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City National Bank of New Jersey v. Selective Insurance Company of America

May 17, 2000

CITY NATIONAL BANK OF NEW JERSEY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, A CORPORATION OF THE STATE OF NEW JERSEY,
DEFENDANT-RESPONDENT/THIRD-PARTY PLAINTIFF,
V.
KIRK D. RHODES AND JACQUELYNN RHODES,
THIRD-PARTY DEFENDANTS.



Before Judges Pressler, Ciancia and Arnold.

The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2000

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

Plaintiff City National Bank of New Jersey appeals from an order entered on September 4, 1998 granting summary judgment in favor of defendant Selective Insurance Company of America and from the denial of plaintiff's motion for reconsideration entered on November 30, 1998. We affirm the motion judge's decision dismissing plaintiff's complaint seeking insurance coverage for two incidents of water damage because, as to the first, plaintiff has failed to demonstrate any deficiency as a result of its subsequent foreclosure on the property and, as to the second, coverage is barred by virtue of the vacancy clause of the insurance policy.

Briefly the facts in this matter are as follows. The property in question is a former bank building located in downtown Plainfield. Third-party defendants, Kirk D. Rhodes and Jacquelynn Rhodes, purchased the building on October 14, 1994. *fn1 Defendant, Selective Insurance Company of America, issued a commercial insurance policy including commercial property coverage on that date. On March 9, 1995, the Rhodes refinanced the mortgage and plaintiff became the mortgagee of the premises. The Selective Insurance policy was endorsed to include plaintiff as a mortgagee. The policy issued by defendant provided that if the building was vacant and not under construction for more than sixty days before a loss, then defendant would not pay for damages caused by sprinkler leakage or water damage. Specifically, the policy provided as follows:

VACANCY

If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage, we will:

a. Not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss:

(1) Vandalism:

(2) Sprinkler leakage, unless you have protected the system against freezing:

(3) Building glass breakage:

(4) Water ...


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