United States District Court, D. New Jersey
NEW JERSEY MANUFACTURERS INSURANCE GROUP also known as GEORGE AND PATRICIA TRAMPLER, Plaintiff,
VIVINT SOLAR, INC., et al. Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on Defendant, Vivint Solar,
Inc.'s motion for summary judgment (ECF No. 12).
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'), 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., ¶
filed a Complaint with this Court on July 12, 2016 (ECF No.
1). Parties engaged in limited discovery, 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).
facts leading to the incident alleged in this matter are
summarized as follows.
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).
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). 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.
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).
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).
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.
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