Glesenkamp

MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS

This action arises out of a dispute as to the extent of coverage afforded under a travel accident insurance policy issued to plaintiff by defendant. Plaintiff sustained injuries which are the subject of this claim while boarding a boat. Defendant refused to honor plaintiff’s claim for these injuries on the ground that the policy afforded coverage only while she was riding as a passenger aboard a boat, not while she was in the act of boarding. Upon defendant’s refusal to honor her claim, plaintiff instituted this lawsuit, alleging causes of action based on fraud, breach of contract, and constructive trust. The breach of contract claim, which was based on defendant’s failure to perform under the terms of the insurance policy, was disposed of on March 19, 1971, when this Court granted plaintiff’s motion for summary judgment as to that cause of action. In satisfaction of this partial summary judgment, plaintiff received the sum of $2,018.43, which represented actual damages in the amount of $1,530 plus interest. Defendant contends that on the basis of the doctrine of election of remedies and res judicata, satisfaction of…