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KAHN v. LUMBERMENS MUT. CAS. CO.

December 26, 1968

KAHN, Plaintiff,
v.
LUMBERMENS MUTUAL CASUALTY CO. ET AL., Defendants


Travia, District Judge.


The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

This is a motion for summary judgment by defendant LUMBERMENS MUTUAL CASUALTY CO. (LUMBERMENS) on the grounds that suit was brought after the applicable time limitation had expired.

 Plaintiff brings his claim as an assignee of the proceeds due on a binder of insurance between LUMBERMENS and ECCO EQUIPMENT CORP. (ECCO), the assignment being made on February 1, 1965.

 For the purposes of this motion only, defendant LUMBERMENS concedes that a 60 day binder of insurance was issued by it to ECCO on September 23, 1964.

 The crucial dates are as follows:

 September 25, 1964 -- A fire occurred allegedly damaging property insured under the binder;

 November 25, 1964 -- Notice of loss was sent to LUMBERMENS;

 November 30, 1964 -- A non-waiver agreement between LUMBERMENS and ECCO was executed;

 December 4, 1964 -- Plaintiff, representing ECCO, writes to LUMBERMENS about the matter in question;

 May 18, 1965 -- A proof of loss was submitted to LUMBERMENS, this being the last contact between the parties until suit was brought;

 February 25, 1966 -- Suit was instituted.

 LUMBERMENS asks for summary judgment on the grounds that the September 23, 1964 binder automatically embodied in it, as a matter of law, the terms and conditions of the standard policy of fire insurance of the State of New York, one term of which provides that all actions on the policy must be commenced within one year following the loss. The loss occurred on September 25, 1964, and plaintiff's suit, commenced on February 25, 1966, more than one year after the loss, is time-barred, LUMBERMENS asserts.

 Plaintiff, in opposition to the motion, first argues that the binder does not, by reason of its terms, embody the provisions of the standard fire insurance policy but rather provides that the risk set forth in the binder constitutes a risk assumed by LUMBERMENS "until the issuance of its Standard Policy in place thereof." Thus, until a standard policy had been issued, the plaintiff had the right to rely upon the terms of the binder. As the suit was brought under the binder -- no policy of insurance ever having been issued -- the provisions of any subsequent policy that might have been issued do not control, and there was no limitations clause in the binder itself. In short, LUMBERMENS assumed a ...


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