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Abel Holding Co. v. American District Telegraph Co.

Decided: February 4, 1977.

ABEL HOLDING COMPANY, INC., PLAINTIFF-RESPONDENT,
v.
AMERICAN DISTRICT TELEGRAPH COMPANY AND GRINNELL COMPANY, DEFENDANTS, AND NEW JERSEY BELL TELEPHONE COMPANY, DEFENDANT-APPELLANT. ABEL HOLDING COMPANY, INC., PLAINTIFF-APPELLANT, V. AMERICAN DISTRICT TELEGRAPH COMPANY, NEW JERSEY BELL TELEPHONE COMPANY AND GRINNELL COMPANY, INC., DEFENDANTS-RESPONDENTS



Bischoff, Morgan and Rizzi.

Per Curiam

Plaintiff Abel Holding Company (Abel) filed a complaint April 6, 1972 seeking recovery for property damage and loss of profits sustained when a fire occurring December 27, 1969 extensively damaged an amusement center known as "Steel Pier" in Atlantic City.

Defendants are the American District Telegraph Company (ADT), New Jersey Bell Telephone Company (Bell), and Grinnell Company, Inc. (Grinnell).

Following extensive discovery, a pretrial conference was held. Thereafter various motions for summary judgment, dismissal and other relief were argued by the parties. In ruling on these motions the trial judge filed an opinion, reported at 138 N.J. Super. 137 (Law Div. 1975). Additional motions were argued before the same judge thereafter and disposed of in an unreported opinion dated March 3, 1976. The court's rulings on all motions were incorporated in an order dated April 27, 1976. Abel and Bell both appeal, pursuant to leave granted, from portions of that order.

The reported opinion sets forth in detail the relationship of the parties as well as the factual and legal theories relied upon by both plaintiff and defendants, and they will not be restated here. It is sufficient for our present purposes to note the following facts.

Plaintiff, the owner of the fire-damaged amusement pier, contracted in 1955 with ADT for the installation of a fire alarm system. The contract between the parties was on a printed form and was renewed periodically. The last executed contract, in effect at the time of the fire, was dated May 15, 1969. The alarm system installed by ADT was

connected to the fire department by telephone lines owned by Bell. It is alleged that when the fire occurred the alarm system failed to work as a result of a defect in the alarm system and in the telephone line connections.

We consider, first, the issues raised by plaintiff's appeal.

I

The contract between Abel and ADT contained a provision limiting the liability of ADT to the greater of 10% of the annual service charge or $250. (This clause is set out in full in the reported opinion, 138 N.J. Super. at 144.)

ADT moved for an order limiting plaintiff's recovery to 10% of the annual service charge or $250, whichever is greater. The motion was granted and plaintiff appeals.

We affirm the action of the trial judge in limiting the liability of ADT, essentially for the reasons expressed in the reported opinion at 145 to 154.

II

Plaintiff moved for summary judgment on the issue of liability against both defendants Bell and ADT, and appeals from the denial of both motions.

We affirm the denial, substantially for the reasons expressed by the trial judge in both the reported opinion and ...


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