Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alloush v. Nationwide Mutual Fire Insurance Co.

February 26, 2008

AHMED K. ALLOUSH, PLAINTIFF,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action in New York State Supreme Court in the County of Albany on August 19, 2005, and served Defendant on August 22, 2005. Defendant filed an answer to the complaint on September 19, 2005, and, on the same day, filed a petition to remove the action to this Court based upon the parties' diversity of citizenship.

In his complaint, Plaintiff asserts three causes of action. In his first cause of action, he seeks an "order and judgment . . . establishing, determining and adjudging the rights of the parties under the Policy and, furthermore, declaring that [Defendant] is obligated to pay the Plaintiff the sum of $55,024.02 as and for depreciation . . . ." See Complaint at ¶ 27. In his second cause of action, Plaintiff alleges that Defendant has breached the insurance contract by refusing to pay him the sum of $55,024.02 "unless Plaintiff resides on the replacement premises as his permanent residence and domicile." See id. at ¶¶ 29-30. Finally, in his third cause of action, Plaintiff claims that he has been damaged in the amount of $20,570.00 "as a result of the false and fraudulent representations of . . . [Defendant] . . . ." See id. at ¶ 33.*fn1

Currently before the Court is Defendant's motion to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure or for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In support of its motion, Defendant contends, among other things, that Plaintiff has no claim against Defendant for replacement costs because he has not replaced the insured premises.

II. BACKGROUND

In March 2003, Plaintiff and Defendant entered into an insurance contract ("the Policy") covering the period from March 19, 2003, through March 19, 2004, for the property located at 3666 Carmen Road, Guilderland, New York ("the insured premises"). See Answer at ¶ 5. On August 24, 2003, a fire caused damage and substantial destruction to the insured premises. See id. at ¶ 6; Complaint at ¶ 4; Defendant's Statement of Material Facts at ¶ 4.

Defendant estimated the damage to the insured premises under the "Coverage A -- Dwelling" section of the Policy to be $196,849.26 on a replacement cost value ("RCV") basis and $141,825.24 on an actual cash value ("ACV") (depreciated value) basis, leaving the potentially recoverable depreciation (commonly referred to as "holdback") to be $55,024.02. See Defendant's Statement of Material Facts at ¶ 6. Plaintiff submitted a "Sworn Statement in Proof of Loss" and a "Statement as to the Full Cost to Repair or Replacement Under the Replacement Cost Coverage Subject to the Terms of the Policy" to Defendant making a claim for this amount. See id. When an insured makes a claim under the Policy on an ACV basis, he may later make a claim for any added loss based on the cost to repair or replace (the holdback) within 180 days after the loss. See Defendant's Statement of Material Facts at Exhibit "A" at E2. The Policy also contains a two-year contractual suit limitation condition that precludes a policyholder from commencing litigation against Defendant unless (1) there has been full compliance with the Policy's provisions and (2) the action has been commenced within two years of the date of the loss. See id. at E3.

Defendant paid Plaintiff the actual cash value of the damages to the insured premises on or around February 19, 2004. See Defendant's Statement of Material Facts at ¶ 14. Thereafter, Plaintiff completed repairs on the insured premises. However, he did not make a claim for the holdback on that basis because he could not substantiate expenditures in repairing the insured premises in excess of the actual cash value that Defendant paid to him. See id. at ¶ 16. Instead, even though Plaintiff decided to repair the insured premises and continued to reside there, he wanted to recover the holdback by purchasing another property. See id.

Around July 2005, Plaintiff contacted Defendant and informed Defendant that he intended to buy a single-family house at 63 Marvin Avenue, Somerset, New Jersey, as a replacement for the insured premises.*fn2 See id. at ¶ 20. Defendant informed Plaintiff and his public adjuster about the Policy's two-year contractual suit limitation condition and the need for Plaintiff to replace the insured premises before that time period expired.*fn3 See id. at ¶ 23. Furthermore, it is clear from an e-mail that Plaintiff's public adjuster wrote on July 1, 2005, to Defendant, in which he stated that "[t]he deadline to file this holdback is August 24th," that he understood what the Policy required in this regard. See id.

At the time that he filed this action, Plaintiff had not replaced the insured premises.

III. DISCUSSION*fn4

A. Plaintiff's Breach-of-Contract Claim

In his second cause of action, Plaintiff claims that he "has duly demanded that [Defendant] pay the sum of $55,024.02 as and for depreciation . . . upon replacement of the insured premises with another premises . . . [;] [t]hat [Defendant] has refused to make said payment unless Plaintiff resides on the replacement premises as his permanent residence and domicile . . . [; and] [t]hat, by reason of said breach of contract by . ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.