J.C. Penney Company, Inc. v. Dillard\u2019s, Inc.
\nCase No. 4D10-1770<\/p>\n
JCPenney sued Dillard\u2019s for damage to its store at the Turtle Creek Mall in Mississippi. In 2005, the roof over the Dillard\u2019s store (which was adjacent to the JCP store) collapsed from Hurricane Katrina, severing a sprinkler main and causing uncontrolled water flow into the mall and the JCP store. Dillard\u2019s moved for partial summary judgment, arguing that pursuant to the Turtle Creek Mall Operating Agreement (OA), JCP and Dillard\u2019s agreed to release each other from liability from any loss or damage to property covered by the party\u2019s insurance policy. However, they expressly reserved the right to bring an action for any \u201cdeductible\u201d amount contained in their insurance policies. Dillard\u2019s also filed a second motion for partial summary judgment, arguing that JCP could not recover any damages because JCP had already recovered from its insurer the entire damage amount claimed without any deductible being applied. In opposition, JCP argued that the notion that it had been made whole for its Turtle Creek Mall losses was illusory because JCP\u2019s insurer treated Hurricane Katrina-related losses at several covered JCP stores as one \u201coccurrence\u201d for coverage purposes and unilaterally elected to apply the policy\u2019s entire $2.5 million-per-event deductible to one JCP store (the Biloxi, Mississippi store). JCP argued that it had not been made whole for its losses in the Turtle Creek Mall. The trial court granted both partial motions for summary judgment.<\/p>\n
The Fourth District Court of Appeal disagreed with JCP\u2019s argument that the trial court erred in limiting its recovery to the deductible because under Mississippi law, Dillard\u2019s cannot contractually exculpate itself against breaches of duties imposed by common law and for torts involving gross negligence. Instead, the court noted the parties were sophisticated national retailers, occupying equal bargaining positions, in negotiations for a commercial operating agreement and that the exculpatory clause was valid and did not contravene public policy. The court also found that Dillard\u2019s conduct did not rise to the level of gross negligence simply because a different Dillard\u2019s roof, in a different store, sustained damage in a prior hurricane, and Dillard\u2019s internal memoranda acknowledged the potential for damage due to hurricanes and the need to perform maintenance prior to such storms. The Fourth District Court of Appeal reversed the trial court\u2019s summary judgment order and held that a genuine issue of material fact existed as to how the deductible was apportioned and whether the application of the deductible was beyond JCP\u2019s control.<\/p>\n","protected":false},"excerpt":{"rendered":"
J.C. Penney Company, Inc. v. Dillard\u2019s, Inc. Case No. 4D10-1770 JCPenney sued Dillard\u2019s for damage to its store at the Turtle Creek Mall in Mississippi. In 2005, the roof over the Dillard\u2019s store (which was adjacent to the JCP store) collapsed from Hurricane Katrina, severing a sprinkler main and causing uncontrolled water flow into the…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1811,1810],"tags":[2302,2303,2304,2305,2306,1869,2307,2308,1921,2309,2310,2311,1885,1912],"class_list":["post-2201","post","type-post","status-publish","format-standard","hentry","category-4th-dca-rulings","category-insurance","tag-breach-of-duty","tag-deductible","tag-dillards","tag-gross-negligence","tag-hurricane-katrina","tag-insurance-policy","tag-j-c-penney","tag-liability","tag-motion","tag-operating-agreement","tag-property-damage","tag-public-policy","tag-summary-judgment","tag-trial-court"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2201","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=2201"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2201\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=2201"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=2201"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=2201"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}