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New Jersey Manufacturers Insurance Group v. Vivint Solar, Inc.

United States District Court, D. New Jersey

February 20, 2018

VIVINT SOLAR, INC., et al. Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Defendant, Vivint Solar, Inc.'s motion for summary judgment (ECF No. 12).


         Plaintiff, New Jersey Manufacturers Insurance Group ("NJM"), a New Jersey insurance company, and the owners of the home insured by it, George and Patricia Templer (collectively, "Plaintiff')[1], bring this tort action against Vivint Solar, Inc., a Utah corporation, for negligence related to an August 29, 2014 fire at the Tramplers' property located at 314 Park Avenue, Union, New Jersey. The Complaint alleges that the fire was caused by the "negligence, carelessness and recklessness" of Defendant and its employee in the design and installation of a solar panel system the insured contracted to purchase from Defendant. (Compl., ¶¶ 4, 6, 15). Plaintiff now seeks to recover from Defendant damages in the amount of $256, 914.52 for payments NJM made to its insureds on their claim for property damage and loss of use to their home resulting from the fire. (Compl., ¶ 10-13). Plaintiff alleges the following Counts in the Complaint: (1) negligence; (2) abnormally dangerous activity; (3) breach of contract; (4) breach of warranty; and (5) strict liability. (Compl., ¶ 14-42).

         Plaintiff filed a Complaint with this Court on July 12, 2016 (ECF No. 1). Parties engaged in limited discovery[2], as directed by the Court, prior to the filing of this motion for summary judgment, which was filed by Defendant on May, 25, 2017 [ECF No. 10 and 12). (Dkt. 10, ¶5, 6).

         The facts leading to the incident alleged in this matter are summarized as follows.

         For over twenty years, the Tramplers owned a residence covered by a homeowner insurance policy issued by NJM. In the spring of 2014, Patricia and George Trampler were approached by a Vivint Solar sales representative at their home. They met with the representative for an hour, however, they did not sign a contract on that day. On May 5, 2014, the Tramplers entered into a contract with Defendant. (ECF No. 12; Ex. F). The contract was for the design, installation, service and maintenance of a solar photovoltaic system on the Trampler property and for the purchase of electricity. (Ex. E, No. 10, 12; see also Ex. F, ¶ 1A, 2A). In exchange for the installation of the solar panels and system, the Tramplers were to pay Vivint Solar $0, 119 per kWh plus applicable taxes for all energy produced by the solar photovoltaic system for two years. (Ex. F, ¶ 2A). The contract contained, among the other things, a waiver of subrogation clause on Paragraph 19, entitled "SUBROGATION, " containing the following language:

You agree to release all Covere1d Persons from any claims of any parties suing through Your authority or in Your name, such as Your insurance company, and You agree to defend Us against any such claim. YOU AGREE TO NOTIFY YOUR INSURANCE COMPANY OF THIS RELEASE.

(Ex. F, ¶19).

         On August 29, 2014, during the installation process, a fire originated on the exterior of the home, on the roof, directly below what was identified as solar panel 2E in the area of an enphase interactive converter. (Compl. 5-8).[3] The fire caused substantial damage to the home and their personal belongings, which required repairs, restoration and replacement of property as well as the need to find an alternative place to live while the repairs occurred. (Compl. 10). As a result of the fire, the Tramplers filed a claim with NJM for property damages and loss of use and NJM subsequently paid the claim. (Compl. 11-12).


         Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

         Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). " [Unsupported allegations... and pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to "set forth specific facts showing that there is a genuine issue for trial"). Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, "after drawing all inferences in favor of [the non-moving party], and making all credibility determinations in his favor "that no reasonable jury could find for him, summary judgment is appropriate." Alevras v. Tacopina, 226 Fed.App'x. 222, 227 (3d Cir. 2007).


         Defendant argues that each of NJM's insureds signed a valid and binding contract containing a waiver of subrogation clause and/or arbitration clause which acts as an absolute bar to Plaintiffs claims. (ECF No. 12-3 pg. 5). Plaintiff argues that the subrogation waiver is unenforceable because it is a contract of adhesion. The Plaintiff also argues that the contract violates the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (NJTCCWNA). (ECF No. 17 pg.13). Because the Court agrees that the waiver of subrogation clause is unenforceable, Defendant's motion for summary judgment is denied.

         This Court has defined the concept of subrogation in a recent decision, Allstate New Jersey Ins. Co. v. Avalonbay Communities, Inc., No. CV 16-5441, 2017 WL 1095473, at ...

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