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Friscia v. Andrade

October 9, 2009

ANTHONY FRISCIA, PLAINTIFF-APPELLANT,
v.
ABBOLINO ANDRADE, DEFENDANT, AND HOMESITE INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5879-07.

Per curiam.

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2009

Before Judges Lisa and Baxter.

Plaintiff Anthony Friscia appeals from the grant of summary judgment to defendant Homesite Insurance Company (Homesite) in which the motion judge concluded that he was not entitled to insurance coverage for his property damage claim because he failed to file his Law Division complaint within the one-year suit limitation period specified in the policy of insurance Homesite issued. We agree with the motion judge's conclusion that because Homesite had alerted Friscia on numerous occasions that its policy of insurance contained limitations and conditions, Friscia was bound by the one-year suit limitation provision even though he claimed he never received a copy of the actual policy of insurance. We affirm.

I.

On November 16, 2004, Friscia purchased a homeowner's insurance policy from Homesite by telephone after speaking with Homesite's agent, Abbolino Andrade.*fn1 Shortly thereafter, Homesite issued a policy of insurance to Friscia and sent him a document entitled "Evidence of Insurance for Policy Number 30216205." At the bottom of the fourth and final page of that document, in bold-face type, was this notice:

Important Message[]

These Declarations are not the entire Insurance Policy. All information contained in the Declarations regarding the insured, covered property, coverage limits, deductibles, and premium charges is subject to the specific terms and conditions of the policy contract. Please read your policy contract and amendments carefully. [Emphasis added.]

According to Friscia, he never received a copy of the actual insurance policy, and did not ask Homesite to send it to him.

In November 2005, Friscia renewed his policy for an additional year, covering the period from November 16, 2005 until November 16, 2006. Friscia received a "Renewal Declarations" form from Homesite, as well as various endorsements to the policy, but did not receive a copy of the actual policy of insurance. Again, he did not ask Homesite to send it to him. When it sent Friscia the Renewal Declarations form, Homesite provided the same "Important Message[]" -- directing him to read his "policy contract . . . carefully" -- that it had provided a year earlier.

Shortly after the policy was renewed, Friscia sustained a property damage loss as a result of vandalism and submitted a claim to Homesite. Between December 4, 2005, when Friscia sustained the loss, and April 25, 2006, when Homesite denied the claim, Homesite sent Friscia four separate letters reporting on the status of its investigation or scheduling Friscia's examination under oath. In each of those letters, Homesite made extensive and numerous references to its policy contract. For example, in its February 27, 2006 reservation of rights letter, Homesite observed that it was "reserving our right[] to raise all defenses, policy exclusions and policy conditions in response to [his request] for insurance coverage for this claim." (emphasis added). The February 27, 2006 letter, seven pages in length, contained fourteen quotations from the policy language, each of which concluded with a bold-face reference to the page and paragraph number of the policy provision in question.

Similarly, the March 2, 2006 letter, which scheduled Friscia's examination under oath, referred to the "Cooperation Conditions in [his] Homesite Insurance Policy," specifically referring to page nine of the policy where those Cooperation Conditions were set forth. The April 6, 2006 letter rescheduling Friscia's examination under oath contained a similar reference, noting that Friscia was required to submit to such examination "pursuant to [his] Homesite policy."

On April 25, 2006, when Homesite sent a letter notifying Friscia that his claim had been denied,*fn2 it made numerous references to the actual policy contract it had issued, quoted the policy language, and in one instance referred Friscia to "page 1 of 18," thereby signaling that the policy contract was eighteen pages long. The denial letter concluded with instructions on the filing of an appeal; however, those instructions did not advise Friscia ...


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