Plaintiff sues defendant, an insurance broker, for failure to change an endorsement on a fire insurance policy written by defendant and issued by Commerce & Industry Insurance Company (Commerce Co.). The suit is in two counts (1) negligence and (2) breach of contract.
Plaintiff seeks summary judgment; defendant seeks leave to file an amended answer to set up the defense of contributory negligence and moves for summary judgment.
From the affidavits and exhibits, no genuine issue of fact appears. The essential facts follow:
Defendant had been writing insurance for plaintiff for at least seven years. Until March 1967 plaintiff had a warehouse
located at South Main Road, Vineland, and during March and April 1967 it moved the warehouse operation to South West Elmer Road, Vineland. On March 14, 1967 plaintiff wrote to defendant informing it that they were in the process of moving to South West Elmer Road and required contents coverage on both the old and new premises, instructing defendant to cancel the old coverage on South Main Road as of March 28.
Defendant on March 17 directed its memorandum to plaintiff acknowledging the move to the new Vineland location at South West Elmer Road and enclosed various binders. Not included was one for the policy which is the subject matter of this suit, written by Commerce Co. in the sum of $15,000. On April 3 plaintiff directed a letter to defendant to cancel all the insurance on the South Main Road address, and amongst other things stated, "make certain that coverage now is on West Elmer Road address." This was pursuant to plaintiff's letter of March 14.
On April 18 defendant by its letter to plaintiff enclosed certain endorsements changing the coverage from South Main Road to South West Elmer Road. The Commerce Co. policy was not included. On the endorsements this legend appears:
This Endorsement forms a part of your Policy and should be attached to the same. Please DO NOT FAIL to have this done."
It is this legend that defendant contends placed a burden on plaintiff to check the endorsements to make sure all policies were changed, and that its failure to do so bars recovery because of plaintiff's alleged contributory negligence.
On September 3, 1967 plaintiff's warehouse at South West Elmer Road was completely destroyed by fire. On the same date defendant was so notified by telephone by plaintiff. Defendant told plaintiff it would report the fire. Plaintiff was paid $82,770 from three ...