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Jeffrey M. Bello v. Merrimack Mutual Fire Insurance Company

July 12, 2012

JEFFREY M. BELLO, PLAINTIFF-RESPONDENT,
v.
MERRIMACK MUTUAL FIRE INSURANCE COMPANY, A DIVISION OF THE ANDOVER COMPANIES,
DEFENDANT-APPELLANT,
AND CUSACK CO., INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-781-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2012

Before Judges Cuff, Lihotz and St. John.

Defendant Merrimack Mutual Fire Insurance Company appeals from an order denying its motion for a new trial following entry of judgment in favor of plaintiff Jeffrey M. Bello. We have reviewed each of defendant's claims of error, challenging Judge Suter's rulings made during the course of this ten day trial, and conclude there is no basis to set aside the judgment. Accordingly, we affirm.

These facts are taken from the trial record. Plaintiff purchased a homeowners insurance policy from defendant (the Merrimack policy), to insure his multi-unit residential property located in Edgewater Park. The Tudor-style residence was built in 1899 and consists of plaintiff's residence and three tenant units. The structure sits approximately seventy-five feet from the edge of the Delaware River. In the rear of the property, sitting approximately thirty-five feet below the edge of the yard, is a granite stone masonry retaining wall that runs parallel and adjacent to the river along the 210 foot width of the property. The wall, originally constructed in the late 1800's, measured nine feet high and two and a half to three feet wide and connects to similar walls on the neighboring properties.

Following a violent wind storm on March 8, 2008, plaintiff submitted a claim for damages to the roof of his residence. He later noticed two areas of damage to the retaining wall. The Merrimack policy included a provision extending coverage to structures other than buildings, but limited recovery to ten percent of the total policy value, or $100,750. Plaintiff supplemented his roof claim to include the damaged wall.

On behalf of defendant, Thomas D. Cusack, an adjuster, inspected the storm damage to plaintiff's residence and wall. Cusack determined the roof damage was covered and arranged for the engineering firm of Peter Vallas Associates, Inc. (Vallas) to assess the damaged wall.

On April 3, 2008, Daniel Seeley, an investigator for Vallas, who was not an engineer, performed an inspection of the wall and authored a report of his findings. The report stated:

A significant amount of vegetation and vine growth exists between the steeply pitched bank and the retaining wall. Other areas of the wall there was evidence of vine growth and root extension between the rocks was noted [sic]. The wall appears to have been installed as a form of erosion protection for the earth bank sometimes referred to as a riprap.

Walking along the wall there was [sic] at least two areas of significant failure and damage noted to the wall. Other areas where the wall was washed out at the bottom was observed but the major damage occurred in two areas. . . . Much of the stone and mortar had fallen and was found either scattered on the bank behind the wall or on the river bed.

Inspections of the actual wall revealed evidence of several areas where the mortar had been repaired. There were areas where stones had fallen and the openings completely mortared over.

The vegetation along the steeply sloped surface behind the stone masonry wall had extended into the wall area and in areas [sic]. This type of unchecked growth inherently weakened the wall in these areas. The integrity of the wall was compromised in several areas as a result of the root growth of the vegetation.

Inspections of the wall revealed areas where washouts were prominent specifically along the base of the wall . . . [i]n addition [to] a significant amount of root growth and vegetation behind the wall [which] has damaged the wall itself with vegetation growing through the wall and actually growing out of the wall at the time of the inspection. . . .

In addition[,] lateral hydrostatic pressures exist on the stone masonry[,] which in its weakened state from the above mentioned causes is affecting the integrity of the stone masonry.

The stone masonry wall would not have fallen if the overall integrity was not compromised prior to any high wind condition[s].

Although the incident reportedly occurred during a storm that accompanied high wind conditions and there is evidence of wind damage to [plaintiff's] structure and some of the trees on the property, the stone masonry wall would not have been compromised or damaged if it was not structurally weakened prior to the storm. The primary factors of the failure resulted from significant vegetation growth behind the wall with root growth and extension through the stone masonry wall and mortar, previously failed sections where the stones were displaced or separated from the stone masonry wall, damage from freeze-thaw cycles in the winter months due to water seepage and penetration in the stone masonry wall, and lateral pressures from the steeply pitched surface behind the wall. Not only were there the two large sections of the wall that failed, but there were other areas where the wall was obviously compromised by water seepage and drainage back into the river. In these areas, the rocks had been undermined and pushed outward.

Based on these reported findings, Cusack sent a May 15, 2008 letter denying plaintiff's request for coverage of the damaged retaining wall. The letter cited exclusions from the Merrimack policy as the basis for the denial, stating:

[W]e do not insure loss:

1. involving collapse, other than as provided in Other Coverages 10;

2. caused by:

b. freezing, thawing, pressure or weight of water or ice, whether driven by wind or not, to a[:]

(2) foundation, retaining wall or bulkhead; or

(3) pier, wharf or dock; . . . .

h. (1) wear and tear, marring, deterioration;

(2) inherent vice, latent defect, mechanical breakdown; . . . .

(6) settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings;

Additionally, we would make reference to GENERAL EXCLUSIONS under

1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any way sequence to the loss.

c. Water Damage, meaning:

(1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

(3) 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.

2. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not excluded or excepted in this policy is covered.

c. Faulty, inadequate or

defective:

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

(2) design, specifications, workmanship, repair, construction, renovation, ...


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