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Connelly v. Frohling

September 9, 2010

WILLIAM V. CONNELLY AND MARYAM CONNELLY, PLAINTIFFS-APPELLANTS,
v.
FROHLING, HUDAK AND MCCARTHY, P.C., N/K/A FROHLING AND HUDAK LLC, JOHN B. FROHLING, LINDA PELLEGRINO-MCCARTHY AND BRIAN K. KAISER, DEFENDANTS, AND JOHN HUDAK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-2988-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 3, 2010

Before Judges Stern, Graves and J. N. Harris.

Plaintiffs appeal from an order of June 19, 2008, dismissing their legal malpractice action, pursuant to Rule 4:37-2(b) at the end of their case, against all defendants. Only defendant Hudak responds. Plaintiffs argue that the trial judge improperly dismissed their case, and in not submitting it to the jury, for failure to prove damages notwithstanding their expert testimony, and that the trial judge's "pre-trial refusal to disclose... prior legal malpractice claims [filed against him in an unrelated matter or matters] precluded plaintiffs from assessing the trial judge's bias and their right to move to recuse the trial judge."

The principal question before us is whether plaintiffs introduced enough evidence to present a jury question in a "case within a case," that is whether plaintiffs demonstrated both that they would have prevailed in the underlying action but did not do so because of defendant's malpractice.

Plaintiffs are correct that, for purposes of this action, we must accept the facts to the extent they legitimately and reasonably support their position. Godfrey v. Princeton Seminary, 196 N.J. 178, 183 (2008).

Plaintiffs' house suffered damages, including destruction of the roof and a resulting mold infestation in 1992 and 1993. Apparently, the roof was to be reconstructed by their insurance carrier after the first storm in 1992, but not after the second and third storms in 1993. Plaintiffs, pro se, sued their insurance carrier, Prudential Insurance Company of America (Prudential), for not paying their claims after the second and third storms, but the action was dismissed for failure to provide a more definitive statement pursuant to Rule 4:6-4(a). Plaintiffs then went to defendants for representation regarding the dismissal and the needed reinstatement within the year time frame.*fn2 Despite plaintiffs' claims that the defendant firm had agreed to take the case on contingency and file a motion to amend the complaint or vacate dismissal, more than a year went by without a retainer being executed or any action taken by the firm, and plaintiffs brought this malpractice action which required plaintiffs to prove both the malpractice and that they were injured by the malpractice. See Grunwald v. Bronkesh, 131 N.J. 483 (1993). The trial judge dismissed the complaint at the end of plaintiffs' case because the proofs on damages were lacking and did not permit the jury to find that plaintiffs had suffered any damages caused by defendants.

As plaintiffs state, there was a bill for $3,200 for roof repairs paid to Creative Home Improvements on April 25, 1993, so there were some ascertainable damages proven and under plaintiffs' case there had to be some monetary loss. Accordingly, we reverse the dismissal of the complaint. However, we find no basis on which to reverse the trial judge as to the admissibility of the 1997 and 1998 reports of the Heat Energy Loss Prevention (HELP) Engineering Group and the testimony of its lead engineer, Thomas Masucci, as to the impact of the consequential losses attributable to Prudential's failure to pay the earlier claims and the resulting lack of repair and deterioration of the house.

I.

On April 27, 1989, plaintiff William Connelly purchased a home in a bankruptcy auction for $376,000. The property was located in Holmdel, New Jersey. After purchasing the house, plaintiff procured homeowner's insurance from Prudential.

The policy covered "physical loss to property," including that caused by "[w]indstorm or hail" and "[a]ccidental discharge or overflow of water," unless excluded by the section dealing with "[e]xclusions."

The relevant portions of the policy's exclusions included "[w]ater [d]amage" which was defined as including, "water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure."*fn3 Additionally, the policy had an exclusion for "[n]eglect," which required the "insured to use all reasonable means to save and preserve [the] property at and after the time of a loss." Finally, there was an exclusion for damage caused by

Faulty, inadequate or defective:

(1) planning, zoning, development, surveying siting;

(2) design, specifications, workmanship, repair construction, renovation, remodeling, grading compaction;

(3) materials used in repair, construction, renovation or remodeling; or

(4) maintenance; of part or all of any property whether on or off the residence premises.

Plaintiffs' home was ravaged by three storms. The first of these storms occurred in December 1992. The storm caused substantial damage to plaintiffs' home. Additionally, as a result of that storm, the house became "flooded." Plaintiffs made a claim to Prudential to receive coverage for the damage to the house. According to Connelly, Prudential provided coverage for the damage caused by that storm.*fn4

Thereafter, on March 4, 1993, the house was hit again by another storm. According to Connelly, the house became flooded again, "the shingles were all over again," and "had blown off the house," the "windows were smashed," and "the doors had blown in again." Consequently, plaintiffs made another claim to Prudential for coverage of the damage. In the interim, to prevent more water from coming into the house, plaintiff had "tarpons" placed on the roof. Subsequently, on March 13 or 14, 1993, plaintiffs' house was hit by a hurricane, which Connelly called "[a] great blizzard of the century." As a result of this third storm, the "tarpons" which had been placed on the roof of the house were blown off. Thereafter, Connelly, once again, tried to prevent more water from entering the house by creating "an aqueduct from the attic running through the property." Connelly created the aqueduct by stapling "heavy clear plastic tarpons... to the roof joists" and "[running] it on angles down the house."*fn5

According to Connelly, despite his claims, Prudential did not provide an official notice denying plaintiffs' claim for coverage, but it never provided coverage for ...


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