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MONTGOMERY v. FEDERAL INS. CO.

November 2, 1993

R. Alexander Montgomery, Plaintiff,
v.
Federal Insurance Co., Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 In its motion, defendant states the following reasons why summary judgment should be granted in its favor. First, that plaintiff cannot prevail on the breach of contract claim because the evidence clearly shows that plaintiff misrepresented and concealed facts in order to obtain insurance coverage, and therefore has violated the concealment and fraud clause of the insurance policy, as well as Pennsylvania common law. Second, that based upon the evidence of fraud committed by plaintiff, there was good cause to deny plaintiff's claim and thus plaintiff's bad faith claim must fail. Third, there is no evidence to support plaintiff's claims of fraud or tortious interference with contract. Fourth, plaintiff paid the insurance premiums out of a contractual obligation, thus plaintiff's claim of conversion does not satisfy the requisite elements of that tort. Plaintiff's response to the motion for summary judgment raises several reasons why summary judgment should be denied with respect to all of these issues, except that plaintiff now stipulates that summary judgment is appropriate with regard to the tortious interference with contract claim (Count V of plaintiff's complaint).

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 Facts

 This is a case that involves claims of fraud by both parties. According to plaintiff, he is the victim of two "crimes" because his two million dollar Collection has been stolen and because defendant never intended to insure plaintiff and will not now pay out the insurance proceeds owed to him. According to defendant, plaintiff has committed insurance fraud by concealing the fact that his Collection was counterfeit and by now filing an insurance claim for the stolen items.

 This saga began when plaintiff, an 82 year old man, began collecting various military orders, medals and insignia in late 1970. By 1983, he began to pursue a more directed goal with regard to his Collection when he met Mr. Alexander Tenzer, a man who held himself out as an expert in medals and decorations. An arrangement was made whereby Mr. Tenzer began to find various medals for plaintiff to purchase, he would then obtain the medals and sell them to plaintiff, making a commission in the process. Over a period of a couple of years, plaintiff paid at least $ 1,832,755.97 to Tenzer in connection with these sales. By 1985, plaintiff's Collection had been appraised at $ 4,352,085.00 by another medal expert, Mr. John Gross.

 Sometime in July 1990, plaintiff filed an insurance claim with defendant, claiming that a substantial part of the Collection, worth nearly two million dollars, had been stolen. Plaintiff claims that he entrusted the medals with Mr. Tenzer, the man from whom he originally bought the medals, with the hope that Tenzer could find a suitable buyer for the Collection. Plaintiff states that while Tenzer was authorized to exhibit the Collection, he was not authorized to dispose of or sell the Collection. When it appeared that a potential buyer, the Sultan of Brunei, was interested in viewing the Collection, plaintiff requested Tenzer to return it. Apparently Tenzer promised to do so, however, first he stalled and then he claimed he had sent it to another medal expert in Germany. Plaintiff never received the Collection from Tenzer. In October, 1991, defendant denied plaintiff's insurance claim.

 Discussion

 I. Breach of contract claim

 Defendant first claims that summary judgment on plaintiff's breach of contract claim is warranted because defendant was entitled to rescind the insurance policy due to plaintiff's misrepresentations and fraudulent concealment. *fn1" Plaintiff makes several arguments in response to the motion for summary judgment on the breach of contract issue. First, plaintiff asserts that the insurance policy is a "valued" policy which means that it cannot be rescinded due to alleged misrepresentations based on value. Plaintiff essentially argues that because in valued policies the parties agree upon the value of the insured item, and because defendant had the opportunity to ascertain the value of the Collection by performing its own appraisal and did not do so, defendant cannot now deny the claim based on any alleged misrepresentations. Second, plaintiff argues that there are genuine issues of material fact regarding the elements of defendant's claim of misrepresentation. Third, plaintiff argues that defendant was not justified in relying upon the representations of plaintiff and Mr. Wesley-Burke. Finally, plaintiff argues that he had no obligation to disclose the opinions of the auction houses regarding his Collection because fraud only deals ...


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