1 

IN THE UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

GREAT SOUTHERN WOOD * 

PRESERVING, INC., * 

 * 

 Plaintiff, * 

 * 

v. * Civil No. 1:06-cv-00708-CSC 

 * 

AMERICAN HOME ASSURANCE * 

CO., AIG, AMERICAN INTERNATIONAL * 

UNDERWRITERS CORP., AMERICAN * 

INTERNATIONAL MARINE AGENCY, * 

 * 

 Defendants. * 

DEFENDANTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 Defendants American Home Assurance Co., AIG, American International Underwriters 

Corp. and American International Marine Agency submit this brief in support of their motion for 

summary judgment. For the reasons stated herein, Defendants are entitled to summary judgment 

as to all of Plaintiff's claims. 

I. Facts

 Plaintiff has brought this action alleging breach of contract and bad faith concerning the 

denial of coverage for the loss of lumber shipments at the Port of Gulfport in Hurricane Katrina 

on August 29, 2005. American Home Assurance Co. ("American Home") denied coverage 

under the policy at issue in this case because its investigation clearly indicated that Plaintiff had 

assumed custody and control over the lumber shipments at its leased warehouse space at the time 

of loss and, as the goods were no longer in transit, there was no coverage under the policy. 

 Plaintiff is in the lumber business. Plaintiff both purchases domestic lumber and imports 

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lumber from South American locations for Plaintiff's operations. (Goff Dep. at 11-12, attached 

hereto as Exhibit A). 

 In April 2005, Great Southern’s insurance broker, Hill, Rogul & Hobbs, requested a 

quote from AIG and its affiliates for various lines of insurance coverage, including Ocean 

Marine Cargo Insurance. (Sciachetano Decl., attached hereto as Exhibit B). 

 The broker’s submission indicated with specificity the types and amounts of coverage 

requested. Excerpts from the broker's submission are attached as Exhibit 2 to the Sciachetano 

Declaration. The broker’s quote request delineated coverage particulars for “cargo” referencing 

inland truck transportation, and “ocean cargo.” The broker's submission specifically indicated: 

“Domestic Transit – No coverage.” In conjunction with its submission, the broker also 

submitted a declarations page from a prior Great Southern cargo policy issued by Travelers 

Insurance Co. The Traveler's declaration page indicated there was “no coverage” for domestic 

transit. 

 American Home Assurance Co. ("American Home") issued Marine Open Cargo Policy 

number 88590C to Great Southern with an effective date of June 2, 2005. The policy is attached 

to the Sciachetano Declaration as Exhibit 3. 

 The first page of the policy states as follows: “This policy covers automatically on all 

shipments which come within its scope. It is important that all shipments be reported as soon as 

known and the valuation thereof declared as soon as ascertained.” Endorsement number 1 to the 

policy sets forth the required annual marine minimum and deposit premium for the policy period 

June 2, 2005 through July 31, 2005. The agreed premium was calculated as a percentage of 

annual values shipped which was estimated by Great Southern to be $30,000,000. Pursuant to 

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Endorsement 1, Great Southern was required “to report all shipments covered under this policy 

on an annual basis,” which allowed American Home to calculate the actual premium. (Policy, 

Endorsement 1). 

 The geographic limits provided in the policy are stated as “at or from ports and/or places 

in the world to ports and/or places in the world” excluding certain designated countries and also 

excluding the “Inland Transit Worldwide.” (Policy, § 5). 

 The policy contains a standard warehouse to warehouse clause providing coverage from 

the commencement of transit and continuing “whilst the goods are in transit and/or awaiting 

transit until delivered to the final warehouse of the designation named in the policy or until the 

expiry of fifteen days (or 30 days, if the designation to which the goods are insured is outside the 

limits of the port) whichever shall first occur.” (Policy, § 19). 

 The policy also contains the standard marine extension clause which provided warehouse 

to warehouse coverage for goods “during deviation, delay, forced discharge, re-shipment, trans 

shipment and any other variation of the venture arising from the exercise of a liberty granted to 

ship owner or under the contract of the freightment.” (Policy, § 20). 

 The policy provided that “it is a condition of this insurance that there shall be no 

interruption or suspension of transit unless due to circumstances beyond the control of the 

insured.” (Policy, § 20, ¶ VII). 

 The policy also contained a declarations clause pursuant to which Great Southern 

warranted and agreed “to report all shipments shipped to American Home as soon as they 

become known to Great Southern” or as soon thereafter as practicable. (Policy, § 37). The 

declarations clause also permitted American Home to examine the books, accounts and records 

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of Great Southern for the purposes of tabulating and verifying all shipments for which coverage 

was provided. (Policy, § 37). The policy did not provide any separate inland transportation 

coverage (Policy, §§ 7, 11). 

 A loss control review dated July 22, 2005 was provided to Great Southern through its 

insurance broker on July 26, 2005 via e-mail. That e-mail also further advised the broker that 

although the review discussed inland transit exposure, the Ocean Marine Cargo Policy did “not 

cover inland transit shipments wholly within the United States.” (July 26, 2005 email from 

Sciachetano July 26, 2005 email, attached as Exhibit 4 to Sciachetano Decl.). 

 On or about August 31, 2005, Great Southern reported the loss of the lumber shipments 

at the Port of Gulfport, Mississippi during Hurricane Katrina. (Ho Decl. at ¶ 2, attached hereto 

as Exhibit C). 

 Following notice of the loss, American Home retained SGS North American - Marine 

Services to investigate the claim. (Ho Decl. at ¶ 4). American Home conducted a thorough and 

complete investigation of the claim based on customary and prudent claims practices in the 

insurance industry. (Ho Decl. at ¶ 3). 

 During the course of the claim investigation, Great Southern, with the assistance of legal 

counsel, and its broker, Hilb Rogal & Hobbs, submitted documents to American Home 

concerning the loss. As part of the investigation, American Home obtained the ocean bills of 

lading, customs documents, commercial invoices and other shipping documents concerning the 

shipments at issue. (Ho Decl. at ¶ 11). The carrier’s freight invoices show the destination as 

Gulfport with no on-carriage charges. Commercial invoices for the shipments show Gulfport as 

the destination. No other shipping or transportation documents reveal anticipated transportation 

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to any other location. (Ho Decl. at ¶ 11; Goff Dep. at 37-53, Exs. 1-10 to Goff Dep.). 

 Great Southern's practices were to ship lumber to Gulfport from various locations in 

South America and store it in a warehouse located at the Port of Gulfport. (Goff Dep. at 29). 

 The warehouse space where the lumber was stored was leased to Great Southern by the 

Mississippi State Port Authority. (Goff Dep. at 29-31, 35-37, 54-55). The Gulfport warehouse 

lease is attached as Exhibit 11 to the Goff deposition. 

 The warehouse lease provides that Great Southern assumed all responsibility for the care, 

custody, control and protection of the lumber, (see Lease Agreement, ¶ F), and Great Southern 

admits that is had exclusive custody and control of the lumber while it was store in the Gulfport 

warehouse. (Goff Dep. at 95). Plaintiff's 30(b)(6) representative, Marty Goff, testified on this 

point as follows: 

Q: In looking at this agreement, it states in paragraph eight that the lumber is 

in your care, custody and control when it's put in the warehouse. Do you dispute 

that at all? 

A: No. 

Q: Nobody else has control over the cargo? 

A: Nobody else can go in there and get back cargo other than me. 

Q: And it's up to Great Southern, depending on the market, to make the 

decision of when and how and where to get that cargo out of there and take it 

somewhere else based on whatever constraints you have in the market and 

inventory and so forth? 

A: Yes. . . . . 

(Goff Dep. at 95-96). 

 Great Southern reported that the warehouse was used to store lumber while awaiting 

distribution by Great Southern. (Ho Decl. at ¶ 9). Great Southern's practice was to remove the 

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lumber from the Gulfport warehouse and direct it to Great Southern treatment plants, depending 

on its inventory needs and the availability of trucks, or to sell the lumber to outside customers 

and ship the lumber directly from the Gulfport warehouse. (Ho Decl. at ¶ 9; Morton email dated 

June 28, 2006, attached as Exhibit 3 to Ho Decl.; see also Goff Dep. at 15-16, 63). 

 Great Southern also submitted documents concerning its practices for receiving and 

storing lumber at the Gulfport warehouse. These documents, including Great Southern's 

Delivery Breakdown Reports and Import Stock Reports, indicated the length of time lumber was 

stored at the warehouse after discharge from the vessel. There reports covered not only the 

shipments at issue but also shipments arriving several months before the date of the loss. These 

records indicate that, at times, Great Southern would store lumber at the warehouse for months 

after discharge from the vessel before transporting the lumber to another location or selling the 

lumber directly to customers from the warehouse. (Goff Dep. at 90; Ho Decl. at ¶ 9). 

 Great Southern exercised complete discretion in determining when lumber was removed 

from the warehouse and that Great Southern moved the lumber depending on its inventory needs 

and the availability of trucks to transport the lumber. (Goff Dep. at 93-98). 

 On May 23, 2006 American Home issued a letter to Great Southern reserving its rights 

with respect to coverage under the policy. (Ho Decl. at ¶ 13). On July 7, 2006, American Home 

issued a letter declining coverage for the shipments at issue in this case under the policy. (Ho 

Decl. at ¶ 15). The July 7, 2006 letter is attached as Exhibit 4 to the Ho Declaration. 

 The July 7, 2006 denial letter explained: 

The information submitted establishes that Great Southern used the warehouse at 

the pier as a storage facility for its lumber after vessel discharge, and the lumber 

was removed by Great Southern from the warehouse as it was needed at Great 

Southern's various processing facilities. 

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We have also been advised that occasionally the material was sold and shipped to 

customers directly from the Gulfport warehouse. The spreadsheets we received 

indicate that it typically takes Great Southern 90 days or longer to remove the 

lumber delivered by a particular vessel completely from the Gulfport warehouse. 

The contract between Great Southern and the Mississippi State Port Authority 

establishes that Great Southern had contracted for assigned space at the 

warehouse in Gulfport, and Great Southern assumed all responsibility for the 

care, custody, control and protection of the cargo. SSA is the designated 

stevedore, cargo handler and terminal operator on behalf of Great Southern. In 

addition, all of the bills of lading show that the place of delivery is the Port of 

Gulfport, and the space designated for "Place of delivery by on carrier" is blank. 

The Commercial invoices for each shipment show the "destination" as Gulfport. 

These facts establish that Great Southern exercised full dominion and control over 

the lumber once it was discharged from the vessels and placed into the warehouse 

in Gulfport. Therefore, the ordinary course of transit had ceased, and the lumber 

had been delivered to its final destination warehouse within the meaning of the 

Policy. 

We conclude there is no coverage for these losses under the Policy because the 

losses occurred after coverage under the Policy had ceased. 

(July 7, 2006 Den. Let.). 

 Great Southern subsequently obtained replacement coverage with Lloyds of London. 

Under the new coverage, Great Southern obtained additional coverage for goods after delivery 

and in storage at its port warehouse facility. (Ho Decl. at ¶ 16). 

 In advising American Home of the new policy, Great Southern's broker noted: "No gaps 

in coverage in case another hurricane type loss.” (Ho Decl. at ¶ 16; Broker Georgia DeHart's 

July 20, 2006 email attached as Exhibit 5 to Ho Decl.). 

II. Summary Judgment Standard

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper 

"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 

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the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law." Id. The movant meets its burden by 

showing that there is no dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 

322-23 (1986). Once the moving party has met its burden, Rule 56 "requires the nonmoving 

party to go beyond the pleadings and by affidavits, or by the depositions, answers to 

interrogatories and admissions on file, designate specific facts showing that there is a genuine 

issue for trial." Id. at 324 (internal quotations omitted). "A mere scintilla of evidence supporting 

the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury 

could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) 

(citation omitted). 

III. Breach of Contract Claim

 Plaintiff has alleged that American Home Assurance Co. breached the contract of 

insurance by denying coverage in the case. 

 The marine cargo policy at issue in this case will be governed by federal law. See All 

Underwriters v. Weisberg, 222 F. 3d 1309 (11th Cir. 2000). Federal courts have long considered 

actions involving marine insurance policies to be within the admiralty jurisdiction of the federal 

courts and governed by federal maritime law. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 

348 U.S. 310, 321 (1955); Morewitz v. West of England Ship Owners Mut. Protection & Indem. 

Ass'n, 896 F. 2d 495, 498-99 (11th Cir. 1990). 

 Warehouse-to-warehouse clauses, such as the one at issue in this case, are standard in 

marine cargo policies and there is a considerable amount of case law interpreting such clauses, 

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particularly on the issue of when transit ends. See, e.g., Lumber & Wood Products, Inc. v. New 

Hampshire Inc. Co., 807 F.2d 916 (11th Cir. 1987). 

 Given that these losses did not occur during the ocean voyage, but during a period of 

storage after discharge of the vessels, Plaintiff argues that the Warehouse to Warehouse clause of 

the policy, provides coverage for the loss.1 This section provides: 

(19) WAREHOUSE TO WAREHOUSE 

 

This insurance attaches from the time the goods leave the Warehouse and/or Store 

at the place named in the Declaration and/or Certificate for the commencement of 

the transit and continues during the ordinary course of transit, including 

customary transshipment, if any, until the goods are discharged over side from the 

overseas vessel at the final port. Thereafter the insurance continues whilst the 

goods are in transit and/or awaiting transit until delivered to the final warehouse 

at the destination named in the policy or until the expiry of 15 days (or 30 days, if 

the destination to which the goods are insured is outside the limits of the port) 

whichever shall first occur. The time limits referred to above to be reckoned from 

midnight of the day on which the discharge over side of the goods hereby insured 

from the overseas vessel is completed. Held covered at a premium to be agreed in 

the event of transshipment, if any, other than as above and/or in the event of delay 

in excess of the above time limits arising from circumstances beyond the control 

of the ASSURED. 

(Policy, § 19) (emphasis added). 

 Under the Warehouse to Warehouse clause, coverage continues only during "the ordinary 

course of transit." The facts in this case are clear that Plaintiff took complete custody and control 

over the goods when they reached the Port of Gulfport, that delivery had ceased, and that the 

goods were no longer in "transit." Great Southern's 30(b)(6) witness contended that the coverage 

 

1

 The Policy also contains a Marine Extension Clause. (Policy, § 20). This provision provides: "This insurance to 

specially to cover the goods during deviation, delay, forced discharge, re-shipment, transshipment and any other 

variation of the adventure arising from the exercise of a liberty granted to this shipowner or charterer under the 

contract of affreightment." (Policy, § 20, ¶ II). A Marine Extension Clause is only applicable where a delay is 

beyond the control of the insured. See, e.g., Int'l, Inc. v. London Underwriters, 1989 A.M.C. 1805 (D.N.J. 1989). 

Plaintiff has admitted in this case that there was no breakdown or unusual delay in this case which would invoke 

coverage under the Marine Extension Clause. (Goff Dep. at 99). 

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existed for 30 days after discharge because the lumber had not reached its point of destination 

which he suggested would have been one of the various treatment facilities outside the Port, or a 

potential customer if the lumber would have been sold directly to a third party.2

 There is no 

evidence that Great Southern ever reported these destinations to American Home for inclusion in 

the insurance policy. (Goff Dep. at 103-04). In fact, Mr. Goff admitted that in many instances a 

determination as to where the cargo would be shipped was not made until after discharge from 

the vessel or until a third-party sale occurred. (Goff Dep. at 98, 104). As the goods were no 

longer in transit, coverage ceased under the policy. If the ordinary course of transit had ceased 

and delivery was complete, the 15 and 30 days time periods have no effect and there was simply 

no coverage. 

 As noted above, Plaintiff leased warehouse space at the Port of Gulfport. Plaintiff had 

exclusive custody and control over the goods once they reached the warehouse. Plaintiff, in its 

discretion, determined when and where to send the goods from the Gulfport warehouse. Plaintiff 

concedes that goods would remain in its Gulfport warehouse for months, as many as four months 

after discharge from the vessel, and that subsequent movement of the goods was based on its 

own inventory needs at its various processing plants as well as its availability of trucks to move 

the lumber. 

 Plaintiff further admits that at times it would sell lumber to customers directly from its 

Gulfport warehouse. Further, the shipping documents in this case clearly show that Gulfport was 

the final destination. Given such facts, Plaintiff's Gulfport warehouse constituted the "final 

 

2

 In a letter following American Home's denial of the claim, Great Southern's counsel stated that the three 

shipments involved had been delivered to Great Southern on July 6, August 5 and August 24, 2005. See Dowdy 

July 21, 2006 Let., attached hereto as Exhibit D. 

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warehouse" for purposes of coverage under the policy, and ordinary transit had ceased upon 

delivery of the goods to Gulfport. 

 The federal case law construing marine cargo policies is consistent on this point. The 

cases interpreting warehouse to warehouse clauses uniformly hold that the critical issue in 

determining whether the goods were in transit (and therefore covered) or had been delivered to 

the final destination is the extent to which the insured has exercised dominion and control over 

the goods. See, e.g., Lumber & Wood Products, Inc. v. New Hampshire Ins. Co., 807 F.2d 916 

(11th Cir. 1987). For goods to remain in transit, a delay in delivery must be due to 

circumstances inherent in the transit and not merely for the benefit and convenience of the 

insured. See New York Marine & General Insurance Company v. Tradeline LLC, 2003 A.M.C. 

414 (S.D. N.Y. 2003); see also Ocean Marine Insurance v. Lindo, 1929 A.M.C. 540 (9th Cir. 

1929) (holding purpose of warehouse to warehouse clause is to "cover the goods after being 

discharged at port of destination while in the ordinary course of transit to the consignee's 

warehouse or some other equivalent place of storage where the goods are held for the 

consignee"). 

 In Lumber & Wood Products, Inc. v. New Hampshire Ins. Co., 807 F.2d 916 (11th Cir. 

1987), the Eleventh Circuit addressed a similar situation and held that where the insured took 

custody and control of goods, coverage ceased under a warehouse to warehouse clause. This 

was the case although the goods were not delivered to a designated final warehouse under the 

policy. In Lumber & Wood Products, the insured received a shipment of lumber from South 

America. The lumber reached the dock of the third-party consignee in Mobile, but the 

consignee apparently did not have space in the warehouse for storage. The lumber was 

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consequently left on the dock, about ninety feet from the warehouse. While the lumber was on 

the dock, a hurricane hit the area destroying the lumber. The insured argued that the lumber was 

covered under the warehouse to warehouse clause, which was similar to the provision in this 

case. The court rejected the insured's argument. The court held that although the goods were not 

technically in the warehouse at the time of the loss, the consignee had taken complete dominion 

and control over the lumber, as shown by the fact that the consignee had title to the goods, had 

begun processing and inspecting the lumber, and sold some of the lumber directly from the dock. 

The court explained: "When the lumber reached its destination at Delta Hardwood's dock, the 

lumber could no longer be considered 'in transit.' The lumber had arrived at its 'final warehouse' 

and was merely being stored prior to being sold. Transit had ceased." ld. at 921 

 Other courts have reached the same conclusion. For instance, in Jomark Textiles, Inc. v. 

Int'l Fire and Marine Ins. Co., Ltd., 1991 A.M.C. 1393 (S.D. N.Y. 1989), goods were delivered 

to a third-party warehouse one day before they were destroyed by a fire. After the loss the 

insured contended the goods were still in transit and covered under a warehouse to warehouse 

clause. The court disagreed and found there was no coverage. The court explained that that the 

insured used the warehouse as a "'staging place' from which Jomark would distribute the goods 

once it determined their final destination." The court further noted that after storage in this 

staging area, the insured would subsequently decide the disposition of the goods and then 

dispatch them to other locations. The court ruled on these facts, that transit, and therefore, 

coverage, had ceased once the goods were placed in the warehouse. Id.; see also, New York 

Marine & General Ins. Co. v. Tradeline LLC, 2003" A.M.C. 414 (S.D. N.Y. 2003) (coverage 

ceased for a cargo damaged by water while in storage at a shore-side silo where silo was used as 

Case 1:06-cv-00708-CSC Document 22 Filed 05/30/2007 Page 12 of 17
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a staging area by the insured). 

 In this case, Plaintiff used its Gulfport warehouse as a dedicated storage facility for its 

lumber, and that lumber was removed from that storage location at Plaintiff's convenience as it 

was needed at it various processing facilities, or when directly sold to customers. The goods 

remained at Plaintiff's Gulfport warehouse not due to a necessary delay in transit or 

transshipment, but due Plaintiff's production schedule or for other reasons for the convenience of 

Plaintiff. Further, the contract with the Mississippi Port Authority shows that Plaintiff expressly 

exercised complete dominion and control over the lumber, and the warehouse functioned as its 

dedicated warehouse space. The policy in this case was intended to cover the risk of loss only 

when the goods were "in transit" and the case law applying warehouse to warehouse provisions 

is clear on this point. As Great Southern exercised custody and control over the lumber in 

Gulfport, and only moved the goods at its discretion, often months after arrival in Gulfport, the 

cargo was not in transit and not covered under the policy. 

 Plaintiff's own insurance broker has conceded that there was no coverage under the 

policy for the lumber at issue in this case. Following denial of the claim, Great Southern's own 

broker sent an email referring to a "gap in coverage." On July 20, 2006, Hilb Rogal & Hobbs 

broker Georgia DeHart wrote in an email to underwriter Robert Sciachetano: 

Please non-renew your cargo policy. Insured placed his coverage with Lloyds of 

London. They wrote a stock throughput coverage policy which covers their stock 

from original import country through warehousing at the ports in the states and 

treatment plants until product is delivered to customers. Covers ocean exposure, 

stock coverage and transportation perils all under one policy. No gaps in 

coverage in case another hurricane type loss occurred. Thanks. 

(DeHart July 20, 2006 email, exhibit 5 to Ho Decl.). 

 As the lumber was not in transit at the time of the loss, there was no coverage under the 

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policy and American Home Assurance Co. is entitled to summary judgment on Plaintiff's claims. 

IV. Bad Faith Claim

Plaintiff has also alleged that the denial of coverage in this case constituted the tort of bad 

faith. 

Under Alabama law, a plaintiff alleging bad faith must show: (1) that there was an 

insurance contract between the parties; (2) an intentional refusal to pay the insured’s claims; (3) 

the absence of any reasonably legitimate or arguable reason for that refusal; (4) the insurer’s 

actual knowledge of the absence of any legitimate or arguable reason; and (5) if the intentional 

failure to determine the existence of a wrongful basis is relied upon, the plaintiff must prove the 

insurer’s intentional failure to determine whether there is a legitimate or arguable reason to 

refuse to pay the claim. See, National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala. 

1982). Additionally, “[t]o prove a bad faith claim, a plaintiff must go beyond merely showing 

non-payment; i.e., it is incumbent on the plaintiff to show that the insurance company had no 

legal or factual defense to the claim.” Emanuelsen v. State Farm Auto Ins. Co., 651 So.2d 29, 31 

(Ala. Civ. App. 1994). Furthermore, a plaintiff must show that the insurer had actual knowledge 

that it had no legitimate or arguable reason to deny the claim. Thomas v. Principle Fin. Group, 

566 So. 2d 735, 741 (Ala. 1990). The term “actual knowledge” implies conscious wrongdoing 

and courts have noted that bad faith “is not simply bad judgment or negligence. It imports a 

dishonest purpose and means a breach of known duty, i.e., good faith and fair dealing, through 

some motive of self-interest or ill will.” Id. at 741. 

 The Alabama Supreme Court has also explained: “When a claim is ‘fairly debatable’ the 

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insurer is entitled to debate it, whether the debate concerns a matter of fact or law.” American 

General Life & Acc. Ins. Co. v. Lyles, 540 So.2d 696, 698 (Ala. 1988); see also, Waldon v. 

Cotton States Mut. Ins. Co., 481 So.2d 340, 341 (Ala. 1985) (noting that “[a]s the history of 

Alabama’s bad faith cases amply demonstrates, this Court with purposeful design, has restricted 

the application of the bad faith doctrine to those rare and extreme cases where the insurance 

carrier, without debatable excuse, either fails to process a claim or, upon processing, fails to pay 

a claim for benefits as provided by the policy.”). 

 In this case, American Home prudently and thoroughly investigated Plaintiff's claim. 

American Home retained an independent marine surveyor to assist in the claim investigation and 

to survey the loss. American Home spent collected and analyzed the transit and shipping 

documents applicable to the claim. During the claim investigation process, American Home 

further consulted with Plaintiff, including with Plaintiff's legal counsel, concerning the 

administration of the claim. 

 After a detailed review of the claim, as discussed above, American Home determined that 

Plaintiff was using its Gulfport warehouse space as a staging area. The investigation revealed 

that Gulfport was the final destination for the shipments, and that Plaintiff exercised complete 

custody and control over the shipments when they reached Gulfport. As American Home's 

investigation clearly indicated that transit had ceased when Plaintiff took custody and control of 

the goods in Gulfport, there was no coverage under the policy at the time of loss, and certainly 

there was a debatable reason for denial of coverage. 

 Based on the foregoing, American Home is entitled to summary judgment on the bad 

faith claim. 

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V. No Claim Versus Other Named Defendants

 As noted above, the policy at issue in this case was issued by American Home Assurance 

Co. However, in addition to naming American Home, Plaintiff has also named as defendants 

AIG, American International Underwriters Corp. and American International Marine Agency. 

Plaintiff does not claim any benefits due under any policy with these remaining defendants and 

therefore does not assert any claim against these defendants. Therefore, Defendants AIG, 

American International Underwriters Corp. and American International Marine Agency are 

entitled to summary judgment on all of Plaintiff's claims. 

VI. Conclusion

 For the reasons stated herein, Defendants are entitled to summary judgment as to all of 

Plaintiff's claims. 

 s/Blane H. Crutchfield_________________ 

BLANE H. CRUTCHFIELD (CRUTB4243) 

LOUIS C. NORVELL (NORVL4585) 

 Attorneys for Defendants 

 American Home Assurance Company, AIG, 

 American International Underwriters Corporation, 

 and American International Marine Agency 

OF COUNSEL: 

HAND ARENDALL, L.L.C. 

P. O. Box 123 

Mobile, AL 36601-0123 

Tel: (251) 432-5511 

Fax: (251) 694-6375 

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CERTIFICATE OF SERVICE

 I hereby certify that I have on this 30th day of May, 2007 served the foregoing pleading 

on counsel of record via electronic notice or by United States mail first class, postage prepaid. 

Kenneth A. Dowdy, Esq. 

Lusk, Lusk, Dowdy & Caldwell, P.C. 

2101 Highland Ave. 

Suite 410 

Birmingham, AL 35205 

Leslie Ann Caldwell, Esq. 

Lusk, Lusk, Dowdy & Caldwell, P.C. 

2101 Highland Ave. 

Suite 410 

Birmingham, AL 35205 

 

s/Blane H. Crutchfield_________________ 

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