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Kopp v. Newark Insurance Co.

Decided: May 30, 1985.

MARVIN KOPP, LARRY KOPP AND STANLEY BERG, D/B/A 90 MAIN STREET ASSOCIATES, PLAINTIFFS-APPELLANTS,
v.
NEWARK INSURANCE COMPANY, [INCORRECTLY REFERRED TO AS THE ROYAL INSURANCE COMPANY], DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County.

Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiffs Marvin Kopp, Larry Kopp and Stanley Berg, d/b/a 90 Main Street Associates, appeal from a judgment of involuntary dismissal entered by the Special Civil Part in favor of defendant Newark Insurance Company at the conclusion of the presentation of their proofs in this insurance coverage case.

The facts giving rise to this appeal are not in substantial dispute. Plaintiffs are the owners of a building located at 90 Main Street in Hackensack, New Jersey. On the evening of January 18, 1983, Willie B. Whitfield, a maintenance person,

was working in the building. No one else was in the building at the time and the outside doors were locked. Whitfield used the elevator to go to the third floor of the building where he began to do his maintenance work, specifically emptying the garbage. He then took the elevator to the second floor, but when he arrived at the second floor the elevator door would not open. Whitfield remained in the elevator from 8:45 p.m. on January 18, 1983, until 7:00 a.m. on January 19, 1983, when he was eventually found locked in the elevator by a friend who was looking for him. The friend, realizing that Whitfield was locked in the elevator, summoned the police, who in turn summoned the fire department. The fire department eventually pried open the door and freed Whitfield, who was then taken by ambulance to the local hospital.

According to Whitfield, the operating panel in the interior of the elevator was damaged when he removed several screws while trying to open the door. Larry Kopp, one of plaintiff's partners, testified that when he arrived at the building on the morning of January 19, 1983, he observed that the door bucks or frames in the basement and on the first floor were bent, the elevator control panel was ripped off and wires were hanging out, and part of the ceiling in the elevator was down. In addition, Kopp found that the elevator door was bent. George Buvis, the repair manager of Atlantic Elevator Company, the company which serviced the elevator in the building, was of the opinion that a metal object inserted between the door buck and the door caused the door to bend.

Plaintiffs notified defendant of the loss and made demand under the latter's Special Multi-Peril Policy issued to them for the $4,982.66 allegedly expended to repair the damage caused in trying to extricate Whitfield from the elevator. Defendant denied coverage, and plaintiffs instituted this suit. At the conclusion of plaintiffs' proofs, the trial court granted defendant's motion for a judgment of involuntary dismissal. The trial court reasoned, in part, that "the exclusion in the policy for a

breakdown in mechanical equipment would exclude coverage in this particular case. . . ." This appeal followed.

We are of the view that the trial court erred in granting defendant's motion. The test to be followed in ruling on a motion for a judgment for involuntary dismissal was clearly set forth by our Supreme Court in Dolson v. Anastasia, 55 N.J. 2 (1969), as follows:

In the case of motions for involuntary dismissal, the test is . . . whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in * * * favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Bozza v. Vornado, Inc., 42 N.J. 355 (1964); Bell v. Eastern Beef Co., 42 N.J. 126 (1964); Franklin Discount Co. v. Ford, 27 N.J. 473, 490 (1958). The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [at 5-6].

In light of the foregoing we are convinced that plaintiffs' proofs were sufficient to present a prima facie case of coverage under the Special Multi-Peril Policy issued to them by defendant. The policy covered plaintiffs' buildings, including the fixtures, machinery and equipment constituting a permanent part of, and pertaining to, the service of the building. This clearly ...


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