Zulfigar Ahmed v. American Security Insurance Company

• Court: New Jersey Superior Court Appellate Division
• Decided: May 13, 2024
• Docket: A-1603-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1603-22

ZULFIGAR1 AHMED,

Plaintiff-Appellant,

v.

AMERICAN SECURITY INSURANCE COMPANY,

Defendant-Respondent,

and

CITY OF PATERSON,

Defendant. ________________________

Submitted April 23, 2024 – Decided May 13, 2024

Before Judges Sumners and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0261-21.

Zulfiqar Ahmed, appellant pro se.

1 As there were multiple spellings of plaintiff's first name, we adopt the spelling used in plaintiff's briefs. Dentons US LLP, attorneys for the respondent (John Robert Vales and Erika M. Lopes-McLeman, on the brief).

PER CURIAM

Plaintiff Zulfiqar Ahmed appeals from the January 11, 2023 Law Division

order granting defendant American Security Insurance Company summary

judgment and dismissing plaintiff's amended complaint with prejudice.

Following our review of the arguments presented on appeal, the record, and the

applicable law, we reverse and remand.

I.

We view the following facts established in the summary judgment record

in a light most favorable to plaintiff. See Friedman v. Martinez, 242 N.J. 449,

472 (2020). This insurance coverage dispute concerns the value and magnitude

of property damage to plaintiff's owner-occupied two-story residential

apartment house in Paterson.

On August 4, 2020, during a high-wind rainstorm, a tree limb and

branches fell onto plaintiff's house damaging its roof, vinyl siding, concrete

masonry wall, a window, and other property. Plaintiff's house was insured under

a lender-placed hazard insurance policy with defendant. The policy provided

$383,223 in liability coverage for "the dwelling" and up to ten percent of the

A-1603-22 2 policy limit for "other structures." Personal property was excluded from

coverage, along with "wear and tear" and certain specifically defined causes of

"water damage." After a loss, the policy required plaintiff to "protect the

property from further damage," "[m]ake reasonable and necessary repairs to

protect the property," "[k]eep an accurate record of repair expenses," and

"[c]ooperate . . . in the investigation of a claim."

On August 6, plaintiff filed an insurance coverage claim with defendant.

In addition to the exterior damage, plaintiff specifically claimed rainwater

leaked from the damaged roof and window to lower levels of the house causing

water damage to the basement. Defendant's adjustor inspected the exterior of

the property, taking limited pictures. Plaintiff provided an itemized invoice

dated September 29 from Ortiz Construction memorializing payments made in

the amount of $34,246 for the repairs performed. On September 30, defendant

advised plaintiff it was preserving a "full [r]eservation of [r]ights" pending "full

access to the property for a complete inspection." In October, plaintiff requested

payment for an exterior gutter, house trimming, a door, a step railing, the roof,

and vinyl siding. Defendant advised plaintiff it was seeking complete access to

both the exterior and interior of the property and would thereafter provide its

adjuster's inspection report and repair estimate.

A-1603-22 3 Plaintiff's counsel resubmitted the paid Ortiz Construction invoice and

requested to discuss the matter upon defendant's review of the invoice and

inspection report. Defendant’s report estimated the net claim was $63,315.68

for the exterior and interior damage, caused by the tree limb's penetration of the

roof requiring various replacements, including "the shingle and roofing felt as a

whole." The report noted that "[a] significant number of interior repairs were

completed prior to [the] inspection." Defendant disputed causation for certain

of plaintiff's alleged property damage, attributing necessary repairs to prior

insurance claims. A year earlier, plaintiff had settled five property damage

claims with defendant, which were memorialized in a "confidential settlement

agreement and release."

In December 2020, defendant notified plaintiff's counsel the claim

adjustment was completed and payment for the net amount of $8,703.65 was

being forwarded. Plaintiff acknowledged his counsel received a check for

approximately $8,700, but allegedly instructed the check be returned as

inadequate. Plaintiff maintained the total tree damage loss to his house and car

was approximately $440,000.

A-1603-22 4 On July 13, 2021, plaintiff filed an amended complaint asserting: breach

of contract; negligent misrepresentation; declaratory judgment; specific

performance; unjust enrichment; and bad faith. Defendant filed an answer.

In discovery, defendant produced an expert report by a forensic engineer

averring most of the claimed interior damage was unrelated to the tree impact

and was related to prior claims. The report provided a comparison of photos

taken from the 2019 and 2020 insurance claims respectively, demonstrating

similarity in property damage. While the report acknowledged the exterior

damage plaintiff alleged, it noted there was "historical and overlapping

damage." Plaintiff conversely produced multiple receipts, including additional

paid invoices from Ortiz Construction and MK Construction. After the close of

discovery, defendant moved for summary judgment. Plaintiff, self-represented,

filed multiple opposition documents with the motion judge.

On January 11, 2023, after argument, the judge granted defendant's

motion and issued an oral decision. The judge stated he was "absolutely

satisfied that all of th[e] other damage and . . . conditions set forth in th[e]

photographs were not casually related to the tree in the back elevation of th[e]

house" and "nothing . . . indicate[d] . . . any causation between the tree damage

in the rear elevation, the back elevation of the house[,] and all of these . . .

A-1603-22 5 photographs show[ing] work done on . . . bedrooms, kitchens, basements, front

steps, et cetera." The judge further reasoned he was "firmly of the opinion that

this could only be resolved in one way . . . for summary judgment in favor

of . . . [defendant], that [plaintiff] was paid over $8,000 for the damage that was

caused by the tree."

On appeal, plaintiff raised two arguments which solely address the

dismissal of his breach of contract claim:2

I. THE TRIAL COURT ERRED IN GRANTING [THE] MOTION FOR SUMMARY JUDGMENT TO DEFENDANT[] BECAUSE DEFENDANT[] BREACHED [ITS] INSURANCE POLICY TO PLAINTIFF'S PROPERTY LOSS.

II. DEFENDANT'S POLICY STATES IF PROPERTY IS DAMAGED, EXPENSES WILL BE GIVEN TO REPAIR PROPERTY VIA PLAINTIFF'S PROPERTY INSURANCE POLICY.

II.

We review a trial court's summary judgment decision de novo, "applying

the same standard used by the trial court" under Rule 4:46-2(c). Samolyk v.

Berthe, 251 N.J. 73, 78 (2022). "The court's function is not 'to weigh the

2 We limit our discussion to the arguments raised by plaintiff on appeal. Issues not briefed on appeal are deemed waived. Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2024); In re Gloria T. Mann Revocable Tr., 468 N.J. Super. 160, 180 (App. Div. 2021), certif. denied, 251 N.J. 380 (2022). A-1603-22 6 evidence and determine the truth of the matter but to determine whether there is

a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021)

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). To

rule on summary judgment, courts must determine "whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law." DepoLink Ct.

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189

N.J. 436, 445-46 (2007)).

"A dispute of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Gayles by Gayles v. Sky

Zone Trampoline Park, 468 N.J. Super. 17, 22 (App. Div. 2021) (quoting Grande

v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)). "Rule 4:46-2(c)'s 'genuine

issue [of] material fact' standard mandates that the opposing party do more than

'point[] to any fact in dispute' in order to defeat summary judgment." Globe

Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (alteration in original) (first

quoting R. 4:46-2(c); and then quoting Brill, 142 N.J. at 529). "Summary

A-1603-22 7 judgment should be granted 'if the discovery and any affidavits "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."'" DeSimone v. Springpoint

Senior Living, Inc., 256 N.J. 172, 180-81 (2024) (quoting Perez v.

Professionally Green, LLC, 215 N.J. 388, 405 (2013)). Insubstantial arguments

based on assumptions or speculation are not enough to overcome summary

judgment. Brill, 142 N.J. at 529; see also Dickson v. Cmty. Bus Lines, Inc., 458

N.J. Super. 522, 533 (App. Div. 2019) ("'[C]onclusory and self-serving

assertions by one of the parties are insufficient to overcome' a motion for

summary judgment." (quoting Puder v. Buechel, 183 N.J. 428, 440-41 (2005))).

"A contract arises from offer and acceptance and must be sufficiently

definite 'that the performance to be rendered by each party can be ascertained

with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435

(1992) (quoting Borough of W. Caldwell v. Borough of Caldwell, 26 N.J. 9, 24-

25 (1958)). "Courts enforce contracts 'based on the intent of the parties, the

express terms of the contract, surrounding circumstances and the underlying

purpose of the contract.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99,

118 (2014) (quoting Caruso v. Ravenswood Devs., Inc., 337 N.J. Super. 499,

506 (App. Div. 2001)). "The interpretation of a contract is generally subject to

A-1603-22 8 de novo review." Arbus, Maybruch & Goode, LLC v. Cohen, 475 N.J. Super.

509, 515 (App. Div. 2023).

"In interpreting insurance contracts, we first examine the plain language

of the policy and, if the terms are clear, they 'are to be given their plain, ordinary

meaning.'" Mac Prop. Grp. LLC v. Selective Fire & Cas. Ins. Co., 473 N.J.

Super. 1, 17 (App. Div. 2022) (quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J.

251, 270 (2008)). "If the plain language of the policy is unambiguous, we will

'not "engage in a strained construction to support the imposition of liability" or

write a better policy for the insured than the one purchased.'" Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 200

(2016) (quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J.

231, 238 (2008)). "In a dispute over the interpretation of an insurance contract,

it is the insured's burden 'to bring the claim within the basic terms of the policy.'"

Rosario by Rosario v. Haywood, 351 N.J. Super. 521, 529-30 (App. Div. 2002)

(quoting Reliance Ins. Co. v. Armstrong World Indus., Inc., 292 N.J. Super. 365,

377 (App. Div. 1996)). However, "where the insurance carrier claims the matter

in dispute falls within exclusionary provisions of the policy, it bears the burden

of establishing that claim." Id. at 530.

A-1603-22 9 III.

Plaintiff argues summary judgment was erroneously granted because he

sufficiently demonstrated defendant breached the policy by failing to reimburse

his proven property damage and the cost of repairs. He further argues the matter

should be submitted to a jury as he has demonstrated the damage caused from

the tree limb through receipts, invoices, photographs, and his deposition

testimony. It is undisputed plaintiff provided photographs depicting alleged

damage to the house's roof, vinyl siding, concrete masonry wall, and a window

caused by the fallen tree limb. Defendant's property adjuster's photographs

similarly demonstrated property damage. In fact, although defendant's

engineering expert largely disputed plaintiff's interior damage was causally

related to the tree's impact, he acknowledged the "punctured roof and windows

provide[d] openings for rainwater to penetrate the living space" and "the

displaced tree limb and branches impacted the house's south elevation,

south-facing roof slope, and the [concrete masonry] wall."

Notably, plaintiff provided an invoice from Ortiz Construction delineating

the costs for repairs causally related to the tree limb and acknowledging payment

of $34,246. The Ortiz invoice listed thirteen items repaired due to "damage

caused by trees" and described the work performed. In framing the summary

A-1603-22 10 judgment issue as "whether or not all of these repairs [we]re attributable to the

tree damage in the rear elevation of the property," the judge failed to address the

material issues of fact regarding the cost for certain necessary repairs that were

largely undisputed. Although defendant's property adjuster's estimate was

$13,845.78, with a net amount of $8,703.65 after depreciation, that does not

negate plaintiff's evidence created disputed material issues of fact regarding

what damage was causally related and the repair costs.

Thus, we part ways with the judge's determination that summary judgment

was warranted because plaintiff failed to submit an expert report and "[t]here

[wa]s nothing before the [c]ourt that would in any way, shape, or form" support

all the damage claimed. Plaintiff was not required at the summary judgment

stage to make a prima facie showing as to all damages claimed or be foreclosed

from proceeding on any portion demonstrated. The judge did not address

plaintiff's Ortiz Construction invoice reflecting plaintiff's payment for

delineated work completed between August and September 2020. Providing

plaintiff with all legitimate inferences from the record, we conclude the

construction company invoices sufficiently demonstrated a prima facie showing

of disputed facts regarding property damage causally related to the fallen tree

limb precluding summary judgment. See Branch v. Cream-O-Land Dairy, 244

A-1603-22 11 N.J. 567, 582 (2021). Therefore, we agree granting summary judgment

dismissing plaintiff's contract claim was in error.

We note "[i]n general, expert testimony is needed where the factfinder

would not be expected to have sufficient knowledge or experience and would

have to speculate without the aid of expert testimony." Torres v. Schripps, Inc.,

342 N.J. Super. 419, 430 (App. Div. 2001). "A witness must be shown to have

certain skills, knowledge or training in a technical area in order to be qualified

to give expert testimony." Ibid. (citing N.J.R.E. 702). We do not suggest on the

record before us whether plaintiff's proffered contractors shall be qualified as

experts or the ultimate result, but conclude plaintiff made a sufficient prima

facie showing.

Further, while the judge found plaintiff "was paid over $8,000 for the

damage," plaintiff refuted he accepted the amount, and the record does not

demonstrate otherwise. Defendant's December 2020 letter noticed payment for

the claim was sent, but plaintiff maintained he advised counsel to return the

check. Thus, whether plaintiff accepted payment is also in dispute.

Finally, we briefly address plaintiff's argument that he is entitled to

reimbursement for all damages requested under the policy and defendant's

position that plaintiff is precluded from seeking reimbursement for damages

A-1603-22 12 stemming from his five previously settled insurance claims. Pursuant to the

policy, plaintiff is only entitled to payment for the "reasonable cost[s] incurred"

to replace "the damaged or destroyed property" from a covered "cause of loss."

Thus, the policy precludes from recovery any unrepaired property damage from

previously settled claims, unrelated damage from other causes, or unsupported

costs allegedly related to this tree damage claim. For these reasons, based on

our de novo review, we discern material issues of fact exist precluding summary

judgment.

To the extent not addressed, plaintiff's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.

A-1603-22 13