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Um v. Cumberland Insurance Group

March 13, 2008

YONG S. UM AND JENNIFER M. UM, PLAINTIFFS-APPELLANTS,
v.
THE CUMBERLAND INSURANCE GROUP, DEFENDANT-RESPONDENT, AND CUMBERLAND MUTUAL FIRE INSURANCE COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT, AND PULTE LIFESTYLE COMMUNITIES, INC., THIRD-PARTY DEFENDANT, AND PULTE HOMES OF NEW JERSEY L.P., DEFENDANT/FOURTH-PARTY PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
RNR CONTRACTORS, INC., FOURTH-PARTY DEFENDANT-RESPONDENT/CROSS-RESPONDENT, AND ROBERT E. HAAS, INC., HAAS SAND AND GRAVEL, L.L.C., FOURTH-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5941-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 11, 2008

Before Judges Lintner, Graves and Alvarez.

In this appeal, plaintiffs, Yong S. Um and Jennifer M. Um, challenge two orders for summary judgment. The first, entered on March 17, 2006, dismissed their complaint for first party insurance coverage against defendant Cumberland Mutual Fire Insurance Company (Cumberland). The second, entered on June 9, 2006, dismissed plaintiffs' tort cause of action against RNR Contractors Incorporated (RNR).*fn1 We affirm both orders.

In the Spring 2001, plaintiffs purchased a home located at 6 Tanbark Court in Voorhees, which was originally constructed in 1987. An inspection performed prior to plaintiffs' closing revealed "no noted major structural problems with the house." Plaintiffs installed a marble floor near the entryway and hardwood floors elsewhere in the home. Cumberland provided plaintiffs with a homeowners' insurance policy for a term from July 31, 2002 to July 31, 2003.

In 2002,*fn2 construction began on Centennial Mill, a residential real estate development, adjacent to plaintiffs' property. The general contractor, Pulte Homes of New Jersey (Pulte), entered into Subcontractor Agreements with Haas Sand and Gravel, L.L.C. (Haas S&G), Robert E. Haas, Inc. (Haas Inc.) and RNR. RNR agreed to perform "Erosion and Sedimentation Control . . . Pipe Utility Installation . . . complete installation of curb [and] . . . proper earth compaction."

Haas, Inc. and Haas S&G (collectively referred to as Haas) were responsible for demolition, placement of fill and top soil, and compaction of earth. Haas worked on the project from November 16, 2002, until October 11, 2004. Haas's equipment consisted of off-road trucks, excavators, dozers, and loaders, with between two and twelve vehicles being used at any particular time.

In the Spring 2003, plaintiffs experienced what they described as intense and continued vibrations in their home during the construction work, resulting in physical damage to their home. The damage included leaking at the living room skylights, creating brown water stains, nail pops throughout the home, broken plumbing in an upstairs bathroom, sagging kitchen cabinets that pulled away from the wall, large cracks in the basement foundation wall, sagging hardwood floors, misaligned wood columns, and cracks in the garage floor, the fireplace, and the chimney. According to plaintiffs, the wooden exterior steps pulled away from the front landing, only two of the home's fourteen windows opened without difficulty, and the sliding glass door came off its track.

In response to complaints, Remington & Vernick Engineers, Inc. (Remington), an engineering firm retained by the Township, contacted Pulte on January 8, April 25, and May 9, 2003, requesting that it investigate plaintiffs' complaints and take appropriate action. Pulte responded that the geo-technical engineer supervising the construction assured it that compaction or vibrations could not be affecting plaintiffs' home. On September 10, 2003, Kenneth Brzozowki, Pulte's Land Manager, informed Remington that vibration monitoring revealed "that the construction activities cannot be causing the damages claimed." Brzozowki claimed that the area had been experiencing unusually high amounts of rainfall, which "caus[ed] the water table to rise and make sump pumps run more frequently and cause potential house settlement." Brzozowki obtained a report prepared by Geo-Technology Associates, Inc. (GTA), which concluded that the vibration levels from the construction activities "could not have caused damage to the adjacent properties."

John J. Hare, R.A., P.E., P.P., inspected plaintiffs' home in August and December 2003 at plaintiffs' request. On February 18, 2004, Hare again inspected plaintiffs' property, finding that "various defects were increasing in size and number."

During a March 9, 2004, inspection, Hare "found that they continued to increase." Hare observed: "Garage slab cracking due to loss of contact support caused by soil settlement . . .

[m]asonry foundation wall cracks . . . [k]itchen and dining room floor are out of level due to settlement of supporting structure [and] . . . [s]supporting nailing and joints throughout the house have been dislodged and deformed due to current settlement stresses in the structure."

In a February 9, 2005, report, Hare indicated that it is apparent that the developer was using heavy track equipment such as bulldozers, front end loaders and back hoes, as well as vibrating sheeps foot rollers for excavation, grading and compaction operations. In addition, the evidence indicates that the developer was performing dewatering activities in close proximity to [plaintiffs'] residence. Dewatering reduces pore water pressure and in the case of soils containing a clay constituent releases water of crystallization softening the soil, developing higher plasticity; both conditions allowed for and caused additional soil consolidation and settlement of the soil supporting the foundation of [plaintiffs'] residence. In addition, the extensive vibrations caused by the heavy equipment contributed to the relatively short time period in which the soils below [plaintiffs'] foundation consolidated.

Also, the shock waves from the vibrations having an effect of minor earthquakes transmitted through the soil in a manner similar to the way sound waves are transmitted in air, transmitted vibrations to [plaintiffs'] structure causing the immediate visible damage to the gypsum wallboard and contributed to the fracturing of the rigid cinder aggregate masonry materials, which are extremely sensitive to such vibrations.

Hare opined that the tests conducted by GTA "did not provide a comprehensive investigation scenario capable of measuring and determining the extent of the influence of the various construction activities ...


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