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Viger v. Commercial Insurance Co.

May 19, 1983

SARAH VIGER, ET AL.
v.
COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, APPELLANT



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX

Author: Sloviter

Before: GIBBONS, SLOVITER and BECKER, Circuit Judges

Opinion OF THE COURT

SLOVITER, Circuit Judge.

I.

FACTS

This case originated when plaintiffs filed four separate actions, thereafter consolidated, against St. Croix Fisherman's Cooperative, Inc. d/b/a The Fish Shop, a Virgin Islands corporation engaged in the retail sale of fish and fish products, seeking damages for injuries plaintiffs sustained after consumption of fish purchased at The Fish Shop. The fish was apparently contaminated with ciguatera poisoning. The complaints sought compensatory and punitive damages, alleging, inter alia, breach of warranty, negligence, and failure to warn. After a consent judgment was entered against St. Croix Fisherman's in the consolidated cases for an aggregate amount of $97,500, St. Croix Fisherman's assigned to plaintiffs its rights under an insurance contract with Commercial Insurance Company of Newark, New Jersey.

Plaintiffs then filed this suit against Commercial seeking the $97,500 awarded them in the consent judgment, court costs, and attorneys' fees. In its answer, Commercial disclaimed liability on the grounds, inter alia, that St. Croix Fisherman's had failed to give it proper notice of plaintiff's claim and that the insurance policy did not provide coverage for the acts complained of. Plaintiffs moved for summary judgment, contending that Commercial was collaterally estopped by the consent decree from contesting St. Croix Fisherman's negligence and that coverage could be determined from the language of the policy. After a hearing, at which the only witness was Commercial's expert, Prof. C. Arthur Jaffe, the trial court granted plaintiff's motion for summary judgment. Commercial appeals. We reverse on the ground that the injuries at issue were unambiguously excluded from coverage under the policy.

II. DISCUSSION

A.

Notice

The central question is whether the insurance policy at issue covered the injuries in this case. As a preliminary matter, however, Commercial contends it was given inadequate notice of the claim by St. Croix Fisherman's. The trial court found that "[t]he insurance company was given notice of the complaints filed against the insured" and that there was "no question as to the timeliness or adequacy of this notice." Commercial argues that there was a disputed factual issue as to notice, precluding the grant of summary judgment.

In its answer to the complaint Commercial denied that notice had been given. However, Commercial failed to submit affidavits to contradict the affidavit of St. Croix Fisherman's general manager stating that notice had been given. Naked assertions in the pleadings are insufficient to withstand summary judgment. See Fed.R.Civ.P. 56(e); Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). The mere correspondence between Commercial and plaintiffs' counsel denying notice does not meet the showing ...


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