On corporate defendants' motion for summary judgment.
This action was instituted to recover on alleged binders of insurance in the sum of $10,000, which plaintiff claims were issued on its personal property in accordance with an agreement entered into on or about September 7, 1949, with the defendant, C. Frank Bertsch, who was acting as general agent for the named defendant insurance companies. A fire occurred on October 9, 1949, which completely destroyed the property claimed to have been insured, and the action is brought to recover from the agent and from the insurance companies on the alleged binders.
Motion is now made on behalf of the defendant insurance companies for summary judgment against the plaintiff on the following grounds: the alleged binder was ordered orally on September 7, 1949; no written binder or policy was issued; the fire did not occur until October 9, 1949; and since L. 1949, c. 158 limits oral binders to a period not exceeding ten days, no action can be maintained against the insurance companies. L. 1949, c. 158 (N.J.S.A. 17:36-5.3), adopted on May 19, 1949, amends "An Act prescribing a standard form of fire insurance policy, endorsements and supplemental contracts, * * *" approved April 20, 1944, and provides as follows:
"Binders or other contracts for temporary insurance may be made orally for a period which shall not exceed ten days or in writing for a period which shall not exceed sixty days and shall be deemed to include all the terms of such standard fire insurance policy and all such applicable endorsements, approved by the Commissioner of Banking and Insurance, as may be designated in such contract of temporary insurance; except that the cancellation clause of such standard fire insurance policy and the clause thereof specifying the hour of the day at which the insurance shall commence, may be
superseded by the express terms of such contract of temporary insurance."
The complaint in this case alleges that the defendant Bertsch is a general agent for the named insurance companies, that on or about September 7, 1949, Oliver Piegelbeck, an officer of the plaintiff, ordered fire insurance to cover its stock and other personal property, including fixtures, located in premises known as Lots 733, 734, 736, 737, and 738, Longport Avenue, Ocean Gate, New Jersey, from Bertsch as agent; and that a fire occurred on October 9, 1949, which completely destroyed the property insured. The pretrial order admits that the property of the plaintiff corporation was destroyed by fire on October 9, 1949, and states the plaintiff's claim that on or about September 7, 1949, plaintiff purchased fire insurance in the amount of $10,000 from the defendant corporations through the defendant agent, covering the property which was destroyed. In the pretrial order the defendant denies the insurance order or that insurance was sold.
The affidavit supporting the defendants' motion is made by the defendant C. Frank Bertsch and is to the effect that he was asked to place $10,000 insurance on the building upon the premises described in favor of Lee Ritter, the owner; that the rate was $3.99; that Mr. Bertsch placed a binder on the building with the defendant, Caledonian Insurance Company, for $10,000 on June 15, 1949; that on July 11, 1949, the defendant Bertsch bound the defendants, Firemen's Insurance Company of New Jersey, Girard Fire & Marine Insurance Company, and Virginia Fire & Marine Insurance Company, each with $2,500 reinsurance on the Caledonian Insurance Company binder in the amount of $10,000; that on August 11, 1949, binders were renewed in the said Firemen's, Girard, and Virginia companies in the sum of $2,500 each, and on September 15, 1949, the $10,000 binder was renewed in the defendant Caledonian. The eighth paragraph of the affidavit of the defendant Bertsch reads as follows:
"In the meantime, on September 7, 1949, I went to the Ritter building and spoke with Mr. Oliver Piegelbeck, who was
associated in business with Lee Ritter. I advised Mr. Piegelbeck that no payment had ever been made on the written binder aforesaid, and that unless a payment were made, it would be necessary to cancel same. As a result, Oliver Piegelbeck prepared and gave me a check on the Decor-El, Inc. account, in the sum of $50.00, and I gave him a ...