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Zurich American Insurance Co. v. Felipe Grimberg Fine Art

February 11, 2008

ZURICH AMERICAN INSURANCE COMPANY, PLAINTIFF,
v.
FELIPE GRIMBERG FINE ART, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

OPINION & ORDER

I. INTRODUCTION

Plaintiff, Zurich American Insurance Company ("Zurich American"), filed this suit against Felipe Grimberg Fine Art, Fine Arts Services, Inc. d/b/a/ Felipe Grimberg Fine Art, Felipe Grimberg (collectively, "Grimberg") and John Does A-Z, on February 17, 2004. Zurich American's allegations arise from an insurance policy issued through its agent Acordia Northeast ("Acordia") on May 18, 1999. Zurich American raises claims (1) that the Fernando Botero ("Botero") painting Tablao Flamenco was not Property Insured under its insurance policy with Grimberg, and that Grimberg may not recover from Zurich American; (2) that the Court take notice of Grimberg's past judicial admissions, and that Grimberg be estopped from denying or altering the past judicial admissions; and (3) that the Court find John Does A-Z liable to Zurich for the painting if it is found that the Painting is Property Insured under the Policy.

Zurich American and Grimberg have filed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Zurich American argues that summary judgment should be granted to it on the grounds that (1) Grimberg is bound by prior judicial admissions with respect to the Painting and is estopped from denying these admissions; and (2) Tablao Flamenco was not Property Insured under the Policy at the time of loss and therefore Zurich American does not owe any coverage for its loss to Grimberg. Zurich American further argues that if summary judgment is denied the Court should grant partial summary judgment on the Third and Sixth Affirmative Defenses of its Answer by declaring that Grimberg is entitled to no more than $500,000 in coverage pursuant to the Policy's $500,000 limit of liability on any one loss at any other location, and that attorney's fees be denied.

Grimberg argues that summary judgment should be granted in its favor on the grounds that (1) Tablao Flamenco was stolen from him as part of a criminal scheme, trick or larceny by false promise; and (2) for the purposes of insurance coverage, title to Tablao Flamenco never passed from Grimberg.

On the facts as set forth in this record and for the following reasons, Zurich American's motion for summary judgment is GRANTED, and Grimberg's motion for summary judgment is DENIED.

II. BACKGROUND

On May 18, 1999, Zurich American issued to Felipe Grimberg Fine Art insurance policy number IM 8338602, CTF #D279FL, for the policy period May 18, 1999, to May 18, 2000. (Chernow June 4, 2007 Aff., Ex. 1 (Merrett June 4, 2007 Aff. [hereinafter "Merrett Aff."] ¶ 4,).)*fn1

The Policy was renewed on May 25, 2000. Id. The Policy provides:

1. PROPERTY INSURED:

(A) This policy insures antiques and object of art of every nature and description usual to the conduct of the Insured's business, being the property of the Insured; or held by them in trust; or on memorandum; or on consignment; or sold but not delivered; or owned on joint account with others; or belonging to others and for which the Insured may be liable; or for which the Insured has assumed liability prior to loss. . . . .

LIMITS OF LIABILITY

The liability of this Company in any one loss, disaster or casualty is limited to: $1,000,000 Blanket over: 1800 Sunset Harbor Drive, Miami Beach, Florida; Day & Meyer Warehouse, 1166 2nd Avenue, New York, New York and Fortress F.A.E. Worldwide Warehouse, 1629 N.E. First Avenue, Miami, FL. $500,000 At any un-named locations/in any one transit including personally conveyed anywhere in the World. (Merrett Aff., Ex. C, Ex. D (insurance policy renewal)) (emphasis in the original).

In or about July 2000, Michel Cohen ("Cohen"), with whom Grimberg had been doing business since the 1980s, contacted Grimberg regarding his interest in a possible purchase of a Botero painting. (Exs. on Behalf of Def. Felipe Grimberg, Ex. D, Grimberg Dep.); (Grimberg June 4, 2007 Aff. ¶ 6 [hereinafter "Grimberg Aff."].) With the intention of selling Tablao Flamenco to Cohen for $785,000, in August 2000, Grimberg traveled to Italy to purchase the paintingfrom Dante Vecchiato Galleria D'Arte in Luca, Italy, for $720,000. (Grimberg Aff. ¶ 7.) Grimberg asserts that, consistent with custom and practice in the fine arts business, and consistent with business dealings between him and Cohen over the previous decade, he arranged to have Tablao Flamenco shipped to Cohen upon verbal agreement. Id. ¶ 10. Grimberg requested and on August 29, 2000, received an endorsement and $300 invoice from Acordia, his insurance broker, increasing the transit limit of insurance coverage for Tablao Flamenco from $500,000 to $785,000 from Pisa, Italy to New York, NY. (Merrett Aff. ...


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