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Cottle v. Walgreens

Superior Court of New Jersey, Appellate Division

August 19, 2013

DEANNA COTTLE and MICHAEL COTTLE, Plaintiffs,
v.
WALGREENS, PIECO SERVICES, Defendants. And WALGREEN EASTERN CO., INC. Respondent-Third-Party Plaintiff,
v.
FARM FAMILY CASUALTY INSURANCE COMPANY, Appellant/Third-Party Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 8, 2013

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3180-08.

Edward R. Murphy argued the cause for appellant Farm Family Casualty Insurance Company (Law Offices of Michael J. Dunn, LLC, attorneys; Mr. Murphy, on the brief).

James P. Lisovicz argued the cause for respondent Walgreen Eastern Co., Inc. (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Timothy P. Smith and Adam M. Maurer, on the brief).

Before Judges Messano and Kennedy.

PER CURIAM

Farm Family Casualty Insurance Company (Farm Family) appeals from Law Division orders requiring it to defend and indemnify Walgreen Eastern Co., Inc. (Walgreen)[1] in a personal injury action brought by plaintiffs, and requiring it to pay counsel fees and costs on Walgreen's declaratory judgment action for coverage. Farm Family insured defendant Pieco Services, Inc. (Pieco), and Walgreen had an oral agreement with Pieco whereby it would provide snow removal and salting services at Walgreen's property in Burlington. Deanna Cottle (plaintiff)[2]slipped and fell on "black ice" in Walgreen's parking lot, and filed a negligence complaint against Walgreen and Pieco. Walgreen asserted a third-party claim for declaratory judgment against Farm Family for defense and indemnity as an additional insured under the policy Farm Family issued to Pieco.

On appeal, Farm Family argues it was not obligated to indemnify, and by extension defend, because Walgreen failed to demonstrate that the black ice "arose out of" Pieco's work. We disagree and affirm.

I.

Our review of a motion court's order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to Farm Family. Plaintiff filed a complaint against Walgreen and Pieco for damages caused by her fall in an allegedly icy parking lot on February 21, 2007, at the Walgreen premises in Burlington. Plaintiff asserted a cause of action against Walgreen, and against Pieco, alleging Pieco "was legally responsible for the maintenance and conditions of the parking lot, " and "as a direct and proximate result of [Pieco's] negligence and carelessness, " she suffered injury and damages.

Several days before plaintiff's fall, Pieco performed snow plowing and salting services at the Walgreen's lot after a winter storm. The day after plaintiff's fall, Pieco sent an invoice to Walgreen which read:

On February 13, 2007 [at] 7:30 AM, we had a snow event start. The event originally forecasted as a dusting, leaving most areas with 1.5" by 4:00 PM. February 14, 2007 brought an all day ice/snow mix that did not end until early hours on the 15th. Total accumulations for this event ranged from 2.25" to 4.5". Combine all this with temperatures not going above the teens made for a difficult event to manage. The Governor and D.O.T. Chairman both noted on Thursday evening the difficulty in trying to manage the roads. They also noted that the rock salt was melting, but due to extreme temperatures, everything would re-freeze and then the process would start all over again.

Pieco performed services at Walgreen's property at various times from February 13 to 16, 2007.

Walgreen filed a third-party complaint against Pieco's insurance carrier, Farm Family, alleging Walgreen was an additional insured under the policy it issued to Pieco, and was entitled to a defense and indemnity on plaintiff's complaint, reimbursement of defense costs and fees, and reimbursement of attorneys' fees and costs it incurred in asserting the third-party claim. Walgreen's claim was based on an endorsement to a New Jersey Contractors Advantage Special policy Farm Family issued to Pieco, which stated:

This endorsement modifies insurance provided under the following: . . .
BUSINESSOWNERS LIABILITY COVERAGE FORM SCHEDULE
Name of Person or Organization: ...

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