MICHAEL O'CONNOR VS. ZOHRA, LLC (L-3951-16, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1242-19
MICHAEL O'CONNOR and
ASLIHAN O'CONNOR,
Plaintiffs-Respondents,
v.
ZOHRA, L.L.C.,
Defendant-Appellant,
and
ZOHRA, L.L.C.,
Defendant/Third Party
Plaintiff-Appellant,
v.
MEHMET EMIN TEKIN, SILK
CITY AUTO MALL, ACCEPTANCE
INDEMNITY INSURANCE
COMPANY, SCHUMACHER
INSURANCE AGENCY, and
REGENCY INSURANCE
BROKERAGE SERVICES, INC.,
Third-Party Defendants/
Respondents.
________________________________
Argued April 12, 2021- Decided May 3, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3951-16.
Kevin E. Wolff argued the cause for appellant Zohra,
L.L.C. (Kinney Lisovicz Reilly & Wolff, PC, attorneys;
Kevin E. Wolff and Kathleen J. Devlin, of counsel and
on the briefs).
Paul M. DiGasbarro argued the cause for Third-Party
Defendant-Respondent Acceptance Indemnity
Insurance Company (Pomeroy Heller & Ley, LLC,
attorneys; Karen E. Heller and Paul M. DiGasbarro, on
the brief).
Joseph Ross argued the cause for Third-Party
Defendant-Respondent Schumacher Insurance Agency
(Lydecker Diaz, attorneys; Lee Patten and Joseph Ross,
of counsel and on the brief).
PER CURIAM
Michael O'Connor (plaintiff) was injured when during the course of his
employment a garage gate fell on him as he attempted to close it. The gate was
located on property owned by defendant Zohra, LLC, (the Landlord or Zohra),
which Zohra leased to third-party defendant Mehmet Emin Tekin (Mehmet
Tekin or Tenant). Plaintiff settled his personal injury case and is not involved
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in this appeal. Third-party defendant Silk City Auto Mall (Silk City), a used car
dealership, employed plaintiff. Mehmet Tekin and his son, Yasin Tekin, are
shareholders of Silk City.
This appeal involves Zohra, Mehmet Tekin, third-party defendant
Acceptance Indemnity Insurance Company (Acceptance), and third-party
defendant Schumacher Insurance Agency (Schumacher). Zohra alleged that
Acceptance failed to name it as an additional insured and otherwise provide
insurance coverage to Zohra for plaintiff's accident. Zohra also alleged
Schumacher deviated from accepted standards in the insurance-agency industry
by failing to review the lease between Zohra and Mehmet Tekin, and then
procure necessary insurance to Zohra for plaintiff's accident.
After conducting a bench trial, a judge entered an October 9, 2019
judgment in Zohra's favor concluding that Mehmet Tekin was solely responsible
for plaintiff's accident. In addition to listing the October 9, 2019 judgment in
its Notice of Appeal, Zohra appeals from four interlocutory orders. Three are
dated May 6, 2019: (1) denying in part Zohra's motion for summary judgment;1
1
Without specifically briefing arguments challenging this order, it appears from the
Case Information Statement and Notice of Appeal that Zohra contends the judge
erred by summarily denying its claim for contractual indemnification. We affirm
this order because genuine issues of material fact precluded summary judgment on
this issue, as explained by the judge.
A-1242-19
3
(2) granting summary judgment to Schumacher Insurance Agency
(Schumacher); and (3) granting summary judgment to Acceptance. The fourth
order, dated May 31, 2019, denied in part Zohra's reconsideration motion.
We affirm all orders under review.
I.
In support of Zohra's motion for summary judgment, Zohra argued the
Lease required Tenant to maintain the gate that caused plaintiff's accident, that
Zohra was entitled to contractual indemnification from Mehmet Tekin pursuant
to the Lease, that Zohra was entitled to insurance coverage from Mehmet Tekin
pursuant to the Lease and that it should not be liable for plaintiff's unpaid
medical bills because the employer failed to secure workmen's compensation
insurance. The judge granted the motion in part and denied the motion in part.
The judge concluded that Mehmet Tekin failed to obtain general liability
insurance coverage pursuant to the Lease, and instead procured a limited Garage
Policy which disclaimed coverage for plaintiff's injuries, because they would
otherwise be covered by workmen's compensation insurance. The judge found
that Mehmet Tekin was responsible for Zohra's costs to defend plaintiff's
allegations, but denied Zohra's request for indemnification.
A-1242-19
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In support of Schumacher's motion for summary judgment, Schumacher
argued that Zohra's sole claim against it was that Schumacher breached accepted
standards by failing to produce the insurance which Silk City had requested, and
that if it had done so, Zohra would be afforded coverage under that insurance
policy. It further argued that the report of Zohra's broker liability expert (Luu
Report) constituted a net opinion. The judge granted Schumacher's motion and
issued a written statement of reasons. The judge concluded that the Luu Report
was inadmissible net opinion and that, regardless of the actions of Schumacher's
employee, Zohra was not entitled to insurance coverage under the policy
because of the employee exclusion in the Acceptance policy.
In support of Acceptance's cross-motion for summary judgment,
Acceptance argued the employee exclusion precluded coverage to Zohra for
plaintiff's injuries. The judge granted Acceptance's motion and issued a written
statement of reasons. The judge determined that at the time of the accident,
plaintiff was an employee of Silk City, the insured under the Acceptance policy,
squarely triggering the employee exclusion and precluding coverage to Zohra
for plaintiff's injuries.
Zohra filed a motion for reconsideration arguing the judge incorrectly held
that the employee exclusion barred its insurance coverage claim. Zohra also
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argued the judge incorrectly held that Mehmet Tekin was not compelled to
provide insurance coverage to Zohra under the Lease. The judge concluded that
the employee exclusion precluded coverage because Zohra was not an additional
insured on the Acceptance policy. But the judge determined that, consistent
with his order that Mehmet Tekin pay defense costs, Mehmet Tekin was
otherwise obligated under the lease to provide $1,000,000 in insurance coverage
to Zohra.
On appeal Zohra raises the following points for this court's consideration:
POINT I
THE STANDARD OF APPELLATE REVIEW OF A
GRANT OF SUMMARY JUDGMENT IS DE NOVO
AND AN ABUSE OF DISCRETION STANDARD IS
APPLIED WHEN REVIEWING A TRIAL [JUDGE'S]
DECISION AS TO EXPERT TESTIMONY[.]
POINT II
THE MOTION [JUDGE] ERRED IN GRANTING
SUMMARY JUDGMENT TO SCHUMACHER[.]
A. THE MOTION [JUDGE] ERRED IN
FINDING THE LUU REPORT WAS NET
OPINION[.]
B. IF SCHUMACHER REVIEWED THE
LEASE AND MADE SURE ZOHRA WAS
IDENTIFIED AS AN ADDITIONAL INSURED
IN THE ACCEPTANCE POLICY, ZOHRA
WOULD BE ENTITLED TO COVERAGE
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BECAUSE THE EMPLOYEE EXCLUSION
DOES NOT APPLY TO ZOHRA[.]
POINT III
THE MOTION [JUDGE] ERRED IN FINDING THAT
THE ACCEPTANCE POLICY DOES NOT PROVIDE
COVERAGE TO ZOHRA[.]
A. THE MOTION [JUDGE] ERRED IN
FINDING THAT THE EMPLOYEE
EXCLUSION APPLIED TO ZOHRA[.] (Raised
Below).
B. ZOHRA WAS AN INTENDED THIRD-
PARTY BENEFICIARY UNDER THE
ACCEPTANCE POLICY[.] (Raised Below).
C. THE ACCEPTANCE POLICY PROVIDES
COVERAGE FOR GARAGE OPERATIONS
THROUGHOUT THE UNITED STATES OF
AMERICA[.] (Raised Below But Not Decided).
II.
We begin by addressing Zohra's contention that the judge abused his
discretion by finding the Luu Report, authored by Gwenyth P. Luu of JGS
Insurance, constituted a net opinion. Zohra argues that this ruling erroneously
led to summary judgment in Schumacher's favor. Zohra maintains the Luu
Report demonstrates Schumacher breached accepted standards in the insurance
agency field by failing to review the Lease, and had it done so, Schumacher
would have realized that Zohra was entitled to additional insured coverage.
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We review a ruling on a summary judgment motion under the same
standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment
is appropriate "if the pleadings, depositions, answers to interrogatories an d
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). We "must accept
as true all the evidence which supports the position of the party defending
against the motion and must accord him [or her] the benefit of all legitimate
inferences which can be deduced therefrom[.]" Brill, 142 N.J. at 535 (first
alteration in original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).
"When . . . a trial [judge] is 'confronted with an evidence determination
precedent to ruling on a summary judgment motion,' it 'squarely must address
the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)
(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85
(2010)). "[Our] review of the trial [judge]'s decisions proceeds in the same
sequence, with the evidentiary issue resolved first, followed by the summary
judgment determination of the trial [judge]." Ibid.A-1242-19
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The admission or exclusion of expert testimony is within the trial judge's
sound discretion. Id. at 52 (citing State v. Berry, 140 N.J. 280, 293 (1995)).
"Absent a clear abuse of discretion, an appellate court will not interfere with the
exercise of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198,
247 (App. Div. 2014) (quoting Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App.
Div. 2013)). An abuse of discretion occurs when a decision is "made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002) (citation omitted).
N.J.R.E. 702 governs the admissibility of expert testimony and states that:
"[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." The rule imposes three
requirements:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
A-1242-19
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[Pierre, 211 N.J. at 53 (quoting Creanga v. Jardal, 185
N.J. 345, 355 (2005)).]
Additionally, N.J.R.E. 703 mandates that expert opinions be grounded in
"facts or data derived from (1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally relied upon by
experts." Ibid. (quoting Polzo v. County of Essex, 196 N.J. 569, 583 (2008)).
"It is well-established that the trial [judge] 'must ensure that [a] proffered
expert does not offer a mere net opinion.'" Satec, Inc. v. Hanover Ins. Grp., Inc.,
450 N.J. Super. 319, 330 (App. Div. 2017) (second alteration in original)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).
"Such an opinion is inadmissible and 'insufficient to satisfy a plaintiff's burden
on a motion for summary judgment.'" Ibid. (quoting Arroyo v. Durling Realty,
LLC, 433 N.J. Super. 238, 244 (App. Div. 2013)).
The net opinion rule "forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data." State v.
Townsend, 186 N.J. 473, 494 (2006). A conclusion "based merely on unfounded
speculation and unquantified possibilities" is inadmissible. Pierre, 221 N.J. at
55 (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). The
rule requires that an expert provide "'the why and wherefore' that supports the
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opinion, 'rather than a mere conclusion.'" Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper, 207 N.J.
at 372)).
Moreover, the expert may not base his or her opinion solely on his or her
own subjective standard. Pomerantz Paper, 207 N.J. at 373 (stating "if an expert
cannot offer objective support for his . . . opinions, but testifies only to a view
about a standard that is 'personal,' it fails because it is a mere net opinion"). In
other words, experts must "be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both the factual
bases and the methodology are reliable." Pierre, 221 N.J. at 55 (quoting
Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). However, experts may
base their opinions on their personal experience and training. See Townsend,
186 N.J. at 493; see also Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App.
Div. 2002) (emphasizing that "[e]vidential support for an expert opinion is not
limited to treatises or any type of documentary support, but may include what
the witness has learned from personal experience").
The Luu Report—three short paragraphs—is just over two pages and
includes a single attachment. In a conclusory fashion, Luu opined that "based
on [her] training, education and experience" and review of the listed documents
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that "there exists within a reasonable degree of probability that the care, skill,
or knowledge exercised and/or exhibited by Schumacher . . . [i]n securing
appropriate [i]nsurance coverage" for Zohra as a third-party beneficiary "fell
below the professional standards of due care." She opined that this included the
failure to review the lease between Mehmet Tekin and Zohra to verify the correct
name of the landlord, the insurance obligations of the tenant/insured, and the
locations and addresses of the tenant/insured's business. Specifically,
Schumacher failed to verify the name of the landlord "despite being aware that
there were likely requirements in the lease regarding insurance requirements;"
consider if the minimum coverage amounts were sufficient for a used car dealer;
and verify that an inspection of Silk City was performed by Acceptance that
would have confirmed the locations and addresses of the insured's business. In
her report, Luu opined that it is common practice for professional insurance
agents to use a "new/renewal business checklist" to ensure full comprehension
of their client's operations and interest of legal entities to be named on the policy.
Luu attached an example of the above referenced checklist, titled "New Business
Submission Checklist," to her report. The report sets forth a checklist aimed to
assist insurance agents in getting their accounts to the "top of [their]
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[u]nderwriter's pile." She did not reference or attach any specific insurance
industry standards of care, treatises, or sources.
The judge concluded that the Luu report was net opinion and inadmissible
to establish a theory of liability as to Schumacher. With respect to the report,
the judge stated:
A review of [the Luu Report] with regard to
Schumacher, demonstrates a lack of factual support in
reaching the conclusions contained in the report. In
contrast[,] the Ahart Report, prepared for Schumacher,
contains numerous citations and specific references to
the documentary record and footnotes referencing other
bases for [Ahart's] analyses. [Ahart] explains that
case[] law is part of what various sources such as trade
associations and educational programs teach producers
and describes how is understanding of Rider v. Lynch,
[42 N.J. 465 (1974)] . . . informs his expert opinion that
Schumacher fulfilled its duties. [Ahart] further notes
the consistency of his opinion with The Chartered
Property and Casualty Underwriter [(CPCU)]
designation program. [Ahart's] analysis of [the Luu]
[R]eport concluded that it attempted to impose a higher
duty than is appropriate for a producer such as
Schumacher. His review of the Luu Report, the
discovery record, and professional standards defined by
CPCU concludes that the Luu Report[] attempts,
without citation to authority, to impose duties on
Schumacher "beyond those of a customary producer"
and "more appropriate to duties of a fee[-]based risk
manager."
Luu did not cite to any part of the documentary record to support her
conclusions. Zohra cites to no authority —and indeed none exists —for its
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proposition that simply listing the documents provided to Luu for review
satisfies its evidentiary burden. Luu's report merely references a "New Business
Submission Checklist," which does not set forth any insurance industry standard
at all. It does not explain how the omission of any of the included items falls
below the standard of care, or leads to any result at all, except not being "on top
of [an] Underwriter's pile."
Zohra characterizes the judge's analysis as one that improperly focuses on
stylistic differences between the Luu Report and the Ahart (or Schumacher)
Report. That is not the case. The judge's reference to the Ahart report and his
comparison of the two reports was focused on substance, not style, and properly
highlighted that the Luu Report was a net opinion. The Ahart Report, unlike the
Luu Report, cited treatises and industry sources such as the CPCU. The judge
recognized that Luu's opinion is based on her personal experience, which
amounts to an inadmissible net opinion.
Notwithstanding the net opinion issue, and regardless of the actions or
inaction of Schumacher or its employees in preparing the lease, the employee
exclusion in the Acceptance policy precluded coverage for Zohra on plaintiff's
claim.
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III.
We reject Zohra's contention that the judge erred by granting summary
judgment to Acceptance and by denying Zohra's reconsideration motion. Zohra
argues the judge erred by relying on the employee exclusion to grant summary
judgment to Acceptance. Zohra asserts it is a third-party beneficiary of the
Acceptance policy, and that the Acceptance policy provides coverage for Garage
Operations.
A.
"The interpretation of an insurance contract is a question of law which we
decide [de novo] independently of a trial [judge's] conclusions." Polarome Int'l,
Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 259-60 (App. Div. 2008). The
trial judge's "interpretation of the law and legal consequences that flow from
established facts are [therefore] not entitled to any specifical deference."
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
An insurance policy must be read as a whole, Hardy ex rel. Dowdell v.
Abdul-Matin, 198 N.J. 95, 103 (2009), and will be enforced as written when its
terms are clear, Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 525
(2012). "In assessing the meaning of provisions in an insurance contract, [we]
first look to the plain meaning of the language at issue." Oxford Realty Grp.
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Cedar v. Travelers Excess & Surplus Lines Co., 229 N.J. 196, 207 (2017) (citing
Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)).
"The words of an insurance policy should be given their ordinary meaning, and
in the absence an of ambiguity, [this court] should not engage in a strained
construction to support the imposition of liability." Longobardi v. Chubb Ins.
Co. of N.J., 121 N.J. 530, 537 (1990). "If the language is clear, that is the end
of the inquiry." Oxford, 229 N.J. at 207 (quoting Chubb, 195 N.J. at 238).
"An insurance policy is not ambiguous merely because two conflicting
interpretations of it are suggested by the litigants." Ibid. (citations and internal
quotation marks omitted). However, if a policy provision is ambiguous, we will
construe the provision in favor of the insured, considering the insured's
reasonable expectations. Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72,
82 (2008).
"Exclusions in insurance policies are presumptively valid and enforceable
'if they are specific, plain, clear, prominent, and not contrary to public policy."'
Wear v. Selective Ins., 455 N.J. Super. 440, 454 (App. Div. 2018) (quoting
Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010)). Typically, exclusions are
construed narrowly. Ibid. However, we will "not . . . disregard the 'clear import
and intent' of a policy's exclusion," ibid. (quoting Flomerfelt, 202 N.J. at 442),
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and will not enforce even a "conspicuous, plain and clear" exclusion if it
"misleads," Sosa v. Massachusetts Bay Ins., 458 N.J. Super. 639, 652 (App. Div.
2019) (quoting Gerhardt v. Cont'l Ins., 48 N.J. 291, 298 (1966)).
The employee exclusion of the Acceptance policy provides that no
coverage will be provided for:
4. Employee Indemnification and Employer's
Liability
"Bodily injury" to:
a. An "employee" of the "insured" arising out of and in
the course of:
(1) Employment by the "insured"; or
(2) Performing the duties related to the conduct
of the "insured's business[.]"
The exclusion is clear and unambiguous, and we will therefore construe
and enforce it narrowly and in accordance with its plain meaning, which is to
preclude coverage for bodily injury to employees of the insured. It is undisputed
that "the insured" on the Acceptance policy is Silk City. It is also undisputed
that, at the time of the accident, Silk City employed plaintiff. Plaintiff was
closing a security gate in the course of his employment with Silk City and in
furtherance of Silk City's business. The Acceptance policy contains an
exclusion that applies in this very situation, which the judge emphasized when
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he stated that there is no liability coverage under the policy for bodily injury to
an employee of the insured "arising out of and in the course of" plaintiff's
employment by Silk City or performing duties related to the conduct of Silk
City's used car business.
Zohra nevertheless requests this court consider and apply a line of cases
which differentiate between named insureds (the insured) and undisputed
additional insureds (an insured) on a policy for purposes of interpreting the
exclusion provision. See Gabriele v. Lyndhurst Residential Cmty., LLC, 426
N.J. Super. 96, 100 (App. Div. 2012) (holding that a coverage exclusion for
bodily injury for an "employee of any insured" precluded coverage for an
additional named insured for a claim by the estate of a worker who sustained
injuries when a pallet fell on him a work site); American Wrecking Corp. v.
Burlington Ins. Co., 400 N.J. Super. 276, 279 (App. Div. 2008) (holding that a
coverage exclusion for personal injury to an "employee of any insured" clearly
barred coverage for the claims of workers who sustained injuries during
demolition work at a worksite).
In both cases, this court held that there was no liability coverage owed to
entities that were undisputed additional insureds. To reiterate, the only
additional insured named on the policy before us is Mohammed Mustamand.
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Moreover, the employee exclusions at issue in those cases were broader
(applying to employees of "any insured") and did not indicate specifically that
they applied only to employees of "the insured" like the exclusion at issue here
does. The Acceptance policy's exclusion specifically extends to apply to "any
obligation to share damages with or repay someone else who must pay damages
because of the injury."
The judge generally agreed with Zohra's argument about the employee
exclusion applying to "the insured" rather than "an insured." The judge denied
Zohra's motion for reconsideration, however, because Zohra was not identified
as an additional insured on the Acceptance policy. This is true. Zohra therefore
cannot argue that it is entitled to coverage as "an insured" when it is not even
identified as an additional insured on the Acceptance policy.
Even if Zohra were properly identified as an additional insured on the
policy —which is not the case—the employee exclusion would apply to Zohra,
and coverage could not be afforded. Schumacher argues that even if Zohra were
listed as an additional insured under the policy, it would not be afforded
coverage because an entity listed as an "Owner of Garage Premises" is only
considered "an insured" with regard to "liability arising out of ownership,
maintenance, and use" by the lessee, which was Mehmet Tekin here. Under the
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Lease, the Owner of Garage Premises is only considered "an insured" with
regard to "liability arising out of the ownership, maintenance and use of that part
of the described premises which is leased to you." The Acceptance policy
defines "you" as the named insured. Here, the named insured in the subject
policy is "Eminoglu Used Car Dealer Ltd. d/b/a Silk City Auto Mall." The
premises were not leased to Silk City, but to Mehmet Tekin in his individual
capacity. As such, the additional insureds, if any, would not be afforded
coverage for liability incurred at any of the relevant properties, which were
leased to Mehmet Tekin, rather than Silk City.
Moreover, even if it were an undisputed additional insured, Zohra still
would not be entitled to coverage under the Acceptance policy because
plaintiff's accident occurred on a property distinct from the covered premises
listed on the Acceptance policy endorsement.
B.
We likewise conclude that the Garage Coverage provision of the
Acceptance Policy did not entitle Zohra to coverage. Zohra argues that it is
entitled to coverage because the coverage territory of the Acceptance policy is
the entire United States. Acceptance argues that coverage is restricted to the
premises listed on the policy, which was distinct from the premises where the
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accident took place. Although this issue was argued, the judge did not address
it as an additional basis upon which to grant summary judgment in favor of
Acceptance.
"An insurance policy is a contract that will be enforced as written when
its terms are clear in order that the expectations of the parties will be fulfilled. "
Flomerfelt, 202 N.J. at 441 (citing Kampf v. Franklin Life Ins. Co., 22 N.J. 36(1960)). When an "endorsement modifies, qualifies or restricts the terms of the
original policy, the . . . endorsement controls." Gabriele, 426 N.J. Super. at 104-
05 (internal quotation marks omitted) (quoting 2 G. Couch, Couch on Insurance,
§ 21.22 (2d ed. 2010); see also 4 Eric Mills Holmes, Appleman on Insurance, §
20.1 (2d ed. 1998) (explaining that "[i]f any irreconcilable conflict exists
between provisions of the policy and provisions of an endorsement, then the
latter must control."). Applying this principle, the endorsement limiti ng
coverage to 290 Pennsylvania Avenue reflects the intention of the Acceptance
policy.
The Garage Coverage Form of the Acceptance policy defines "Garage
Operations – Other than Covered Autos" that occur in "Coverage Territory" as
follows:
[O]wnership, maintenance or use of locations for
garage business and that portion of the road or other
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accesses that adjoin these locations. "Garage
operations" includes ownership, maintenance or use of
the "autos" indicated in Section I of this Coverage Form
as covered "autos." "Garage operations" also include
all operations necessary or incidental to garage
business.
The Garage Coverage Form defines "Coverage Territory" as the entire United
States of America. However, the "Owners of Garage Premises" endorsement to
the Acceptance policy, which controls here, specifically limits coverage for any
such additional insureds to the listed premises, which were specifically
denotated as 290 Pennsylvania Avenue. It is undisputed that an accident
involving the security gate occurred at a separate location; 232-242 Railway
Avenue, which is not covered.
To the extent we have not addressed Zohra's remaining arguments, we
conclude that they are without merit to warrant attention in a written decision .
R. 2:11-3(e)(1)(E).
Affirmed.
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