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February 23, 2000


The opinion of the court was delivered by: Chin, District Judge.


In February 1998 a container filled with ladies' dresses and jumpers was allegedly stolen from the yard area outside a New Jersey warehouse. Sportswear Group, LLC ("Sportswear"), the owner of the dresses and jumpers, filed a claim for the loss with its insurance company Royal Insurance Company of America ("Royal"). In response, Royal brought this action seeking a declaratory judgment that under the terms of the marine cargo insurance policy it issued to Sportswear it is not liable for Sportswear's claimed loss. Sportswear filed a counterclaim against Royal for a declaration that the loss was covered and brought a third-party complaint against both the broker that procured the insurance policy on Sportswear's behalf, Rampart Brokerage Corporation ("Rampart"), and the New Jersey warehouse, Robalo Enterprise, Inc. ("Robalo"). In its amended answer to the third-party complaint, Rampart asserted a claim against Royal for indemnification and cross-claims against Robalo for indemnification and apportionment of responsibility for the claimed loss.

Royal moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) against Sportswear, arguing that the marine cargo insurance policy at issue in this case does not cover Sportswear's loss as a matter of law. Sportswear cross-moves for judgment on the pleadings, pursuant to Fed. R.Civ.P. 12(c), or in the alternative for summary judgment, pursuant to Fed. R.Civ.P. 56, against Royal, contending that its loss is covered by the insurance policy. Rampart also cross-moves for judgment on the pleadings, contending that Sportswear's claims against it must be dismissed because Royal's insurance policy provides coverage for Sportswear's loss. Each of the three moving parties has indicated that its motion is based upon all the pleadings filed in this action.*fn1 For the reasons that follow Royal's motion for judgment on the pleadings is granted and the remaining motions are denied.


Sportswear retained Rampart, a licensed insurance broker, to procure a marine cargo insurance policy on its behalf. (Third-party compl. ¶ 7). According to Sportswear, it sought to replace its existing policy, set to expire, with a new policy containing the same terms. On or about November 2, 1997, Rampart obtained Royal insurance policy POC 102586 (the "Policy") on behalf of Sportswear. (Compl. ¶ 8; Answer ¶ 4; Third-party compl. ¶ 9). The Policy is annexed to the Complaint as Exhibit 1.

It is undisputed that on February 16, 1998, Robalo's employee accepted the container from Jett Trucking and inserted a pin lock in the container chassis. (Compl. ¶ 19; Answer ¶ 10). According to Royal and Sportswear, Robalo did not have personnel on duty to unload the container at the time it inserted the pin lock; as a result, Robalo stored the container on its premises outside the warehouse.*fn2 (Compl. ¶ 16; Third-party compl. ¶ 10). At some point between the evening of February 16, 1998 and the morning of February 17, 1998, the container and its contents were stolen. (Compl. ¶ 21; Answer ¶ 11; Third-party compl. ¶ 10). Sportswear admits that at the time the container and its contents were stolen they "were in the complete care, custody and control of Robalo," and "were no longer in the ordinary course of transit but rather had been delivered to the final destination." (Compl. ¶¶ 26, 27; Answer ¶ 15).

In their motions for judgment on the pleadings, both Sportswear and Rampart contend that Sportswear's stolen goods are insured under either Section I or III of the Policy.

Section I of the Policy contains the following "warehouse to warehouse" provision:

This insurance attaches from the time the goods leave the warehouse and/or store named in the policy for the commencement of the transit and continues during the ordinary course of transit, including customary transshipment, if any, until the goods are discharged overside from the overseas vessel at the final port. Thereafter the insurance continues whilst the goods are in transit and/or awaiting transit until delivered to the final warehouse at the destination named in the Policy or until expiry of (15) days . . . whichever shall first occur. . . .

(Policy, § I ¶ 21, annexed to the Compl. as Exhibit 1). A marine extension clause provides coverage in case of "deviation, delay, forced discharge, reshipment and transshipment." (Id., § I ¶ 22B). Section III of the Policy provides insurance coverage "while [the covered property is] temporarily stored in warehouses at locations listed in the attached Schedule." (Id., § III, ¶ 1). Another paragraph in the same section further provides, "[c]overage hereunder applies only while Property Insured is located at the approved locations shown in the attached Schedule and only for amounts not exceeding the limits shown opposite each location." (Id., § III, ¶ 3). The Policy's Schedule of Approved Locations lists only one location: "333 Hamilton Boulevard, Bldg 5A and 12, South Plainfield, N.J. 07080." Royal contends that because at the time the goods were allegedly stolen they (1) had been delivered to their final destination, and (2) were stored outside rather than inside the Warehouse, neither section of the Policy covers the loss.


A. Judgment on the Pleadings Standard

The parties have moved for judgment on the pleadings. A motion for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994); Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Accordingly, judgment on the pleadings is appropriate only if, drawing all reasonable inferences in favor of the non-moving party, it is apparent from the pleadings that the moving party is entitled to judgment as a matter of law. See United States v. Weisz, 914 F. Supp. 1050, 1052 (S.D.N.Y. 1996). In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, and statements or documents incorporated by reference in the pleadings. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cue ...

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