Bardis v. Stinson

132 A.3d 930, 444 N.J. Super. 227, 2014 N.J. Super. LEXIS 195
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 8, 2014
StatusPublished
Cited by3 cases

This text of 132 A.3d 930 (Bardis v. Stinson) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bardis v. Stinson, 132 A.3d 930, 444 N.J. Super. 227, 2014 N.J. Super. LEXIS 195 (N.J. Ct. App. 2014).

Opinions

The opinion of the court was delivered by

MAVEN, J.A.D.

Plaintiffs Alexander Bardis and Monica Bardis appeal from the January 25, 2013 Law Division order granting summary judgment in favor of defendants Kitty Stinson, Stinson Claims Services (collectively Stinson), and Cumberland Insurance Group (Cumberland) (collectively Defendants). The trial court found there was no coverage under plaintiffs’ homeowner’s insurance policy for the collapsed basement wall and other damages to their home allegedly caused by “hidden decay.” The court also rejected plaintiffs’ [230]*230argument that “hidden defects” allegedly resulting from the faulty construction meant the same as “hidden decay,” and were thereby covered losses under the policy. We find a question of fact regarding causation, and ultimately coverage, and therefore, reverse and remand.

I.

We view the facts and all reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). Plaintiffs are the owners and residents of a home insured by Cumberland since 2008. The policy for general liability and commercial dwelling insurance, provided coverage for “direct physical” losses caused by, among other things, damage to a building caused by the weight of ice, sleet or snow. A supplemental provision provided further coverage for the “collapse of a building or any structural part of a building that ensues” as a result of “hidden decay, unless such decay is known to an insured prior to the collapse.” (Italicized in original) The supplemental provision also provided coverage for the collapse of a building caused by the “[u]se of defective material or methods in construction or repair if the collapse occurs during the construction or repair.”

On December 26, 2009, the right basement wall in plaintiffs’ old, single-family home collapsed. The basement had been added to the home approximately twenty years earlier. Plaintiffs filed a property loss claim with Cumberland which hired Stinson, an independent insurance adjuster, to determine whether plaintiffs’ insurance policy covered the damage to their property. In a letter dated January 19, 2010, Stinson informed plaintiffs that their loss was not the result of a peril or cause of loss covered by their policy. The claim was specifically declined because “the damages sustained are a result of surface and subsurface ground water, weight of ice, sleet, snow and collapse.” The letter referred to the relevant portion of the policy that sets forth the exclusions upon [231]*231which the denial was based. “Section ID, Losses Not Insured, Paragraph 14” reads:

WEIGHT OF ICE SLEET, OR SNOW, AND RELATED DAMAGE, AND COLLAPSE EXCLUSION
Damage to a ... foundation ... retaining wall ... caused by:
A. Freezing, thawing, pressure or weight of ice, sleet or snow.
B. Collapse, other than collapse of a building or any structural part of a building.

Stinson based its decision, in part, on the investigation of Sinan S. Jawad, a structural engineer. Jawad inspected plaintiffs’ property on January 5, 2010. In his report, he noted there had been “a significant rain storm and melting snow in the region on the loss date.” He defined hydrostatic pressure as “the pressure of the soil and the water in the soil on the wall.” The amount of pressure placed on a structure depends upon the type of soil present, as well as on the amount of water in the soil. Jawad opined that “hydrostatic pressure, water, damaged the wall.” With respect to the structure of the property, Jawad reported that the basement had been added years after the original construction, and built over the crawl space. He noted the block walls used to construct the basement are rarely used in modern construction because they are prone to strength and water infiltration problems. Further, the block walls are not strong in resisting hydrostatic pressure. He also noted the basement was built without the required underpinnings, which would violate present-day construction standards.

Plaintiffs retained structural engineer Michael Pierce to conduct a preliminary visual inspection. Pierce conducted his inspection on July 26,2010, after which he concluded as follows:

The collapse revealed that the construction of the masonry sidewall consisted of a concrete masonry unit foundation wall “sistered” within the basement and alongside a shallow bearing wall, which directly supported the floor platform. It appears that the interior “sister wall” was installed to form the basement space after original construction was completed. A masonry chimney is located adjacent to the collapsed section of wall and the chimney foundation appeared to bear [sic] at the approximate level of the shallow outer foundation wall.
It is my professional opinion within a reasonable degree of engineering certainty that the cause of the collapse was a lateral bending failure due to excessive horizontal loads. The original, shallow foundation wall, the footing of the adjacent [232]*232chimney, and retained soil below the shallow wall, applied a surcharge loading to the sister wall. The excessive loading caused lateral displacement of the sister wall, which undermined the original shallow masonry foundation.

On December 14, 2011, plaintiffs filed a complaint in the Law Division, alleging the basement wall collapsed due to hidden decay and chimney weight deterioration causing $175,000 in damages. Plaintiffs further claimed their insurance policy expressly covered the cost of damage resulting from “hidden decay.” Plaintiffs demanded judgment against defendants in that amount, “with interest and costs of suit.” Defendants filed an answer on January 11, 2012. They asserted, among other things, that plaintiffs’ claim “is barred because the loss in question is excluded from the policy of insurance.”

Plaintiffs and defendants moved for summary judgment. Plaintiffs also moved to strike Jawad’s report as a net opinion. On January 25, 2013, the court ruled on the motions. The trial court granted plaintiffs’ motion to strike Jawad’s report and then addressed defendant’s motion.

The court then issued an oral decision, granting summary judgment in favor of defendants. The court found that plaintiffs’ sole support for them argument that “hidden decay” caused the collapse, was defendants’ expert testimony, which had been stricken. The court found plaintiff provided no other evidence that suggests the collapse was caused by decay or erosion.

The court also rejected plaintiffs’ argument to interpret the term ‘hidden decay’ to include hidden construction defects. The court found the plain meaning of the term “decay” is not the same as “defect.” Further, the policy’s failure to define the term “decay” did not render it an ambiguous term. Moreover, the court found that neither expert attributed the cause of the collapse to decay. Instead, both experts indicated that the collapse “was allegedly caused by defective construction of the wall and foundation together with hydrostatic pressure and the property’s shallow masonry chimney foundation.” The policy provided that coverage [233]

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Cite This Page — Counsel Stack

Bluebook (online)
132 A.3d 930, 444 N.J. Super. 227, 2014 N.J. Super. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bardis-v-stinson-njsuperctappdiv-2014.