Matmogg, Inc. v. Phila. Indem. Ins. Co.

Opinion

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

THIS MATTER having come before the Court, the Hon. Robert Lougy, P.J. Ch., presiding, on the application of Defendant Philadelphia Indemnity Insurance Company ("PIIC"), represented by Richard L. Fenton, Esq., for an order dismissing Plaintiff's complaint for failure to state a claim for which relief may be granted; and Plaintiff Mattdogg, Inc. (d/b/a Pure Focus Sports), represented by Ralph P. Ferrara, Esq., having filed opposition; and Defendant having filed a reply; and the Court having considered the parties pleadings, submissions, and arguments; and for the reasons as stated below; and for good cause shown;

IT IS on this 17th day of November 2020 ORDERED that:

1. Defendant's application for an order dismissing Plaintiff's complaint for failure to state a claim upon which relief may be granted is GRANTED [without prejudice].

2. This Order shall be deemed served upon filing on eCourts.

/s/ Robert Lougy

ROBERT LOUGY, P.J. Ch.

X OPPOSED

UNOPPOSED

PURSUANT TO RULES 1:6-2(d) AND 1:7-4, THE COURT PROVIDES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW.

This matter comes before the Court on Defendant's application [*2]  to dismiss with prejudice Plaintiff's complaint. The Court granted Defendant's request for oral argument. See R. 1:6-2(d) (stating that, upon request of a party in motions involving matters other than discovery or calendaring, request for oral argument "shall be granted as of right."); see also Raspantini v. Arocho, 364 N.J. Super. 528, 531, 837 A.2d 417 (App. Div. 2003) (discussing "clear mandate of the rule" that court grant oral argument as of right upon request).

Plaintiff filed its complaint on April 27, 2020. Plaintiff operates a health club. Plaintiff seeks a declaration that, based on the Pandemic and closure orders, it has suffered a covered loss within the Commercial Property coverages of the Commercial Lines Policy issued by Defendant, Philadelphia Indemnity Insurance Company ("PIIC"). Plaintiff seeks a declaration that Executive Orders issued by Governor Murphy triggered "business interruption and extra expense coverage, including coverage under the Civil Authority provision." The Complaint also seeks a declaration that the Virus Exclusion in Plaintiff's policy does not apply.

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