I believe there is definitely a colorable argument here for Fisker, and hence a claim value above $0. Here is the policy definition of Transit:
Damage to personal property included within Insured Property, while in transit within the Territory, including the navigable inland fresh waterways therein, by any means of conveyance from the time the property is moved for the purpose of loading and unloading and in temporary storage, including temporary storage on any conveyance intended for use for any outbound shipment or used for inbound shipment, including during deviation and delay, until safely delivered and accepted at place of final destination.
As Fisker and Orrick have argued and explained, there is coverage from the time the cars are moved for the purpose of loading (which is far from clear), continuously, including during temporary storage, including during deviation and delay. So while there are bad facts, I have seen weaker claims succeed.
Did Fisker's risk manager or other responsible individual screw up by not getting more or better coverage? Time will tell.
As regards the counterclaim, all they seek is a declaratory judgment, so no damages against Fisker. Also, Fisker has hired good litigators at Orrick (I've worked for and against Orrick on multiple occasions). XL has a smaller insurance defense firm. And the case is in state court in NY, which is viewed by many as a bit of a kangaroo court. But this is a pretty straightforward dispute, really. It is largely about what the paragraph above means. Now we can watch hundreds of thousands of dollars, if not millions, get spent debating that!
- Chris
