAM Transportation, Inc. (" JAM" or " Plaintiff" ), filed an Amended Complaint (D.I. 14). Thereafter, Defendant Harleysville Mutual Insurance Company (" Harleysville" or " Defendant" ) moved to dismiss the Amended Complaint. (D.I. 15) For the reasons discussed below, Defendant's motion to dismiss (D.I. 15) is DENIED.
A. Factual background
The Court repeats the pertinent factual background it provided in its order reviewing the earlier motion to dismiss:
This is an action arising from a dispute over whether coverage is owed under Defendant's Deluxe Business Owners Policy, policy number BO1-5J0386 (the " Policy" ), for a business income loss sustained by JAM Transportation, Inc. (" JAM" or " Plaintiff" ). Harleysville issued the Policy, with effective dates of July 15, 2005 to July 15, 2006, to JAM, as a named insured. (D.I. 1, Ex. 1 at ¶ 5) The Policy provides coverage for loss of " Business Income" pursuant to the following terms:
" We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your 'operations' during the 'period of restoration.' The suspension must be caused by direct physical loss of or damage to property at the described premises, including personal property in the open (or in a vehicle) within 100 feet, caused by or resulting from any Covered Cause of Loss." ( Id. at ¶ 9)
The Policy defines Business Income as: " (1) Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred; and (2) [continuing normal operating expenses incurred, including payroll." ( Id. at ¶ 10) Additionally, the Policy provides that " no one may bring a legal action against [Harleysville] under this insurance unless . . . [t]he action is brought within 2 years after the date on which the direct physical loss or damage occurred." (D.I. 3, Ex. 2 at 11)
On May 7, 2006, an explosion occurred at a tank cleaning and heating facility adjacent to the business premises owned by JAM in North Charleston, South Carolina. (D.I. 1, Ex. 1 at ¶ 14) The explosion contaminated JAM's business premises, rendered JAM's equipment and property unusable during the environmental remediation and clean up period, and caused interruption and suspension of JAM's business operations. ( Id. at ¶ ¶ 15-16) JAM ...