MICHAEL DIAZ VS. CHRYS S. NORWOOD FAMILY, LP (L-1123-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5013-17T3
MICHAEL DIAZ,
Plaintiff,
v.
CHRYS S. NORWOOD FAMILY,
LP, ATHOS SIMOTAS PERSONAL
RES TRUST, BON JOUR GROUP,
LLC, and MT EMBROIDERY AND
PROMOTIONS, LLC, d/b/a BON
JOUR,
Defendants,
and
SIMOTAS PROPERTY
MANAGEMENT, LLC,
Defendant-Appellant,
and
SENTINEL INSURANCE
COMPANY,
Defendant-Respondent.
____________________________
Argued May 20, 2019 – Decided June 10, 2019
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-1123-16.
Douglas F. Ciolek argued the cause for appellant
(Rosenberg Jacobs Heller & Fleming PC, attorneys;
Douglas F. Ciolek, of counsel and on the briefs).
Thomas E. Schorr argued the cause for respondent
(Dilworth Paxson, LLP, attorneys; Thomas E. Schorr,
of counsel and on the briefs).
PER CURIAM
In this dispute over insurance coverage, Simotas Property Management,
LLC (Simotas),1 the property manager for the owner, appeals from two orders
dated June 8, 2018 – one granting summary judgment to Sentinel Insurance
Company (Sentinel),2 the insurer for the tenant, and one denying Simotas's
cross-motion for summary judgment. By entering the orders, the judge
concluded that Simotas was not entitled to insurance coverage from the policy
issued by Sentinel (the Sentinel Policy). We affirm.
1
Improperly pled as Simotas Property Management by Daphne Bloore.
2
Improperly pled as The Hartford Insurance Company.
A-5013-17T3
2
Michael Diaz (Diaz), an employee of the tenant, Bon Jour Group, LLC
(Bon Jour), was injured when he slipped on ice on the property owned by Chrys
S. Norwood Family, LP (Norwood). He filed the underlying complaint against
Norwood, and then filed an amended complaint against Norwood, Simotas
(Norwood's property manager), and a third party that is not involved in this
appeal (collectively the Norwood Defendants). Bon Jour was insured by
Sentinel – but Simotas was not listed on the insurance policy. Simotas filed its
answer, and filed a cross-claim against Sentinel seeking a declaratory judgment
that it was entitled to insurance coverage on Sentinel's policy.
Under the lease terms with Norwood, Bon Jour had to keep the walkway
clear of snow and ice, but had no obligation to obtain liability insurance for
Norwood or Simotas. In addition, Simotas claims that prior and subsequent
tenants signed written leases in which they were responsible for keeping
walkways and the parking lot free and clear of ice and snow. Norwood and
Simotas did enter into their own Property Management Agreement (PMA),
which outlined tasks that Simotas would perform solely on Norwood's behalf,
such as screening tenants, negotiating and executing rental or lease agreements,
and commencing eviction actions in Norwood's name. The Sentinel Policy did
not name Simotas as an insured or an additional insured. It provided, in part,
A-5013-17T3
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6. Additional Insureds When Required By Written
Contract, Written Agreement Or Permit
The person(s) or organization(s) identified in
Paragraphs a through f below are additional insureds
when you have agreed, in a written contract, written
agreement or because of a permit issued by a state or
political subdivision, that such person or organization
be added as an additional insured on your policy,
provided the injury or damage occurs subsequent to the
execution of the contract or agreement, or the issuance
of the permit.
....
c. Lessors Of Land Or Premises
(1) Any person or organization from whom
you lease land or premises but only with
respect to liability arising out of the
ownership, maintenance or use of that part
of the land or premises leased to you.
....
f. Any Other Party
(1) Any other person or organization who
is not an insured under Paragraphs a.
through e. above, but only with respect to
liability for "bodily injury", "property
damage" or "personal and advertising
injury" caused, in whole or in part, by your
acts or omissions or the acts or omissions
of those acting on your behalf:
....
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(b) In connection with your premises
owned by or rented to you[.]
It also permitted coverage for any entity purportedly performing services in
connection with Bon Jour's occupancy of the leased premises, and stated,
C. WHO IS AN INSURED
....
2. Each of the following is also an insured:
....
b. Real Estate Manager
Any person (other than your "employee" or
"volunteer worker"), or any organization
while acting as your real estate manager.
Sentinel's Policy explained that, "[t]hroughout this policy the words 'you' and
'your' refer to the named insured in the Declarations." As of the date of the
incident, there was no written agreement between (1) Simotas and any named
insured under Sentinel's policy; or (2) Simotas and Bon Jour, requiring Bon Jour
to procure insurance on behalf of Simotas. On appeal, Simotas contends that
the tenant was responsible for clearing the area of the accident of snow and ice,
and that under Cambria v. Two JFK Blvd., LLC, 423 N.J. Super. 499 (App. Div.
2012) and First National Bank of Palmerton v. Motor Club of America Insurance
A-5013-17T3
5
Co., 310 N.J. Super. 1 (App. Div. 1997), it is an additional insured under the
Sentinel Policy.
When reviewing an order granting summary judgment, we apply "the
same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super.
493, 497 (App. Div. 2013). A court should grant summary judgment when the
record reveals "no genuine issue as to any material fact" and "the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We owe no
special deference to the motion judge's conclusions on issues of law. Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, the pertinent facts are undisputed. The question is whether Simotas
was an insured under the "Real Estate Manager" provision of Sentinel's
insurance policy. Simotas relies primarily on Palmerton, 310 N.J. Super. 1 and
Cambria, 423 N.J. Super. 499, but neither case supports Simotas's contentions.
In Palmerton, we held that a mortgagee that had taken complete
possession of a mortgagor's property, due to a default under a mortgage,
qualified as an insured under the mortgagor's liability policy. 310 N.J. Super.
at 3-4. We agreed with the motion judge who explained that, "once [the]
plaintiff became mortgagee in possession, it was acting as the owners' real estate
manager and thus qualified as an insured under the policy issued by [the]
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defendants to the owners." Id. at 4. This was also reiterated in Cambria. 423
N.J. Super. at 504.
In Cambria, the plaintiff was injured when he slipped on ice in the parking
lot of a strip mall owned by the landlord. Id. at 501. The landlord and David
Rubin (Rubin), a real estate manager, sought a declaration that they were
covered by a liability insurance policy obtained by one of the strip mall's tenants.
Ibid. The tenant's insurance policy was issued by a third-party defendant
insurance company. Ibid. The motion judge in that case was asked to answer
two questions: (1) whether the tenant complied with a lease term that required
the naming of the landlord as an additional insured on its insurance policy; and
(2) if the tenant failed to obtain coverage for the landlord, whether the landlord
or Rubin were nevertheless covered because of the "real estate manager"
provision in the insurance policy. Ibid. The motion judge found that the tenant
failed to obtain the required coverage for the landlord, but that Rubin was acting
as the tenant's real estate manager, and therefore, covered under the tenant's
insurance policy. Ibid. We reversed. Ibid.
The insurance policy in Cambria provided coverage only to the named
insureds, which included the tenant and "[a]ny person (other than your
employee), or any organization while acting as your real estate manager." Id. at
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502 (alteration in original). Because of this language – "your" as "referring only
to the tenant" – we explained that the question was whether the landlord or Rubin
"could be said to be the tenant's real estate manager." Ibid. We concluded that
Rubin was "a real estate manager and certainly the landlord's real estate
manager," but not the tenant's real estate manager. Ibid. Rubin was hired to
maintain the strip mall's records, collect rent, and care for and maintain the
property. Ibid. But to succeed on a claim that the insurance company owed
them a defense and indemnification, we explained that the landlord and Rubin
had to demonstrate "not just that Rubin was a real estate manager or that he was
the landlord's real estate manager but that he was the tenant's real estate
manager." Ibid.
"[T]he phrase 'real estate manager' has not surprisingly been understood
as encompassing, as its name suggests, entities or persons who manage real
estate for another." Ibid. We deduced that the question was
whether – with regard to the portion of the premises
where the slip and fall occurred – Rubin was acting as
the landlord's or the tenant's real estate manager. And
that question turns on an understanding of whether the
incident occurred in the leased premises or some other
area of the property for which the tenant was
responsible.
[Id. at 503.]
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We concluded that, "the landlord retained the sole responsibility for maintaining
and caring for the parking lot and, as a result, Rubin acted as the landlord's real
estate manager with regard to snow and ice removal from that area." Id. at 504.
We said that the contention that Rubin constituted the tenant's real estate
manager could be saved if "the lease otherwise saddled the tenant with a duty to
care for the parking lot." Ibid.
Moreover, Cambria distinguished Palmerton by opining that in Palmerton,
the mortgagee was acting on behalf of its own interests in addition to the
interests of the underlying owner. Ibid. Simotas urges this court to find the
same distinction here, as "there was no written lease . . . delineating that only a
portion of the land was under the control of the tenant." Instead, it contends that
Bon Jour was responsible for, and in control of, the area where Diaz was injured.
Simotas argues that it was a "real estate manager" as that term was utilized in
the Sentinel Policy, as it managed real estate for another. See id. at 502. But
Simotas never performed any snow or ice removal on Bon Jour's behalf. In
Cambria, we explained that, "the landlord retained the sole responsibility for
maintaining and caring for the parking lot and, as a result, Rubin acted as the
landlord's real estate manager with regard to snow and ice removal from that
area." Id. at 504 (emphasis added).
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Under Cambria, Simotas was not acting as Bon Jour's real estate manager,
such to qualify Simotas for insurance under the Sentinel Policy. Simotas is
unable to demonstrate "not just that [it] was a real estate manager or that [it] was
[Norwood]'s real estate manager but that [it] was [Bon Jour]'s real estate
manager." Cambria, 423 N.J. Super. at 502. As such, Simotas is not entitled to
the benefit of coverage under a policy that it was not a party to.
To the extent that we have not addressed any of the parties remaining
arguments, we find that they are without sufficient merit to warrant attention in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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