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Fifth v. State Farm Insurance Co.

United States District Court, D. New Jersey

March 25, 2014

JAMES FIFTH, STEVEN PENNINGTON And DEBORAH PENNINGTON, Plaintiffs,
v.
STATE FARM INSURANCE CO., Defendant.

TIMOTHY J. McILWAIN, ATTORNEY AT LAW, LLC, HOBOKEN, NJ, Attorney for Plaintiffs.

CRAIG D. GOTTILLA, DAVID F. SWERDLOW, WINDELS MARX LANE & MITTENDORF, NEW BRUNSWICK, NJ, Attorneys for Defendant.

OPINION

NOEL L. HILLMAN, District Judge.

Plaintiffs[1], Steven and Deborah Pennington, filed a complaint against defendant State Farm Fire and Casualty Company (improperly named as State Farm Insurance Companies) ("State Farm") following State Farm's denial of their insurance claim for damage to their home due to a water leak and mold. Before the Court is State Farm's motion for summary judgment. For the reasons expressed below, State Farm's motion is granted.

I. JURISDICTION

This Court exercises subject matter jurisdiction over the underlying claim pursuant to 28 U.S.C. ยง 1332. There is complete diversity between plaintiffs and defendant. Plaintiffs are citizens of the State of New Jersey. State Farm is incorporated in the State of Illinois with its principal place of business in Bloomington, Illinois. The amount in controversy is alleged to exceed $75, 000.00.

II. BACKGROUND

According to plaintiffs, [2]plaintiff Deborah Pennington owns a house located at 1008 Batts Lane, Cape May, New Jersey, and plaintiffs Steven and Deborah Pennington, husband and wife, purchased a homeowner's policy from State Farm. In early September 2010, Mrs. Pennington noticed a "fleeting odor" (a few seconds) in the kitchen by an open window near a field. Mrs. Pennington told her husband about the "funny smell, " but he "blew it off." In late September 2010, Mrs. Pennington noticed that the wooden threshold connecting the kitchen and dining room floors had "popped up and buckled." When Mrs. Pennington pointed out the damaged threshold to her husband in late September 2010, he agreed that "something's wrong" and that they needed to call a plumber. Plaintiffs called Joseph Griesbach from Plumber Joe's Plumbing who went to plaintiffs' house on October 12, 2010. When Mr. Griesbach went into the crawlspace underneath the kitchen, he discovered "steam or vapor spraying out of a small rot hole in the copper ice maker supply line." He also found "an enormous amount of water damage and a lot of mold growth throughout the crawlspace." Mr. Griesbach located the shut-off valve and turned off the water.

On October 12, 2010, plaintiffs submitted a claim under their homeowner's insurance policy with State Farm. State Farm claim representative Mia Donnell inspected plaintiffs' house on October 14, 2010 and observed mold in both the crawlspace and the kitchen. State Farm hired an environmental consulting company, MDG Environmental, LLC ("MDG"), to investigate and determine the cause of the damage to plaintiffs' house. Christopher Macri (Senior Industrial Hygienist from MDG) inspected the house on October 16, 2010. In plaintiffs' kitchen, Macri found more than "200 square feet of visible mold growth." Macri observed that the vinyl floor tiles in the kitchen were coming loose, the subfloor beneath the vinyl tiles "was wet up to 94% on a wood moisture equivalency scale, " and there was a "strong musty odor" when tiles were lifted. Macri took moisture measurements from the sheetrock wall behind the refrigerator and found the wall "was wet up to 90% on a wood moisture equivalency scale." Macri also observed that the sheetrock wall behind the refrigerator "was crushable with hand pressure in some areas, up to 48 inches above the floor."

Macri also collected air samples in the kitchen, which showed elevated airborne fungal concentrations nearly three times higher than the baseline level. In the crawlspace, Macri found "extensive visible mold growth" on the wooden joists and decking (i.e., the subfloor to the kitchen).

At the time of Macri's inspection, the small hole in the copper supply line to the icemaker had not yet been repaired. Macri states that "[u]pon examination of the path and spray pattern of the water it revealed that it correlates to the area beneath the kitchen with those areas being exposed to water and steam, resulting in the water damage and mold growth." Macri "concluded that the extensive mold growth that was observed in the crawlspace and kitchen was created by excessive moisture in the crawlspace resulting from a long term leak from the ice maker supply line in the crawlspace." Macri "further concluded that the leak was on-going for a long period of time to support the continued fungal amplification (mold growth) over an extended area in the crawlspace and to penetrate/migrate up through the floor decking into the kitchen."

Plaintiffs assert that Macri conveyed to them that the combination of the hot spray from the leak and the time of year created conditions that could contribute to rapid mold growth. Plaintiffs also assert that Macri assured Mrs. Pennington that it was not her fault and that a layman would not have noticed it.

By letter dated October 26, 2010, State Farm denied plaintiffs' claim. A copy of the denial letter was faxed to Mrs. Pennington on October 27, 2010. Plaintiffs filed a complaint against State Farm in the Superior Court of New Jersey on October 26, 2011, which case was removed to this Court. State Farm now moves for ...


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