United States District Court, D. New Jersey
William H Walls Senior United States District Court Judge.
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. Decided without
oral argument under Federal Rule of Civil Procedure 78, the
motion to dismiss is denied.
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.
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.
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.
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.
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
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.
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).
¶¶ 36-48. AIG moves to dismiss Count 1. ECF No. 19.