RECENT DEVELOPMENTS IN PROPERTY INSURANCE COVERAGE LITIGATION

[...]matching is always at issue. II.HURRICANES AND FLOODS In Migliaro v. Fidelity National Indemnity Insurance Co.,1 the U.S. Court of Appeals for the Third Circuit held that an insurer's rejection of proof of loss is not a per se denial of the claim, but it can be a denial of the claim if the policyholder treats it as such and files suit against the insurer.2 In D&S Remodelers, Inc. v Wright National Flood Insurance Services, LLC,3 D&S entered into a contract with the insured to provide floodwaterpumping services after Hurricane Sandy.4 D&S met with the insured and an independent adjuster and entered into oral agreements to expand the scope of work to include decontamination.5 D&S claimed that the adjuster represented that any insurance claim would be accepted, and full payment would be made to D&S.6 Wright, Foundry's flood insurer, refused to pay D&S, and D&S sued.7 Wright moved to dismiss, claiming that the NFIA preempted D&S's claims.8 D&S argued that, because it was not an insured the policy, and its claims did not arise under the policy, the NFIA did not preempt its claims.9 The U.S. Court of Appeals for the Sixth Circuit affirmed dismissal, holding that D&S's state law claims related to Foundry's claims under its flood policy because the cause of action arose from Wright's claims handling and were pre-empted.10 In LCP West Monroe, LLC v. United States,11 LCP's buildings sustained flood damage.12 LCP submitted timely proofs of loss to Selective, which paid the net amounts claimed.13 LCP presented Selective with an additional proof of loss six months later, and that claim was denied.14 LCP argued that FEMA's claims handbook allowed for supplemental claims if damage is discovered after the deadline for proofs of loss.15 The U.S. District Court for the Western District of Louisiana held that, when an insured submits a timely proof of loss and notifies its insurer a supplement will follow, but the supplemental claim is not accompanied by a timely, sworn proof of loss, the supplemental claim may be denied.16 III.BUSINESS INTERRUPTION/CIVIL AUTHORITY In Bernstein Liebhard, LLP v. Sentinel Insurance Co., Ltd.,1 the insured, a law firm with a large, contingent fee, mass tort practice, suffered a fire at its office.18 The insured claimed that, as a result of the fire, it was unable to advertise for new mass tort plaintiffs, causing a $27 million loss of contingency fees it otherwise would have earned.19 The policy defined "business income," in relevant part,