The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Umar Oriental Rugs (hereinafter, "Umar" or "plaintiff") brought the instant lawsuit against defendant Travelers Property Casualty Company of America (hereinafter, "Travelers" or "defendant"), alleging breach of contract. Specifically, Umar alleges that Travelers breached the terms of an insurance policy with Umar. The central issue in the litigation is whether Travelers should be equitably estopped from denying coverage on the policy with Umar where Travelers cancelled the policy because of $1,150 that was due and owing on the policy even though Travelers was holding a $1,554 credit on another policy with Umar and, according to plaintiff, Travelers' authorized agent had agreed to transfer the credit to satisfy the money owed on the policy at issue.
Defendant moves for summary judgment, pursuant to Federal Rule Civil Procedure 56. Plaintiff cross moves for summary judgment pursuant to Federal Rule Civil Procedure 56. For the reasons stated below, the Court denies the cross-motions for summary judgment.
The facts described below are taken from the parties' depositions, affidavits, exhibits and defendant's Local Rule 56.1 statement of facts.*fn1 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).
In 2000, Umar contacted Travelers via its duly authorized agent Carlson and Carlson, Inc. (hereinafter, "Carlson"). Thereafter, Travelers issued to Umar the following insurance policies: (1) Commercial Inland Marine policy (CIM); (2) Commercial Auto policy (CA); (3) Commercial Umbrella policy (CU); and (4) Commercial General Liability policy (CGL). (Id.) In October 2005, defendant issued Umar a renewal of the Commercial Inland Marine policy (Number QT-660-3636B072-TIL-05) for the period October 3, 2005 to October 3, 2006 (hereinafter, "the Policy" or "the CIM Policy"). (Def.'s 56.1 Statement at ¶ 1.)*fn2 The Policy was written to provide insurance for Umar's stock of oriental rugs. (Id.) The Policy had a $500,000 limit (and a $5,000 deductible). (Id.) The Policy also contained a New Jersey-specific cancellation endorsement. (Id. at ¶ 8.)
On November 14, 2005, Travelers issued to Umar the first bill under the Policy, requiring a minimum payment of $1,156.00 against the total premium due of $4,375. (Id. at ¶ 2.) Travelers never received that payment. (Id. at ¶ 3.) According to plaintiff, the owner of Umar, Ahsan Zubair, informed Doug Carlson of Carlson, the agent of Travelers, in December 2005 or January 2006 that money credited to another insurance policy between the parties should be applied to the account of the Policy in question and Carlson agreed to execute such a transfer. (Zubair Dep. 84, 97-99, Mar. 9, 2007.) As discussed supra, whether this conversation and agreement took place between Zubair and Carlson is disputed by the parties.
On December 14, 2005, Travelers issued a Notice of Cancellation for Non-Payment of Premium on the Policy. The notice stated:
We are pleased to have you as a customer and would like to continue to provide your insurance. Unfortunately, we have not received the premium payment due on this policy. Therefore, your policy shown on this notice is cancelled on the effective date of cancellation shown above, and at the time the policy became effective. We will refund any premium due you. We regret having to take this action, and will be pleased to reinstate this coverage if we receive your payment on or before the effective date of cancellation. In that event, we will send you a notice of reinstatement continuing your coverage.
(Def.'s 56.1 Statement at ¶ 3.) The notice identified January 3, 2006 as the effective date of cancellation, which is more than 10 days from the date of the notice, as required by New Jersey law. (Id. at ¶ 4.) The notice required payment of $4,397, the total amount due under the Policy. (Id.) Travelers mailed the notice of cancellation via first-class mail on December 14, 2005. (Id. at ¶¶ 9, 13.) Travelers' December 14, 2005 mailing of the notice of cancellation is confirmed by a United States Postal Service Form PS 3877. (Id. at ¶ 5.) The Form PS 3877 is datestamped December 14, 2005 and indicates that it was sent to Umar. (Id.)
Prior to the Policy's January 3, 2006 cancellation, Carlson also issued three separate memoranda to Umar warning that the Policy was subject to cancellation for nonpayment. (Id. at ¶ 6.) On January 3, 2006, the Policy was cancelled. In February 2006, after the cancellation, Umar requested and received a billing history from Carlson. (Id. at ¶ 7.) The February 2, 2006 report stated that the Policy (3636B072660) was cancelled in January for nonpayment of the premium. (Id.)
On May 22, 2006, plaintiff discovered a fire loss on its premises in Secaucus, New Jersey, and thereafter notified Travelers and filed a claim. Following the loss, plaintiff sent Travelers a check for $4,397, the amount alleged to be delinquent as related to the Policy. (See Delahunt Aff. at Exh. E, Exh. K at 114.) Travelers declined to accept payment, and issued Umar a return check for the same amount on June 12, 2006. (See id.)
Plaintiff filed its complaint on September 14, 2006. Travelers answered the complaint on November 15, 2006. On September 27, 2007, defendant moved for summary judgment. On November 21, 2007, plaintiff cross moved for summary judgment. The Court held oral argument on the motions on January 3, 2008.
Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (noting that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F. Supp. 2d 252, 256 (E.D.N.Y. 2005). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
A. Cancellation of the Policy
Defendant argues that its cancellation of the Policy was valid and effective as a matter of law.*fn3 Cancellation of property/casualty policies in New Jersey is governed by regulations promulgated by the Department of Banking and Insurance. Specifically, Section 11:1-20.2 of the New Jersey Administrative Code ("Renewal, nonrenewal and cancellation requirements") states, in relevant part:
(e) A policy shall not be cancelled for nonpayment of premium unless the insurer, at least 10 days prior to the effective cancellation date, has mailed or delivered to the insured notice as required in this subchapter of the amount of premium due and the due date. The notice shall clearly state the effect of nonpayment of premium shall be effective ...