CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY PLH-0013397, ETC. VS. PUBLIC SERVICE ELECTRIC AND GAS (L-2040-14, L-2041-14, L-2402-14, L-2405-14, L-1918-15 AND L-0752-16, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4128-17T4
CERTAIN UNDERWRITERS AT
LLOYDS SUBSCRIBING TO
POLICY PLH-0013397, as
subrogee of Laura Lindsey, APPROVED FOR PUBLICATION
June 17, 2019
Plaintiff,
APPELLATE DIVISION
v.
PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant-Respondent.
__________________________________
HOMESITE INSURANCE COMPANY,
as subrogee of Rose Dun,
Plaintiff,
v.
PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant-Respondent.
__________________________________
RONALD SLEET and JUANITA
SLEET,
Plaintiffs-Appellants,
v.
PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant-Respondent.
_______________________________
LAURA LINDSEY,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant-Respondent.
________________________________
LAUREN LINDSEY,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant-Respondent.
_________________________________
HOMESITE INSURANCE COMPANY,
as subrogee of Irwin Author,
Plaintiff,
v.
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PUBLIC SERVICE ELECTRIC
AND GAS,
Defendant/Third-Party
Plaintiff-Respondent,
v.
DAVEY TREE EXPERT
COMPANY,
Third-Party Defendant.
_____________________________
Argued June 4, 2019 – Decided June 17, 2019
Before Judges Fisher, Suter, and Enright.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Docket Nos. L-2040-14,
L-2041-14, L-2402-14, L-2405-14, L-1918-15 and L-
0752-16.
Robert F. Rupinski argued the cause for appellants.
Robert T. Gunning argued the cause for respondent
(Morrison Mahoney LLP, attorneys; Robert T.
Gunning, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we examine the scope of available damages when a
defendant's negligence has caused a homeowner to be displaced; that is, we
consider whether a homeowner's damages are limited to the cost of alternate
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shelter or whether the homeowner may also seek additional damages based on a
broader concept of inconvenience. In adhering to the legal concepts expressed
in Camaraza v. Bellavia Buick Corp., 216 N.J. Super. 263, 265 (App. Div. 1987),
where we held a motor vehicle owner's damages were not necessarily limited to
the rental cost of a replacement, and in expanding Camaraza to claims other than
those involving the loss of use of a motor vehicle, we reverse the summary
judgment entered in favor of the defense and remand for trial.
In February 2014, a winter storm caused a high-voltage power line in
Willingboro belonging to defendant Public Service Electric and Gas (PSE&G)
to fall and ignite fires in plaintiffs' homes; they were displaced from their homes
for ten months.
Plaintiffs filed this action against PSE&G. Their homeowners insurance
carriers reimbursed plaintiffs for the repair costs and the incidental expenses
generated by their extended stays in motels during their displacement, but their
suits also sought damages for the loss of use of their homes, as well as emotional
distress, and personal injuries.1
1
Plaintiffs consented to a dismissal of all but the loss of use claim on the
motion's return date.
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In managing the case, the trial judge bifurcated the issues and first
considered PSE&G's liability. In January 2018, a jury found PSE&G liable for
the occurrence. A month later, PSE&G moved for summary judgment, arguing
plaintiffs were undamaged beyond the compensation provided by their insurers.
The motion judge agreed and entered judgment for PSE&G. Plaintiffs appeal,
arguing the judge erred in concluding they were not entitled to damages for the
loss of use of their property or their inconvenience. We agree plaintiffs were
entitled to further pursue these claims and, therefore, reverse.
The error that led to the summary judgment under review arises from the
judge's misapprehension of our holding in Camaraza, where the plaintiff's
vehicle was stolen while being repaired by the defendant. Ibid. We recognized
that the plaintiff, who chose not to rent a substitute vehicle, could pursue a claim
for his inconvenience, which would include damages not only for the loss of the
vehicle's use during the reasonable time needed for repairs, see also Graves v.
Balt. & N.Y. Ry. Co., 76 N.J.L. 362, 364 (Sup. Ct. 1908), but also for the owner's
exclusion from "normal recreational pursuits or [diminished] enjoyment of those
pursuits" proximately caused by the defendant. Camaraza, 216 N.J. Super. at
267. Property owners, we recognized, may be damaged by more than just repair
costs when unable to make use of their property. And, so, we took a broader
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view than some other jurisdictions, concluding that "the degree of inconvenience
for loss of use of an automobile will vary depending upon the individual
circumstances of the plaintiff"; the trier of fact, we said, "should be permitted to
consider the individual circumstances of a plaintiff in determining los s of use
damages." Id. at 268. While holding that the rental value of unavailable
property is admissible and is a considerable aid in quantifying the loss of use,
see Jones v. Lahn, 1 N.J. 358, 362 (1949), that evidence is not conclusive; a
property owner may also pursue damages that exceed the mere rental value of
the vehicle during its unavailability. See also MCI WorldCom Network Servs.
v. Glendale Excavation Corp., 224 F. Supp. 2d 875, 880-81 (D.N.J. 2002).
So, in adhering to Camaraza and extending its holding to homeowners, we
conclude that the mere fact that plaintiffs were provided motel rooms and
reimbursed meal and transportation costs by their insurance carriers did not
foreclose their right to seek other damages resulting from the loss of the use of
their homes or any other reasonable damages caused by the inconvenience.
Damages in such circumstances "are not limited to pecuniary losses which are
capable of precise measurement." Camaraza, 216 N.J. Super. at 266.2
2
Muise v. GPU, Inc., 371 N.J. Super. 13 (App. Div. 2004), on which PSE&G
greatly relies, is inapposite and should not be understood as undercutting
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We also reject PSE&G's argument that plaintiffs' inconvenience claims
were not adequately supported. Plaintiffs elaborated on the impact of
displacement at their depositions. The Lindseys, for example, testified they had
to move on multiple occasions due to insurance issues; their inconvenience
included the moving of oxygen tanks for the seventy-eight-year-old Laura
Lindsey, who suffered from chronic obstructive pulmonary disease. The family
was motel-bound over the Thanksgiving holiday. And Laura Lindsey was
without personal items of sentimental value to her in her last days; she died prior
to trial. Lauren Lindsey, Laura's daughter, had to share a motel room with her
fiancé and seven-year-old son, and she prematurely gave birth to another child
during the time of displacement, generating further inconvenience during the
infant's lengthy hospitalization.
The Sleets described how they were stuck depending on fast-food chains
for most meals because their motel lacked a full-service kitchen. Juanita Sleet
attempted to replicate their prior existence and bought several kitchen
Camaraza. To the contrary, we there held – in affirming an order that decertified
a class action – that damages based on class members' loss of use or
inconvenience because of a power outage were "dependent . . . on their
individual circumstances." Id. at 63-64. That ruling reinforces the notion –
underlying Camaraza – that damages based on loss of use or inconvenience are
largely unique to the plaintiff and ultimately turn on the factfinder's view of each
plaintiff's circumstances.
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appliances to make some meals in the motel; she claimed it wasn't the same.
And, because she was displaced, Juanita could not have her mother, then
residing in a nursing home, visit her residence; her mother died before the Sleets
were able to return to their home. Ronald Sleet alleged his sleep was affected;
he claimed the motel bed was not the same quality as his at home, and the sounds
of trucks, kids running in hallways, and motel doors slamming at all hours –
compared to his peaceful home on a cul-de-sac – disrupted his normal routine.
All plaintiffs claimed they expended time and incurred additional expenses
uncovered by insurance when periodically traveling to check on their homes.
Of course, PS&G remains free to argue that some or all of these damages
may represent "more than fair indemnity" or may be "so extravagant" as to
"outrun the bounds of reason." Brooklyn E. Dist. Terminal v. United States, 287
U.S. 170, 176 (1932). We recognize only the applicability of these principles to
the matter at hand; we express no view on the compensability of plaintiffs'
damage claims. That's for a jury to decide.
The order of summary judgment is reversed and the matter remanded for
trial. We do not retain jurisdiction.
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