California Appeals Court Says Loss of Use Is “Property Damage” Under Liability Policy, and Damages Can be Measured by Diminished Value

Laptop screen showing dollar decline in value

The Thee Sombrero decision has significant implications in California and other jurisdictions.

December 11, 2018
Michael S. Levine & David M. Costello - Hunton Insurance Recovery Blog

In a win for policyholders, a California appellate court has held that the loss of use of property resulting from alleged negligence constitutes property damage under a liability insurance policy.

In Thee Sombrero, Inc. v. Scottsdale Insurance Company, the property owner, Thee Sombrero, operated a venue as a nightclub. After a shooting inside the nightclub caused a patron’s death, the local government revoked Sombrero’s right to use the property as a nightclub and, instead, limited permissible use of the property to a banquet hall. Sombrero sued the security company it had hired to keep guns out of the club, alleging that it was the security company’s negligence that caused the city to revoke Sombrero’s nightclub use permit and that the loss of use of the facility as a nightclub resulted in damages of almost a million dollars based on an assessment of the property’s diminished market value. The security company did not contest the claim, and Sombrero obtained a default judgment.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and David M. Costello, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Costello may be contacted at dcostello@HuntonAK.com



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