ESTATE OF LOUIS F. KEPPEL VS. ANGELA'S ANGELS HOME HEALTHCARE (L-3325-16, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3868-17T1
ESTATE OF LOUIS F. KEPPEL,
deceased, and DOLORES GUTTMANN
and THOMAS LOIKITH, as
Co-Administrators of the ESTATE
OF LOUIS F. KEPPEL,
Plaintiffs-Appellants,
v.
ANGELA'S ANGELS HOME
HEALTHCARE, ANGELA'S
ANGELS, LLC, and DONNA
THOMAS,
Defendants,
and
NAUTILUS INSURANCE GROUP,1
Defendant-Respondent.
______________________________
1
The insurance company defendant was incorrectly identified in the complaint.
The correct designation for this defendant is Nautilus Insurance Company.
Argued April 3, 2019 – Decided May 9, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3325-16.
Peter E. Mueller argued the cause for appellants
(Harwood Lloyd, LLC, attorneys; Peter E. Mueller, of
counsel and on the briefs; Mark D. Marino, on the
briefs).
Justin N. Kinney argued the cause for respondent
(Kinney Lisovicz Reilly & Wolff PC, attorneys; Justin
N. Kinney, of counsel and on the brief; Corey G.
Jeffers, on the brief).
PER CURIAM
Plaintiffs Estate of Louis F. Keppel, Dolores Guttmann, and Thomas
Loikith appeal from a March 19, 2018 order granting summary judgment in
favor of defendant Nautilus Insurance Company (Nautilus). We affirm.
The matter arose because defendant Donna Thomas (Thomas), who was
employed as a home health aide by defendants Angela's Angels Home
Healthcare and Angela's Angels, LLC (Angela's Angels), misappropriated 192
checks from Louis Keppel over a two-year period.2
2
Thomas either forged Keppel's name on the checks or influenced him to write
checks payable to herself and others.
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Keppel died intestate, and Guttmann and Loikith were appointed co-
administrators of his estate. Guttmann and Loikith discovered cashed checks
drawn on Keppel's account, made payable to Thomas, her son, her son's
girlfriend, "cash," and DET Medical PC, amounting to nearly $225,000.
Angela's Angels purchased comprehensive general liability (CGL)
insurance policies from Nautilus covering the time period when Keppel's checks
were cashed. Under the insurance policies, Nautilus was obligated to pay for
"property damage," provided the injury occurred during the coverage period.
The policies defined "property damage" to mean either "[p]hysical injury to
tangible property, including all resulting loss of use of that property[,]" or "loss
of use of tangible property that is not physically injured."
Angela's Angels made a claim under the insurance policies related to the
cashing of Keppel's checks. Nautilus denied coverage for several reasons,
including that the claim was not the result of "property damage" because money
is not "tangible property."
Guttmann and Loikith filed a lawsuit against Angela's Angels and
Thomas.3 Angela's Angels filed crossclaims against Nautilus for coverage and
indemnification related to plaintiffs' claims. Angela's Angels settled with
3
Thomas never filed an answer and default was entered.
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plaintiffs for a nominal sum and assigned their rights under the Nautilus policies
to plaintiffs to pursue coverage.
After discovery, plaintiffs filed a motion for summary judgment,
requesting Nautilus indemnify Keppel's estate for the money taken by Thomas.
Nautilus filed a cross-motion for summary judgment, seeking a declaration that
there was no coverage for the loss.
On March 19, 2018, after hearing the arguments of counsel, the judge
denied plaintiffs' motion and granted Nautilus's cross-motion. The judge found
Nautilus was not required to cover the loss from Thomas's cashing of Keppel's
checks because the term "tangible property" did not apply to checks or money.
She also determined that the money sought to be recovered did not constitute
"all loss of use" of the checks. The judge held neither the money nor the checks
constituted "tangible property" under the policies based on a "common sense or
obvious interpretation." The judge concluded that plaintiffs:
did not demonstrate actual[] damage to tangible
property or the losses that the plaintiff[s are] seeking
do not flow from damage to tangible property, even if
the checks could be considered in some respect tangible
property. That is[,] a piece of the paper is tangible and
it's a piece of property. But, the concept of what it
stands for as being representative of money in the bank
is not tangible.
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The judge determined Nautilus had no duty to defend or indemnify Angela's
Angels, and dismissed plaintiffs' complaint with prejudice.
On appeal, plaintiffs assert money constitutes "tangible property" under
the Nautilus policies, and seek consequential damages flowing from the loss of
use of tangible property. Plaintiffs also contend the judge erred in dismissing
their other claims against Nautilus, including the bad faith claim.
We review the interpretation of a contract, including an insurance policy,
de novo. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div.
2004). We construe insurance policies "from the language of the policy, giving
effect to all parts so as to give reasonable meaning to the terms." Ibid. (quoting
Stone v. Royal Ins. Co., 211 N.J. Super. 246, 248 (App. Div. 1986)).
In determining "the meaning of provisions in an insurance contract, courts
first look to the plain meaning of the language at issue . . . . If the language is
clear, that is the end of the inquiry." Oxford Realty Grp. Cedar v. Travelers
Excess & Surplus Lines Co., 229 N.J. 196, 212 (2017) (quoting Chubb Custom
Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)). When an
insurance contract's terms are clear and unambiguous, courts must enforce the
policy as written, using the "plain, ordinary meaning" of the words . Zacarias v.
Allstate Ins. Co., 168 N.J. 590, 595 (2001). Courts should not write a better
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policy than the one purchased by the insured. Walker Rogge, Inc. v. Chelsea
Title & Guar. Co., 116 N.J. 517, 529 (1989).
The parties agree the Nautilus insurance policies are unambiguous.
However, because the Nautilus policies do not define the term "tangible
property," we must apply the plain and ordinary meaning of that term to
determine whether plaintiffs' claim constitutes "property damage" to afford
coverage.
We consider case law from New Jersey and other jurisdictions in defining
"tangible property." 4 New Jersey courts have held that money, as a medium of
exchange, is not tangible property. See Armstrong v. Taxation Div. Dir., 5 N.J.
Tax 117, 125 (Tax 1983) (holding "[w]hen used as a vehicle for investment in
precious metals, a coin is tangible personal property. When used as a medium
of exchange, a coin has an exchange value not related to its metal content and is
intangible personal property . . . ."); see also Duke Power Co. v. State Bd. of
Tax Appeals, 129 N.J.L. 449, 450 (1943) (referring to cash in a bank and cash
on hand as "intangible personal property").
4
We are permitted to consider judicial decisions from federal and other state
courts to ascertain the plain and ordinary meaning of an undefined term in an
insurance policy. See Morton Int'l v. Gen. Accident Ins. Co., 134 N.J. 1, 27
(1993) (relying on federal and state court decisions in defining the term
"damages").
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Courts in other states similarly hold money is not tangible property. See,
e.g., Mack v. Nationwide Mut. Fire Ins. Co., 517 S.E.2d 839, 840-41 (Ga. Ct.
App. 1999) (holding money is not tangible property affording coverage under a
CGL policy because "money exists only as a number recorded on a computer");
Snug Harbor, Ltd. v. Zurich Ins., 968 F.2d 538, 542 (5th Cir. 1992) (noting, by
way of example, the loss of the use of money does not constitute the loss of use
of tangible property).
We may also refer to dictionaries to determine the plain and ordinary
meaning of words. Black's Law Dictionary defines "tangible property" as
"[p]roperty that has physical form and characteristics." Black's Law Dictionary
1412 (10th ed. 2014). Similarly, Black's defines "tangible personal property" as
"[c]orporeal personal property of any kind; personal property that can be seen,
weighed, measured, felt, touched, or in any other way perceived by the
senses . . . ." Ibid. According to Merriam Webster, "tangible property" is
defined as "property that has a tangible and corporeal existence and intrinsic
economic value because of it." Tangible property, Merriam-Webster Online
Dictionary (last visited Apr. 29, 2019). In accordance with these definitions,
"tangible property" is physical property that can be perceived by the senses and
has genuine monetary value.
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Applying these definitions, plaintiffs' claim does not involve injury to
tangible property. The loss of stolen money does not constitute "property
damage" because money, or the checks representing money, is not "tangible
property." While checks can be touched, the checks themselves have no intrinsic
monetary value and suffered no injury upon being cashed by Thomas.
Checks represent money in a bank that exists in digital form in a computer
database in the name of the account holder. Checks are a representation of
money held by a bank and are simply a medium of exchange. A medium of
exchange, such as coins or dollar bills, is not tangible property. Thus, the checks
misappropriated by Thomas and then cashed without permission are not property
damage as defined in the Nautilus policies.
Because we reject plaintiffs' claim that the checks constitute tangible
property, the money obtained as a result of Thomas cashing the checks does not
constitute consequential damages. The loss of use of a check does not equate
with the loss of money. Here, there is no injury to the checks, and the loss of
use relates to the money misappropriated. Therefore, there is no property
damage claim under the Nautilus policies.
Because plaintiffs' claims are not covered under the Nautilus policies, we
need not address plaintiffs' remaining arguments.
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Affirmed.
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