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Kelly v. Travelers Insurance Co.

November 28, 2008

THOMAS PATRICK KELLY, JR., PLAINTIFF-APPELLANT,
v.
TRAVELERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cape May County, Docket No. DC-2556-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 17, 2008

Before Judges Fisher and C.L. Miniman.

Plaintiff Thomas Patrick Kelly, Jr., appeals from a summary judgment dismissing his September 7, 2007, complaint against defendant Travelers Insurance Company (Travelers) seeking to recover $12,000 for alleged property damage to his yacht, a 1993 Four Winns Horizon 190, which occurred on August 14, 2005. The Standard First Insurance Company (Standard) answered the complaint on October 26, 2007, alleging that it was improperly impleaded as Travelers Insurance Company. It denied that the damage was a covered loss and asserted, among other things, that Section One, Provision N, of the Standard fire policy required any action against it to be brought within one year after damage occurs.

The insurance policy covering plaintiff's yacht, Policy #0945215400-8301, was issued by Standard, one of The Travelers Property Casualty Companies, effective July 15, 2005. The policy covered direct physical loss or damage to plaintiff's yacht up to the agreed value of $12,000 in the event of a covered loss. Section One of the policy, "General Policy Conditions and Limitations," provided in ¶ N as follows: "No action will be brought against us unless there has been full compliance with all policy provisions; and such action is started within one year after loss or damage occurs."

Standard moved for a summary judgment in November 2007, asserting that the action was not commenced within one year of the August 14, 2005, loss; the motion was granted on December 10, 2007. Following a motion for reconsideration, the judge reconsidered his decision, reaffirmed the grant of summary judgment, and dismissed the complaint by order dated January 11, 2008. The judge attached a written opinion as follows:

This [c]court determines that Standard Insurance is a proper party [d]efendant as indicated in its answer and that the answer to the Complaint and Motion for Summary Judgment were properly filed. . . .

It is clear that the parties dispute the cause of damage claimed by [p]laintiff. . . . Notwithstanding this dispute[,] the following facts are not disputed:

(1) Travelers['] subsidiary is the insurer of the boat policy for the period of July 15, 2005 to July 15, 2006.

(2) Date of [l]oss was August 14, 2005.

(3) Plaintiff made a claim by telephone on August 24, 2005.

(4) Denial of [c]laim by letter of September 13, 2005.

(5) Denial final following [p]lain-tiff's appeal by letter dated ...


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