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Superior Court of New Jersey, Appellate Division
September 8, 2008, Argued; September 9, 2009, Decided
DOCKET NO. A-3570-06T1
Defendants Mecca & Sons Trucking Corporation, Atrimec Realty Corp. and Clean-O-Mat Corp. (collectively Mecca) appeal from a Law Division order granting summary judgment in favor of plaintiffs Crum & Forster Insurance Companies and United States Fire Insurance Company (collectively plaintiff or C&F) and denying Mecca's motion for summary judgment. C&F has filed a cross-appeal, contending the Law Division rejected additional grounds to deny coverage to Mecca. Because we agree that the insurance policy vacancy exclusion applies, we affirm.
On March 12, 2002, C&F filed a complaint for declaratory judgment against Mecca seeking a determination that C&F was not liable on an [*2] insurance policy issued to Mecca for damages claimed as a result of a fire on September 3, 2001, at a building located at 163 Avenue A, Bayonne, New Jersey (the property). The complaint alleged in five counts that (1) Mecca did not own the property where the loss occurred and, therefore, did not have an insurable interest; (2) the premises were vacant at the time of the loss, triggering an exclusion to coverage; (3) the policy was suspended at the time of the loss because Mecca had increased the hazard; (4) Mecca did not sustain a loss because the property had no value on the day of the fire; and (5) Mecca misrepresented material facts in its application that warrant rescission of the policy.
On June 6, 2002, Mecca filed an answer and counterclaim, asserting in its pleadings that: (1) C&F breached the insurance contract by failing to pay the Agreed Value on the policy; (2) C&F's failure to pay pursuant to the terms of the written policy of insurance constitutes bad faith dealings; (3) C&F disclaimed coverage in an untimely and improper manner; (4) C&F breached its statutory and common law duties to act in good faith and in fair dealing; (5) C&F breached the Plain Language Act, N.J.S.A. 56:12-1 to -13; [*3] and (6) C&F violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -106. Mecca joined its insurance brokers, Eastern Insurance Agency, Inc. (Eastern) and Crump Group of New Jersey, Inc. (Crump), as third-party defendants; however, the claims against those parties have been resolved and are not at issue in this appeal.
In this appeal, Mecca contends that plaintiffs were improperly granted summary judgment based on the vacancy/vandalism condition of the policy, and that Mecca's breach of contract claim was improperly dismissed. In the cross-appeal, C&F essentially contends that it is entitled to judgment on each of the theories advanced in the various counts of its cross-claim.
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2009 N.J. Super. Unpub. LEXIS 2504 *; 2009 WL 2917898
CRUM & FORSTER INSURANCE COMPANIES and UNITED STATES FIRE INSURANCE COMPANY, Plaintiffs-Respondents/Cross-Appellants, v. MECCA & SONS TRUCKING CORPORATION, ATRIMEC REALTY CORP., and CLEAN-O-MAT CORP., Defendants/Third-Party Plaintiffs-Appellants/Cross-Respondents, v. EASTERN INSURANCE AGENCY, INC. and CRUMP GROUP OF NEW JERSEY, INC., Third-Party Defendants.
Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
Prior History: [*1] On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-847-02.
coverage, insured, vacant, vandalism, insurable interest, summary judgment, premises, hazard, insurance policy, sprinklers, material fact, destruction, contends, parties, vacancy, misrepresentations, customary, broker, genuine issue of material fact, summary judgment motion, grant summary judgment, insurance contract, cross-appeal, courts, cause of the fire, replacement cost, sprinkler system, genuine issue, trial court, new use