Michael F. Schmidt Obtains Summary Disposition Defending A Claim For Property Insurance Benefits
Louis V. Telerico as Assignee of Louis Perry v Nationwide Mutual Fire Insurance Company, Wayne County Civil Action Number 11—015705—CK, was a claim on behalf of Louis Perry for alleged property damage arising from an alleged power surge incident of 8/15/03 causing damage to Louis Perry’s property and contents. Perry’s complaint against Nationwide alleged breach of the insurance policy, unjust enrichment and conversion.
We responded with a motion for summary disposition. We argued that the entire claim was barred by the one year limitation period contained in the policy which provided that any action must be started within one year of the date of the loss or damage but that the period of time between notification of the loss or damage and the formal denial of liability did not apply to the one year period allowed for starting the action.
We argued that the claim for unjust enrichment failed to state a claim because there was a contract existing between the parties and there cannot be an implied contract claim when there is an express contract. We argued that the conversion claim fails to state a claim, because there cannot be a conversion claim for breach of contract for a non-specific sum of money and the conversion claim was also barred by the expiration of the three year statute of limitations. The plaintiff filed a response brief and we filed a reply brief and the court held oral argument.
The plaintiff argued that the one year limitation period did not apply because there was no formal denial of liability. We argued that the insurer sent correspondence which denied each and every claim and advised that the payment made was full and final and that this was certainly a formal denial of liability.
The court agreed with all of our arguments and granted summary disposition holding that the one year limitation period applied and that there had been a formal denial of liability five years before the suit was filed. The court further agreed with our argument that there could be no unjust enrichment claim when there was a contract between the parties. The plaintiff agreed to dismiss the conversion claim at oral argument.