NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3124-11.
Stephen R. Fogarty argued the cause for appellant (Fogarty & Hara, attorneys; Mr. Fogarty, of counsel and on the brief; Cameron R. Morgan, on the briefs).
Karen H. Moriarty argued the cause for respondent (Coughlin Duffy, LLP, attorneys;
Robert W. Muilenburg, of counsel and on the brief; Ms. Moriarty, on the brief).
Before Judges Ashrafi, Espinosa and Guadagno.
More than four years after defendant Zurich American Insurance Company (Zurich) denied coverage for an asbestos- related claim, plaintiff Woodcliff Lake Board of Education (the Board) asked Zurich to re-evaluate the claim, stating its loss was caused by vandalism. The Board appeals from the trial court's grant of summary judgment in favor of Zurich. We affirm.
In the summer of 2005, the Board had construction projects in progress at Dorchester Elementary School and Woodcliff Middle School (the Middle School). Because it was known that asbestos-containing materials remained in certain areas of the sites, the Board hired asbestos abatement contractors D&S Abatement, Inc. (D&S) and B&G Restoration (B&G) to remove the asbestos and abate those areas containing asbestos. The Board also contracted with PMK Group (PMK) to monitor the asbestos abatement activities and take air samples during the procedure. The Board hired five contractors to perform the additions and renovations: (1) SBN Enterprises, Inc. (SBN), the general construction services contractor and the demolition contractor; (2) Pflugh, Inc. (Pflugh), the heating, ventilation, and air conditioning (HVAC) contractor; (3) Herman H. Braun, Inc. (Braun), the plumbing contractor; (4) Sal Electric Co., Inc. (Sal Electric), the electrical contractor; and (5) J.G. Schmitt, the structural steel contractor. The Board also contracted with Epic Management, Inc. (Epic) to provide construction management services. All bidding contractors were given notice that asbestos was present on-site and that they were not to disturb or remove the asbestos while performing their work.
It was reported that asbestos abatement work had been completed in the Middle School gym and bathroom area on July 6, 2005. However, SBN found asbestos in the gym ceiling and in the locker rooms when it commenced demolition of the gym on July 8, 2005. PMK was instructed to examine and test the newly discovered asbestos. Additional asbestos was found on July 11, 2005 in the insulation covering two heating pipes in the locker room.
The Board met with representatives from PMK and Epic on July 14, 2005 to develop a plan for the removal and abatement of the newly discovered asbestos. The construction contractors were advised of the newly discovered asbestos at a project meeting on July 19, 2005, and were notified that the Board was in the process of determining the additional abatement work for the Middle School gym area. The Board contracted with D&S and B&G for the removal and abatement of the newly discovered asbestos. On August 5, 2005, a foreman's meeting was held and the contractors were advised that, as a result of the abatement schedule, none of the construction contractors were permitted to be in these areas from August 9 through August 11. The foremen from SBN, Sal Electric, Braun, and Pflugh were all in attendance.
However, when PMK and D&S arrived on August 9, 2005 to begin abatement services, they discovered two Braun plumbers working in a prohibited area of the girls' locker room near the asbestos-covered pipes. The asbestos had been "improperly disturbed" and "appeared to be strewn about the area." D&S and PMK notified the New Jersey Department of Community Affairs and the United States Environmental Protection Agency (EPA), and inspectors were dispatched to the Middle School immediately.
The EPA inspector observed the asbestos scattered throughout the gym, showers, and locker room, and noted that only sixty feet of the 490-foot pipe insulation in the girls' locker room that was scheduled for abatement was undisturbed. The inspector further discovered duct vibration cloth and pipe insulation containing asbestos scattered on the gym floor, and additional asbestos in piles of construction debris and in dumpsters behind the school, where it was mixed with general construction debris.
A "Stop Construction Notice" was issued on August 10, 2005. An emergency work order was issued on August 12, 2005, directing D&S to commence emergency abatement work on August 14, 2005. On September 10, 2005, PMK issued a final asbestos clean-up certificate of completion. The Board ...