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Scottsdale Insurance Co. v. Weiner

February 1, 2010

SCOTTSDALE INSURANCE COMPANY AS SUBROGEE OF NICKELS MIDWAY PIER, L.L.C., PLAINTIFF,
v.
ANDREW E. WEINER, ET AL., DEFENDANTS.
WILD WAVES, L.L.C., ET AL., THIRD PARTY PLAINTIFFS/DEFENDANTS,
v.
NICKELS MIDWAY PIER L.L.C., ET AL., THIRD PARTY DEFENDANTS/PLAINTIFFS.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION

This matter is presently before the Court on a motion filed by Third Party Defendants/Plaintiffs Nickels Midway Pier L.L.C., Steven Nickels, John Nickels, and Angelo Nickels ("Plaintiffs") asking the Court to reconsider its June 17, 2009 Findings of Fact and Conclusions of Law [Docket Item 163]. Plaintiffs find fault with three aspects of the Court's decision, arguing as follows:

(1) The Court should have determined whether the various breaches of the lease by Third Party Plaintiffs/Defendants Wild Waves, L.L.C., Andrew E. Weiner and Jay Petkov ("Defendants") were material breaches; (2) the Court erred in finding that Plaintiffs had an obligation to mitigate their damages by rebuilding the Castle after it was burned down; and (3) the Court erred in apportioning damages because Plaintiffs' claims are, in reality, breach of contract claims and not claims of negligence. Plaintiffs then ask the Court to recalculate damages based on these asserted errors. For the reasons set forth below, the Court will deny Plaintiffs' motion to reconsider.

I. BACKGROUND

This litigation was born of two fires, one on January 16, 2002, and one on July 16, 2002, at Nickels Midway Pier in Wildwood, New Jersey. All parties agree that the fires were started by trespassers who illegally entered the Pier. Plaintiffs were the owners of the Pier at the time of the fires, but had leased a significant portion of the Pier to Defendants. The first fire occurred at Dracula's Castle ("the Castle"), an amusement attraction, and led to its total destruction. The second fire began under the Pier and caused damage to various areas of the Pier. In this Court's June 17, 2009 Findings of Fact and Conclusions of Law, the Court found that Defendants were both negligent and in breach of the lease as to the first fire, but that they were not liable for the second fire.

A review of this Court's seventy-six page Findings of Fact and Conclusions of Law, as well as the numerous related opinions from the Bankruptcy Court, the District Court, and the Third Circuit arising out of Plaintiffs' bankruptcy proceedings, along with decisions from the New Jersey Superior Court, will reveal both the length and litigious nature of the various proceedings between the present parties. Perhaps as a consequence of these many streams of litigation, the parties continued to debate the precise issues to be decided by this Court throughout the underlying proceedings. Plaintiffs' motion, perhaps not surprisingly, once again turns on disputes regarding the nature of the claims presented and the questions to be answered by the Court.

For the purposes of this opinion, the Court will briefly summarize the facts as found by this Court in its Findings of Fact and Conclusions of Law. As a preliminary matter, however, the Court found that certain matters were not before the Court, because those issues were properly before the Bankruptcy Court. Specifically, the Court found that questions related to breach of any contract for sale of the Pier to Defendants was before the Bankruptcy Court and would not be decided. (Findings of Fact and Conclusions of Law at 6-7.) The Court similarly determined that questions of whether any breach of the lease was material were before the Bankruptcy Court and were not within the scope of issues to be decided. (Id. at 7-8.) The Court then turned to the issues properly before this Court.

As to the Castle fire, the Court first found that Defendants' negligence proximately caused the destruction of the Castle. (Conclusions of Law ¶¶ 2-19.) Specifically, the Court concluded that Defendants breached their duty of reasonable care by turning off the smoke alarms and the sprinkler systems within the Castle, contrary to applicable provisions of the New Jersey Uniform Fire Code and the accepted practices within Wildwood. (Id. ¶¶ 2-12.) The Court next found that Defendants' conduct in turning off the sprinkler system and the smoke alarms similarly amounted to a breach of their obligations in the lease to "maintain . . . all equipment," and to "comply with all laws, orders, rules and requirements of governmental authorities." (Id. ¶ 23.)

The Court found that Defendants were not liable for the second fire. (Id. ¶¶ 20-22.)

After finding Defendants liable for both negligence and breach of contract for the Castle fire, the Court proceeded to apportion fault for the destruction of the Castle amongst Defendants, Plaintiffs, and several settling tortfeasors pursuant to N.J. Stat. Ann. §§ 2A:15-5.1 to -5.3(c). (Id. ¶¶ 24-34.) The Court found Plaintiffs to be 5% at fault, (id. ¶ 29), AMC Plumbing (Defendants' plumber) to be 15% at fault, (id. ¶ 30), the teenage arsonists to be 50% at fault, (id. ¶¶ 31-33), and Defendants to be 30% at fault, (id. ¶ 34).

Finally, the Court found that Plaintiffs' failure to make any reasonable attempt to rebuild the Castle amounted to a failure to mitigate and reduced damages that could have been avoided had Plaintiffs rebuilt the Castle or a similar structure. (Id. ¶¶ 39-40.) The Court then set forth a judgment, but stayed that judgment pending a final decision from the Bankruptcy Court.

On June 26, 2009, Plaintiffs filed the instant motion to reconsider.

II. DISCUSSION

A. Standard of ...


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