First Solar Electric LLCv.Zurich American Insurance Company
Five rain events damaged a Georgia solar construction project. Insurer Zurich first classified the initial losses as water damage and made three unconditional advance payments, then reclassified them as flood damage subject to a much larger deductible. Applying Georgia law, the Eleventh Circuit held that Zurich waived the flood deductible for the first three events by paying without reserving a right to change its coverage decision. Whether it waived that deductible for the remaining two events still involved factual disputes, so those rulings were vacated and remanded. The court also held that the policy’s suit provision did not bar the lawsuit as untimely and that the flood deductible would otherwise apply. It affirmed the remaining rulings, including the refusal to sanction a trial witness. The case distinguishes an insurer’s coverage position from its later attempt to invoke a different deductible.
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