TEDRA BIRCH VS. THE HANOVER INSURANCE COMPANY (L-6740-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2490-19
TEDRA BIRCH, JOSEPH
MONACO, SR., and ALL
STATE HOME INSPECTION,
LLC,
Plaintiffs-Respondents,
v.
THE HANOVER
INSURANCE COMPANY,
Defendant-Appellant.
_______________________
Submitted February 8, 2021 – Decided March 19, 2021
Before Judges Sabatino, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-6740-19.
Lewis Brisbois Bisgaard & Smith, LLP, attorneys for
appellant (Darcy L. Ibach, of the Illinois bar, admitted
pro hac vice, and Brian Deeney, on the briefs).
Harrell, Smith & Williams, LLC, attorneys for
respondent Tedra Birch and Albergo Law Group,
attorneys for respondents Joseph Monaco, Sr. and All
State Home Inspection, LLC (Kenneth M. Harrell,
Daniel J. Williams and Damian L. Albergo, on the joint
brief).
PER CURIAM
This appeal involves a dispute over the terms of insurance coverage in a
policy provided to a home inspection company. After examining the premises
for a home buyer, the inspector issued a written report. The report did not
mention any problems with the propane tank's connection to the house's hot
water heater. After purchasing the house, the buyer hired a vendor to replace
the propane tank. Several days later, the replacement tank exploded, allegedly
because of a leaky ball valve on the pipe connecting the tank to the heater.
The explosion severely injured the homeowner and damaged the house.
She filed a civil action alleging negligence by various parties, including the
home inspector and his company. The inspector and his company sought
indemnity and defense from their insurance company. The insurer declined
coverage, citing several provisions within the policy documents.
Consequently, the homeowner, joined by the inspection company and the
inspector, pursued this declaratory action in the Law Division against the
insurer, arguing the claim is covered under the policy language. The trial court
construed the policies in favor of plaintiffs, ordering the insurer to provide a
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defense and indemnification in the underlying negligence case. This appeal by
the insurer ensued.
For the reasons that follow, we agree the trial court correctly rejected
many of the insurer's proffered arguments. However, we reverse the finding of
coverage because we agree with the insurer that a policy exclusion for claims
"[a]rising out of or based upon . . . flammable materials" disallows coverage for
this particular claim because it stems from the explosion of propane gas, a
flammable material.
I.
We need not describe the facts and factual allegations in complete detail
since our analysis mainly turns on interpreting the language of the insurance
policy documents. In performing our appellate review in this coverage setting,
we are guided by several well-established principles.
The interpretation of an insurance policy, like other contracts, is a
question of law for the court. Hence, we independently review the trial court's
construction of the policy documents on a de novo basis. See N.J. Transit Corp.
v. Certain Underwriters at Lloyd's London, 461 N.J. Super. 440, 453 (App. Div.
2019), aff'd per curiam, ___ N.J. ___ (2021).
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The scope of that legal review includes deciding whether a contract
provision is clear and unambiguous. See Nester v. O'Donnell, 301 N.J. Super.
198, 210 (App. Div. 1997). A provision is ambiguous if it is "susceptible to at
least two reasonable alternative interpretations." Ibid. (citation omitted). In
such instances of apparent ambiguity, the court may consider extrinsic proofs
that may "shed light on the mutual understanding of the parties." Hall v. Bd. of
Educ., 125 N.J. 299, 305 (1991) (citations omitted); see also Conway v. 287
Corp. Ctr. Assocs., 187 N.J. 259, 270 (2006).
Our courts have long applied a general precept that ambiguities contained
within an insurance policy are to be construed in favor of the policyholder and
against the insurer. N.J. Transit Corp., 461 N.J. Super. at 454 (citation omitted).
An ambiguity arises "where the phrasing of the policy is so confusing that the
average policyholder cannot make out the boundaries of coverage." Customized
Distrib. Servs. v. Zurich Ins. Co., 373 N.J. Super. 480, 487 (App. Div. 2004)
(citing Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)).
Additionally, in general, insurance policies are liberally construed to
afford coverage that a fair interpretation will allow. Villa v. Short, 195 N.J. 15,
23-24 (2008); Am. Wrecking Corp. v. Burlington Ins. Co., 400 N.J. Super. 276,
282 (App. Div. 2008). Based on an insurance company's unique expertise in its
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field and its unilateral preparation of the industry's "varied and complex
instruments," Allen v. Metro. Life Ins. Co., 44 N.J. 294, 305 (1965), a court, to
protect the unversed policyholder, must assume a vigilant role in ensuring
insurance policies conform to public policy and principles of fairness.
Progressive Cas. Ins. v. Hurley, 166 N.J. 260, 272 (2001) (citation omitted).
When, as here, an insurance company relies on an exclusion in the policy
for a denial of coverage, it carries the burden of bringing the case within the
exclusion. Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 399 (1970). In contrast
to provisions extending coverage, which are interpreted broadly, exclusions are
read narrowly. Search EDP, Inc. v. Am. Home Assurance Co., 267 N.J. Super.
537, 542 (App. Div. 1993).
That said, where the language of an insurance policy plainly excludes
coverage, we are bound to enforce that exclusion. "An exclusion clause serves
the purpose of delimiting and restricting coverage." Doto v. Russo, 140 N.J.
544, 559 (1995) (citation omitted). "Exclusionary clauses are presumptively
valid and are enforced if they are 'specific, plain, clear, prominent, and not
contrary to public policy.'" Flomerfelt v. Cardiello, 202 N.J. 432, 441-42 (2010)
(quoting Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997)). Where the
words used in an exclusionary clause are clear, "a court should not engage in a
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strained construction to support the imposition of liability." Id. at 442 (quoting
Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990)).
II.
With these principles in mind, we turn to the circumstances of this case.
The Inspection
In the fall of 2016, in anticipation of purchasing a single-family residence
in Hopatcong, Tedra Birch retained the services of All State Home Inspection,
LLC ("All State") and its owner Joseph Monaco, Sr. to perform a home
inspection at those premises.
On September 29, 2016, Birch and All State entered into a Pre-Inspection
Agreement. That agreement stated, in relevant part: (1) "a Home Inspection
means a visual, functional, non-invasive Home Inspection conducted without
operating systems or components which are shut down, inoperable, or not
responding to normal operating controls," but including the plumbing and
heating systems; (2) the home inspection would be conducted in accordance with
the standards of practice set forth in the New Jersey regulations regarding home
inspectors, i.e., pursuant to N.J.A.C. 13:40-15;1 (3) the home inspection was not
1
The Pre-Inspection Agreement cites to "N.J.S.A. 13:40-15," which appears to
be a typographical error, as the Home Inspection Professional Licensing Act is
contained in N.J.A.C. 13:40-15.1 to -24 and N.J.S.A. 45:8-61 to -81.
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required to determine "future conditions that may occur including the failure of
systems and components"; and (4) "any and all claims [arising out of breach of
contract and negligence, among others] must be submitted to [All State], in
writing, before any repairs are performed, not later than one year from the date
of the inspection."
That same day, the home inspection was performed by Monaco. He
provided Birch with a fifty-three-page Inspection Report, inclusive of numerous
photographs he took of the premises.
The Inspection Report
In his report, Monaco noted he had visually examined numerous portions
of the house, including the water heater and plumbing system. He classified
these components with codes, designating either: (1) "Inspected (IN)," meaning
he "visually observed the item, component or unit and if no other comments
were made then it appeared to be functioning as intended allowing for normal
wear and tear"; (2) "Not Inspected (NI)"; (3) "Not Present (NP)," meaning the
component or unit was not in the home or building; or (4) "Repair or Replace
(RR)," meaning "[t]he item, component or unit is not functioning as intended,
or needs further inspection by a qualified contractor."
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For the plumbing system, Monaco included a photo of the propane tank
that was then on site. Among other things, he undertook to observe: piping
materials, supports, and insulation; leaks; "[h]ot water systems including: water
heating equipment"; "[f]uel storage and distribution systems"; and operated "all
plumbing fixtures . . . except where the flow end of the faucet is connected to
an appliance." However, Monaco noted the water was not turned on for
inspection, and thus the hot water systems were designated in the report as NI,
i.e., not inspected.
Under the "Heating/Central Air Conditioning" section of the report,
Monaco specifically noted the "vent pipe for . . . water heater fails to rise 1/4
inch per foot and may need re-locating or a power vent installed. Consult a
qualified plumber for repair/replace as needed for safety."
In the "Water Heater" section, Monaco noted the water heater is propane
fired. He classified it as IN, i.e., Inspected, and used the same classification for
the gas and fuel lines at the unit. However, Monaco noted the vent connector
and safety valve were RR, i.e., in need of repair. On that topic, he stated "[t]he
existing piping for T&P valve on water heater fails to extend downward to
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within six inches of floor. This is a safety issue and should be repaired. Consult
a qualified person for repair as needed."2
Birch's Purchase of the Home and Replacement of the Propane Tank
Allegedly in reliance on the Inspection Report, Birch purchased the
property in February 2017. Nearly a year later, on January 24, 2018, Birch hired
a vendor, Combined Energy Services Inc. ("CES") to install a new propane tank
at her home, for the purpose of fueling the hot water heater. The new tank was
installed by CES and the old tank removed.3
The Explosion
On January 28, 2018, four days after the new propane tank was installed,
Birch was at her home when that tank exploded. As a result of the explosion,
Birch suffered severe burns and other allegedly permanent injuries.
An inspection by the police following the explosion revealed a leak in
what is known as the "ball valve" on the pipe supplying propane to the water
2
It is not clear whether this identified safety issue bears upon the claim of a
negligent inspection, or whether an entirely different safety issue is involved in
the Underlying Action.
3
We do not address here whether All State and Monaco have a viable defense
in the Underlying Action of a lack of proof of proximate causation because of
the post-inspection installation of a new tank.
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heater. The police report stated it was "very possible the explosion occurred due
to a propane gas leak."
The Underlying Civil Action
In April 2019, Birch filed a civil complaint against multiple defendants,
including All State and its owner, Monaco, seeking damages for bodily injury,
property damage, and economic loss related to the propane explosion at Birch's
home ("the Underlying Action").
In an amended complaint, Birch asserted a single claim for negligence
against All State and Monaco for: (1) conducting the home inspection in a
"negligent manner"; (2) producing an Inspection Report which "contained
inaccuracies which contributed to the happening of the explosion"; and (3)
Birch's detrimental reliance "upon the inspection and findings" of All State and
Monaco when purchasing her home.
The Insurance Policy
Pursuant to N.J.A.C. 13:40-15.8, home inspectors in New Jersey are
required to maintain errors and omissions insurance in an amount not less than
$500,000 per occurrence. Defendant Hanover Insurance Company ("Hanover")
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issued a miscellaneous professional liability policy, 4 to All State, on January 29,
2019 with an effective policy period from January 29, 2019 to January 29, 2020. 5
The Policy is a $1,000,000 claims-made-and-reported policy. It contains
separate endorsements and exclusions, including an Asbestos Exclusion, Signed
Pre-Inspection Agreement Endorsement, Professional Home Inspection
Services Coverage Endorsement, and General Liability Endorsement.
The Declarations Pages provide in Item 5 that the retroactive date of
effectiveness of the Policy is ten years prior, January 29, 2008, and Item 6 states
the Policy covers Professional Services, defined as "Professional Home
Inspection Services." There is no dispute that All State and Monaco reported
Birch's claim after the retroactive date and during the Policy period, and the
underlying incident also occurred during the time period covered by the Policy.
Denial of Coverage
Having been sued, All State and Monaco sought coverage from Hanover
for the claims made against them by Birch in the Underlying Action.
4
The Policy does not appear to be in a standard industry form issued by the
Insurance Services Office ("ISO"). Its pages bear no notation indicating they
are from an ISO form, and no brief contends they are.
5
Henceforth, the aggregate of all the documents issued by Hanover to All State
on January 29, 2019 shall be referred to as the "Policy."
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On May 16, 2019, Hanover issued a letter denying coverage and refusing
to provide a defense to All State and Monaco based on a pollution exclusion
contained in an Asbestos Endorsement of the insurance policy and an exclusion
contained in the Professional Home Inspection Services Coverage Endorsement
for claims arising out of or based on asbestos, fire retardant treatments, toxic or
flammable materials, formaldehyde, including but not limited to "Chinese
Drywall."
The Present Declaratory Action
Following the coverage denial, Birch brought the present summary
coverage action, pursuant to Rule 4:67-1 to -6, against Hanover by filing an
Order to Show Cause and Verified Complaint. In this declaratory action, Birch
sought to compel Hanover to defend and indemnify All State and Monaco in the
Underlying Action as a third-party beneficiary of the Policy. Birch also
requested an award of counsel fees and costs. All State and Monaco joined the
lawsuit as co-plaintiffs.
The trial court heard oral argument from the parties regarding the Order
to Show Cause, and reserved decision. One week later, on January 30, 2020,
the trial court issued an oral decision and written order declaring that the Policy
provided coverage to All State for Birch's claims in the Underlying Action. The
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court denied, however, plaintiffs' requests for reimbursement of their previously
incurred counsel fees. 6
The Appeal
On appeal, Hanover asserts several arguments. First, it contends the trial
court committed harmful error by ignoring that: (a) coverage under the Hanover
Insurance Company Policy Bodily Injury and Property Damage Coverage p art
requires an "occurrence" committed by the insured, and the occurrence is solely
the propane explosion rather than any conduct by the insured; and (b) any
coverage for the bodily injury and property damage claim is excluded in the
Professional Services Part of the Hanover Policy by Exclusion 6, excluding any
claims "arising out of bodily injury or property damage."
Second, Hanover maintains the trial court erred by ignoring that the bodily
injury and property damage occurrence arises out of: (1) a propane explosion
that is excluded by Exclusion 10, the "toxic or flammable materials" exclusion
in the Policy; and (2) the escape of a "pollutant" which is disallowed by
Exclusion 4 in the Policy.
Third, Hanover contends the trial court overlooked that the Professional
Services Coverage part of the Policy only extends coverage for claims arising
6
Plaintiffs have not cross-appealed the counsel fee denial.
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from a wrongful act in the rendering or failure to render "professional home
inspection services," which Hanover argues does not include inspection of a hot
water system that was turned off at the time of the inspection.
Fourth and finally, Hanover argues the trial court deviated from New
Jersey case law, which does not permit the rewriting of insurance policies by the
courts to provide coverage where clear policy terms and exclusions exist within
a policy.
Analysis
As we have already noted, we are unpersuaded by most of Hanover's
arguments of non-coverage. We affirm the trial court's rejection of those
arguments, substantially for the reasons expressed by the motion judge.
Addressing Hanover's losing points very briefly, we are first satisfied that
there was an "occurrence" here within the scope of the Policy language . The
occurrence encompasses the insured's allegedly negligent inspection of the
house, which is claimed in the Underlying Action to have a substantial nexus to
and, in essence, serve as a "but for" cause of a failure to prevent the subsequent
propane explosion.
We are likewise satisfied that Birch's claims for bodily injury and property
damage are covered under the Policy, unless some other specific exception
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applies. Section G of the General Liability Endorsement, which extends
coverage for bodily injury and property damage, expressly replaces Paragraph 6
of the general Policy language otherwise disallowing such coverage.
In addition, we agree with plaintiffs that the exclusionary provisions in
Section E(4) of the Professional Liability Insurance Policy and Section H(1)(f)
of the General Liability Endorsement for claims of damage caused by
"pollutants," do not pertain here, when that term is understood with its ordinary
meaning. See Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110, 124 (2005)
("[T]he scope of the pollution exclusion should be limited to injury or property
damage arising from activity commonly thought of as traditional environmental
pollution," thus reflecting "the exclusion's historical objective-avoidance of
liability for environmental catastrophe related to intentional industrial
pollution.") (citation omitted). The explosion of this homeowner's propane tank
is not such a traditional "industrial pollution" event.
We reach a different conclusion, however, with respect to the Policy's
language excluding coverage caused by "flammable materials." The pertinent
passages are as follows.
The Professional Home Inspection Services Coverage Endorsement
amends "Section D – Definitions" of the Policy to add the following definitions:
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Professional home inspection services means the non-
invasive visual examination of the readily accessible
installed systems and components of a dwelling, as
identified and agreed to in writing by the client and
home inspector prior to the inspection process,
performed for a fee and the written home inspection
report generated.
Professional home inspection services do not include:
1. Any architectural or engineering
inspections or services or opinions
pertaining to the adequacy of any structural
system or component; or
2. Inspections performed for the purpose
of ascertaining compliance with any laws,
codes or regulations; or the failure to
inspect for, discover or disclose any
noncompliance with such laws, codes or
regulations.
[(Emphasis added).]
The same endorsement amends "Section E – Exclusions" of the Policy to
provide, in relevant part:
This policy does not apply to claim(s):
....
10. Arising out of or based upon asbestos,
fire retardant treatments, toxic or
flammable materials, formaldehyde,
including but not limited to "Chinese
Drywall."
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[(Emphasis added).]
This Endorsement amends "Section E – Exclusions" for the entire policy,
not merely for the coverage pertaining to Professional Services Coverage.
Plaintiffs point to the fact that the General Liability Endorsement does not
contain a flammable materials exclusion. They argue this means coverage for
"general liability," as distinct from "professional services," can extend to claims
arising from damages caused by an explosion of flammable materials. That
argument fails, however, because the General Liability Endorsement does not
stand on its own. Instead, as is clearly stated on its first page, the General
Liability Endorsement "modifies the following: MISCELLANEOUS
PROFESSIONAL LIABILITY POLICY." With respect to exclusions, the
General Liability Endorsement literally "replaces" only Paragraph 6 of the
Policy, concerning bodily injury and property damage. It does not say anywhere
that it replaces or amends the exclusion for flammable materials.
It is quite clear that propane gas is a flammable material. See, e.g., Roche
v. Floral Rental Corp., 95 N.J. Super. 555, 560 (App. Div. 1967) (describing
propane as "highly flammable"); see also N.J. Dep't of Health, Right to Know
Hazardous Substance Fact Sheet: Propane (2015).7 Moreover, the explosion at
7
Available at https://www.nj.gov/health/eoh/rtkweb/documents/fs/1594.pdf.
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Birch's house that caused her harm manifestly "arose out of" or was "based
upon" the use of that flammable material within the meaning of those terms in
Exclusion 10. As case law instructs, the phrase "arising out of" within insurance
policies generally connotes "conduct 'originating from,' 'growing out of' or
having a 'substantial nexus' with the activity" in question. Records v. Aetna Life
& Cas. Ins., 294 N.J. Super. 463, 468 (App. Div. 1996) (citations omitted).
Here, as Birch essentially asserts in the Underlying Action, the explosion
originated from, grew out of, and had a substantial nexus with, the propane tank
and its allegedly faulty connection to her hot-water heater, which the inspector
failed to spot and report.
In sum, the flammable material exclusion is expressed with sufficient
clarity in the Policy documents and must be enforced. Flomerfelt, 202 N.J. at
442-43. We reject plaintiffs' alternative argument that the exclusion should be
nullified because it allegedly is contrary to the insured's reasonable
expectations. For one thing, the reasonable-expectations doctrine does not apply
where the policy language is, as we have shown here, unambiguous. Oxford
Realty Grp. Cedar v. Travelers Excess & Surplus Lines Co., 229 N.J. 196, 208
(2017). It is not the courts' role to rewrite or negate the clear terms of an
exclusion.
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In addition, under the pertinent regulations, a licensed New Jersey home
inspector is not required to inspect propane tanks or underground storage tanks.
See N.J.A.C. 13:40-15.16(j)(1)(iii). As his report to Birch indicated, on the day
of his inspection Monaco was unable to observe the operation of the hot water
heating system fueled by the propane tank because the water was shut off. Thus,
even if, hypothetically, the Policy language excluding claims arising from
flammable materials was deemed ambiguous, a home inspector could not have
reasonably expected to be covered for such claims in this particular situation.
For these reasons, we are constrained to reverse the trial court and grant
Hanover's request for a declaration of no coverage. Any issues concerning
whether Hanover should be reimbursed for defense costs it may have paid to
date are for the trial court to resolve.
Reversed. We do not retain jurisdiction.
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