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GLM Partnership v. Hartford Casualty Insurance Co.

May 11, 2000

GLM PARTNERSHIP, APPELLANT,
V.
HARTFORD CASUALTY INSURANCE COMPANY, APPELLEE.



Before Steadman, Farrell and Glickman, Associate Judges.

The opinion of the court was delivered by: teadman, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Gregory E. Mize, Trial Judge)

Argued March 14, 2000

A building owned by appellant GLM Partnership (GLM) was destroyed in a fire. Appellee Hartford Casualty Insurance Company (Hartford) was the insurer of the building. GLM brought a negligence action against Hartford to recover the difference between its claimed actual loss and the lesser coverage provided by the policy. The trial court dismissed the action. Because GLM executed a valid release of all claims against Hartford upon receipt of the insurance payment for the subject loss, we affirm.

I.

Although some facts have been disputed, the following material facts have been acknowledged by both parties. GLM owned the property at 5601-5611 Georgia Avenue, N.W., Washington, D.C., which housed Morton's Department Store. Since at least 1981, GLM used Catucci, Farley & Snider, Inc. (Catucci), as an independent insurance agent, through whom it purchased coverage from various insurance companies. Beginning in 1985, GLM, through Catucci, contracted with Hartford to provide insurance coverage for the real property in question.

Although the insurance policy was nominally a "replacement cost" policy, by its terms any recovery was ultimately limited by the amount of insurance actually purchased by GLM. The policy also included an automatic inflation guard, which, according to GLM, was intended to automatically increase insurance coverage by 4% for each year of the policy. *fn1 In addition, the policy stated that "[n]o one may bring a legal action against us under the Coverage . . . unless . . . the action is brought within 2 years after the . . . loss." By 1987, GLM carried fire insurance in the amount of $842,625 covering the property.

Prior to GLM's renewal of its policy for 1988, Hartford contacted Catucci. Hartford informed the agent that it estimated the value of the property at only $600,000 and suggested that GLM was over-insuring. Subsequently, GLM renewed its policy with Hartford, through Catucci, to reflect coverage of only $600,000.

On August 5, 1993, the property was destroyed by fire. On November 22, 1993, Hartford tendered a check to GLM in the amount of $763,066.67, of which $674,960 represented the total amount of fire insurance coverage at the time of the loss. *fn2 In connection with the insurance payoff, an agent for GLM executed a "Sworn Statement in Proof of Loss." The statement acknowledged that GLM agreed with Hartford as to the total amount of loss to the building, the actual cash value of the property at the time of the fire, and the amount of insurance coverage. On the same date, the same GLM agent executed a "Subrogation Receipt" (Receipt). On its face, the Receipt acknowledged receipt of the insurance check as "full payment, release and discharge of all claims or demands" against Hartford "arising from or connected with" the fire loss.

On August 5, 1996, three years after the fire, GLM filed a negligence action against Hartford for $600,000. *fn3 In its complaint, GLM alleged that the amount paid by Hartford failed to cover a significant portion of its loss, and that Hartford was responsible for the under-insurance. The case was founded on a compilation of theories arising from Hartford's alleged fiduciary duty towards its insured. GLM claimed that Hartford negligently reduced coverage on the building. It asserted that Hartford underestimated the value of the property by basing its estimate on an incorrect square-footage measurement. GLM also alleged that for the years 1992 and 1993 Hartford failed to automatically increase coverage pursuant to the inflation protection provision of the policy. Finally, GLM claimed that Hartford negligently failed to offer GLM the option of environmental and site cleanup insurance.

Hartford's renewed motion to dismiss or, in the alternative, for summary judgment *fn4 was granted by the trial court on the ground that the suit was in substance one brought under the policy and thus barred by the two-year statute of limitations provided in the policy terms. *fn5 GLM appeals this ruling. *fn6

II.

The disposition of this case on appeal is governed by the oft-repeated standard of review for a grant of summary judgment.

We review the grant or denial of a summary judgment motion de novo. See Walton v. District of Columbia, 670 A.2d 1346, 1353 (D.C. 1996). Summary judgment is appropriate only if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc). It is "`properly granted if (1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party, (3) under the appropriate burden of proof.'" Kendrick v. Fox Television, 659 A.2d 814, 818 (D.C. ...


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