Suit Gallery Five Star Men's Wear v. Granite State Ins.
Granite State Insurance Company (Granite State) insured Sam's Suit Gallery, Inc. (Sam's), a men's wear store. Following a burglary at the store, The Suit Gallery Five Star Men's Wear, Inc. (Five Star) made a $327,432.31 claim against the policy. Granite State rescinded the policy due to the insured's failure to disclose, in its insurance application, two prior burglaries at the store. Five Star filed suit against Granite State. The court sustained without leave to amend Granite State's demurrer with respect to the cause of action for breach of contract as asserted by Five Star in its capacity as a third party beneficiary of the policy. It also granted Granite State's motion for summary judgment, due to the material misrepresentation in the insurance application. Five Star appeals.
Five Star argues that the court erred in sustaining the demurrer and that Five Star should have been able to enforce the policy provisions and sue for breach of contract as a third party beneficiary of the policy. Five Star also contends that the court erred in granting summary judgment based on Granite State's right to rescind the policy. It asserts there was a triable issue of material fact as to whether the insurance application was completed by agents of Granite State, such that their failure to obtain a full loss history and disclose the prior burglaries should have been imputed to the insurer. In addition, Five Star maintains that Granite State's failure to comply with the policy provision requiring the insurer to act upon a claim within 30 days of receipt of a sworn statement of loss precludes it from rescinding the policy. Finally, Five Star maintains that public policy favors the denial of summary judgment.
Five Star failed to raise a triable issue of material fact precluding summary judgment. Given that the court properly granted summary judgment on the basis of Granite State's right to rescind the policy, we need not address Five Star's arguments with respect to the third party beneficiary issues and the demurrer. We affirm.
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