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Zions v. Essex Insurance Co.

May 29, 2009

CHAIM ZIONS AND ESTHER ZIONS, PLAINTIFFS-APPELLANTS,
v.
ESSEX INSURANCE CO., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3577-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2009

Before Judges Skillman and Espinosa.

The home of plaintiffs, Chaim and Esther Zions, was vacant during extensive renovations in July 2004. Following a rainstorm, there was water in the basement and other damage to the home. Plaintiffs filed a claim for damages under a commercial general liability insurance policy purchased from defendant Essex Insurance Company. When their claim was denied, plaintiffs filed suit. They appeal from an order granting summary judgment to defendant. We affirm.

Drawing all legitimate inferences in favor of plaintiffs, Rule 4:46-2(c), the facts can be summarized as follows:

The commercial general liability policy purchased by plaintiffs covered their vacant home during renovations for the policy period from June 11, 2004, through September 11, 2004. The policy provides "basic" coverage with a $200,000 limit of liability as well as coverage for renovations with a $50,000 limit of liability for replacement costs.

Plaintiffs planned to gut a "good portion of" the first and second floors as part of the renovation. By the date of loss, July 5, 2004, the demolition stage of the renovation was well underway but not completed. As noted by the motion judge, the evidence regarding the condition of the building prior to the storm was sparse. The following is gleaned from Mr. Zions's*fn1 testimony: The floors of the house were intact. Interior walls were being taken down. Certain exterior walls on the first and second floors had been demolished and were "open." Portions of the roof were also removed. Mr. Zions could not recall how much of the roof had been removed but testified that there were areas of the roof that were open to the elements.

On July 4, 2004, in anticipation of a heavy rainstorm, a heavy tarpaulin was placed over the entire roof and draped over the side. The tarpaulin was secured into the wall of the house on a side. The windows on the sides of the house and in the basement were closed.

Mr. Zions described the weather that day as "crazy," very windy, raining and hailing. When Mr. Zions returned a day or two after the storm, the tarpaulin was still on the roof but part of the tarpaulin was ripped out on the side of the house. He found "a lot of water" in the basement. When asked how so much water entered two stories down into a basement, Mr. Zions answered:

Maybe it seeped in through the side. There were certain walls that were open on the first and second floor that were already demolished. However that seepage came in, maybe just follow it along that line, just went straight to the basement. Obviously, the basement is where it's going to land.

Plaintiffs reported the loss to defendant. A public adjuster retained by plaintiffs estimated that approximately $50,000 was required to repair the resulting property damage. Defendant's adjuster estimated the damages to be approximately $23,000. After its investigation, defendant denied plaintiffs' claim under the "windstorm" provision of the policy, which excludes coverage for

Loss or damage to the interior of any building . . . caused by rain . . . whether driven by wind or not, unless the building . . . first sustains wind . . . damage to its roof or walls through which the rain . . . enters. [(Emphasis added.)]

Plaintiffs then filed this lawsuit. After arbitration and a request for a trial de novo, defendant filed a motion for summary judgment. Plaintiffs appeal from the order granting ...


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