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Petcove v. Public Service Electric & Gas

United States District Court, D. New Jersey

January 8, 2019

ROBERT PETCOVE and JILL PETCOVE, Plaintiffs,
v.
PUBLIC SERVICE ELECTRIC & GAS, and AIG PROPERTY CASUALTY COMPANY Defendants.

          OPINION

          William H Walls Senior United States District Court Judge.

         In this breach of contract action, Defendant AIG Property Casualty Company ("AIG") moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). ECF No. 19. Plaintiffs Robert Petcove and Jill Petcove (collectively, "Plaintiffs") oppose. ECF No. 23.[1] Decided without oral argument under Federal Rule of Civil Procedure 78, the motion to dismiss is denied.

         FACTUAL BACKGROUND[2]

         Plaintiffs are husband and wife who previously lived at 23 Furlong Drive, Cherry Hill, New Jersey (the "Property"). Compl. ¶ 1. At all times relevant to this action, AIG insured the Property against damage under an insurance policy with Plaintiffs (the "Policy"). Id. ¶ 8; see also ECF No. 19-4.

         Plaintiffs moved to Florida around July 1, 2017, but Mr. Petcove continued visiting the Property every few weeks. Compl. ¶¶ 9, 12. Plaintiffs' relatives lived on the Property from July through mid-November 2017. Id. ¶ 12. After mid-November, Plaintiffs' friends, family, and workers checked on the Property occasionally. Id. ¶ 14. Plaintiffs listed the Property for sale in November 2017. Id. ¶ 13.

         On January 3, 2018, Plaintiffs' realtor visited the Property and told Mr. Petcove that the Property was cold. Id. ¶ 16. Defendant Public Service Electric & Gas ("PSE&G"), which had provided electric service to the Property, advised Mr. Petcove that same day that it had discontinued electric service on December 5, 2017 due to non-payment. Id. ¶ 18. Mr. Petcove alleges that he never received any billing statements from PSE&G despite having notified the U.S. Postal Service of his new address in Florida. Id. ¶¶ 10, 19. After Mr. Petcove went online and paid the outstanding charges, PSE&G reactivated electricity at the Property at approximately 1:00pm on January 5, 2018. Id. ¶¶ 20, 24-25.

         Later that evening, Plaintiffs' friend checked on the Property and noticed water throughout the house. Id. ¶ 26. Plaintiffs explain that, on or about that same day, frozen pipes burst and damaged the Property. Id. ¶¶ 27, 28.

         Plaintiffs sought coverage for the damage from AIG under their Policy. Id. ¶ 29. AIG refused to provide coverage on the grounds that Plaintiffs failed "to exercise 'reasonable care' to properly maintain heat at the premises." Id. ¶ 31; ECF No. 19-3 at l.[3] Plaintiffs disagree, arguing that they "took all reasonable steps to maintain heat in the Property." Comp. ¶ 32; see also ECF No. 23-1 at 5-11.

         Plaintiffs sued AIG to enforce the parties' Policy, and also sued PSE&G for "the cost to repair and/or replace the damage to the Property" because PSE&G "did not send bills for service" or "advise [Plaintiffs] that the shut off was to occur[.]" Id. ¶¶ 32-34. Plaintiffs assert claims for:

(i) breach of contract against AIG (Count 1);
(ii) breach of contract against PSE&G (Count 2); and
(iii) negligence against PSE&G (Count 3).

         Id. ¶¶ 36-48. AIG moves to dismiss Count 1. ECF No. 19.

         STANDARD ...


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