The opinion of the court was delivered by: VANARTSDALEN
This is a diversity action in which the assignee of an insurance policy is suing the insurer to collect for damages to the insured premises resulting from a fire which occurred on May 15, 1976. The defendant has filed a motion to dismiss and the following facts as alleged in the complaint will be accepted as true and correct for the purposes of resolving this Rule 12(b)(6) motion. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972); Clark v. Gulf Oil Corporation, 570 F.2d 1138, slip opinion p.4, n.1 (3d Cir. 1977).
On April 30, 1976, the defendant issued to the plaintiff's assignor a binder of insurance covering damage resulting from fire, vandalism and/or malicious mischief. This binder covered the premises for the period from April 30, 1976 to June 29, 1976. On May 15, 1976, the premises and contents therein were destroyed by fire resulting in damages in the amount of $128,043.14. Plaintiff's assignor notified the defendant on May 17, 1976 and submitted a full statement of loss and proof thereof on June 22, 1976. The defendant proceeded to investigate the claim and denied coverage on November 30, 1976. Plaintiff instituted this suit in the Court of Common Pleas of Philadelphia County almost one year later, on November 16, 1977 and it was thereafter removed to this court on December 5, 1977.
Defendant argues that on this statement of facts, it has a complete defense in the nature of a statute of limitations defense based on Pa. Stat. Ann. tit. 40 § 636, which provides in pertinent part:
1. As used in this section, the term "fire insurance" shall mean insurance against loss by fire, lightning or removal, as specified in paragraph (1) of subsection (b) of section 202 of this act, as amended, and the term shall not include insurances of the kind specified in any other portion of that section, amended as aforesaid, whether or not the risks of fire, lightning or removal be included.
2. Except as provided elsewhere in this section, no insurance company, association or exchange shall issue a policy affording fire insurance, as defined in this section, on property in this Commonwealth, unless such policy contains the following provisions as to such insurance:
Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.
(emphasis supplied). The defendant argues simply that, as provided for by this statute, the policy in question requires that a suit to recover compensation under the policy must be instituted within twelve (12) months of the date of the loss and that the loss here having occurred on May 15, 1976 and the suit not having been filed until approximately eighteen (18) months later, on November 16, 1977, this provision should be enforced and the action dismissed.
The plaintiff responds to this argument by noting that the binder in question provides coverage for damage resulting from vandalism and malicious mischief as well as fire. As such, he argues that this binder does not come within the definition of "fire insurance" as set forth in Pa. Stat. Ann. tit. 40 § 636(1) and that, therefore, the provisions which are required to be included in a "fire insurance" policy by Pa. Stat. Ann. tit. 40 § 636(2) do not apply to this binder.
Section 636(1), as quoted above, refers to § 202(b)(1) of the Act, Pa. Stat. Ann. tit. 40 § 382(b)(1), as specifying the types of coverage which constitute "fire insurance." That section provides:
(b) Stock fire insurance companies may be incorporated for any or all of the purposes mentioned in paragraphs (1) and (2) of this subdivision; stock marine insurance companies may be incorporated for any or all of the purposes mentioned in paragraphs (2) and (3); and stock fire and marine insurance companies may be ...