its principal place of business in that state. In addition, defendant has, or at least had at the time of the transaction, a licensed agent in Florida. Moreover, it is significant to note that the state courts of Florida originally exercised jurisdiction over this case since the Clay test is framed in terms of sufficient contact to give a Florida court jurisdiction of a suit. Therefore, Fla. Stat. Ann. § 95.03 applies to the facts of the present case and plaintiff's suit is not barred by the one-year time limitation of the policy.
Defendant's second contention is that summary judgment should be granted because the plaintiff has no insurable interest in the premises. To be entitled to summary judgment under Rule 56(c) of the F.R.C.P., defendant must show that no genuine issue of fact exists. Here, an issue of fact does exist with reference to whether defendant is estopped to deny that plaintiff has no insurable interest in the premises.
The certificate of insurance on the store 481 premises names as insureds plaintiff, KBC, Inc., Burger King of Pa., Inc., and South Kendall Properties, Inc.
Over a period of years, it is alleged, defendant had insured various "Burger King" restaurants. It appears that it is customary in the fast food industry to lease such restaurants to franchisees with titles being held by subsidiaries of the franchiser. Where an insurer has actual knowledge of an insured's interest in property and of an insured's customary manner of doing business, the insurer may be estopped to deny an insurable interest after a loss occurs. See 3 Couch on Insurance 2d, § 24.10 and the cases cited therein. Because a genuine issue of fact exists as to defendant's estoppel to deny an insurable interest in the premises, summary judgment cannot be granted as to this issue.
Defendant also contends that it is entitled to summary judgment in that plaintiff has failed to join the real parties in interest, namely the holder of title to store 481 and the lessee and sublessee of the premises. In substance, this contention rests upon the same considerations as does defendant's second basis for seeking summary judgment -- that plaintiff has no insurable interest in the premises. This argument rests ultimately, as does defendant's second contention, upon the determination of issues of fact. Therefore under Rule 56(c) summary judgment is precluded. Moreover, the question of whether joinder of additional parties is necessary to avoid prejudice to the interests of either plaintiff or defendant
turns upon factual determinations not yet apparent on the record. Summary judgment will be denied as to defendant's third contention.
Finally, defendant contends that it is entitled to partial summary judgment on the ground that the policy of insurance does not provide business interruption coverage when the loss of income was caused by earth movement or landslide. The basis of defendant's argument is that business interruption coverage was available only for certain named perils, and that earth movement was not among those perils itemized in the policy.
Defendant's motion for partial summary judgment on this basis is denied. Assuming that the loss was the result of earth movement, the extent of coverage provided by the insurance policy is not necessarily ascertainable from the face of the contract. In order to construe the terms of the policy to determine the extent of the coverage resort must be had to extrinsic evidence.
Therefore, mindful that to prevail on a motion for summary judgment, (1) the moving party must clearly demonstrate the absence of a genuine issue of material fact; (2) that all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, First Pa. Banking and Trust Co. v. U.S. Life Insurance Co., 421 F.2d 959 (3rd Cir. 1969); and (3) that neither factual inferences nor credibility issues are to be resolved in favor of the moving party, First Pa. Banking and Trust Co. v. U.S. Life Insurance Co., supra, and generally, 6 Moore's Federal Practice para. 56.15, I find that the defendant is not entitled to summary judgment under the standard set by Rule 56 of the F.R.C.P.
An appropriate Order denying defendant's motion for summary judgment will be entered.
AND NOW, to wit, this 3rd day of April, 1973, in consideration of the foregoing Opinion, IT IS ORDERED that the Motion For Summary Judgment made by the defendant Continental Insurance Corporation be and the same hereby is denied.