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SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4062-11T1

GERALD L. GUARINO,

Plaintiff-Appellant, v.

IMC MORTGAGE COMPANY, CITY CORP. GROUP, CITY FINANCIAL MORTGAGE COMPANY and MERIDIAN REALTY,

Defendants,

and

SAFECO INSURANCE COMPANY OF AMERICA,

Defendant-Respondent.

___________________________________________________ March 11, 2013 Submitted March 5, 2013 - Decided

Before Judges Fisher and St. John.

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On appeal from the Superior Court of New Division, Morris County, Docket No. L-116-01.

Jersey, Law

Gold, Albanese & Barletti, attorneys for appellant (Anthony V. Locascio, on the brief).

Bonner Kiernan Trebach & Crociata, attorneys for respondent (Alan G. White, on the brief).

PER CURIAM

Plaintiff

commenced

this

action

on

April

19,

2001,

alleging

he sustained

personal injuries at 286 Grant Avenue in Jersey City on May 21, 1999, due to the negligent conduct of defendants IMC Mortgage Company, City Corp. Group, City Financial Mortgage and Meridian Realty. Following a dismissal for lack of prosecution, plaintiff obtained, on December 24, 2003, the action's

reinstatement and leave to file an amended complaint to assert claims against defendant provided Safeco Insurance coverage Company for the of America, of which the was alleged to have

liability

owners

Grant

Avenue premises.

General Insurance Company of America filed an answer asserting that it was improperly identified as Safeco.
1

In 2004, General Insurance moved for summary judgment, arguing that not only did it not provide liability coverage for the premises but plaintiff also

lacked standing to file a direct action against an insurer. The trial judge at the time did not reach the coverage issue but instead, on September 10, 2004, dismissed the action against General Insurance without prejudice because of plaintiff's lack of standing. On July 28, 2006, in an attempt to cure the standing problem, plaintiff

obtained a $1,824,255 default judgment against IMC Mortgage. Plaintiff then sought, without success, to collect on the judgment. Motions to vacate the

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dismissal as to General Insurance were denied without prejudice on January 20, 2009, and February 19, 2010. The judge then assigned to the matter finally vacated the dismissal on June 10, 2011, and also imposed a discovery end date and assigned a trial date. At the discovery again period's that conclusion, the policy General issued Insurance to IMC sought summary

judgment,

arguing

Mortgage provided

liability coverage only for those "insured premises" properly identified by the insured. General Insurance relied on the affidavits submitted in support of its 2004 summary judgment motion. The first, an affidavit of a Safeco underwriter, asserted there was no record of the insured ever identifying the Grant Avenue premises as property to be covered by the existing endorsement for liability coverage. The second, an affidavit of another Safeco representative, identified the circumstances on which a claim, in the amount of $1871.49, was paid to IMC Mortgage on May 5, 1999, for vandalism to the property where plaintiff was injured sixteen days later. This affiant asserted that: the type of policy that this claim was paid under . . . would typically provide coverage to a mortgage company for losses to its financial interest where there had been a failure to provide such coverage by a mortgagor or the mortgagee has assumed control. This policy would only provide liability protection to the insured for claims of third parties if the insured specifically listed a certain property as an "insured premises."

Plaintiff provided no sworn statements in opposition, but argued an inference could be drawn from the two affidavits that General Insurance provided

liability insurance for the Grant Avenue premises. Plaintiff also moved for an extension of the discovery period so his attorney might depose the two affiants regarding the content of their 2004 affidavits. Plaintiff's motion for an extension of discovery was denied, and General

Insurance's summary judgment motion was granted, by orders entered on March 12, 2012.

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Plaintiff appeals, arguing, with respect to summary judgment, that the payment of the vandalism claim gave rise to an inference that the insured listed these premises with General Insurance for purposes of liability coverage and,

therefore, gave rise to a material factual dispute about the extent of General Insurance's coverage. Plaintiff also argues the difficulties in securing the depositions of the two affiants, both of whom resided outside New Jersey and one of whom was no longer employed by Safeco or its subsidiaries, justified an extension of discovery. In a thorough oral opinion, Judge Donald S. Coburn observed that the insurance policy's two relevant endorsements were unambiguous. The first of these,

designated "portfolio securities policy," provided protection to the insured, as mortgagee, in circumstances where the mortgagor failed to insure or maintain adequate insurance. The second, labeled "real estate owned liability coverage endorsement," obligated the insured to mail a notice of its intent, with the payment of the premium, to add specific premises to its liability coverage. The record contained that no the evidence insured to never directly sought rebut General Insurance's for sworn

statements

liability

coverage

the Grant

Avenue property. Instead, as Judge Coburn observed, plaintiff argued only that General Insurance's payment of a vandalism claim pursuant to the "portfolio securities policy" should give rise to an inference that the insured did, in fact, take the required steps to obtain coverage for the Grant Avenue property pursuant to the "real estate owned liability coverage endorsement." The judge correctly found it unreasonable to draw such an inference and granted summary judgment. Judge Coburn also found the lack of exceptional circumstances for extending the discovery period because plaintiff waited until late 2011 or early 2012 to attempt to take the deposition of the Safeco employees who executed the 2004 affidavits. We affirm substantially for the reasons set forth by Judge Coburn in his cogent

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and thoughtful oral decision. Affirmed.

1Safeco is a holding company; one of its companies, General Insurance, issued a policy of insurance to defendant IMC Mortgage, which later changed its name to Citi Financial Mortgage Company.

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