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TIZER v. AMERICAN INS. CO.

March 27, 1995

WILLIAM TIZER t/a BASIN STREET FLOORS, Plaintiff,
v.
THE AMERICAN INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 March 27, 1995

 Plaintiff William Tizer t/a Basin Street Floors has brought this action against defendant The American Insurance Company in order to recover the proceeds allegedly due to plaintiff under an insurance policy issued by defendant. This Court has jurisdiction over this case pursuant to 28 U.S.C. ┬ž 1332 as the parties are of diverse citizenship and the amount in controversy is in excess of $ 50,000 exclusive of interest and costs.

 Currently before me is the motion of defendant for summary judgment and the supplemental motion of defendant for summary judgment as to Count II of plaintiff's complaint. (Document Nos. 7, 14) For the following reasons, the motions will be denied.

 I. FACTUAL BACKGROUND

 The following facts are not in dispute.

 On July 26, 1991, defendant The American Insurance Company issued an insurance policy to William Tizer trading as Basin Street Floors that covered, among other items, plaintiff's business personal property located at 406 Basin Road in New Castle, Delaware. Included in the policy was the following provision:

 4. Legal Action Against Us

 
No one may bring a legal action against us under this insurance unless:
 
a. There has been full compliance with all of the terms of this insurance; and
 
b. The action is brought within 2 years after the date on which the direct physical loss or damage occurred.

 Motion for summary judgment, Exhibit C, Property/Liability Policy section at 16. The policy was in effect from July 26, 1991 to July 26, 1992.

 Plaintiff alleges that he discovered on April 13, 1992 that some of his business property was missing from the 406 Basin Road location. Plaintiff sought payment for the alleged loss from defendant, but defendant refused to make this payment. On Thursday, April 14, 1994, plaintiff filed suit in this ...


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