                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2004

Bashir v. Amer Economy Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3403




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"Bashir v. Amer Economy Ins Co" (2004). 2004 Decisions. Paper 611.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/611


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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 03-3403
                       ___________

                    KHALID BASHIR,
                     d/b/a Nuristan,

                             Appellant

                              v.

    AMERICAN ECONOMY INSURANCE COMPANY,
              an Indiana corporation
                  ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                (D.C. Civil No. 01-cv-02154)
    District Judge: The Honorable Maurice B. Cohill, Jr.

                       ___________

        Submitted Under Third Circuit LAR 34.1(a)
                     May 12, 2004

  BEFORE: NYGAARD, M cKEE, and WEIS, Circuit Judges.


                   (Filed: June 7, 2004 )
                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              In this insurance case, Khalid Bashir argues that the District Court erred by

granting American Economy Insurance Company summary judgment on his breach of

contract and bad faith claims. We have jurisdiction under 28 U.S.C. § 1291, exercise

plenary review over the District Court’s decision, and will affirm.

                                             I.

              We write solely for the parties and, therefore, recount only those facts

relevant to our decision. Bashir had a comprehensive business insurance policy with

American. In late March, 2001, Bashir discovered that a water leak in the roof of his

building had caused damage to carpets and furniture in the building. Bashir notified

American and filed a claim under the Policy. American denied the claim and this action

followed.

              The burden of proving that a claim is covered under an insurance policy

falls on the insured, while the burden of proving that an otherwise covered claim is

excluded is on the insurer. New Castle County v. Hartford Accident & Indem. Co., 933

F.2d 1162, 1181 (3d Cir. 1991). Under the Policy, Bashir was insured for damage to all

“covered property” that was caused or resulted from any “covered cause of loss.” App. at



                                             2
55. The essential issue in this appeal is whether the damage Bashir sustained was caused

by a “covered cause of loss”. That phrase is defined in the policy as:

              Risks of Direct Physical Loss unless the loss is:

              a. Excluded in Section B., Exclusions; or

              b. Limited in Paragraph A.4., Limitations.

App. at 56.

              Importantly, Bashir concedes that the District Court was correct in

concluding that his loss was not caused by a collapse, as that term is used in the additional

coverages section of the policy. See Appellant’s Brief at 12 (indicating that Bashir does

not “take issue” with the District Court’s conclusion that Bashir “could not possibly base

a coverage claim under the word ‘collapse’ in the policy”). Also, American did not argue

that any limitation in paragraph A.4 applied. Thus, we are left to determine whether the

District Court correctly concluded that Bahsir’s claim was properly denied because one of

the exclusions contained in Section B of the policy applied.

              On this point, Bashir also concedes that the District Court properly

concluded that Section B’s exclusion of losses caused by “settling, cracking, shrinking or

expansion” applied to Bashir’s loss. However, Bashir argues an exception to that

exclusion for “specified causes of loss” should have applied and that the District Court

erred in concluding otherwise. We disagree and, essentially for the reasons stated in the




                                             3
District Court’s opinion conclude that the specified causes of loss exception does not

apply.

              Bashir also argues that the District Court erred by concluding that the

Policy’s exclusions for damage caused by negligent maintenance applied. Bashir ignores

the fact that whether or not this exclusion applies is irrelevant because the exclusion for

damage caused by “settling, cracking, shrinking or expansion” applied without exception.

His claim is therefore excluded under a relevant exclusion and was not caused by a

“covered cause of loss.” Whether or not additional exclusions may apply does not alter

this conclusion and, therefore, we will affirm the District Court’s order granting

American summary judgment on Bashir’s breach of contract claim.

              Finally, Bashir argues that the District Court erred by granting American’s

motion for summary judgment as to Bashir’s bad faith claim. We disagree and, for the

reasons given by the District Court, will affirm its decision on this issue as well.




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