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Hourly Messengers Inc. v. Insurance Co.

Decided: October 31, 1978.

HOURLY MESSENGERS, INC., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT AND CROSS-RESPONDENT, AND CHARLES A. RUSS COMPANY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Camden County.

Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

These appeals arise out of a lawsuit instituted by Hourly Messengers, Inc., against Insurance Company of North America to recover under a motor cargo liability insurance policy issued to it by the latter for a loss suffered when one of its trucks was stolen while parked in Philadelphia on May 7, 1968. The insurer's answer denied coverage on the ground that an endorsement to the policy excluded losses resulting from theft from an unattended vehicle unless the vehicle was inside a locked terminal building. Plaintiff thereupon amended its complaint so as to join as a defendant Charles A. Russ and Company, a broker, alleging negligence on its part in failing to obtain for it the coverage it required.

Sitting without a jury, the trial judge found no liability on the part of the insurer in that the exclusionary language of the endorsement was clear and unambiguous. He further held that the action was barred by the policy's one-year limitation period for the filing of a suit against the insurer. The trial judge further determined that the broker was liable to plaintiff because of its negligence in failing to procure the proper insurance for its client, and entered

judgment in favor of plaintiff in the sum of $6278.05 plus interest from May 7, 1968, and costs.

The broker appealed, contending that the evidence clearly demonstrated that "all parties involved with the insurance policy were acting under a mutual mistake of fact as to its provisions," and that the policy should have been reformed to conform "to the expressed intent of the parties." The broker further asserted that the insurer was estopped from denying coverage.

Plaintiff cross-appealed from the dismissal of its complaint against the insurer. Noting that the broker's brief did not attack "the validity of the judgment entered against it * * * but is rather attacking the dismissal of the action against the co-defendant," plaintiff has adopted the broker's supporting argument in that regard, but maintains, nonetheless, that the judgment against the broker should be affirmed.

The insurer does not discuss the issues of reformation and estoppel in its brief. Its sole argument is that the trial judge properly dismissed the action against it for the insured's failure to institute the action within the time period specified in the policy.

We address first the issue of whether plaintiff's action is barred by the contractual period of limitation. The pertinent provision of the policy in effect at the time of the loss was that "[n]o suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the Assured of the occurrence which gives rise to the complaint."

Plaintiff initially filed suit against the insurer in May 1969 in Pennsylvania. The insurer does not assert that the lawsuit there was untimely. It was voluntarily dismissed by plaintiff after the institution of a similar suit in this State on May 28, 1971. Why the second suit was filed for the same cause of action is not explained. In any event, the insurer argued below that the institution of the Pennsylvania action did not toll the running of the limitation period and the New

Jersey suit was therefore barred. The trial judge concurred, relying on the "general rule * * * that the commencement of an action in one state does not toll the running of the limitation period on the same cause of action in another state." Nix v. ...


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