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Insite-Properties, Inc. v. Jay Phillips

Decided: March 17, 1994.

INSITE-PROPERTIES, INC., PLAINTIFF,
v.
JAY PHILLIPS, INC., DEFENDANT-THIRD PARTY PLAINTIFF/RESPONDENT, V. RIUNIONE ADRIATICA DISICURTA, THIRD PARTY DEFENDANT/APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Brody, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.

Stern

[271 NJSuper Page 381] Third party defendant, Riunione Adriatica DiSicurta ("Adriatica"), appeals from the entry of summary judgment in favor of defendant Jay Phillips, Inc. ("JPI"), requiring the carrier to defend and indemnify defendant under a "claims made" professional liability policy. JPI was also awarded $4,456.95 in counsel fees and costs. The carrier asserts that, as JPI received the claim in 1991 and failed to notify the carrier during the policy period,

there was no coverage under the policy. Accordingly, it contends that its cross-motion for summary judgment should have been granted. We conclude that there is a factual dispute precluding summary judgment for either party.

JPI, a title abstractor, purchased three, twelve-month professional services liability insurance policies from Adriatica, effective December 6, 1989, 1990 and 1991. Section I of the policies read in pertinent part:

This is a Claims Made Policy. The Company will pay on behalf of the Insured all sums in excess of the Retention stated in the Declarations which the Insured shall become legally obligated to pay as Loss as a result of any Claim(s) first made against the Insured and reported to the Company during the Policy Period . . . .

On September 19, 1990, JPI issued a Flood Hazard Certificate for property on which plaintiff built a house. The property turned out to be on a flood zone, and plaintiff was directed to elevate the structure at an estimated cost of $18,500. On July 14, 1991 Salvatore A. Mufalli wrote to JPI on behalf of plaintiff:

I am in receipt of a letter from the DEP and Borough of National Park which states that the flood certification for Block 47 Lots 9 & 10 is incorrect. A home has been constructed on this lot based on information supplied by the certification. I have been informed by the DEP that the elevation of the home is incorrect. Please contact me so that we may further discuss the matter.

The letter was sent by certified mail and Mufalli received an acknowledgement that it had been received and signed for by Jay Phillips, President of JPI, on July 17, 1991. In his certification, Phillips conceded "[a]pparently, I signed for [the 7/14/91 letter,] certified mail on 7/17/91 although I do not specifically recall doing so. Nevertheless, I acknowledge my signature on the certified mail receipt."

On August 30, 1991 plaintiff's attorney wrote to JPI at its post office box in Merchantville, the address contained on the Flood Hazard Certificate for the property:

This letter will serve to inform you that our office represents In-Site Properties, Inc. in reference to damages sustained as the result of your inaccurate flood certification for the above captioned property.

It is my understanding that Mr. Mufalli has discussed this matter with yourself, Continental Insurance Company, and others ...


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