On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5622-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
This matter concerns first-party fire insurance claims under a homeowner's insurance policy issued to plaintiff Bashar Sabbagh by defendant Fitchburg Mutual Insurance Company. Plaintiff appeals from the November 17, 2006, order of the Law Division that denied his motion to reinstate the complaint and granted defendant's motion to dismiss the complaint with prejudice. We affirm.
Plaintiff was the owner of a single-family dwelling located at 670 Shawnee Drive, Franklin Lakes, that was insured for fire loss by defendant. Coverages and limits of liability under the policy included: 1) $490,000 for loss of the primary residential dwelling; $49,000 for loss of other structures; $343,000 for personal property; and $245,000 for loss of use of the residential dwelling. All losses were subject to a $500 deductible. Policy Endorsement FMRC-13 07 92, which pertained to settlement of losses to buildings, including the residential dwelling, provided in pertinent part, as follows:
2. If you comply with the provisions of this endorsement and there is a loss to a building insured under COVERAGE A, SECTION I - CONDITION 3. LOSS SETTLEMENT paragraph b. is deleted and replaced by paragraph b., c., d. and e. as follows:
b. Buildings under COVERAGE A or B at replacement cost without deduction for depreciation. We will pay no more than the smallest of the following, amounts for equivalent construction:
(1) the replacement cost of the building or any parts of it;
(2) the amount actually and necessarily spent to repair or replace the building or any parts of it;
(3) the applicable limit of liability whether increased or not, adjusted in accordance with paragraph 1. above.
c. We will pay no more than the actual cash value of the damage until actual repair or replacement is completed.
d. You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis.
e. In order for us to pay the replacement cost, the damaged building must be repaired or replaced by you on the "residence premises" or some other location within a reasonable time ...