The opinion of the court was delivered by: TROUTMAN
This is an action brought by plaintiff, Charles Carideo, Jr., assignee of Charles Carideo, Sr., upon two policies of insurance covering fire loss to a forty-five foot Diesel sport fishing yacht which was built for Charles Carideo, Sr., by Broward Marine, Inc.
Trial was had before this Court without a jury and evidence in the nature of testimony and exhibits have been introduced by both parties. After due consideration of all the evidence, the Court makes the following
1. Plaintiff, Charles Carideo, Jr., is the surviving executor of the estate of his father, Charles Carideo, Sr. (hereinafter "Carideo"), and also the assignee of the interest of the beneficiaries of his father's estate in claims against Phoenix Assurance Company of New York (hereinafter "Phoenix") and Federal Insurance Company (hereinafter "Federal").
2. On or about February 24, 1966, Charles Carideo, Sr., now deceased, entered into a contract with Broward Marine, Inc. of Fort Lauderdale, Florida, to build a forty-five foot yacht (Exhibit DP-1, N.T. 3).
3. Under the terms of the contract, the yacht was to be completed within five months from the date of signing. All materials intended for the construction of the yacht, from the time when they were set apart for that purpose and the yacht itself, as it existed from time to time, in the process of construction and upon completion, were to immediately become the property of Charles Carideo, Sr. (Exhibit DP-1).
4. In accordance with the terms of the contract, Charles Carideo, Sr. was to make periodic payments towards the $62,000 purchase price, including a $10,000 payment upon the signing of the contract, and four $13,000 payments at various stages of construction, the fourth and final payment to be payable after a satisfactory trial trip when the yacht was to be ready for delivery. (Exhibit DP-1).
5. In accordance with the further terms of the building contract, a contract of insurance issued by The Phoenix Assurance Company, termed Builder's Risk insurance, was taken out covering risk of loss, including fire, such loss being made payable to the parties, namely the builder and the owner, as their interest might appear during the construction (Exhibit DP-2).
6. Prior to the final payment, Charles Carideo, Sr. had paid $49,000 towards the purchase of the described yacht.
7. Building of the yacht was not completed within the five-month period prescribed in the construction agreement but the agreement nevertheless remained in effect.
8. On October 25, 1966, Charles Carideo, Sr., contacted his insurance broker, Zinman, Grossman, Lichtenstein Co., by telephone, spoke to Morrie Zinman and requested insurance on the Yacht VALERIE (N.T. 10, 11).
9. The specific request of Mr. Carideo, now deceased, is confirmed by two handwritten memoranda of the broker written that same day; the first made by Morrie Zinman (Exhibit DP-5) records the telephone conversation with Mr. Carideo, briefly describes the yacht as a "45" Fishman sports twin diesel, identifies the insured, Charles Carideo, and states the approximate amount of coverage needed, i.e., about $60,000; and the second (Exhibit DP-6) covering the specifics of what was required and to be requested of the insurance company, Federal, noting date, "10/25/66", subject matter, "New Boat". The ...