MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE Â COMPANY OF PITTSBURGH, PA(L-680-14, MONMOUTH COUNTY AND STATEWIDE) , 450 N.J. Super. 400 ( 2017 )


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  •                    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3434-14T1
    MICHAEL ABBOUD,
    Plaintiff-Appellant,                        APPROVED FOR PUBLICATION
    v.                                                     JUNE 21, 2017
    APPELLATE DIVISION
    NATIONAL UNION FIRE INSURANCE
    COMPANY OF PITTSBURGH, PA,
    Defendant-Respondent.
    ___________________________________
    Argued December 20, 2016 – Decided              June 21, 2017
    Before Judges Ostrer, Leone and Vernoia.
    On appeal from the Superior Court of New
    Jersey,   Law  Division, Monmouth County,
    Docket No. L-680-14.
    Lawrence R. Lonergan argued the cause for
    appellant.
    Andrew L. Indeck argued the cause for
    respondent    (Weber    Gallagher    Simpson
    Stapleton Fires & Newby, LLP, attorneys; Mr.
    Indeck, of counsel and on the brief; Jane S.
    Kelsey, on the brief).
    The opinion of the court was delivered by
    OSTRER, J.A.D.
    In    this    insurance    coverage        dispute,     we   interpret     an
    "insured   vs.    insured"   exclusion     in    a   directors    and     officers
    (D&O) liability policy.        Generally speaking, such exclusions bar
    coverage for claims by one insured director or officer against
    another.      Plaintiff       Michael     Abboud     sought    indemnity       and    a
    defense in connection with counterclaims made against him by
    fellow officers of Monarch Medical PET Services, LLC (Monarch).
    Defendant National Union Fire Insurance Company of Pittsburgh,
    Pa., eventually denied coverage based on the insured vs. insured
    exclusion.        Abboud filed a declaratory judgment action against
    National Union, which ended in summary judgment dismissal and
    the present appeal.
    We discern no ambiguity in the exclusion, and find no basis
    for Abboud's argument that a showing of collusion between the
    insureds is required to invoke it.              We also find no merit in his
    argument    that    National    Union     should     be   barred      from    denying
    coverage because it would violate his reasonable expectations.
    We therefore affirm.
    I.
    Abboud started the underlying litigation by suing: Monarch;
    four   of   its    members    and    managers    —   Patrick    Collins,       Andrew
    Kreamer Rooke, Sr., Gary Moyers and William McCue; and a non-
    member officer, Andrew Kreamer Rooke, Jr. (collectively, "the
    defendants").        Abboud    was    a   forty-percent       owner    of    Monarch,
    2                                  A-3434-14T1
    which operates and leases PET/CT1 equipment.               He alleged the four
    member-managers    tried      to   remove    him    from   Monarch's      board   of
    managers and his position as its chief executive officer.                         In
    his verified complaint, Abboud alleged the defendants engaged in
    oppressive acts and breached their fiduciary duty and the firm's
    operating agreement.       He sought: reinstatement, salary and other
    employment benefits; an injunction restraining                   the defendants
    from interfering with his access to the premises, its computers
    and its employees; as well as attorneys' fees and expenses.
    The    verified    complaint     did     not   address   the    defendants'
    asserted reasons for their actions, but we gather they concerned
    Monarch's involvement with two other companies, Monarch Medical
    Imaging Equipment, Inc. (Monarch Imaging) — a corporation that
    Abboud and Collins owned — and Monarch Medical Technologies, LLC
    (Monarch Technologies) — a wholly owned subsidiary of Monarch
    Imaging.     We infer this from Abboud's complaint, which sought to
    justify certain payments Monarch made to Monarch Imaging and the
    existence    of   other    agreements        between   Monarch      and    Monarch
    Technologies.
    In their responsive pleading, Monarch and the individual
    defendants    other    than   Collins       asserted   various    counterclaims
    1
    PET/CT refers to positron emission tomography – computer
    tomography.  Stedman's Medical Dictionary 468, 1468 (28th ed.
    2006).
    3                                  A-3434-14T1
    against Abboud.          They alleged Abboud engaged in self-dealing and
    exploited Monarch's opportunities for his personal gain or that
    of his other companies.                 Monarch independently alleged Abboud
    breached     his    loyalty       and    fiduciary        duties,     and    engaged      in
    intentional     interference           with   prospective       economic      advantage.
    The   company      and    the    individual       counterclaimants          also   alleged
    breach of the operating agreement.                   Additionally, they sought a
    declaratory     judgment         that    grounds      existed       for    involuntarily
    withdrawing Abboud's membership interest in the company.
    All the defendants in Abboud's underlying lawsuit sought
    and    obtained      an    acknowledgement           of    partial        coverage     from
    National Union, subject to a reservation of rights, under the
    Employment Practices Liability (EPL) section of Monarch's multi-
    coverage policy, which also included a D&O liability section.
    It appears the defendants made their request in a timely manner.
    National Union sent its coverage letter on March 13, 2013, a
    month after Abboud filed his complaint and a month before the
    filing of the answer and counterclaims.
    By contrast, Abboud did not notify National Union of the
    counterclaims       against      him    until      November    20,    2013,    when      his
    attorney gave "notice of claims covered" under the D&O section
    of    the   policy.        The    attorney        asserted    the    notice    was     late
    because Monarch and National Union had delayed responding to his
    4                                    A-3434-14T1
    requests for information about coverage.                        National Union did not
    respond to the notice.
    In   February      2014,    Abboud     filed        his    declaratory        judgment
    action.      Expressly          invoking     and     quoting        the        policy's    D&O
    section,    Abboud      sought     indemnity        and    defense        costs     for    the
    counterclaims      in    the     underlying     lawsuit.            Referring        to   the
    November 20, 2013 notice of claim, he asserted National Union
    failed to respond to his purported "written claim for defense
    and   indemnification."             He     argued     that        its     failure     barred
    National    Union       from     denying     coverage           based     on    waiver     and
    estoppel principles.
    In its answer, National Union denied its policy provided
    indemnity    or     defense       costs     coverage        for     the        counterclaims
    against Abboud.          Limited paper discovery followed.                          National
    Union objected to many of Abboud's discovery demands, including
    requests     for        claim     processing         documents            and      for     the
    identification of an employee familiar with the policy's D&O
    section.     Shortly thereafter, National Union filed its summary
    judgment    motion.        Although        Abboud's        attorney        asserted       that
    National Union's discovery responses were deficient, he did not
    formally seek to compel further discovery.
    In support of its summary judgment motion, National Union
    contended    the    insured       vs.     insured    exclusion          within      the    D&O
    5                                       A-3434-14T1
    section precluded coverage.                In opposition, Abboud argued the
    exclusion applied only if there was collusion, and whether there
    was such collusion presented a genuine issue of material fact.
    He also contended enforcing the exclusion would frustrate his
    reasonable    expectations.           He   based      his    estoppel    argument    on
    National Union's failure to respond to the November 2013 notice.
    He also argued National Union's motion was premature because
    discovery remained pending.
    In granting the motion, Judge Katie A. Gummer found that
    the insured vs. insured exclusion plainly barred Abboud's claim
    for   coverage.        The    court    rejected       Abboud's    arguments      about
    collusion and reasonable expectations.                      Also, estoppel did not
    apply   because     Abboud     failed      to    demonstrate      any    reliance    on
    National     Union's      inaction.             The   judge     rejected      Abboud's
    prematurity argument because he failed to identify the discovery
    that would create a dispute over material facts.
    On appeal, Abboud renews the arguments he presented to the
    trial court.        He adds that the court should have sua sponte
    found coverage under the policy's EPL section.
    II.
    We   review    de      novo   the    trial      court's    grant   of   summary
    judgment, applying the same standard as the trial court.                       Templo
    Fuente de Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
    6                                 A-3434-14T1
    Pa.,   
    224 N.J. 189
    ,   199   (2016).     The   movant    is   entitled   to
    summary judgment if the record shows "there is no genuine issue
    as to any material fact challenged and . . . the moving party is
    entitled to a judgment or order as a matter of law."                      
    Ibid. (quoting R. 4:46-2(c)).
             Interpretation of an insurance policy
    also   presents     a   legal    question,   which   we     review   de   novo.
    Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic
    Med. & Physical Therapy, 
    210 N.J. 597
    , 605 (2012).
    The Templo Fuente Court reviewed the rules of construction
    that apply to insurance policies:
    If the plain language of the policy is
    unambiguous, we will not engage in a
    strained    construction   to   support  the
    imposition of liability or write a better
    policy   for   the   insured  than   the one
    purchased.
    When the provision at issue is subject
    to more than one reasonable interpretation,
    it is ambiguous, and the court may look to
    extrinsic    evidence    as   an    aid   to
    interpretation.     Only where there is a
    genuine   ambiguity,   that is,   where  the
    phrasing of the policy is so confusing that
    the average policyholder cannot make out the
    boundaries of coverage, should the reviewing
    court read the policy in favor of the
    insured.     When construing an ambiguous
    clause in an insurance policy, courts should
    consider whether clearer draftsmanship by
    the insurer would have put the matter beyond
    reasonable question.
    [Templo 
    Fuente, supra
    , 224 N.J. at 200
    (internal quotation marks and citations
    omitted).]
    7                               A-3434-14T1
    Consistent     with     these     rules,     our       courts   will     enforce
    exclusionary clauses if "specific, plain, clear, prominent, and
    not contrary to public policy," notwithstanding that exclusions
    generally "must be narrowly construed," and the insurer bears
    the burden to demonstrate they apply.                 Flomerfelt v. Cardiello,
    
    202 N.J. 432
    ,    441-42    (2010)   (internal       quotation   marks     and
    citations omitted).
    We look first to the policy language, which we conclude
    plainly      and     unambiguously       bars      coverage     because        the
    counterclaims against Abboud fall within its insured vs. insured
    exclusion.     We begin with the language of the relevant provision
    defining the D&O coverage before turning to the exclusion.
    As D&O Coverage, National Union agreed to
    pay the Loss of an Individual Insured of the
    Company arising from a Claim made against
    such Individual Insured for any Wrongful Act
    of such Individual Insured, except when and
    to   the   extent  that    the  Company  has
    indemnified such Individual Insured.     The
    Insurer   shall,  in   accordance  with  and
    subject to Clause 7 of this D&O Coverage
    Section, advance Defense Costs of such Claim
    prior to its final disposition.
    Except for "Company," which is defined to mean Monarch in the
    policy's     "General   Terms"    section,      the    highlighted     terms   are
    separately defined within the D&O section.                  These definitions
    establish the coverage's scope.
    8                               A-3434-14T1
    An     "Individual       Insured"       includes       an       "Executive"        or
    "Employee    of    a   Company."      The     two       categories         are   mutually
    exclusive.        An   "Executive"    refers       to    "any    past,       present     or
    future duly elected or appointed director, officer, management
    committee member or member of the Board of Managers . . . ."
    "Employee"    explicitly      excludes       Executives,        as    the    definition
    states it means "any past, present, or future employee, other
    than an Executive of a Company . . . ."                   A "Wrongful Act" by an
    "Executive or Employee of a Company" means "any breach of duty,
    neglect, error, misstatement, misleading statement, omission or
    act . . . in their respective capacities as such, or any matter
    claimed against . . . [them] solely by reason of his or her
    status as an Executive or Employee of a Company . . . ."
    The     insured    vs.    insured       exclusion      is       one    of   several
    exclusions in the D&O section for which the insurer "shall not
    be liable to make any payment for Loss in connection with any
    Claim made against the Insured."              The exclusion disallows claims
    depending on which party raises them; specifically, it excludes
    any claim "which is brought by or on behalf of a Company or
    Individual    Insured,     other     than     an    Employee         of    the    Company
    . . . ."2
    2
    The insured vs. insured exclusion has various exceptions that
    do not apply here.
    9                                       A-3434-14T1
    There      is   nothing   ambiguous,   convoluted,     or   opaque   about
    this exclusion when interpreted in accord with the definitional
    provisions.     The exclusion disallows coverage when the claim is
    raised    by   either    an   executive     of   the   company      (i.e.,    an
    "Individual Insured" who is not an "Employee") or the company
    itself.      Its application here is equally clear.               The claims
    raised against Abboud were brought by Monarch and five of its
    executives     (whose   status   within    the   company   Abboud    does    not
    contest).      Therefore, the insured vs. insured exclusion bars
    these claims.
    Abboud seeks to avoid the plain import of the exclusion on
    two grounds.        First, he contends it violates his reasonable
    expectations.       Second, he contends the exclusion applies only in
    cases of collusion between the individual insureds, about which
    there remains an issue of fact.       We are unpersuaded.
    Our courts "have recognized the importance of construing
    contracts of insurance to reflect the reasonable expectations of
    the insured in the face of ambiguous language and phrasing, and
    in exceptional circumstances, when the literal meaning of the
    policy is plain."         Doto v. Russo, 
    140 N.J. 544
    , 556 (1995)
    (citation omitted); see also Pizzulo v. N.J. Mfrs. Ins. Co., 
    196 N.J. 251
    , 271 (2008) ("Indeed, in some circumstances, we have
    recognized that it might be appropriate to permit an insured's
    10                               A-3434-14T1
    reasonable     expectation        to     overcome      the      plain   meaning       of   a
    policy."); Werner Indus. v. First State Ins. Co., 
    112 N.J. 30
    ,
    35-36 (1988) ("At times, even an unambiguous contract has been
    interpreted contrary to its plain meaning so as to fulfill the
    reasonable expectations of the insured . . . .").
    These exceptional circumstances are narrowly confined.                           The
    "reasonable expectations" doctrine applies to policy forms that
    have the characteristics of an adhesion contract.                             See, e.g.,
    
    Doto, supra
    , 140 N.J. at 556.              Courts are more inclined to apply
    the doctrine in cases of personal lines of insurance obtained by
    an    unsophisticated        consumer.          See,   e.g.,     Oxford      Realty   Grp.
    Cedar v. Travelers Excess & Surplus Lines Co., ___ N.J. ___, ___
    (2017) (slip op. at 15-16); Werner 
    Indus., supra
    , 112 N.J. at
    38; see also Nunn v. Franklin Mut. Ins. Co., 
    274 N.J. Super. 543
    , 550 (App. Div. 1994).               Yet, the doctrine has been applied
    to    commercial     lines,     as     well.      See,    e.g.,    Nav-Its,      Inc.      v.
    Selective Ins. Co. of Am., 
    183 N.J. 110
    , 123-24 (2005) (applying
    the    doctrine    to    a     pollution       exclusion     clause     of   a   building
    contractor's comprehensive general liability insurance policy);
    Sparks    v.   St.      Paul    Ins.    Co.,     
    100 N.J. 325
    ,   338-39     (1985)
    (applying doctrine to a legal malpractice policy).
    Courts may vindicate the insured's reasonable expectations
    over the policy's literal meaning "if the text appears overly
    11                                    A-3434-14T1
    technical        or    contains      hidden       pitfalls,    cannot       be    understood
    without employing subtle or legalistic distinctions, is obscured
    by   fine    print,       or     requires        strenuous    study    to     comprehend."
    Zacarias     v.       Allstate       Ins.    Co.,      
    168 N.J. 590
    ,       601     (2001)
    (citations            omitted)       (rejecting          "reasonable         expectations"
    argument because the policy language was "not so confusing that
    the average policyholder cannot make out the boundaries of the
    coverage," nor was an "entangled and professional interpretation
    of an insurance underwriter . . . pitted against that of an
    average purchaser of insurance" (internal quotation marks and
    citation omitted)).
    The expectations of coverage must be real.                                 See Werner
    
    Indus., supra
    ,        112     N.J.      at    39    (remanding      for      a     factual
    determination whether the insured, through its broker, conveyed
    an intent contrary to the policy's unambiguous language); Di
    Orio v. N.J. Mfrs. Ins. Co., 
    79 N.J. 257
    , 270 (1979) (declining
    to deviate from policy language where "as a factual matter the
    record      is    barren        of    any     suggestion       that     the       [insureds]
    'expected' that they had primary or excess coverage").                                       The
    expectations must also be "objectively reasonable."                              See, e.g.,
    Templo 
    Fuente, supra
    , 224 N.J. at 210.
    In    assessing          whether      the       expectations     are       objectively
    reasonable, a court will consider communications regarding the
    12                                    A-3434-14T1
    coverage between the insured or its broker and the insurer or
    its agent that relate to the insured's expectations.                                   See, e.g.,
    
    Doto, supra
    , 140 N.J. at 557-58.                          A court must also consider
    whether      the        scope    of   coverage       is    so    narrow       that     it    "would
    largely nullify the insurance" and defeat the purpose for which
    it    was    obtained.            See    
    Sparks, supra
    ,        100       N.J.     at     337-39
    (internal quotation marks and citation omitted).                                    For example,
    the     Court       in       Sparks     concluded         that     a        claims-made        legal
    malpractice             policy    that     excluded            claims        arising        out    of
    occurrences preceding the policy period "d[id] not accord with
    the   objectively            reasonable    expectations            of       the    purchasers      of
    professional liability insurance."                        
    Id. at 340.
                Additionally, a
    court       must    consider          whether    policies          with       "unrealistically
    narrow coverage" cause "broad injury to the public at large[,]"
    which may preclude enforcement on public policy grounds.                                     
    Id. at 340-41.
    Applying these principles, we discern no basis to set aside
    the   insured       vs.       insured    exclusion         based       on    Abboud's       alleged
    expectations            of    coverage.         The       policy       provides        commercial
    insurance to a presumably sophisticated consumer.                                  The public at
    large    has       no    identified      interest         in    finding       coverage.           The
    policy language is straightforward, as discussed above, and is
    "not so confusing that the average policyholder cannot make out
    13                                          A-3434-14T1
    the boundaries of the coverage."                  
    Zacarias, supra
    , 168 N.J. at
    601 (internal quotation marks and citation omitted).                         The record
    is also devoid of competent evidence of Abboud's expectations of
    coverage or proof that such expectations would be objectively
    reasonable, given that D&O insurance typically covers liability
    for third-party claims, see Biltmore Assocs., LLC v. Twin City
    Fire    Ins.   Co.,    
    572 F.3d 663
    ,    668   (9th      Cir.   2009)    (stating,
    "[t]he reasonable expectations of the parties [to a D&O policy]
    were that they were protecting against claims by outsiders, not
    intra-company         claims"),       and    enforcement        of    the     exclusion
    nonetheless leaves broad D&O coverage.                       In sum, the policy's
    plain    language      need   not     be    tailored    to    conform    to    Abboud's
    alleged expectations.
    We also reject Abboud's contention that proof of collusion
    is a prerequisite to applying the insured vs. insured exclusion.
    As our courts have not expressly addressed the question, Abboud
    relies on several decisions from other jurisdictions adopting
    this view,3 and there are others.                 See 3-22 New Appleman Law of
    Liability      Insurance      §      22.06(2)(c)       n.30     (2017)      (collecting
    cases).     However, the contrary view is both more persuasive and
    more consistent with our rules of construction.
    3
    The   cases  Abboud   cites  were   not                    formally       published;
    consequently, we will not address them.
    14                                A-3434-14T1
    The     insured   vs.   insured   exclusion    was,    reportedly,      the
    insurance industry's "reaction to several lawsuits in the mid-
    1980s in which insured corporations sued their own directors to
    recoup operational losses caused by improvident or unauthorized
    actions."    Biltmore 
    Assocs., supra
    , 572 F.3d at 668; see also
    Appleman,    supra,   §   22.06(2)(c).     These       suits   thus   extended
    liability coverage to intra-company claims and transformed the
    nature of the insurance; specifically, they "turned liability
    insurance into casualty insurance, because the company would be
    able to collect from the insurance company for its own mistakes,
    since it acts through its directors and officers."                    Biltmore
    
    Assocs., supra
    , 572 F.3d at 669.
    Although    the   specific   formulation      of    this   exclusion    may
    vary from policy to policy, its purpose was not simply to bar
    collusive claims — as Abboud implies.       Instead, it was intended:
    to exclude coverage both of collusive suits
    — such as suits in which a corporation sues
    its officers or directors in an effort to
    recoup the consequences of their business
    mistakes, thus turning liability insurance
    into business-loss insurance — and of suits
    arising out of those particularly bitter
    disputes that erupt when members of a
    corporate, as of a personal, family have a
    falling out and fall to quarreling.
    [Level 3 Commc'ns, Inc. v. Fed. Ins. Co.,
    
    168 F.3d 956
    , 958 (7th Cir. 1999) (emphasis
    added) (citations omitted).]
    15                              A-3434-14T1
    See   also     Biltmore     
    Assocs., supra
    ,       572    F.3d     at    669       ("The
    exclusion protects of course against collusion, and also against
    the risk of selling liability insurance for what amounts to a
    fidelity bond."); Appleman, supra, § 22.06(c).
    The question is whether this history requires us to deviate
    from the exclusion's plain language by requiring an insurer to
    prove collusion as Abboud contends.                   We think not.             As Judge
    Posner concluded in Level 3 Communications, the argument that
    collusion must be proved "confus[es] a rule with its rationale
    . . . ."       
    Supra, 168 F.3d at 958
    .              The drafters were free to
    develop a standard that assumed some risk of over-inclusiveness
    — that is, to include claims that did not involve collusion or
    corporate family spats — to achieve the benefit of simplicity
    and ease of enforcement.               After all, "[a] standard, like 'no
    coverage for collusive suits or lovers' quarrels,' [would be]
    contoured exactly to [the exclusion's historical] purpose, but
    it    cannot     be    applied    without      a    potentially       costly,         time-
    consuming,       and    uncertain      inquiry      into     the     nature      of     the
    underlying dispute sought to be covered."                   
    Ibid. In any event,
       it   is   clear       from    the   face      of   Abboud's
    verified complaint, and the counterclaims, that what we have is
    one   of   those       "particularly    bitter      disputes        that    erupt     when
    members of a corporate . . . family have a falling out . . . ."
    16                                      A-3434-14T1
    
    Ibid. Although there is
    no evidence of collusion, enforcing the
    insured vs. insured exclusion here nonetheless satisfies one of
    the primary historical goals of the exclusion.4
    In sum, guided by our rules of construction that place
    dispositive weight on the plain language of a provision that is
    neither    ambiguous,    convoluted      nor     opaque,    we   reject   Abboud's
    proposed    gloss   on   the   insured     vs.    insured    exclusion's     plain
    language.     We are in good company.              See, e.g., Sphinx Int'l,
    Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 
    412 F.3d 1224
    , 1229-30 (11th Cir. 2005) (applying Florida law); Level 3
    
    Commc'ns, supra
    , 168 F.3d at 958; Foster v. Ky. Hous. Corp., 
    850 F. Supp. 558
    , 561 (E.D. Ky. 1994); Durant v. James, 
    189 So. 3d 993
    , 996 (Fla. Dist. Ct. App.), review denied, No. SC16-1004,
    2016 Fla. LEXIS 1989 (Sept. 7, 2016); Robinson v. Rockhill Ins.
    Co., 
    139 So. 3d 1031
    (La. Ct. App. 2014).5
    4
    At least one insurer has drafted an insured vs. insured
    exclusion that expressly provides that it applies regardless of
    whether the claim is collusive.   See Westchester Fire Ins. Co.
    v. Wallerich, 
    563 F.3d 707
    , 710 (8th Cir. 2009).           That
    development lends no support to Abboud's argument, but merely
    reflects an insurer's effort to avoid the headaches such an
    argument creates.
    5
    We note, happily, that this case does not require us to address
    other knotty issues involving the scope of insured vs. insured
    exclusions.    Questions have arisen when some claimants are
    insureds and others are not, see, e.g., Miller v. St. Paul
    Mercury Ins. Co., 
    683 F.3d 871
    (7th Cir. 2012); and when claims
    are brought in the context of bankruptcy or other insolvency-
    (continued)
    17                                  A-3434-14T1
    III.
    Abboud's     remaining         arguments       lack     sufficient    merit    to
    warrant     extended     discussion.           R.    2:11-3(e)(1)(E).         Abboud's
    estoppel argument falls short because he has failed to show any
    detrimental      reliance       on   National       Union's    alleged     unjustified
    delay in denying coverage.               See Knorr v. Smeal, 
    178 N.J. 169
    ,
    178 (2003) (noting that estoppel requires a showing that the
    adversary    "engaged      in    conduct,         either    intentionally    or   under
    circumstances that induced reliance, and that plaintiffs acted
    or   changed     their    position      to     their    detriment");     Greenberg     &
    Covitz v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 312 N.J.
    Super. 251, 265 (App. Div. 1998) ("[D]etrimental reliance by the
    insured is a prerequisite to finding that coverage has been
    expanded by estoppel."), modified on other grounds, 
    161 N.J. 143
    (1999).
    His    argument     that       summary      judgment    was   premature     fails
    because     he   does    not    identify     what      discovery    he   needs.     See
    (continued)
    related proceedings, see, e.g., W Holding Co. v. AIG Ins. Co.,
    
    748 F.3d 377
    , 385-86 (1st Cir. 2014) (discussing split in case
    law on whether insured vs. insured exclusion applies to Federal
    Deposit Insurance Corporation); Appleman, supra, § 22.06(2)(c)
    (noting the issue of the "Insured vs. Insured exclusion in the
    bankruptcy context . . . is becoming less significant as more
    D&O   policies  contain   exclusions  for   claims  'brought  or
    maintained by or on behalf of a bankruptcy or insolvency
    trustee, examiner, receiver or similar official'."); see also 9A
    Couch on Insurance 3d § 131:36 n.1 (2015) (collecting cases).
    18                               A-3434-14T1
    Trinity Church v. Lawson-Bell, 
    394 N.J. Super. 159
    , 166 (App.
    Div. 2007) ("A party opposing summary judgment on the ground
    that    more     discovery      is   needed    must    specify   what   further
    discovery is required, rather than simply asserting a generic
    contention that discovery is incomplete.").
    Finally, we decline to reach Abboud's claim that he was
    entitled to coverage under the policy's EPL section (although
    there appears to be little that is employment-related in the
    counterclaims         against   Abboud).      Abboud   invoked   only   the   D&O
    section in his notice of claim, in his declaratory judgment
    complaint, in discovery, and in argument before the trial court.
    See Nieder v. Royal Indem. Ins. Co., 
    62 N.J. 229
    , 234 (1973)
    (stating       that    "appellate    courts     will   decline    to    consider
    questions or issues not properly presented to the trial court
    when an opportunity for such a presentation is available unless
    the questions . . . go to the jurisdiction of the trial court or
    concern matters of great public interest" (internal quotation
    marks and citation omitted)).
    Affirmed.
    19                              A-3434-14T1