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Ashraf v. State Auto Property And Casualty Insurance Co.

Supreme Court of West Virginia

May 20, 2019

Mohammed Ashraf, M.D., Plaintiff Below, Petitioner
v.
State Auto Property and Casualty Insurance Company, Defendant Below, Respondent

          Marion County 14-C-253

          MEMORANDUM DECISION

         Petitioner Mohammed Ashraf, M.D., by counsel David A. Jividen, Chad C. Groome, and John R. Angotti, appeals the April 24, 2018, amended order of the Circuit Court of Marion County granting the motion for summary judgment filed by Respondent State Auto Property and Casualty Company ("State Auto") and denying petitioner's motion for partial summary judgment on petitioner's claim that State Auto waived the application of the vacancy provision set forth in an insurance policy that petitioner purchased to cover certain real property. State Auto, by counsel Trevor K. Taylor, filed a response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner is a medical doctor who also invests in real estate. He and his wife purchased a certain building in Fairmont, West Virginia, in 1997 at a tax sale. The building had previously been converted from a private home to an assisted living facility and petitioner and his wife continued to operate it as such until 2006, when they closed the business. Thereafter, petitioner's efforts to rent out the building did not materialize and the building became vacant.

         In 2009, the building was broken into and vandalized. At the time, the building was covered by an insurance policy by State Auto.[1] The State Auto policy provided, in part, as follows:

         A. Coverage

         We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Loss. . . . .

         E. Loss Conditions

         The following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions. . . . .

         1. Vacancy

         . . . .

         b. Vacancy Provisions

         If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs

(1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss:
(a) Vandalism;
(b) Sprinkler leakage, unless you have protected the system ...

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