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Utuk v. Liberty Mutual Fire Insurance Co.

March 10, 2009

ENOCH UTUK AND ENOBONG UTUK, PLAINTIFFS-APPELLANTS,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY,*FN1 DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1490-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 10, 2009

Before Judges Graves and Ashrafi.

Plaintiffs Enoch Utuk and Enobong Utuk appeal from a summary judgment order dismissing their complaint for coverage under a homeowner's insurance policy issued to them by Liberty Mutual Fire Insurance Company (Liberty Mutual) and an order denying their motion for reconsideration. We affirm both orders.

On May 10, 2006, plaintiffs submitted a claim to Liberty Mutual for structural damage to their residence, which included a sinking floor and cracked walls. In their claim, plaintiffs stated the damage occurred on or about April 30, 2006, and the cause of the damage was unknown.

At defendant's request, Tom McNamara, MSME, of Hard Facts Engineering inspected plaintiffs' residence and foundation "to determine within reasonable engineering and scientific certainty, the cause of the sinking floor and wall fractures."

McNamara reported his findings as follows:

1. The subject residence has settled due to the deteriorated 2 by 4 floor truss system located within the crawl space.

2. The crawl space ventilation system has been blocked by the insured. Improper ventilation is the cause for the dry rotted timber as well as mold.

3. Due to standing ground water, the crawl space should be fitted with a drywell and dedicated sump pump.

4. The residence is not in danger of collapse, however continued stress will be prevalent until the insured follows the corrections outlined in our recommendation section of this report.

Based on McNamara's findings, Liberty Mutual denied coverage because its policy did not insure against risk of loss to property caused by "wet or dry rot." However, in response to plaintiffs' administrative appeal, Liberty Mutual agreed to a second engineering evaluation to be performed by Harald Greve, P.E., SECB.

After inspecting plaintiffs' residence, Greve concluded that "the wood sill plate was improperly constructed at or below grade level, which is a code violation." Consequently, ground water that was "soaking the sill plate" and "soaking the perimeter timber wall framing," induced a "compressive type failure at the timber sill," and this caused the "wall bulge and floor deflections." Based on these findings, Liberty Mutual once again denied plaintiffs' claim because its policy did "not insure for loss caused directly or indirectly" by "surface water," and it did not ...


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