NOT FOR PUBLICATION WITHOUT THE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,
v.
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:
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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.
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