QING CHEN VS. STATE FARM FIRE AND CASUALTY COMPANY (L-2007-15, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-2814-16T1
QING CHEN,
Plaintiff-Appellant,
v.
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant-Respondent.
_____________________________
Argued March 20, 2018 – Decided July 31, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2007-15.
Daniel W. Ballard argued the cause for
appellant (Zenstein Ballard, PC, attorneys;
Daniel W. Ballard, on the brief).
William H. Hofmann argued the cause for
respondent (Bennett, Bricklin & Saltzburg,
LLC, attorneys; William H. Hofmann, on the
brief).
PER CURIAM
Qing Chen appeals the Law Division's order granting summary
judgment to her insurer, State Farm Fire and Casualty Company,
dismissing her complaint seeking additional compensation for fire
damage to her rental property (the property). The motion court
determined that because Chen had remediation work done at the
property prior to State Farm's inspection, she breached the
insurance policy by preventing State Farm from assessing the full
extent of the fire damage and, therefore, was not entitled to more
than the $37,907.02 that State Farm had paid her. Because we
conclude a jury must resolve the material dispute regarding the
ability of State Farm to determine the scope of the property's
fire damage and the amount of compensation Chen was entitled to
receive under the insurance policy, we reverse and remand for
trial.
The record reveals the following. A fire at a neighboring
row home caused damage to the property from its flames, smoke, and
the water used by firemen to extinguish it. Under the terms of
the policy, Chen was to:
c. prepare an inventory of damaged personal
property[1] showing in detail the quality,
description, actual cash value and amount of
loss. Attach to the inventory all bills,
receipts and related documents that
substantiate the figures in the inventory;
d. as often as [State Farm] reasonably
require:
1
Neither party argues whether this provision applies to the real
property or personal property contained within the premises.
2 A-2814-16T1
(1) exhibit the damaged property;
(2) provide [State Farm] with records and
documents we request and permit us to make
copies; and
(3) submit to examinations under oath and
subscribe the same.
Two days after the fire, a public adjuster company hired by Chen
to assist her in assessing her damages informed State Farm of the
fire and consequential property damage. Prior to State Farm's
claim specialist's inspection of the property to evaluate the
property's damage, he told the public adjuster's representative
to complete only minor repairs and necessary work – debris removal,
water extraction, and the use of drying equipment – to prevent
further damage to the property, but not to perform remediation
work. However, when the claim specialist inspected the property
six days after the fire, he found that a remediation company hired
by Chen had completely gutted areas of the property to the wood-
framing studs. State Farm later advised Chen that, despite the
public adjuster's replacement value of $80,312.07 to restore the
property to its original condition, it would only pay her
$37,907.02 on an actual cost basis (replacement cost less
depreciation) for the property damage and remediation work; thus,
the respective estimates differed in both the scope of necessary
repairs and the costs of the repairs. State Farm asserted that
3 A-2814-16T1
due to the limited inspection its claim specialist was able to
conduct after Chen had extensive remediation work done on the
property, it could not assess the extent of the damage caused by
the fire. In addition, State Farm maintained Chen did not supply
sufficient proof that she expended funds to cover the remediation
costs.
Unsatisfied with the $37,907.02 she was paid, Chen filed suit
alleging State Farm breached the insurance policy and demanded
additional compensation for damage to the property. Following
discovery and unsuccessful arbitration, State Farm was granted
summary judgment; the motion court dismissed Chen's suit with
prejudice because it found that she failed to satisfy her
evidentiary burden as to damages because she had remediation work
done on the property prior to State Farm's inspection. Chen
appealed.
In examining the summary judgment under review, we apply the
same Brill2 standard that bound the motion court. Townsend v.
Pierre, 221 N.J. 36, 59 (2015); W.J.A. v. D.A., 210 N.J. 229, 237
(2012). This standard requires that we examine the record in the
light most favorable to the opponents of the successful summary
judgment motion. Brill, 142 N.J. at 540. A motion court should
2
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
4 A-2814-16T1
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 accord
no deference to the trial court's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Summary
judgment should be denied when determination of material disputed
facts depends primarily on credibility evaluations. Petersen v.
Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).
Guided by these principles, we conclude summary judgment
should not have been granted because there is a material dispute
regarding the damage to Chen's property. Chen argues she complied
with the insurance policy's terms that required her to mitigate
damages to the property after the fire by having a remediation
company clean up and make repairs to the property to prevent
further damage. Yet, she maintains that under State Farm's policy
interpretation, "[t]he provision requiring mitigation of damage
is in direct conflict with [her] obligation to exhibit the damage
after a loss." Nevertheless, she argues the photos of the pre-
remediation fire damage she gave to the claims specialist complied
with the policy requirements that she document the property's fire
damage, which contrary to State Farm's contention, enabled it to
determine the scope of the property's damage. By disregarding
these proofs, Chen argues the court violated the summary judgment
5 A-2814-16T1
standard by determining the claims specialist's conclusion – not
presented in the form of a certification and without any indication
of the scope of his investigation – that the remediation prevented
an assessment of the fire damage was credible, and it did not view
the evidence of her photos in the light most favorable to her.
We take no issue with the court's pronouncement in its oral
decision that, in accordance with the insurance policy, Chen "had
a duty to exhibit" the damaged portion of her property to State
Farm so that it "could make a reasoned analysis of" the damage.
Interpretation of the insurance policy is a question of law to be
decided by the court. See Polarome Int'l, Inc. v. Greenwich Ins.
Co., 404 N.J. Super. 241, 260 (App. Div. 2008). The court,
however, exceeded its authority by dismissing Chen's complaint
when it found that she failed "to satisfy her evidentiary burden."
In reaching this finding, the court accepted State Farm's
determination that it could not assess the fire damage prior to
the property's remediation over Chen's contention that the photos
taken after the fire and prior to remediation evidenced the
insurer's responsibility under the policy. Weighing the parties'
credibility is the duty of the jury as the fact-finder at trial,
and is beyond the court's purview in deciding summary judgment.
State Farm's contention that it is entitled to summary judgment
because the jury would be "forced to speculate as to . . . [Chen's]
6 A-2814-16T1
potential [fire] damages" is misplaced. This contention goes to
the strength of the insurer's defense, not to deciding summary
judgment. The same can be said for its argument that Chen failed
to produce evidence "of executed contractor contracts, copies of
cancelled checks, signed proposals, receipts or other documents
supporting or establishing her right to damages" in excess of
$80,000. At trial, the jury should determine the amount of
compensation, if any, that Chen is entitled to receive for fire
damage to the property under her State Farm insurance policy.
Reversed and remanded for trial.
7 A-2814-16T1