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151 East Leaming Avenue Condo Association v. QBE Speciality Insurance Co.

United States District Court, D. New Jersey, Camden Vicinage Division

June 18, 2015



JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on the "Motion for Summary Judgment" [Doc. No. 15] and "Motion to Strike the Report of Plaintiff's Expert Charles Wagenhoffer" [Doc. No. 15] filed by defendant QBE Specialty Insurance Company ("QBE"). The Court received the response in opposition from plaintiff 151 East Leaming Avenue Condo Association ("151 East Leaming") [Doc. No. 16] and defendant's reply [Doc. No. 19]. The Court exercises its discretion to decide defendant's motions without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of this Court to hear the case. [Doc. No. 10]. For the reasons to be discussed, defendant's motion for summary judgment is GRANTED. Defendant's Motion to Strike the Report of Plaintiff's Expert Charles Wagenhoffer is also GRANTED.


This action concerns whether plaintiff's condominium located at 151 East Leaming Run, Wildwood, New Jersey, is covered by a QBE commercial property policy for alleged property damage which occurred on or about October 29, 2012 during Superstorm Sandy. Plaintiff initiated this civil action in the Superior Court of New Jersey, Law Division, Atlantic City, on November 12, 2013. See Notice of Removal, Ex. B [Doc. No. 1]. Plaintiff's two-count complaint alleges that defendant failed to pay insurance benefits due and owed under its policy and asserts claims for breach of contract and breach of the implied covenant of good faith and fair dealing/bad faith. Id. Plaintiff also seeks attorney's fees and punitive damages. Id. Defendant removed the case to this Court pursuant to 28 U.S.C. § 1332 on January 10, 2014. Id.

The commercial policy at issue contains a water exclusion for the property coverage. See Def.'s Br. Ex. A. Specifically, under the provision "Causes of Loss-Special Form", loss or damage caused by water and/or flood is excluded under section B.1.g. Id. at 2 of 9. After investigating the claim, QBE determined that plaintiff's property loss was caused by a flood and denied plaintiff's claim pursuant to the water exclusion. See Def.'s Statement of Material Facts ¶ 5. Plaintiff contests QBE's determination that its property damage is not covered by its policy. In support thereof plaintiff has submitted the report of Charles Wagenhoffer, an alleged expert contractor who is also a 151 East Leaming condominium owner. See generally Pl.'s Opp. [Doc. No. 16]. Mr. Wagenhoffer's report states that plaintiff's property damage was caused by wind and not water. [Doc. No. 15-3].

On January 31, 2014, defendant moved to dismiss plaintiff's claims for attorneys' fees and punitive damages. [Doc. No. 4]. The Court granted defendant's motion on March 7, 2014. [Doc. No. 11]. In the instant motions, defendant seeks to bar plaintiff's expert and requests entry of summary judgment as to all of plaintiff's remaining claims. In the alternative, defendant seeks to bar plaintiff's expert from testifying at trial. As discussed herein, the Court will grant QBE's motions and enter summary judgment against plaintiff.


1. The Summary Judgment Standard

Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate where the court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any... demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). Summary judgment will not lie if the dispute about a material fact is "genuine, " that is, if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality of a fact turns on whether under the governing substantive law, a dispute over the fact might have an effect on the outcome of the suit. Id. The court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. See Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008) (citation omitted).

The moving party bears the initial burden of informing the court of the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-23. Once the burden is met, the burden shifts to the non-moving party to "set forth specific facts showing that there [are].... genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The party opposing summary judgment may not "rest upon mere allegation[s] or denials of his pleading, " but must set forth specific facts and present affirmative evidence demonstrating that there is a genuine issue for trial. Id. at 256-57. Additionally, "if the non-moving party's evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted.'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91 (3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)).

Rule 56(e) further provides that "if a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials- including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order." Fed.R.Civ.P. 56(e).

2. Policy Interpretation

The interpretation of an insurance policy is a question of law. Powell v. Alemaz, Inc., 335 N.J.Super. 33, 37 (App. Div. 2000). The insured bears the initial burden to show that the claim is "within the basic terms of the policy." S.T. Hudson Engineers, Inc. v. Pennsylvania Nat. Mut. Cas. Co., 388 N.J.Super. 592, 603-04 (App. Div. 2006) (citation omitted). Once this showing is made, "[w]here an insurer claims the matter in dispute falls within exclusionary provisions of the policy, it bears the burden of establishing that claim." Id. While ambiguity must be strictly construed against the insurer so that reasonably anticipated coverage is provided, "exclusions are presumptively valid and will be given effect if specific, plain, clear, prominent, and not contrary to public ...

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