Heyman v. Commerce & Industry Ins. Co., No. 92

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore KAUFMAN, Chief Judge, and FRIENDLY and SMITH; IRVING R. KAUFMAN
Citation524 F.2d 1317
PartiesAnnette HEYMAN, Plaintiff-Appellee, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Defendant-Appellant. ocket 75-7230.
Docket NumberNo. 92,D
Decision Date24 October 1975

Page 1317

524 F.2d 1317
Annette HEYMAN, Plaintiff-Appellee,
v.
COMMERCE AND INDUSTRY INSURANCE COMPANY, Defendant-Appellant.
No. 92, Docket 75-7230.
United States Court of Appeals,
Second Circuit.
Argued Oct. 10, 1975.
Decided Oct. 24, 1975.

Page 1318

Lawrence P. Weisman, Bridgeport, Conn. (Cohen & Wolff, P. C., Bridgeport, Conn., on the brief), for plaintiff-appellee.

John Keogh, Jr., Norwalk, Conn. (James J. Farrell, Norwalk, Conn., on the brief), for defendant-appellant.

Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

Although the basic principles for granting summary judgment 1 are well-established, the frequent recurrence of cases in which granting it is inappropriate persuades us that these underlying tenets bear repetition. In order to elucidate the impropriety of applying summary judgment in the present case involving the interpretation of an insurance settlement agreement, a brief review of the facts is appropriate.

Annette Heyman, a Connecticut resident, owns a shopping center in Westfield, Massachusetts. In April, 1972, she secured a three-year fire insurance policy on this property from the defendant Commerce and Industry Insurance Company. The policy contained a "Replacement Cost Coverage Endorsement" which permitted Heyman, in the event of fire loss, to elect to receive either "replacement cost" or "actual cash value." If she chose "replacement cost" reimbursement, the insurance company's liability would be limited to the smallest of the following amounts:

(a) The amount of this policy applicable to the damaged or destroyed property;

(b) the replacement cost of the property or any part thereof identical with such property on the same premises and intended for the same occupancy and use; or

(c) the amount actually and necessarily expended in repairing or replacing said property or any part thereof.

Replacement Cost Coverage Endorsement, Par. 5 (emphasis added).

On September 10, 1972, a one-story auto-service station/warehouse, 14,000 square feet in size, located in the Westfield shopping center and leased to Sears, Roebuck & Co. was totally destroyed by fire. Heyman promptly submitted a claim to the insurance company alleging the replacement cost of the destroyed property to be $247,265.

After a period of discussions and negotiations, the parties executed a settlement agreement on August 2, 1973. Among other recitals the third introductory clause stated that the

Page 1319

(I)nsured intends to construct a new building at the Sears, Roebuck complex in order to replace the building which was destroyed and construction of the new building has already commenced(.)

(Emphasis added.) The settlement agreement concluded with these provisions:

1. In consideration for payment by insurer to insured of $187,500, the parties for themselves, their successors and assigns, agree to remise, release, and forever discharge any and all claims which they may have against each other arising under the above-mentioned insurance policy including, but not limited to, insured's claim in connection with the above-mentioned fire loss.

2. Payment of the $187,500 shall be made as follows:

$150,000 to be paid, all cash, upon execution of this agreement and $37,500 to be paid, all cash, when insured has proceeded to the stage of construction of the new building where said building shall be water-tight in other words, upon completion of construction of the walls and roof of said building. (Emphasis added)

The insurance company paid, as required, $150,000 upon execution of the agreement. It has refused to pay the additional $37,500 despite notification that the new building is "watertight." The reason assigned for the insurer's unwillingness to disburse the balance is its discovery that the "replacement" building is a single-story structure containing an area of only 4,000 square feet some 10,000 square feet less than the size of the original building. The insurance company argues that its obligation is to pay the remaining $37,500 only if the destroyed building is replaced by a new edifice of comparable size and condition.

Because of Heyman's disagreement over this interpretation, she instituted suit in...

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1014 practice notes
  • Barclays Bank of New York v. Goldman, 80 Civ. 2546 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 22, 1981
    ...Gladstone v. Fireman's Fund Insurance Co., 536 F.2d 1403, 1406 (2d Cir. 1976) (quoting Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975)); Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 262 (2d Cir. 1965), the Court will assume for the purposes of this motion t......
  • Berg v. Watson, No. 75 Civ. 1644 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 8, 1976
    ...the individual defendants is denied. Camire v. United States, 535 F.2d 749 (2d Cir. 1976); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975); Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. Attorney's Fees and Punitive Damages The Supreme Court has established two s......
  • In re Flanagan, Civil Action No. 3:06cv1472 (SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2009
    ...there are issues of fact to be tried.'" In re T.R. Acquisition Corp., 309 B.R. at 835 (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d V. Discussion In seeking to overturn the Bankruptcy Court's entry of summary judgment for MJCC, Titan argues that: (1) there is no f......
  • Richland-Lexington Airport v. Atlas Properties, Civ. A. No. 3:92-750-21.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 3, 1994
    ...the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce & Indus. Ins., 524 F.2d 1317, 1319-20 (2d Cir.1975). The non-movant, however, "cannot create a genuine issue of material fact through mere speculation or the building of one......
  • Request a trial to view additional results
1015 cases
  • Barclays Bank of New York v. Goldman, 80 Civ. 2546 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 22, 1981
    ...Gladstone v. Fireman's Fund Insurance Co., 536 F.2d 1403, 1406 (2d Cir. 1976) (quoting Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975)); Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 262 (2d Cir. 1965), the Court will assume for the purposes of this moti......
  • Berg v. Watson, No. 75 Civ. 1644 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 8, 1976
    ...individual defendants is denied. Camire v. United States, 535 F.2d 749 (2d Cir. 1976); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975); Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. Attorney's Fees and Punitive Damages The Supreme Court has established two s......
  • In re Flanagan, Civil Action No. 3:06cv1472 (SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2009
    ...are issues of fact to be tried.'" In re T.R. Acquisition Corp., 309 B.R. at 835 (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d V. Discussion In seeking to overturn the Bankruptcy Court's entry of summary judgment for MJCC, Titan argues that: (1) there is n......
  • Richland-Lexington Airport v. Atlas Properties, Civ. A. No. 3:92-750-21.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 3, 1994
    ..."cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce & Indus. Ins., 524 F.2d 1317, 1319-20 (2d Cir.1975). The non-movant, however, "cannot create a genuine issue of material fact through mere speculation or the buildi......
  • Request a trial to view additional results

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