Simplexdiam, Inc. v. Brockbank

283 A.D.2d 34, 727 N.Y.S.2d 64, 2001 N.Y. App. Div. LEXIS 5697
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 5, 2001
StatusPublished
Cited by9 cases

This text of 283 A.D.2d 34 (Simplexdiam, Inc. v. Brockbank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simplexdiam, Inc. v. Brockbank, 283 A.D.2d 34, 727 N.Y.S.2d 64, 2001 N.Y. App. Div. LEXIS 5697 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Sullivan, P. J.

This is an appeal by an excess insurer affording $3.5 million of additional coverage, “excess of $500,000 each and every loss,” under a conventional all risks jewelers block insurance policy, from the denial of its motion for summary judgment dismissing the complaint for failure to show a loss in excess of the $500,000 threshold necessary to trigger its obligation to pay. The alleged insurable loss, calculated at $1,687,779, is based on an inventory loss that took place over a nine-month period.

Plaintiff Simplexdiam, Inc. (Simplex), a Manhattan-based wholesale jeweler specializing in diamond rings, pendants, bracelets and chains, was insured under a Lloyd’s policy providing an initial $500,000 layer of primary coverage, subject to a $25,000 deductible “each and every loss,” underwritten by 12 syndicates, and a further $3,5 million layer of coverage, “excess of $500,000 each and every loss” for losses occurring during the policy term, underwritten by 12 syndicates, many of which also participated in the primary layer. The policy provided coverage against “all risks of loss or damage to the [insured] property arising [from] any cause whatsoever,” subject to certain exceptions not relevant here.

Although a policy condition (Clause 5 [Condition M]) excepts from coverage “[unexplained loss, mysterious disappearance or loss or damage or shortage disclosed on taking inventory,” that condition was deleted and replaced, at Simplex’s request, by an endorsement entitled “Clause 5 (Conditions) M,” which provided a much narrower exception. It read, “No claim shall attach for goods missing at stock-taking in respect of which no claim has been previously notified unless the loss be proved by the Assured to be due to a peril covered by the policy.”

The facts underlying this lawsuit are as follows. Simplex conducted its last fully reconciled inventory before the loss in question in September 1995. In December 1995 and January 1996, it began to notice that certain items were missing. A “rough inventory” conducted in late January 1996 but never completed was necessarily inconclusive. Toward the end of February 1996, Simplex’s president, although believing that the problem was a logistical one, involving perhaps a breakdown in the company’s internal inventory procedures and one [36]*36not likely to lead to an insurance claim, informed Simplex’s long-time insurance broker of his concerns. When it became apparent in mid-March that the missing inventory still could not be explained, Simplex’s broker, on March 15 and again on April 3, 1996, notified a representative of the insurers of the problem and the potential for a claim. The insurers thereafter arranged for the appointment of an adjuster to investigate the matter.

In April 1996, Simplex attempted a further inventory, which proved unsatisfactory. With the assistance of forensic accountants retained by the insurers, Simplex conducted two further inventories, one in May and the other in June 1996. The latter, the more comprehensive of the two, was the basis of the detailed itemized claim submitted to the insurers on September 18, 1996. That inventory conducted on June 28, 1996 showed a shortage of 12,814 pieces with an inventory value of $1,892,412. According to the methodology utilized by Simplex, not an issue on this appeal, these items mysteriously disappeared in the nine-month period between the September 1995 and the June 28, 1996 physical inventories. Simplex does not deny that it does not know how the shortage occurred or precisely when the jewelry disappeared.

After receiving Simplex’s itemized claim, the insurers’ forensic accountants embarked on an extensive 16-month review of Simplex’s inventory records. On December 22, 1997, partly as a result of the assessment of the claim by the insurers’ accountants, Simplex submitted a revised claim for 12,469 pieces valued at $1,712,779, reflecting its net loss. The insurers have refused to pay any part of the claim, prompting the commencement of this lawsuit. In its complaint, Simplex asserts two causes of action, one for breach of contract and the other for breach of an implied covenant of good faith and fair dealing based, in part, on the insurers’ refusal, without a showing that the loss was not covered by the policy, to pay the claim.

In their answer, the insurers pleaded four affirmative defenses including that the loss claimed is due to “sabotage, theft, conversion or other act or omission of a dishonest character” on the part of Simplex or its employees, an exclusion under the policy. Although lack of timely notice of claim under another policy provision is asserted as an affirmative defense, the limited coverage exception for inventory loss contained in the substituted Clause 5 based on prior notification is not pleaded as a defense to the claim. Nor was it the basis of the summary judgment motion. As noted, Simplex did give prior notice of the [37]*37possibility of a stock shortage before its inventory loss was determined. Thus, the “unexplained loss” or “mysterious disappearance or loss” of Simplex’s inventory is not an occurrence excepted from coverage.

The insurers moved for summary judgment on three grounds, only one of which, Simplex’s alleged inability to establish that it has sustained a loss that exceeds the $25,000 deductible requirement of the primary policy or the $500,000 threshold of the excess policy, was raised on this appeal. Simply stated, the insurers argued that Simplex’s claim consists of an unknown number of multiple “losses” or of an unknown number of multiple “occurrences,” the extent and details of which Simplex would be unable to prove. Thus, Simplex could not prove in the case of each and every loss that the $25,000 deductible was exhausted so as to qualify for coverage under the primary layer of insurance. Similarly, the excess insurers argued that Simplex would be unable to show that the $500,000 threshold had been reached for each and every one of its multiple losses. In response, Simplex argued that it had submitted a single claim for the “unexplained loss” or “mysterious disappearance or loss” of the missing inventory.

Finding that there were issues of fact with respect to the timeliness of Simplex’s notification of claim and as to its lack of cooperation in the insurers’ investigation, the other two issues raised by the insurers’ summary judgment motion, the IAS court denied the motion. The court also held, without elaboration, that “[t]he remainder of [the insurers’] contentions regarding the deductibility threshold have been considered, and are found to be insufficient grounds for summary judgment.” The insurers limited their notice of appeal to “the issue of the * * * threshold.” Subsequent to the filing of the insurers’ brief, Simplex settled its claim against the primary insurers for $477,500, rendering academic the issue as to the application of the $25,000 deductible for each and every loss under the primary layer of coverage. The issue as to the application of the $500,000 threshold for each and every loss as it applies to the excess layer of coverage remains an open issue on appeal, the excess insurers taking the position that Simplex cannot meet its burden of showing that any of the losses for which it seeks indemnification reaches the excess policy’s $500,000 threshold for “each and every loss.”

It is axiomatic that the insured has the burden to show that the loss for which it seeks indemnification is covered. (Lavine v Indemnity Ins. Co., 260 NY 399, 410; Throgs Neck Bagels v GA [38]*38Ins. Co.,

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Cite This Page — Counsel Stack

Bluebook (online)
283 A.D.2d 34, 727 N.Y.S.2d 64, 2001 N.Y. App. Div. LEXIS 5697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simplexdiam-inc-v-brockbank-nyappdiv-2001.