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JOHN AKRIDGE CO. v. TRAVELERS COS.

November 4, 1993

THE JOHN AKRIDGE COMPANY, Plaintiff,
v.
THE TRAVELERS COMPANIES, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 Before the Court are Defendant Travelers Companies' ("Travelers") motion for summary judgment, renewed motion for summary judgment and plaintiff John Akridge Company's ("JAC") cross-motion for summary judgment. Also pending before the Court is Travelers motion based on the failure of plaintiff's counsel to timely respond to defendant's motions or comply with this Court's discovery orders.

 The Facts

 This is an action for a declaratory judgment and other injunctive relief. This Court has jurisdiction under 28 U.S.C. ยง 1332 because of complete diversity of citizenship between the parties and the matter in controversy is in excess of $ 50,000.

 Plaintiff JAC is a corporation with its principle place of business located in Washington, D.C.. Defendant Travelers is an insurance company with its principle place of business in Hartford, Connecticut. This action stems from alleged collapse losses suffered by plaintiff JAC to five parking garage properties located in the District of Columbia. The date of loss claimed for all five buildings is June 7, 1990. The smallest loss claimed is for more than $ 250,000 and the largest loss is for more than $ 600,000. The total loss claimed by JAC for all five buildings is $ 2,077,073.44.

 JAC maintains that the properties were covered by an insurance policy issued by Travelers to JAC for the period February 24, 1990 to February 24, 1991. The policy was issued in Virginia and was delivered to Corroon and Black, JAC's agent in Bethesda, Maryland. The single policy insured properties located in Virginia, Maryland, and the District of Columbia. The policy covered, inter alia, "loss or damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building".

 Pursuant to the policy, JAC filed proof of loss notices with Travelers for two of the D.C. properties on February 1, 1991. Proof of loss notices for the other three D.C. properties were filed on March 22, 1991. In response to the claims, Travelers on August 31, 1990 sent investigators from Forensic Technologies International ("FTI") to examine two of the five D.C. properties. The report issued by the investigators found the buildings structurally sound but noted distress attributed to accumulated wear and tear from the effects of road salt and deferred maintenance. In a letter dated July 25, 1991 Travelers denied the claim and referred to the tests conducted by FTI as a basis for its decision.

 In its complaint, JAC asks for a declaratory judgment that the Travelers insurance policy covers collapse for parts of insured buildings, requests that the Court order an appraisal, and asks that the Court retain jurisdiction in order to review and or confirm appraisal rewards on each property.

 Travelers' defenses include, inter alia, that the lawsuit is time-barred by a "contractually mandated limitations period", that the complaint is barred by waiver, estoppel, and/or laches, that the alleged loss is not covered under the applicable policy issued by Travelers, and that plaintiff JAC failed to mitigate its damages.

 The issue before the Court in the instant motion for summary judgment is whether the suit is time-barred by the applicable statutory or contractual provisions.

 The Suit Provisions of the Contract

 The insurance policy provides in relevant part:

 
D. LEGAL ACTION AGAINST US
 
No one may bring a legal action against us under this ...

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