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  5. 885 F.2d 132 (1989)
 

AMERICAN HARDWARE MUT. INS. CO. v. BIM, INC.

Nos. 88-3189, 88-3208.

885 F.2d 132 (1989)

AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Appellee, v. BIM, INC., a West Virginia corporation, Defendant-Appellant, and Timothy N. Rexroad, Defendant. Jimmy Dale POYNER, d/b/a J & D Rental Sales; Rotal Corporation, d/b/a Spanky and Alfalfa's; Betty L. Phillips, d/b/a Little Britches, Inc.; Sharon S. Stowers, d/b/a Modern Hair Design, Appellants, American Hardware Mutual Insurance Company, a corporation, Plaintiff-Appellee, v. BIM, INC., a West Virginia corporation; Timothy N. Rexroad, Defendants.

United States Court of Appeals, Fourth Circuit.

Decided September 6, 1989.

Rehearing and Rehearing Denied October 17, 1989.

Attorney(s) appearing for the Case

Sterl F. Shinaberry, Charleston, W. Va., (J. Burton Hunter, III, Randall C. Levine, Buckhannon, W. Va., on brief) for defendant-appellant.

James Robert Watson (Steptoe & Johnson, Charleston, W. Va., on brief) for plaintiff-appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and KAUFMAN, Senior District Judge for the District of Maryland, sitting by designation.

Rehearing and Rehearing In Banc Denied October 17, 1989.

PHILLIPS, Circuit Judge:

This is an appeal by B.I.M., Inc. (BIM) from summary judgment entered against it in a declaratory judgment action by American Hardware Mutual Insurance Company (American Hardware) seeking to establish non-coverage with respect to a fire loss under a binder issued by an American Hardware agent. Because we conclude that genuine issues of fact respecting BIM's claims of waiver or...

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