Larry Shemen v. Cincinnati Insurance Co

• Court: Court of Appeals for the Third Circuit
• Decided: April 10, 2026
• Docket: 25-2148
• Status: Unpublished

Opinion

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 25-2148

LARRY SHEMEN; SHERRI SHEMEN, Appellants

v.

THE CINCINNATI INSURANCE COMPANY _____________________________ Appeal from the U.S. District Court, D.N.J. Judge Evelyn Padin, No. 2:22-cv-03026

Before: PORTER, MONTGOMERY-REEVES, and BOVE, Circuit Judges Submitted Apr. 10, 2026; Decided Apr. 10, 2026 _____________________________

NONPRECEDENTIAL OPINION*

BOVE, Circuit Judge. Plaintiffs Larry and Sherri Shemen sued Defendant, The

Cincinnati Insurance Company, for breach of contract. Applying New Jersey law, the

District Court granted Defendant’s motion for summary judgment. We will affirm.

I.

We assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal. In 2020, Defendant issued Plaintiffs a homeowner’s insurance policy

that covered “direct ‘physical loss.’” A53. The policy excluded coverage for physical loss

caused by “water.” A68. As relevant here, the policy defined “water” as “[f]lood, surface

* This disposition is not an opinion of the full Court and, under 3d Cir. I.O.P. 5.7, is not binding precedent. water, waves, including tidal wave and tsunami, tides, tidal water, overflow of any body of

water, or spray from any of these.” A68.

In 2021, Plaintiffs’ home was damaged by water from heavy rainfall during the

tropical-storm remnants of Hurricane Ida. Defendant denied insurance coverage for those

losses under the “water” exclusion. Plaintiffs brought a diversity action in federal court

alleging breach of contract. The District Court granted Defendant’s motion for summary

judgment based on the exclusion. Plaintiffs timely appealed.

II.

The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction

under 28 U.S.C. § 1291. We conduct de novo review of the District Court’s interpretation

of the insurance policy under New Jersey law. See Massey v. Borough of Bergenfield, 169

F.4th 188, 193 (3d Cir. 2026).1

III.

We agree with the District Court that Plaintiffs were not entitled to coverage based

on the unambiguous terms of the policy. Because the policy was to be “enforced as

written,” Defendant was entitled to summary judgment. Norman Int’l, Inc. v. Admiral Ins.

Co., 279 A.3d 425, 433 (N.J. 2022).

Plaintiffs’ home was damaged by “water”—specifically, “surface water”—that

accumulated during the storm. The plain meaning of the term is unambiguous in this

context. “[S]urface water” is “natural water that has not penetrated much below the surface

1 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, alterations, and subsequent history. 2 of the ground,” including rainwater. Surface Water, Webster’s Third New International

Dictionary (1993); see also Surface Water, Oxford English Dictionary (compact ed. 1991);

Surface Water, Black’s Law Dictionary (11th ed. 2019) (defining “surface water” as “water

lying on the surface of the earth but not forming part of a watercourse or lake [and] most

commonly derive[d] from rain, springs, or melting snow”); McCullough v. Hartpence, 58

A.2d 233, 235 (N.J. Ch. 1948) (describing surface water as “derived from falling rain and

melting snow, whether on the ground or on the roofs of buildings thereon”). The District

Court’s interpretation of “surface water” was consistent with the views of all parties’

experts, as well as the neighboring terms in the policy’s definition of “water,” such as

“Flood.” See Giovanni v. U.S. Dep’t of Navy, 906 F.3d 94, 106 (3d Cir. 2018).

Plaintiffs strain unsuccessfully to find ambiguity in the policy by relying on Sosa v.

Massachusetts Bay Insurance Co., 206 A.3d 1011, 1019 (N.J. App. Div. 2019). We agree

with the District Court that Sosa does not support Plaintiffs’ argument because that case

involved the distinguishable situation of a water-main break. The Sosa court also found

the insurance policy ambiguous based on technical provisions of the New Jersey

Administrative Code that have little, if any, relevance to the common meaning of “surface

water” as used in the policy Defendant issued to Plaintiffs. Accordingly, because the policy

is not ambiguous under the circumstances presented, we will affirm.