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Weil v. Pennsylvania Fire Insurance Co.

Decided: November 23, 1959.

EDGAR WEIL, PLAINTIFF-RESPONDENT,
v.
THE PENNSYLVANIA FIRE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT



Price, Gaulkin and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiff sued upon an insurance policy for the loss of his personal property, allegedly stolen from the locked trunk of his automobile. The district court judge, sitting without a jury, entered judgment in favor of the plaintiff and defendant appeals.

The evidence showed that plaintiff, a resident of Elizabeth, was in Baltimore on business on January 29, 1958. About 5 P.M. of that day he left his car in a parking garage. When he called for it on January 30 the keys were still in the garage office but the car was gone. After notifying the Baltimore police and calling his wife to report the theft to the agent who wrote the policy, he returned to Elizabeth by train, taking the keys with him.

On or about February 3 the car was found, damaged and abandoned, in Baltimore. Plaintiff claimed that his personal belongings had been taken from the trunk, and when his claim was not honored he instituted this action.

Appellant's first point is that the trial court should have entered judgment in its favor because "plaintiff's failure to file a proof of loss within 60 days after the occurrence bars the claim." For this proposition appellant relies on Brindley v. Firemen's Ins. Co. , 35 N.J. Super. 1, 8 (App. Div. 1955).

To begin with, the policy is ambiguous. The form, captioned "Homeowners Policy," apparently was prepared, filed and approved pursuant to N.J.S.A. 17:36-5.21 and 5.22. Section 5.21 provides that "[e]very * * * policy of fire insurance may * * * include any other insurances which the insurer is authorized to make. * * *" Section 5.22 permits the insurance companies or its rating organizations to file "[a]ppropriate forms of contracts, or supplemental contracts, or extended coverage endorsements that will provide insurance in case of loss, damage or liability occasioned by any accident, incident, occurrence, or peril other than fire and lightning * * * for use with or as a part of such fire insurance policy * * *."

The policy now before us has been put together by fastening ten assorted sheets to an eleventh which contains nothing but the 165 lines which N.J.S.A. 17:36-5.20 directs must appear in every fire insurance policy. The result is a collage which represents the triumph of mucilage over mind. Not only are the 11 sheets of varying sizes, but they are arranged in a bewildering fashion. For example, pages 2, 3, 4 and 5 are attached in reverse order. After some difficulty, we discovered that to make sense they must be read 5, 4, 3, 2. The remaining sheets are inserted without any apparent rhyme or reason. Page 1 of the policy contains the following:

Coverages

A. Dwelling Subject to MPT 265(1/56)

***B. Appurtenant Private Structures Form No. MPB 280(4/56)

C. Personal Property on the Premises

D. Personal Property Away From the and following Endorsement

Premises No.(s) attached hereto:

E. Additional Living Expense

F. Comprehensive Personal Liability MP 207a(3/56)

(Bodily Injury and ...


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