The above-captioned case arises out of the refusal of the defendants to pay various claims submitted by plaintiff under export credit insurance policies issued by the defendant Foreign Credit Insurance Association ("FCIA") on behalf of the defendant Export-Import Bank of the United States ("Eximbank") and other member companies. The Court presently has before it a plethora of motions and accompanying memoranda of varying degrees of merit and significance. These matters will be considered seriatim beginning with the parties' cross-motions for summary judgment.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The insurance policies underlying the claims in the action were issued to Fleet National Bank ("Fleet") by FCIA
on behalf of Eximbank
and FCIA's member insurance companies. Fleet obtained the policies to insure against nonpayment of loans extended by Fleet to certain Guatemalan buyers for the purchase of agricultural equipment. Simply stated, the policies provide that in the event of non-payment, FCIA will make payment to the insured (Fleet) and, through subrogation, seek recovery against the foreign buyer. In each of the five counts
in the present case, FCIA refused payment under the policies because of Fleet's alleged noncompliance with the terms and conditions of recovery under the insurance contract. Defendants' arguments for summary judgment may be considered in three steps: 1) the effect of the contractual period of limitation; 2) the requirement of "shipment" as a condition precedent to coverage; and 3) the requirement that the insured maintain a policy of hull insurance as a condition precedent to coverage.
1. The Contractual Period of Limitation
The "Medium Term-Comprehensive Export Credit Insurance Policy"
issued to Fleet by FCIA sets forth in detail the procedural requirements and limitations for filing a claim.
Article VI of the policy provides that proof of loss forms must be submitted to the company within "eight months from the date of default." Article IX provides that no civil action shall be commenced until ninety (90) days from the filing of the proof of loss forms. Article IX also states that:
No action shall lie against the Insurers or any of them unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor until 90 days after the required proofs of loss have been filed with the Insurers, nor at all unless commenced prior to the expiration of eighteen months from the date of default.