RICHARD KLEIN VS. FRANKLIN MUTUAL INSURANCE COMPANY VS. CHRIS DEBROCK(L-3099-14, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 23, 2017
• Docket: A-0125-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0125-16T1

RICHARD KLEIN and VICKI KLEIN,

Plaintiffs-Appellants,

v.

FRANKLIN MUTUAL INSURANCE COMPANY,

Defendant/Third-Party Plaintiff-Respondent,

CHRIS DEBROCK and LAURA DEBROCK,

Third-Party Defendants. _______________________________

Submitted September 27, 2017 – Decided October 23, 2017

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3099-14.

Gallant, Parlow, Lang & Bergstralh, PC, attorneys for appellants (David S. Bergstralh, on the brief). Sweet Pasquarelli, PC, attorneys for respondent (Anthony P. Pasquarelli, of counsel; Kenneth C. Ho, on the brief).

PER CURIAM

Plaintiffs Richard and Vicki Klein appeal from the July 26,

2016 order granting defendant Franklin Mutual Insurance Company's

(FMI) motion for summary judgment. After a review of the

contentions in light of the record and applicable legal principles,

we affirm.

In the winter of 2014, plaintiffs noticed that their in-

ground pool cover appeared lower than usual and they filed a claim

for damage to the pool under their homeowners insurance policy

issued by FMI. After the snow and ice melted off the pool cover,

plaintiffs stated that they observed a branch in the pool and

noticed tears in the pool cover and the vinyl pool lining.

Plaintiffs also reported that the pool walls were bowing inward.

At depositions, plaintiffs surmised that the damage was

caused when a rotted tree branch fell from a neighbor's property

into the pool. Neither plaintiff had observed this event.

In support of their claim, plaintiffs retained a public

adjuster, Thomas Brett Jr., who opined in a one-paragraph letter

that wind had caused a tree branch to fall, which had punctured

the pool cover and vinyl lining. He stated:

2 A-0125-16T1 This puncturing lead to the draining of the pool, which negated the counteracting lateral water pressure and thus the lateral earth pressure buckled the main wall of the pool. Therefore even though lateral earth pressure eventually buckled the pool wall it was the sudden and accidental event of the wind displacing a tree branch that started the chain of events and therefore the damage to the pool should be a covered claim.

To investigate the claim, FMI retained an engineer, Craig

Moskowitz, MBA, MS, PE, who inspected the pool and observed several

bowed walls and corroded metal connection bars. He also noted

that the pool stairs were not level. Moskowitz opined that the

bowed wall was "caused by weakening support connections and

differential movement of the ground/soil adjacent to such wall.

The bowing of such wall most likely occurred over a period of the

past 5-10 years based on my observations of the in-ground pool in

its entirety."

FMI denied plaintiffs' claim, asserting that the alleged

damage fell within the "wear and tear" exclusion of their

homeowners policy. Plaintiffs thereafter instituted suit alleging

that FMI improperly denied their insurance claim.

Upon motion of FMI, the trial judge barred the expert report

of Brett, finding it to be an impermissible net opinion. 1 Both

parties subsequently moved for summary judgment. In a written

1 Plaintiffs do not appeal from this order.

3 A-0125-16T1 decision of July 26, 2016, Judge Stuart A. Minkowitz noted that

it was the insurer's burden to demonstrate that the claim fell

within an exclusion in the policy to disclaim coverage. The judge

found Moskowitz's report satisfied FMI's burden as the engineer

had provided "plausible evidence that the damage to the pool was

caused by wear and tear over a five to ten-year period." Judge

Minkowitz stated that the expert evidence satisfied the wear and

tear exclusion in the policy.

Additionally, the judge further noted that plaintiffs had

failed to present any evidence to dispute Moskowitz's expert

opinion. Their proposal that a tree branch had fallen into the

water, tearing the liner and causing an imbalance resulting in a

compromise to the integrity of the pool walls, was speculative.

The judge found expert testimony was required to assist a jury in

understanding this matter, and without an expert opinion,

plaintiffs could not prove the proximate cause of the pool damage.

The judge granted summary judgment in favor of FMI.

Plaintiffs argue on appeal that the trial judge erred in

determining that they were required to prove causation for the

claimed damages, and in accepting the defense expert's opinion,

as it is the jury's province alone to assess the credibility of

witnesses.

4 A-0125-16T1 We conduct a de novo review, applying the same standard as

the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment

must be granted "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." R. 4:46-2(c); see Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

Rather, to defeat summary judgment, the non-moving party must

bring forth "evidence that creates a 'genuine issue as to any

material fact challenged.'" Brill, supra, 142 N.J. at 529 (quoting

R. 4:46-2).

After reviewing the record, we conclude that Judge

Minkowitz's factual findings are fully supported by the record

and, in light of those facts, his legal conclusions are

unassailable. We, therefore, affirm substantially for the reasons

expressed in his well-reasoned opinion, and add the following

brief comments.

It is well established that insurance policy exclusions are

narrowly construed and "the burden is on the insurer to bring the

case within the exclusion." Princeton Ins. Co. v. Chunmuang, 151

N.J. 80, 95 (1997); see S.T. Hudson Eng'rs, Inc. v. Pa. Nat'l Mut.

5 A-0125-16T1 Cas. Co., 388 N.J. Super. 592, 603-04 (App. Div. 2006), certif.

denied, 189 N.J. 647 (2007).

Here, FMI presented expert evidence that the claimed damage

to the pool occurred over the course of five to ten years.

Defendant's unrebutted expert opinion regarding the damage to the

pool satisfied the "wear and tear" exclusion of the policy.

Plaintiffs did not contradict this evidence, other than by

presenting an unsupported theory of how the damage might have

occurred. There was no issue of fact before the trial judge. The

grant of summary judgment to FMI is supported by the evidence in

the record.

We find the remainder of plaintiffs' arguments lack

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

6 A-0125-16T1