On appeal from the Superior Court, Law Division, Camden County.
Pressler and O'Brien. The opinion of the court was delivered by Pressler, P.J.A.D.
Plaintiff JMB Enterprises, a partnership which owned rental premises in Ocean City, brought this action against its casualty insurer, defendant Atlantic Employers Insurance Company, claiming that it had sustained property losses within the coverage of the policy which defendant had wrongfully refused to pay. Following a bifurcated trial on the issue of liability alone, the judge, based on the jury's answers to special interrogatories, entered judgment in plaintiff's favor on its three claims of vandalism losses and against plaintiff on its claim of loss resulting from the freezing of the plumbing system. Thereafter, the parties reached a settlement on the amount of plaintiff's vandalism damages. Final judgment was accordingly entered in that amount on the vandalism-loss counts of the complaint and dismissing the freezing-loss count. Plaintiff appeals, claiming that the special interrogatories submitted to the jury with respect to the freezing loss elicited inconsistent answers which precluded the entry of a no cause judgment on that count. We agree.
Since the vandalism loss is no longer in issue, we direct our attention solely to the claimed freezing loss. We note first that defendant never disputed the fact that such a loss took place and indeed stipulated at trial that, some time late in January 1985, the pipes and radiators in the house froze and burst resulting in substantial damage to the premises. The disputed issue was whether the loss was within the coverage of the policy, which provided in relevant part that "freezing of a plumbing . . . system . . . while the dwelling is vacant, unoccupied or being constructed" is an included risk only if the insured has "used reasonable care to: (a) maintain heat in the building, or (b) shut off the water supply and drain the system and appliances of water."
Plaintiff's primary witness was its managing partner James
M. Bizokas.*fn1 Bizokas testified that the partnership had acquired the premises, which are located in a summer resort shore area, as an investment property in 1981. It was an old four-story frame building consisting of a first floor apartment as well as a second rental unit which occupied the second, third, and fourth floors. For some time plaintiff had leased the first floor apartment on a year round basis and the upper unit as a summer rental. The first floor apartment became vacant in May 1984 when plaintiff finally succeeded in evicting tenants who did not pay their rent, did significant damage to the property, and ran up a substantial unpaid heating bill. Two groups of summer transients occupied the upper unit in the summer of 1984. The unit was not relet after the second group left in July 1984 because of the damage it did to that apartment. Plaintiff then decided to sell the property, engaging the services of Grace Realty, the agency which managed the rental and occasionally, on specific instruction by plaintiff, obtained the services of various contractors for lawn mowing and other such minor chores.
According to Bizokas' testimony, in the fall of 1984 he sent his regular plumber, Bill Rebel, whose business was apparently located in Camden County, to the premises to "winterize" the property, that is, to drain the water out of the plumbing system and appliances. In late November or early December 1984, he received a call from a John Turnbull of Grace Realty, who told him that the house had been broken into and the water apparently turned back on. Bizokas then told Turnbull that
the property had been winterized. And that if there was water in there that he should do something about it. And he had asked whether or not I wanted to use my plumber and/or his plumber, and I told him to take care of it rather than send my plumber all the way down just for that.
Q. By "your plumber" did you mean Bill Rebel?
Q. Why didn't you want to send Bill Rebel all the ...