EUGENE J. PAYOR VS. NEW JERSEY MANUFACTURERSINSURANCE COMPANY(L-4734-14, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-0345-16T2
EUGENE J. PAYOR AND
JOANN WILCZYNSKI,
Plaintiffs-Appellants,
v.
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant-Respondent.
______________________________
Submitted October 2, 2017 – Decided November 15, 2017
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4734-14.
Melissa Payor-Mackiewicz, attorney for
appellants.
Carton Law Firm, LLC, attorneys for respondent
(Michael J. Lynch, on the brief).
PER CURIAM
Plaintiffs, Eugene Payor and Joann Wilczynski, appeal from
an August 12, 2016 order granting summary judgment in favor of
defendant, New Jersey Manufacturers Insurance Company.
We discern the following facts from the summary judgment
record. In February 2011, plaintiff Wilczynski noticed a shower
curtain rod had pierced the wall in her first-floor bathroom. She
called defendant to report the issue and a plumber to repair the
damage.
On March 1, 2011, defendant sent Tri-State Insurance
Adjusters, Inc., (Tri-State) to inspect plaintiffs' home. Tri-
State concluded a ruptured pipe underneath the first-floor
bathroom was the origin of the damage and confirmed water damage
to the interior of the home and to plaintiffs' personal property.
A few days later, a plumber arrived to fix the leak. Upon
removing the shower, several walls, and the flooring, the plumber
noticed the plywood underneath the floor was soaking wet and
rotted. He repaired the leaking pipes and left the area exposed
for Tri-State to further inspect.
On April 12, 2011, Tri-State retained Mark 1 Restoration,
Inc., (Mark 1) to investigate the damage. Mark 1's project manager
found visible mold spores on rotted plywood subflooring beneath
the first-floor bathroom and determined the source of the damage
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was a "probable diverter leak in the shower wall which softened
the wall causing the curtain rod to run through the wall."
After reviewing Mark 1's report, defendant determined
plaintiffs' additional damages were limited to $10,000 because of
a mold rider in their homeowners policy. Defendant issued
plaintiffs a $10,000 check for the mold damage in addition to
$9,944.53 for plaintiffs' damaged personal property.
On December 9, 2014, plaintiffs filed a complaint asserting
breach of contract and seeking declaratory relief that the $10,000
coverage limit in the mold rider did not limit their claim. Both
parties moved for summary judgment. On August 12, 2016, the trial
court denied plaintiffs' motion and granted defendant's cross-
motion for summary judgment.
Plaintiffs appeal, arguing genuine issues of fact precluded
summary judgment and the trial court misinterpreted the insurance
policy. Plaintiffs also assert their personal property claim
remains in dispute and public policy should favor the insured over
the insurer. We have considered these arguments in light of the
record and applicable legal principals and find them unpersuasive.
We therefore affirm.
I.
When we review a grant of summary judgment, we use the same
standard as that of the trial court. Globe Motor Co. v. Igdalev,
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225 N.J. 469, 479 (2016). A court should grant summary judgment,
"if the pleadings, depositions, answers to interrogatories and
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." Ibid. (citing R. 4:46-2(c)). The evidence must
be viewed in "the light most favorable to the non-moving party."
Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).
Plaintiffs assert the mold rider does not limit recovery
because the homeowners policy is susceptible to differing
interpretations, which should be construed against defendant. In
interpreting an insurance policy, we "start with the plain language
of the policy and 'give the words their plain, ordinary meaning.'"
Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009)
(quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). "Even
exclusionary provisions are presumptively valid and will be given
effect if specific, plain, clear, prominent, and not contrary to
public policy." Id. at 102 (citations omitted). "In the absence
of any ambiguity, courts should not write for the insured a better
policy of insurance than the one purchased." Zacarias v. Allstate
Ins. Co., 168 N.J. 590, 595 (2001) (quoting Gibson v. Callaghan,
158 N.J. 662, 670 (1999)). If an ambiguity exists, it must be
resolved against the insurer. Di Orio v. N.J. Mfrs. Ins. Co., 79
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N.J. 257, 269 (1979). An ambiguity arises "where the phrasing of
the policy is so confusing that the average policyholder cannot
make out the boundaries of coverage." Lee v. Gen. Accident Ins.
Co., 337 N.J. Super. 509, 513 (App. Div. 2001) (citing Weedo v.
Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). Here, there is no
ambiguity.
The homeowners policy in effect at the time of the incident
insured against loss to property from water as a result of damaged
plumbing, but specifically excluded mold or "fungi, wet or dry rot
or bacteria." The policy also included an anti-concurrent/anti-
sequential causation clause (sequential clause) applicable to the
policy's exclusions. The sequential clause excluded "fungi, wet
or dry rot or bacteria", regardless of any other cause or event
contributing concurrently or in any sequence to the loss. The
policy also contained a rider which gave back some excluded mold
coverage, on a limited basis up to $10,000.
The trial judge correctly applied the sequential clause to
plaintiffs' claim because the policy was written to provide
coverage for damage from the broken pipe, but expressly limited
additional recovery to $10,000 when an undetected leak caused mold
and rot. By combining the sequential clause and the mold
exclusion, the trial court reasoned plaintiffs' recovery was
restricted to the mold endorsement's limit of $10,000. We agree.
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Sequential clauses resolve coverage issues, where two perils,
one covered and one excluded, contribute to cause one loss.
Sequential clauses are enforceable in New Jersey. See Simonetti
v. Selective Ins. Co., 372 N.J. Super. 421 (App. Div. 2004);
Assurance Co. of America v. Jay-Mar, Inc., 38 F. Supp. 2d 349(D.N.J. 1998). Noting a lack of prohibition from the New Jersey
Supreme Court, the United States District Court for the District
of New Jersey found New Jersey would follow the majority rule that
sequential clauses are enforceable. Assurance, supra, 38 F. Supp.
2d at 354. In particular, the court stated "there is no violation
of public policy when parties to an insurance contract agree that
there will be no coverage for loss due to sequential causes even
where the first or the last cause is an included cause of loss."
Ibid. We endorsed the District Court's reasoning in Simonetti,
supra, 372 N.J. Super. at 431. Accordingly, we find the same
rationale applicable here.
Plaintiffs assert defendant had the burden of proving the
$10,000 mold exclusion applied and contend the trial court erred
because it allowed defendant to satisfy its burden by showing mold
was present, instead of showing it was the cause of the damage.
"The insurer has the burden of establishing application of an
exclusion." Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J. Super.
392, 401 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999)
6 A-0345-16T2
(citing Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co.,
98 N.J. 18, 26 (1984)). Defendant submitted the Mark 1 report in
support of summary judgment and established the presence of mold
spores in the first-floor's plywood subflooring. Consistent with
the language of the sequential clause, defendant satisfied its
burden because mold was a concurrent part of the damage. We reject
plaintiffs' assertion that defendant had to show mold was the sole
cause of loss, or at least caused an increase in loss, for the
exclusion to apply.
Plaintiffs argue material facts exist as to the extent of
damage caused by the mold and whether the mold existed when the
damage was reported. Because the sequential clause applies and
defendant demonstrated, through the unrebutted Mark 1 report, mold
was a sequential part of the loss, there are no material relevant
facts in dispute.
II.
Plaintiffs argue their personal property claim remains in
dispute because the trial court did not consider it when granting
summary judgment for defendant. However, we are confined to the
summary judgment record and plaintiffs did not raise this argument
in opposing defendant's motion for summary judgment. Lombardi v.
Masso, 207 N.J. 517, 542 (2011) (citing Ji v. Palmer, 333 N.J.
Super. 451, 463-64 (2000)).
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Any additional arguments introduced by plaintiffs are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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