Opinion
DOCKET NO. A-2483-11T3
02-06-2013
GEORGE GUTIERREZ and NEREIDA GUTIERREZ, Plaintiffs-Appellants, v. TRAVELERS PROPERTY AND CASUALTY CO. OF AMERICA, INC., Defendant-Respondent, and BUILDERS OF AMERICA, INC., Defendant.
Malcolm Blum argued the cause for appellant (Law Offices of Malcolm Blum, attorneys; Jennifer M. Blum, on the brief). Frank E. Borowsky, Jr., argued the cause for respondent (Borowsky & Borowsky, LLC, attorneys; Mr. Borowsky and Erin M. McDevitt-Frantz, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1837-10.
Malcolm Blum argued the cause for appellant (Law Offices of Malcolm Blum, attorneys; Jennifer M. Blum, on the brief).
Frank E. Borowsky, Jr., argued the cause for respondent (Borowsky & Borowsky, LLC, attorneys; Mr. Borowsky and Erin M. McDevitt-Frantz, on the brief). PER CURIAM
Plaintiffs brought this declaratory judgment action against defendant Travelers Property and Casualty Company of America (Travelers), seeking a declaration that Travelers provided coverage to a subcontractor, Builders of America, Inc. (BOA), that allegedly performed negligent work as part of an extensive home improvement project. They appeal from an order that granted summary judgment to Travelers, finding no coverage for plaintiffs' claim against BOA. We affirm, substantially for the reasons set forth in the oral opinion of Judge Rochelle Gizinski.
In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "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 also Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
In October 2001, plaintiffs entered into a contract with Wiater Building & Design, Inc. (Wiater) for an extensive renovation project that involved the construction of an addition, including the excavation of a full basement, the construction of footings, foundation, framing, exterior finish, roofing, windows, plumbing, and electric work. BOA was one of several subcontractors hired by Wiater to perform work on the project. Construction began at the end of January 2002. Construction was halted shortly thereafter for approximately two months. When a soil inspection for the footing excavation was conducted on April 16, 2002, construction of the addition had not started.
In 2006, Wiater filed a complaint against plaintiffs, alleging they had failed to make final payment for the construction project. Plaintiffs filed a counterclaim, claiming they had suffered damages due to defective workmanship. Wiater then filed a suit against several of its subcontractors, including BOA, seeking indemnification and contribution in the event plaintiffs' claims were successful. These liability suits were consolidated.
On May 3, 2010, the day scheduled for the trial of the consolidated liability suits, Wiater produced a certificate of insurance issued by Travelers to BOA. The trial was adjourned to permit plaintiffs to file the underlying declaratory judgment action against BOA and Travelers. BOA failed to file an answer to plaintiffs' claims and a default judgment was entered against it. The claims between plaintiffs and Wiater ultimately settled.
Travelers issued a commercial general liability insurance policy to BOA, Policy Number I680-736D732-2 COF, for the policy period of March 1, 2000 through March 1, 2001. This policy was renewed as Policy Number I680-736D732-3 COF for the period of March 1, 2001 through March 1, 2002, and renewed again as Policy Number I680-736D732-4 COF for the period of March 1, 2002 through March 1, 2003 (the Policy). The Policy was cancelled, effective April 1, 2002, for non-payment.
Travelers filed a motion for summary judgment. As part of their response to Travelers' Statement of Material Facts pursuant to Rule 4:46-2, plaintiff George Gutierrez submitted a certification in which he stated,
As a result of [BOA's] failure to follow the architect's plans, and the resultant failure to supply the appropriate supports, after the house was completed[,] severe cracking, shifting, and other major deficiencies began to develop. In effect, the failure to
provide the appropriate supports, as required by the architect's plans, caused the house to "move." This movement adversely affected the integrity of the home, and resulted in a determination by the architect and a structural engineer that the entire job has to be redone . . . .
[(Emphasis added).]
Judge Gizinski concluded that there was no evidence that the alleged property damage occurred during the Travelers policy period and, therefore, the Policy did not provide coverage to BOA for plaintiffs' claim.
Plaintiffs present the following arguments for our consideration in this appeal:
POINT I
THE GRANTING OF SUMMARY JUDGMENT WAS INAPPROPRIATE BECAUSE THERE WERE SEVERAL DI[S]PUTED ISSUES OF MATERIAL FACT.
POINT II
THE "PROPERTY DAMAGE" AT THE GUTIERREZ' [SIC] HOME WAS CAU[S]ED BY AN "OCCURRENCE" THEREBY CREATING A COVERED LIABILITY.
POINT III
THE PLAIN[]T[I]FFS WERE INTENDED THIRD-PARTY BENEFICIARIES WITH A RIGHT TO MAINTAIN A SUIT AGAINST TRAVELERS.
POINT IV
IN ADDITION TO BEING THE INTENDED BENEFICIARIES AND HAVING THE AUTHORITY TO MAINTAIN THE WITHIN SUIT, PLAINTIFFS MAY NONETHELESS MAINTAIN THIS ACTION AGAINST
TRAVELERS BECAUSE OF THE JUDGMENT OBTAINED AGAINST BOA.
POINT V
BOA'S ALLEGED BREACH OF NOTICE AND COOPERATION CLAUSES DO NOT ABROGATE COVERAGE BECAUSE TRAVELERS CANNOT DEMONSTRATE APPRECIABLE PREJUDICE.
After carefully considering the briefs and record in light of the applicable legal principles, we are satisfied that Points I through IV lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments, and as a result, we need not consider the issue raised in Point V.
It is undisputed that the Policy is what is known as an "occurrence" policy. The Policy provides coverage for "property damage" claims the insured becomes legally obligated to pay if the "'property damage' is caused by an 'occurrence' that takes place in the 'coverage territory'" and the "'property damage' occurs during the policy period." "Occurrence" is defined in the Policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Plaintiffs contend that the property damage here was caused when BOA negligently performed the work; that such work was performed before the Policy was canceled on April 1, 2002; and, therefore, that a genuine issue of fact existed to preclude summary judgment. Travelers argues that the underlying property damage did not occur until after the renovations were completed and the shifting, cracking, and other alleged deficiencies in the workmanship became known.
In Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512 (2012), the Supreme Court reiterated the legal principle applicable to this issue:
When parties dispute the identity of the operative "occurrence" for purposes of coverage, the actual damage to the party asserting the claim, not the wrongful act that precipitated that damage, triggers the "occurrence."See also Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 27 (1984) (interpreting a similar definition, the time of an "occurrence" "is not the time the wrongful act was committed but the time when the complaining party was actually damaged").
[Id. at 525 (emphasis added).]
As Judge Gizinski found, the actual, cognizable damage to plaintiffs' property occurred after the renovations were completed and the "severe cracking, shifting and other major deficiencies began to develop." Because the "occurrence" here was well after April 1, 2002, there was no covered property loss during the policy period and summary judgment was appropriate.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION