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Balentine v. New Jersey Insurance Underwriting Association

March 23, 2009

WILLIAM H. BALENTINE AND LUKE GIANETTA, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY INSURANCE UNDERWRITING ASSOCIATION, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5897-06.

The opinion of the court was delivered by: Sabatino, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 23, 2009

Before Judges Carchman,*fn1 R. B. Coleman and Sabatino.

This appeal raises the question of whether the record owner of real property, who is serving as the nominee of another person, has an insurable interest in that realty sufficient to recover the proceeds of a vandalism insurance policy on which he is listed as a named insured. The trial court answered that question in the affirmative, and so do we.

The facts, which are substantially undisputed, are as follows. Plaintiffs, William H. Balentine, a New Jersey resident, and Luke Gianetta, a Pennsylvania resident, are long-time friends who have known each other since their childhood. In 1992, plaintiffs jointly purchased a commercial warehouse building located at 1115 Haddon Avenue in Camden. The second story of the building contains a small apartment.

Two years later in 1994, when Balentine was in bankruptcy, plaintiffs jointly transferred the property to Gianetta for one dollar. Gianetta allowed Balentine to continue to use the property for business purposes. He issued a power of attorney to Balentine, allowing the latter to "take care of all incidents of ownership on behalf of Gianetta." Accordingly, Balentine paid the property taxes, insurance premiums, utilities and other expenses for the premises.

Through an independent agent, the Ken Curtis Agency ("Curtis"), a policy of liability and fire insurance for the premises was initially secured in April 2001, with defendant, New Jersey Insurance Underwriting Association ("NJIUA"). NJIUA is the assigned insurer for high-risk commercial properties in this State. See N.J.S.A. 17:37A-1 to -27. The policy limits were $130,000, with a $250 deductible. Among other things, the policy insured against losses from acts of vandalism.

The named insured listed under the NJIUA policy was "Luke Gianetta c/o William Balentine." The insurance writer at Curtis dealt with Balentine as Gianetta's agent. No mortgagee had an interest in the premises. The policy was renewed annually. The renewal applications typically named either Gianetta, or "Luke Gianetta c/o William Balentine" as the applicant. They were signed by Balentine under his power of attorney.

The policy for the relevant coverage period, April 2004 through April 2005, named the insured as "Luke Gianetta c/o William Balentine." NJIUA charged a premium of $773 for that policy term. The insurer does not dispute that this premium was paid.

On August 12, 2004, an unlawful entry occurred at the premises. The intrusion caused vandalism and other damage to the structure. The legitimacy of these losses is uncontested for purposes of this appeal.

Five days later, a claim on behalf of Gianetta was filed with NJIUA to recover for the damages to the building. No claim was made for any personal losses.

NJIUA denied the claim, taking the position that Gianetta had no insurable interest in the property because he was merely Balentine's nominee. In support of its position, the carrier relied upon certain statements made by Gianetta when he was examined under oath by NJIUA's counsel prior to this litigation. In his recorded statement, Gianetta acknowledged that he did not personally pay the taxes, utilities, and other charges on the building; that he was not involved with its ...


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