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Lori Meyers v. New Jersey Manufacturers Insurance Company

December 11, 2012


On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2325-09.

Per curiam.


Submitted March 28, 2012

Before Judges Graves and J. N. Harris.

In this insurance coverage action, plaintiff Lori Meyers was the named insured on a homeowner's insurance policy issued by defendant New Jersey Manufacturers Insurance Company (NJM). Following a five-day trial, a jury found in favor of defendant. Plaintiff appeals from a judgment of no cause of action and a subsequent order denying her motion for a new trial. For the reasons that follow, we affirm.

The policy issued by NJM insured plaintiff's single-family residence located on South Woodleigh Drive, Cherry Hill, New Jersey against loss caused by fire, smoke, theft, and vandalism or malicious mischief. However, the policy did not cover any "intentional loss," which was defined as "any loss arising out of any act an insured commits or conspires to commit with the intent to cause a loss."

Plaintiff first attempted to sell her home in 2003, but her efforts were unsuccessful and she re-listed it in 2007. In June 2008, plaintiff entered into a contract for the sale of her home, and she also entered into an agreement which allowed the prospective purchasers to reside in the home prior to closing. The sale was contingent on the purchasers obtaining a mortgage. The sale fell through when the purchasers were unable to secure a mortgage, and they vacated the premises on December 12, 2008. Before moving out, they documented the condition of the house with photographs. Plaintiff inspected the property the next day and found no damage.

When plaintiff returned to her house on December 19, 2008, she "smelled the odor of natural gas" and found the interior damaged. Plaintiff immediately contacted the Cherry Hill Police Department. The police and firefighters that responded to the scene reported that "[n]o forced entry could be found to the home" and that "a fire had occurred in the basement closet containing the water heater." In his crime scene report, Detective Jason Snyder stated:

[T]here was damage throughout the residence including a broken chandelier in the foyer, numerous holes in the walls and doors and numerous light fixtures were broken. Several broken light bulbs remained in the socket with the filaments intact without the outer glass covering. All of the cabinet doors in the main kitchen, basement kitchenette, bathrooms and laundry area were open with drawers pulled. There was debris from a small fire on the outside of the hearth of the fireplace in the first floor family room. . . . The fire on the hearth burned outside the protective metal screen where the smoke would not have directly traveled into the chimney. The fire appeared to have been intentionally set to cause damage to the residence and possibly facilitate an explosion of the residence once the residence was filled with natural gas.

An additional report prepared by the Assistant Fire Marshall, James Bird, noted two separate fire locations, one in the water heater closet, and the other "being fireplace logs stored on the hearth of the family room fireplace on the first floor." However, "[b]oth fires self extinguished with little extension to the structure." Bird also noted acts of vandalism throughout the house and that the cause of the fires was "the deliberate act of a person or persons."

Plaintiff hired John Philbin of the Citizen's Public Adjusters to appraise the damage and submit an appraisal to NJM on her behalf. Philbin's report indicated a total net loss of $118,072.72 due to vandalism. NJM hired T. Franek & Co., Inc. (Franek), a property and casualty insurance claim service, to perform adjusting services regarding plaintiff's claim. Franek alleged that plaintiff's appraisal included "everything that [was] wrong with the house regardless of how or what happened to make it that way." Franek determined "a total loss amount of $34,291.61," less plaintiff's deductible of $1000, which resulted in a net loss of $33,291.61.

On or about February 9, 2009, Philbin forwarded plaintiff's sworn statement in proof of loss to NJM, requesting payment of the "undisputed amount" of $33,291.61. However, in a letter dated February 19, 2009, NJM advised Philbin that plaintiff's claim had been referred to its Special Investigations Unit and that the claim was "stayed" pending completion of the investigation.

Ultimately, NJM rejected plaintiff's claim. Thereafter, plaintiff commenced this action alleging that NJM breached its policy by failing to pay for damages to the home, its contents, and her alternative living expenses.

During the trial, Assistant Fire Marshall Bird testified the damage to plaintiff's house "was due to [an] act of vandalism and with the intent to probably destroy the home." Detective Snyder also testified there were "no signs of any attempted or any forced entry to the home," and that "a light petroleum product," a fire accelerant, was found in the home. Kevin Durling, a senior special investigator for NJM, testified that when he inspected the home, plaintiff stated she had contemplated upgrading "the doors from the flat panel hollow luan doors to raised panel doors." Additionally, Durling observed that "every single door had holes in it." According to Durling, plaintiff also said "that various realtors and people had suggested to her that different upgrades should be done in order to maximize her profits in selling the house." Durling also testified there were "holes in the wallpapered walls" but the painted walls in the house were not damaged. Defendant's attorney stated in her summation that plaintiff "padded her claim." Defense counsel also noted several inconsistencies in plaintiff's testimony, and argued that plaintiff made "deliberate, intentional, knowing misrepresentation[s]." On the other hand, plaintiff's attorney emphasized that plaintiff "did not interfere with [NJM's] investigation," that "she did not intend to deceive [NJM]," and that NJM failed to comply with the terms of its contract. The jury verdict sheet consisted of four questions. The first question asked: "Was the property [on] South Woodleigh Drive in ...

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