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ALI, INC. v. GENERALI

June 20, 1997

ALI, INC., (successor-in-interest Crestmont Savings & Loan Association), Plaintiff,
v.
GENERALI; GENERAL STAR INDEMNITY COMPANY; and JOHN DOES 1-10, Defendants.



The opinion of the court was delivered by: POLITAN

 Dear Counsel:

 This matter comes before the Court on various motions of the parties: (1) plaintiff ALI, Inc.'s ("ALI") motion for summary judgment against defendant Generali; (2) defendant Generali's cross-motion for summary judgment against plaintiff; and (3) defendant General Star Indemnity Company's ("General Star") motion for summary judgment against defendant Generali. Oral argument was heard on June 9, 1997. For the reasons stated herein, plaintiff's motion is DENIED, defendant Generali's motion is GRANTED, and defendant General Star's motion is DENIED.

 STATEMENT OF FACTS

 The instant action concerns an insurance claim for damages to real property. The facts of this case have been set forth by the Court in a previous opinion. See ALI, Inc. v. Generali, et al., 954 F. Supp. 118 (D.N.J. 1997). Because the facts are relevant to the Court's present findings, a brief recitation is again necessary.

 Plaintiff ALI sought to recover insurance proceeds as successor-in-interest to Crestmont Federal Savings & Loan Association ("Crestmont"). Crestmont, the predecessor-in-interest to plaintiff, was the named insured in a fire insurance policy issued by defendant General Star. The policy insured numerous unnamed properties, including a commercial building located at 46-66 Oakwood Avenue in Orange, New Jersey.

 While the General Star policy was still in effect, the subject property was foreclosed upon. Thereafter, the appointed receiver, Alpert & Alpert, obtained a separate insurance policy for the same property from defendant Generali. This policy enumerated the building at 46-66 Oakwood Avenue, as well as the amount of coverage.

 On December 31, 1993, the subject property sustained water damage as a consequence of vandalism. Crestmont's insurance claim was denied by General Star on the basis that its coverage was excess to any primary coverage available to Crestmont. The receiver, Alpert & Alpert, also filed a claim for insurance proceeds with Generali. Generali adjusted the loss and paid Crestmont $ 117,758.11. This figure represented the pro rata share (70%) contemplated by the Generali policy where a loss is covered by other insurance. Defendant General Star submitted a letter to plaintiff, on June 17, 1994, declining coverage.

 In a published opinion, dated February 6, 1997, the Court denied with prejudice plaintiff's motion as against defendant General Star, and granted defendant General Star's motion against plaintiff. See Id. The Court held that the one-year suit limitations provision in the General Star policy barred plaintiff's claim. Id. at 121. The Court, however, reserved judgment on whether plaintiff could still maintain a cause of action against Generali for the balance of the claim, and whether Generali could maintain a cross-claim for contribution and indemnification against General Star. Id. at 122. Upon Order of the Court, the parties briefed these issues and oral argument was heard on June 9, 1997.

 DISCUSSION

 I. Standard of Review

 Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3rd Cir.), cert. dismissed, 483 U.S. 1052, 97 L. Ed. 2d 815, 108 S. Ct. 26 (1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Id. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 ...


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