PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1903

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CHARTIS PROPERTY CASUALTY COMPANY

v.

JOHN INGANAMORT; JOAN INGANAMORT,

 Appellants 

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-12-cv-4075)

District Judge: Hon. William H. Walls

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Argued

January 15, 2020

Before: JORDAN, GREENAWAY, JR., and KRAUSE, 

Circuit Judges.

(Filed: March 24, 2020)

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2

James Beagle [ARGUED]

12 South East 7th Street – Ste. 704

Fort Lauderdale, FL 33301

 Counsel for Appellants

Neil V. Mody [ARGUED]

Thomas M. Wester

Connell Foley

56 Livingston Avenue

Roseland, NJ 07068

 Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Poems and books get written, songs sung, and movies 

made about sinking ships.1 But there’s nothing stirring or aweinspiring about a yacht that partially sinks in calm waters while 

docked. That, sadly, is the event at the center of this case. In 

the insurance dispute that followed, the District Court granted 

summary judgment in favor of the insurance company because 

the yacht’s owners, Mr. and Mrs. Inganamort, did not carry

their burden of proving that the loss was a matter of chance –

1 See, e.g., Henry Wadsworth Longfellow, The Wreck of 

the Hesperus, in Ballads and Other Poems (John Owen ed., 

1842); Gordon Lightfoot, The Wreck of the Edmund 

Fitzgerald, on Summertime Dream (Reprise Records 1976); 

Sebastian Junger, The Perfect Storm (1997); The Perfect Storm

(Warner Bros. 2000).
3

“fortuitous,” in the argot of insurance – which is a requirement 

for coverage under the all-risk insurance policy the 

Inganamorts had. Because we agree that an insured bears the 

burden of proving fortuity, and that the Inganamorts did not 

meet that burden here, we will affirm.

I. BACKGROUND

John and Joan Inganamort left their 65-foot fishing 

vessel, Three Times a Lady, docked behind their part-time 

residence in Boca Raton, Florida. In September 2011, when 

they were at their home in New Jersey, the Inganamorts

received the sad news that Three Times a Lady had come to the 

end of her rainbow,

2

sinking enough to sustain serious damage. 

They reported the loss to their insurance company, Chartis 

Property Casualty Company, with whom they had an all-risk 

policy.3 Chartis sent a claims specialist to conduct a 

preliminary survey of the vessel on October 24, 2011. The 

specialist reported three inches of standing water in the 

starboard forward cabin bilge and multiple potential sources of 

2 Hat tip to Lionel Richie, The Commodores, Three 

Times a Lady, on Natural High (Motown Records 1978).

3 An all-risk insurance policy is one “that covers every 

kind of insurable loss except what is specifically excluded.” 

Insurance, Black’s Law Dictionary (11th ed. 2019). In marine 

insurance, all-risk policies are “construed as covering all losses 

that are ‘fortuitous.’” Goodman v. Fireman’s Fund Ins. Co., 

600 F.2d 1040, 1042 (4th Cir. 1979); see also Ingersoll Milling

Mach. Co. v. M/V Bodena, 829 F.2d 293, 307 (2d Cir. 1987) 

(“All risk coverage covers all losses which are fortuitous ....”).
4

water ingress, including a hole in the hull the size of a screw. 

He also found that the electrical breakers were “severely ruststained and blackened from an electrical failure[,]” and 

subsequent testing “revealed obvious water intrusion[.]” (App.

at 171.) The final review of the vessel, completed June 28, 

2012, confirmed the claim specialist’s initial findings and also 

identified that the ship’s battery charger was not working, and 

without a source of power, the ship’s bilge pumps had ceased 

functioning. Despite that state of disrepair, the Inganamorts 

pressed Chartis for payment on their insurance policy.

To settle the question of coverage, Chartis filed a 

complaint in the United States District Court for the District of 

New Jersey, setting forth three counts: a plea for declaratory 

judgment that Chartis was not liable for the damage to Three 

Times a Lady, a claim that the Inganamorts were liable for 

material misrepresentations and rescission of contract, and a 

reservation of rights to assert additional grounds for 

declaratory judgment, misrepresentation and rescission. No 

one disputes that an insurance policy was in place at the time 

of the loss, so the question was, and remains, whether the 

vessel’s partial submersion was a loss of the kind covered by 

an all-risk policy, specifically, whether it was a fortuitous loss. 

After prolonged discovery, the parties filed crossmotions for summary judgment. The District Court’s Local 

Rule 56.1 requires parties to file a statement of undisputed facts 

with a motion for summary judgment, and it also requires 

parties responding to a motion for summary judgment to 

respond to the moving party’s Rule 56.1 Statement. In the 

absence of a response, the local rules declare that the facts in 

the movant’s Rule 56.1 Statement will be deemed undisputed. 

Chartis sought summary judgment only on its declaratory 
5

judgment claim, while the Inganamorts did not specify which 

of the counts in Chartis’s complaint they thought warranted

summary judgment in their favor. They neither filed a 

statement of undisputed facts nor opposed Chartis’s statement 

of undisputed facts. The District Court thus treated Chartis’s

statement of facts as being undisputed. In further consequence, 

the Court granted summary judgment for Chartis because the 

Inganamorts “ha[d] no evidence to demonstrate a fortuitous 

loss[.]” (App. at 19.)

The Inganamorts have timely appealed. 

II. DISCUSSION4

We address a simple question of federal maritime law: 

Who bears the burden of proving a fortuitous loss? Every 

circuit to decide the issue has determined that the insured bears 

that burden, and we agree. The Inganamorts did not carry it, 

so we will affirm the decision of the District Court.5

4 The District Court had jurisdiction under 28 U.S.C. 

§ 1333. We have jurisdiction under 28 U.S.C. § 1291. We 

review a motion for summary judgment de novo, applying the 

same standard the district court applied. Blunt v. Lower 

Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Under 

that standard, we will affirm a grant of summary judgment only 

if there is no dispute as to any material fact and the moving 

party is entitled to judgment as a matter of law. Id.

5 Chartis also argued in its Answering Brief that, if we 

were to decide that the Inganamorts did carry their burden of 

proving the loss was fortuitous, we should still affirm because 

several exceptions to coverage apply. Since we conclude that
6

As already noted, when Three Times a Lady sank, it was 

covered by an all-risk insurance policy, which protects against 

fortuitous losses, meaning losses that are unexplainable or 

“dependent on chance.” Intermetal Mexicana, S.A. v. Ins. Co. 

of N. Am., 866 F.2d 71, 77 (3d Cir. 1989) (citation omitted). 

All-risk policies “arose for the very purpose of protecting the 

insured in those cases where difficulties of logical explanation 

or some mystery surround the (loss of or damage to) property.” 

Morrison Grain Co., Inc. v. Utica Mut. Ins. Co., 632 F.2d 424, 

430 (5th Cir. 1980) (citation omitted). But just because an 

insured need not “show the precise cause of loss to demonstrate 

fortuity[,]” id. at 430, that does not mean an all-risk policy 

covers all damage.

6

“‘All-risk’ is not synonymous with ‘all 

the Inganamorts did not carry the burden of proving fortuitous 

loss, we need not address those exceptions.

6 The Inganamorts have misread Morrison Grain to 

mean that an insured need only show that a loss occurred while 

the policy was in effect. But that case did not dispense with 

the insured’s burden to establish fortuity; rather, it concluded 

the insured had impliedly met that burden by demonstrating the 

ship’s cargo was in “good condition when the policy attached 

and in damaged condition when unloaded from the vessel,” id.

at 432, leaving “no indication” that the loss was caused by 

“anything but fortuitous circumstances.” Id. at 430. Likewise, 

where cargo has simply disappeared without explanation from 

ships’ hulls, courts have sometimes observed that all the 

“insured need show is that the loss occurred.” See, e.g., 

Atlantic Lines Ltd. v. American Motorists Ins. Co., 547 F.2d 

11, 13 (2d Cir. 1976) (citing Balogh v. Jewelers Mut. Ins. Co., 

167 F. Supp. 763, 769 (S.D. Fla. 1958), aff’d, 272 F.2d 889 
7

loss.’” Intermetal Mexicana, 866 F.2d at 75. Despite the 

Inganamorts’ argument, an insured must do more than prove 

that there was a loss. To enjoy coverage, the insured must 

prove that the loss was indeed fortuitous.

The First, Second, Fifth, and Eleventh Circuits have all 

held that, for marine insurance policies, the insured bears the 

burden of proving that the loss was fortuitous. See Banco 

Nacional de Nicaragua v. Argonaut Ins. Co., 681 F.2d 1337, 

1340 (11th Cir. 1982) (“The [insured] in a suit under an allrisks insurance policy must show a relevant loss in order to 

invoke the policy, and proof that the loss occurred within the 

policy period is part and parcel of that showing of a loss.”); 

Morrison Grain, 632 F.2d at 429 (“[T]he burden of proof 

generally is upon the insured to show that a loss arose from a 

covered peril.”); Atlantic Lines Ltd. V. American Motorists Ins. 

Co., 547 F.2d 11, 12 (2d Cir. 1976) (“[F]or recovery under an 

all risks policy, an insured need demonstrate only that a 

fortuitous loss has occurred.”); Boston Ins. Co. v. Dehydrating 

Process Co., 204 F.2d 441, 443 (1st Cir. 1953) (“Undoubtedly 

... the owner of the barge and its cargo has the burden of 

establishing ... that its loss was caused by a risk insured 

against[.]”). In the non-maritime context, we too have held that 

an insured with an all-risk policy bears the burden of proving 

that a loss was fortuitous and therefore covered by the policy. 

See Intermetal Mexicana, 866 F.2d at 76-77 (describing what 

the insurer showed to prove the event was fortuitous). We now 

(5th Cir. 1959)). Again, however, where the record reflected 

the cargo was previously present, those observations merely 

reflect that it is unlikely “the average insured would not equate 

a mysterious disappearance with a fortuitous loss” in those 

circumstances. Id. 
8

join our sister circuits in saying that, under a maritime all-risk 

policy, the insured bears the burden of proving that a loss was 

fortuitous. 

That burden is not heavy, but it is more than negligible. 

See id. at 77 (“[T]he ‘burden of demonstrating fortuity is not a 

particularly onerous one[.]’” (quoting Morrison Grain, 632 

F.2d at 430)); see also PECO Energy Co. v. Boden, 64 F.3d 

852, 858 (3d Cir. 1995) (“Proving fortuity is not particularly 

difficult.”). Since the nature of a fortuitous loss is that it may 

not be easily explained, the insured need not point to an exact 

cause of the loss. In re Balfour, 85 F.3d at 77 (“The insured ... 

need not prove the cause of the loss.”); Morrison Grain, 632 

F.2d at 431 (“[C]ourts which have considered the question 

have rejected the notion that the insured must show the precise 

cause of loss to demonstrate fortuity.”). When a vessel sinks 

in calm waters, for example, an insured may create a 

presumption of fortuitous loss by establishing that the vessel 

was seaworthy before sinking. See Ins. Co. of N. Am. v. Lanasa 

Shrimp Co., 726 F.2d 688, 690 (11th Cir. 1984); Reisman v. 

New Hampshire Fire Ins. Co., 312 F.2d 17, 20 (5th Cir. 1963); 

Boston Ins. Co., 204 F.2d at 443. There must, in short, be some 

showing that the loss occurred by chance.

Here, the Inganamorts’ primary argument was that they 

were not required to prove fortuity, which, as the weight of 

authority just cited proves, is incorrect as a matter of law.7 

7 Counsel for the Inganamorts eventually admitted as 

much at oral argument. See Oral Argument at 1:26-1:44, 

https://www2.ca3.uscourts.gov/oralargument/audio/19-

1903ChartisPropertyCasualtyCov.Inganamortetal.mp3.
9

Secondarily, they attempted to show fortuity by asserting that 

the loss was due to heavy rainfall. But Chartis’s statement of 

undisputed facts notes that there is “no data to support [the] 

theory that [Three Times a Lady] was subject to ‘heavy rains’

on any date.” (App. at 172.) Even if we were tempted to look 

beyond the statement of undisputed facts, the evidence

elsewhere in the record does not support the assertion that the 

loss was due to heavy rainfall. Not even the Inganamorts’ own 

expert could say with assurance that there was heavy rainfall 

in the area at the relevant time.8 Finally, while the Inganamorts

had initially claimed that the ship was seaworthy prior to 

September 15th, they made no effort to present renewed 

evidence of seaworthiness after the loss was backdated to 

September 5th or 6th; nor did they press this argument before 

the District Court or on appeal. Because there is nothing in the 

record to support the argument that the loss was due to heavy 

rainfall and there is no other indication of fortuity, the 

Inganamorts did not carry their burden of proving a fortuitous 

loss.9

8 The expert said that “[i]t had been reported in 

September [2011] that two (2) or possibl[y] three (3 coastal) 

events of heavy rains, lightning, and heavy thunderstorms did 

drench South Florida with 5” to up to 15” of rain.” (App. at 

217.) But he later backpedaled, saying he had looked at rainfall 

for September 15th, the day the loss was reported, not 

September 5th or 6th, the revised date of loss, and that, “you 

know, weather records are extremely difficult to determine the 

exact flow ...[.]” (App. at 204.) 

9 At oral argument, there was some discussion about 

whether a loss resulting from negligent behavior, or 

negligently failing to maintain a vessel, would qualify as a 
10

fortuitous loss. See Oral Argument at 20:25-27:32

https://www2.ca3.uscourts.gov/oralargument/audio/19-

1903ChartisPropertyCasualtyCov.Inganamortetal.mp3. 

Losses that result from negligent behavior can be considered 

fortuitous, but losses caused by wear and tear typically cannot. 

See Goodman, 600 F.2d at 1042 (“A loss is not considered 

fortuitous if it results ... from ordinary wear and tear .... 

However, loss due to the negligence of the insured or his agents 

has generally been held to be fortuitous and, absent express 

exclusion, is covered by an all risks policy.”); see also Youell

v. Exxon Corp., 48 F.3d 105, 110 (2d Cir. 1995) (“The fortuity 

rule excludes from coverage losses that arise from ... wear and 

tear ...; losses that arise from ... the insured’s negligence[ ] are 

covered.” (vacated on other grounds, 516 U.S. 801 (1995)). 

We question the suggestion that a loss caused by negligently 

allowing a vessel to fall into disrepair would be considered 

fortuitous, as it would seem to create perverse incentives if 

damage resulting from failure to maintain a vessel were 

considered as such. Indeed, this would effectively convert allrisk insurance policies into general maintenance contracts or 

“warrant[ies] of soundness,” leaving the insurer liable for all 

maintenance costs except for those expressly excluded. Mellon 

v. Federal Ins. Co., 14 F.2d 997, 1002 (S.D.N.Y. 1926). For 

that reason, courts that have taken that tack and expanded 

fortuity to include losses caused by the premature failure of a 

ship’s mechanical components have been criticized. See

Michael I. Goldman, The Fortuity Rule of Federal Maritime 

Law: The Scope of “All Risk” Coverage Under Policies of 

Marine Insurance and the New Decision of the Eleventh 

Circuit Court of Appeals, 46 J. Maritime L. & Com. 171 

(2015). Expanding fortuity to include losses caused by 

negligently allowing a vessel to fall into disrepair would appear 
11

III. CONCLUSION

The Inganamorts having failed to carry their burden of 

proof, we will affirm the District Court’s grant of summary 

judgment against them.

equally ill-advised. But because neither party raised the issue

in briefing nor addressed it more than in passing at argument, 

we do not need to decide the question.