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Mary Banar, Administratrix Ad Prosequendum For the Estate of Paul v. Rendek Inc./Regent Shop Center

July 12, 2012

MARY BANAR, ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF PAUL BANAR (DECEASED), PLAINTIFFS,
v.
RENDEK INC./REGENT SHOP CENTER, SUPER STOP & SHOP SHOPPING CENTER, RENDEK INC./REGENT SHOP CENTER CONSTRUCTION DIVISION, EUROTECH MASONRY AND CONCRETE, L.L.C., DEMARCO'S CATERING AND DELI, BED BATH & BEYOND, DIETZ AND ASSOCIATES, L.L.C., AND MENLO ENGINEERING ASSOCIATES, INC., DEFENDANTS.
GREATER NEW YORK MUTUAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
REGENT SHOPPING CENTER AND REGENT SHOP CENTER CONSTRUCTION DIVISION, DEFENDANTS-APPELLANTS, AND RENDEK,INC./SUPER STOP & SHOP SHOPPING CENTER, EUROTECH MASONRY AND CONCRETE, L.L.C., DEMARCO'S CATERING AND GOURMET DELI, AND BED BATH & BEYOND, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-5756-08 and L-3211-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2012 --

Before Judges Sabatino and Ashrafi.

Defendants Regent Shopping Center and Regent Shop Center Construction Division (Regent) appeal from a June 24, 2011 order for summary judgment declaring that plaintiff Greater New York Mutual Insurance Company (GNY) is not required to provide a defense and indemnification to Regent in a wrongful death action brought on behalf of the estate of Paul Banar. The trial court concluded that the accident that allegedly caused Banar's death arose out of construction at the shopping center and was therefore excluded from coverage by a construction exclusion clause of the insurance policy issued by GNY. We affirm.

Viewed most favorably to Regent, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record revealed the following facts. At about noon on January 18, 2007, Paul Banar, eighty-two years old, fell off a raised sidewalk in front of the business premises of a tenant of Regent, DeMarco's Catering & Gourmet Deli. Banar's fall caused visible injuries to his face, and his wife took him to his doctor. At an unspecified later time, Banar died. His widow filed a wrongful death lawsuit against Regent and others alleging that their negligence was the cause of Banar's fall and subsequent death.

At the time of the accident, DeMarco's Deli was not open for business. The interior of the store was being refitted after the space had been divided from a larger retail space.

The new front entrance to the store was higher than the level of the parking lot and the sidewalk adjacent to other stores, and an elevated sidewalk with an inclined ramp on one side and steps on the other had to be constructed to reach the deli's entrance.

The shopping center as a whole had been undergoing renovations and construction since 2005. The construction project involved both common areas under the control of Regent for purposes of insurance coverage - such as the building facades, the parking lot, and sidewalks - and some of the interior store spaces under the control of individual tenants.

Regent sought coverage from GNY for the wrongful death lawsuit pursuant to its comprehensive general liability policy. GNY provided a defense temporarily but later filed a declaratory judgment action seeking a judgment that it was not required to defend or indemnify Regent for the accident. GNY relied on the Basic Construction Exclusion endorsement of its liability policy, which states in relevant part:

This insurance does not apply to "bodily injury" . . . arising out of construction . . . operations which are performed by or on behalf of the Named Insured in the course of any job which involves the new construction . . . of any load bearing . . . floor . . . or structure, provided, however, that nothing herein limits, prohibits or restricts insurance coverage for the repair, alteration, maintenance or refurbishing of a load bearing . . . floor.

On GNY's summary judgment motion, the trial court considered the evidential record and concluded that the quoted exclusionary clause applies to the accident and permits GNY to decline coverage. Regent appeals that decision, arguing that evidence in the record shows that construction of the common areas of the shopping center had been completed before the date of Banar's accident and the only ongoing construction at that time was for interior refitting work to which the policy and its exclusion do not apply.

The interpretation of an insurance policy upon established facts is a question of law for the court to determine. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004). Our standard of review is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "Generally, '[w]hen interpreting an insurance policy, courts should give the policy's words their plain, ordinary meaning.'" Nav-Its, Inc. v. Selective Ins. Co. of Am., 183 N.J. 110, 118 (2005) (quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). Courts ...


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