NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2320-08.
Francis X. Garrity argued the cause for appellants (Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys; Mr. Garrity, on the brief).
Daniel R. Bryer (Clausen Miller, P.C.) of the Illinois bar, admitted pro hac vice, argued the cause for respondent (Clausen Miller, P.C. and Mr. Bryer, attorneys; Thomas D. Jacobson and Mr. Bryer, on the brief).
Before Judges Axelrad, Sapp-Peterson and Nugent.
This is a declaratory judgment action in which defendants, Harold Berlow and 700 Bangs Avenue, LLC (Bangs), appeal two orders granting summary judgment in favor of plaintiff, Essex Insurance Company. We affirm.
Bangs owns property on which a condominium was being built in Asbury Park. Berlow is one of fourteen managing members of Bangs and is also the president of MLB Construction and Consulting, Inc. (MLB), a general contractor, and the company with which Bangs contracted to construct the condominium. The property on which the condominium was being constructed is adjacent to a building owned by the New Jersey Pan-African Chamber of Commerce & Industry, Inc. (PACCI).
During the course of the construction project's excavation activities, the excavator exposed an area where a section of the PACCI building's wall did not extend down into the earth as far as the adjoining wall of defendants' property. As a result, PACCI's wall collapsed, ultimately requiring demolition of the entire structure. In addition to the property damage sustained by PACCI, an employee of one of MLB's subcontractors, Melber Geovanny Tinitana, sustained injuries after being struck by falling brick and mortar during the collapse.
In PACCI's complaint, it alleged that defendants negligently dug beneath PACCI's building, removed soil, and undermined the building's foundation. PACCI also alleged that defendants' excavation operations "jar[red] and cause[d] the surrounding land to vibrate, " causing the soil under PACCI's building to erode and subside, and causing further damage to PACCI's building. PACCI further asserted that defendants were vicariously liable for the negligent acts and omissions of their agents and employees, and that defendants' actions were wanton, willful, reckless and malicious.
In his complaint, Tinitana alleged that the cracking and ultimate collapse of the PACCI building was caused by defendants' excavation activities, and that these activities were negligent, careless and reckless, and constituted a violation of New Jersey regulations. The complaint additionally described Tinitana as an employee of both Bangs and another company subcontracted by MLB.
After the litigation commenced, defendants tendered their defense in the two lawsuits to Essex, seeking coverage under the Commercial General Liability (CGL) policy issued to Bangs for the period covering August 15, 2007 to August 15, 2008. Under the terms of the policy, Essex covered "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' . . . . caused by an 'occurrence' that takes place in the 'coverage territory[.]' . . . [and] during the policy period[.]" The policy also contains an "Additional Conditions Endorsement, " including two exclusions that are pertinent here:
This insurance does not apply to "bodily injury[, ]" "property damage[, ]" "personal injury[, ]" "advertising injury" or any injury, loss, or damages, including consequential injury, loss or damage, arising out of, caused by or contributed to or as a result of:
(A) "movement of land or earth" regardless whether emanating from, aggravated by, or attributable to any operations performed by or on behalf of any insured, and regardless whether first manifestation of same occurs during the policy period or prior or subsequent thereto. "Movement of land or earth" includes instability, subsidence, settling, sinking, slipping, falling away, caving in, shifting, eroding, rising, tilting, bulging, cracking, mud flow, mudslide, earthquake, shrinking or expansion of ground, ...