NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4442-10.
Glenn A. Bergenfield, P.C., attorneys for appellant (Mr. Bergenfield, on the brief).
Sullivan and Graber, attorneys for respondent (James F. Sullivan, of counsel; Chryzanta K. Hentisz, on the brief).
Before Judges Fisher and Espinosa.
Plaintiff Ramesh Bulusu was the owner of a Millstone Township home; defendant Allstate New Jersey Insurance Company provided plaintiff with homeowners insurance coverage. Plaintiff sought compensation from Allstate as a result of vandalism in the home but Allstate declined, taking the position that the home's vacancy for more than thirty days prior to the loss exempted it from coverage. Consequently, plaintiff commenced this action and, after a bench trial, the judge ruled against him.
Plaintiff appeals, arguing in his first point that the trial judge erred in both defining what the policy's vacancy exemption meant and in finding the residence was vacant or remained vacant for more than thirty days prior to the vandalism. Plaintiff argues in his second point that Allstate had a duty to issue a proper policy providing coverage for the home even if vacant. We find insufficient merit in the second point to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also reject the first point for the brief reasons that follow.
The policy issued by Allstate clearly stated that it would not provide plaintiff with coverage for damage to the structure or to personal property caused by "vandalism or malicious mischief" if the dwelling remained "vacant for more than 30 consecutive days immediately prior to the vandalism or malicious mischief." The policy did not define the word "vacant."
After another judge denied cross-motions for summary judgment, Judge Dennis R. O'Brien conducted a bench trial. After hearing testimony from plaintiff and Thomas Leonard, an Allstate staff claim analyst, the judge issued a written opinion containing findings based on credible evidence entitled to our deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also Cole v. Jersey City Med. Ctr., 215 N.J. 265, 275 (2013); Stephenson v. Spiegle, 429 N.J.Super. 378, 382 (App. Div. 2013).
Judge O'Brien found that plaintiff last lived at the Millstone home in February 2010, when he moved to Virginia to take a temporary position. Before then, in December 2009, plaintiff stopped making mortgage payments on the property. Plaintiff returned to New Jersey in April 2010, but not to reside at the Millstone home. Instead, plaintiff and his family moved to a West Windsor apartment that was rented for an eighteen-month term. Plaintiff had the gas turned off at the Millstone home, ceased maintaining the lawn, and terminated his contract with an alarm security company. Judge O'Brien also found that, prior to the vandalism, there was a lack of bedroom furniture or clothing in the closets, there was no food, dishes and utensils in the home, and, with the gas turned off, no heat or hot water. Based on these and other findings, the judge concluded that "no one could sustain living there" for a period of at least thirty days prior to the vandalism that was discovered on June 10, 2010, when plaintiff called police to the premises And in adopting the plain and ordinary meaning of the word "vacant" the judge determined the property was vacant for more than thirty days prior to the vandalism He thus held that Allstate was justified in denying coverage
We affirm substantially for the reasons set forth by Judge O'Brien in his cogent and ...