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Nieder v. Royal Indemnity Insurance Co.

Decided: February 5, 1973.

M. GENEVIEVE FULLERTON NIEDER, PLAINTIFF APPELLANT AND CROSS-RESPONDENT,
v.
ROYAL INDEMNITY INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND PETER DI MEGLIO AND CASTLE ASSOCIATES, INC., DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



For modification in part and remandment -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judges Conford and Lewis. Opposed -- None.

Per Curiam

[62 NJ Page 230] Plaintiff Genevieve Nieder sued defendant Royal Indemnity Insurance Company and defendants Peter DiMeglio and Castle Associates, Inc. as its agents to recover

on two fire insurance policies for losses resulting from a fire on August 29, 1966 that damaged two adjoining dwellings in Perth Amboy.

The trial court granted the motions of defendants for summary judgment on the pleadings and plaintiff's depositions. The complaint against the Insurance Company was dismissed on the ground that plaintiff's suit was filed some 16 months after the fire loss and was thus barred under the 12-month limitation period in the policies. The complaint against the agents was dismissed on the ground that they were entitled to the same immunity as their principal. Plaintiff's subsequent motion to prevent entry of the judgment or alternatively to vacate any judgment entered was denied.

On plaintiff's appeal to the Appellate Division that court affirmed the judgment favoring the Insurance Company but reversed the judgment as to the issue of the agents' liability and remanded the matter for trial. This Court granted plaintiff's petition and the cross petition of the agents for certification. 60 N.J. 195 (1972).

We affirm the determination of the Appellate Division with respect to a plenary trial as to the liability of defendants DiMeglio and Castle Associates. Plaintiff's claim against these agents is predicated upon the alleged wrongful cancellation of the insurance policies in question. She maintains that she first learned about the cancellation of the policies after the fire and when she attempted to collect the insurance. The record reveals an affidavit by an attorney representing the holder of a mortgage on the properties which reads in pertinent part:

Mr. DiMeglio advised me that Mrs. Nieder owed him money on some other insurance he had written for her, that she had failed to pay it, so he ordered 2 fire insurance policies cancelled (1 covering this property and 1 covering the adjoining property) in order to obtain the return premium and apply same to Mrs. Nieder's account.

Although this and other affidavits were not before the trial court they were considered by the Appellate Division in

reaching its conclusion that there should be a plenary trial for an exploration of all the relevant facts concerning the alleged wrongful cancellation. We agree with that determination.

We further conclude, in light of what is before us, that the complaint should not have been dismissed against the Insurance Company, and accordingly the judgment of the Appellate Division is reversed to the extent that it provides otherwise.

The carrier urged by way of defenses, among others, that it had cancelled the policies prior to the fire loss and that plaintiff had failed to comply with a condition stated in the policies that any action thereon shall be "commenced within twelve months next after inception of the loss" as mandated by N.J.S.A. 17:36-5.20.

The reasoning of the trial judge that the one-year limitation period in the policies has the dignity of a general statute of limitations is irreconcilable with Fredericks v. Farmers Rel. Ins. Co. of N.J., 80 N.J. Super. 599 (App. Div. (1963). There, the insured's ignorance of the policy limitation, allegedly attributable to an unjustifiable withholding of information concerning the policy, precluded the insurer from asserting such a defense. The rule may be otherwise if the insured should have known of the limitation period provided in the policy. Id. at 605. See also Peloso v. Hartford Fire Insurance Co., 56 N.J. 514 ...


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