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Petrick v. State Farm Fire and Casualty Co.

August 13, 2010

WILLIAM PETRICK AND TANJA PETRICK, PLAINTIFFS-APPELLANTS,
v.
STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-43-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Payne and Waugh.

Plaintiffs, William and Tanja Petrick, appeal from orders of summary judgment in favor of defendant, State Farm Fire and Casualty Company, on their claims for damage to their dwelling and personal property allegedly arising from a Nor'easter storm on November 10, 2005. Apparently, water infiltrated the home, causing water damage to the interior of the structure and contents and the development of a severe mold condition that allegedly impaired the building's structural integrity.

I.

At the time of the storm, a policy of homeowners insurance issued by State Farm was in effect. The policy had two sections. Section I covered the dwelling and personal property; Section II covered liability. The first insuring clause of Section I stated in relevant part:

COVERAGE A - DWELLING

We insure for accidental direct physical loss to the property described in Coverage A, except as provided in SECTION I - LOSSES NOT INSURED.

SECTION I - LOSSES NOT INSURED provided:

1. We do not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through n. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:....

i. mold, fungus or wet or dry rot;

Rider FE-5440, captioned "FUNGUS (INCLUDING MOLD) EXCLUSION ENDORSEMENT," replaced paragraph i., above, with an exclusion pertaining only to wet or dry rot. However, the rider also modified paragraph 2 of "SECTION I - LOSSES NOT INSURED" so that it read:

2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of:

(a) the cause of the excluded event; or

(b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of ay combination of these:....

g. Fungus, including:....

(2) any remediation of fungus from covered property or to repair, restore or replace that property;

Nonetheless, limited coverage for damage caused by fungus was restored by Rider FE-5443, entitled "FUNGUS (INCLUDING MOLD) LIMITED COVERAGE ENDORSEMENT," which provided:

Loss Not Insured 2.g., Fungus,... endorsed to your policy in the FUNGUS (INCLUDING MOLD) EXCLUSION ENDORSEMENT, does not apply to the extent ...


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