On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-531-08.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 15, 2011*fn1
Before Judges Carchman, Fisher and Baxter.
The opinion of the court was delivered by FISHER, J.A.D.
Plaintiff John Cambria was injured when he slipped and fell in the icy parking lot of a strip mall owned by Two JFK Blvd., LLC (the landlord). Among the many claims asserted, the landlord and defendant David Rubin, a real estate manager, sought a declaration that they were covered by a liability insurance policy obtained by one of the strip mall's tenants, third-party defendant JFK Food & News, Inc. (the tenant), that was issued by third-party defendant Harleysville Insurance Company of New Jersey.
Cross-motions for summary judgment regarding the tenant and Harleysville's obligations sought disposition of two discrete issues. The motion judge was first asked to consider whether the tenant complied with a lease term that required the naming of the landlord as an additional insured on the Harleysville policy. And second, if the tenant failed to obtain this coverage for the landlord, the judge was required to determine whether the landlord or Rubin or both were nevertheless covered by way of the "real estate manager" provision in the Harleysville policy. The judge found the tenant failed to obtain the required coverage for the landlord but determined he did not have to consider whether the tenant was liable for breaching the lease in this respect because, in his view, Rubin was the tenant's "real estate manager." Because we reject the judge's interpretation of the scope of the term "real estate manager," we reverse and remand for further proceedings.
The judge correctly recognized that those entitled to coverage under the Harleysville policy were only the named "insureds," which, as relevant here, included the tenant and "[a]ny person (other than your employee), or any organization while acting as your real estate manager" (emphasis added).
Because the policy unambiguously defined the word "your" as referring only to the tenant, the validity of the summary judgment entered in favor of the landlord and Rubin turns on whether either of them could be said to be the tenant's real estate manager.
The factual record amply demonstrated that Rubin was a real estate manager and certainly the landlord's real estate manager. The judge found the landlord was obligated to maintain the common areas and delegated that authority to Rubin, who was hired to maintain the strip mall's records, collect the rents, and care for and maintain the property. But, to succeed on their claim that Harleysville owed them a defense and indemnification, the landlord and Rubin had to demonstrate more; they had to provide evidence not just that Rubin was a real estate manager or that he was the landlord's real estate manager but that he was the tenant's real estate manager. We conclude that the record, when viewed in the light most favorable to the landlord and Rubin,*fn2 fails to meet that requirement.
Although not defined by the policy, the phrase "real estate manager" has not surprisingly been understood as encompassing, as its name suggests, entities or persons who manage real estate for another. See, e.g., Sumitomo Marine & Fire Ins. Co. of Am. v. So. Guaranty Ins. Co. of Ga., 337 F. Supp. 2d 1339, 1357-59 (N.D. Ga. 2004); Dempsey v. Clark, 847 So. 2d 133, 137 (La. App. 2003). But this is not where the dispute lies in this case. Rubin certainly acted as a "real estate manager." The question is whether -- with regard to the portion of the premises where the slip and fall occurred -- Rubin was acting as the landlord's or the tenant's real estate manager. And that question turns on an understanding of whether the incident occurred in the leased premises or some other area of the property for which the tenant was responsible.
As explained by the lease, the "leased premises" did not include any part of the parking lot where plaintiff fell.*fn3
Notwithstanding, the landlord and Rubin argue that the tenant's obligation to patrons or passersby extended to the sidewalk abutting the tenant's premises regardless of the fact that the sidewalks were not encompassed within the defined leased premises. See, e.g., Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 149 (1981). And, in that regard, they seek our adherence to an unreported decision in which we viewed a tenant's obligation to obtain insurance coverage for a landlord as encompassing claims of patrons injured on ice on the sidewalk adjoining the tenant's premises.*fn4 We need not reach that interesting argument because ...