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Newport Associates Development Co. v. Travelers Indem. Co. of Illinois

December 29, 1998

NEWPORT ASSOCIATES DEVELOPMENT COMPANY; NEWPORT MARINE HOLDING, INC., APPELLANTS
v.
THE TRAVELERS INDEMNITY COMPANY OF ILLINOIS; FRENKEL & CO., INC. FRENKEL & CO., INC., DEFENDANT/THIRD-PARTY PLAINTIFF
v.
INDUSTRIAL RISK SPECIALISTS, INC., THIRD-PARTY DEFENDANT



Before: Scirica and Alito, Circuit Judges, and Green, District Judge* *The Honorable Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

The opinion of the court was delivered by: Scirica, Circuit Judge.

On Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 94-cv-01514 (Honorable John W. Bissell)

Argued November 5, 1998

OPINION OF THE COURT

Newport Associates Development Company and Newport Marine Holding, Inc. ("Newport") appeal the District Court's grant of summary judgment in favor of The Travelers Indemnity Company of Illinois ("Travelers").*fn1 The District Court held that the insurance policy issued by Travelers to Newport unambiguously did not cover a breakwater owned by Newport. We will affirm.

I.

Newport is a subsidiary of the LeFrak Organization, which has been involved for several years in the development of the Jersey City waterfront. This development includes the Newport Marina ("the marina"), managed by another LeFrak Organization subsidiary, Mid-State Management Corporation. The marina contains various buildings, docks, berths for boats, and a breakwater. The breakwater is located about 120 feet from the dock's end and is designed to limit wave action in the area in which the boats are moored.

In early 1990, Mid-State Management Corporation hired an independent insurance broker, Frenkel & Co., Inc. ("Frenkel"), to procure an insurance policy for the marina. Michael Feinstein of Frenkel met several times with Newport employee Arthur Klein to discuss the scope of coverage under the proposed policy. Feinstein also visited the marina on April 9, 1990 and took photographs of the site. Ultimately, Feinstein drafted a policy containing, in part, the following language:

"Buildings and Structures: [for the amount of] $600,000

Concrete Pier, under buildings [and structures]: [for the amount of] $1,750,000

Slips, consisting of metal slips, walkways, ramps, pilings, power cables and other integral parts collectively called "slips": [for the amount of] $2,000,000.

Business Interruption: [for the amount of] $300,000 all as defined in forms attached hereto and located as indicated or subsequently reported to and agreed to by The Travelers. In no event shall liability exceed any specific sublimit shown in this policy for any insured loss, coverage or location(s)."

In his deposition, Feinstein stated he always intended to cover "everything in the water" under the insurance policy and he believed the phrase "and other integral parts" would include a breakwater. However, Feinstein acknowledges he was not aware of the existence of the breakwater at the time he drafted the policy. Nor could Arthur Klein recall whether he specifically instructed Feinstein to include the breakwater.

Feinstein submitted his draft of the policy to Travelers and another insurer, Chubb Insurance Company. Feinstein also submitted photographs of the marina, taken on April 9, 1990, as well as a map that described the marina and showed the breakwater. Travelers issued an insurance policy incorporating verbatim Feinstein's description of the slips, but the policy did not incorporate the map or photographs. Newport ...


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