United States District Court, D. New Jersey
VINELAND 820 N. MAIN ROAD, LLC, Plaintiff,
UNITED STATES LIABILITY INSURANCE COMPANY, BIONDI INSURANCE AGENCY, INC., STEVEN TRAMONTANA, Defendants.
DHILLON LAW FIRM OF SABINA DHILLON, LLC On behalf of
Plaintiff. RICHARD S. NICHOLS GENNET, KALLMANN, ANTIN,
SWEETMAN & NICHOLS, PC On behalf of Defendant United
States Liability Insurance Company.
LAWRENCE BRENT BERG MARSHALL, DENNEHEY, WARNER, COLEMAN &
GOGGIN CHERRY HILL On behalf of Defendants Biondi Insurance
Agency, Inc. and Steven Tramontana.
L. HILLMAN, U.S.D.J.
case concerns the denial of an insurance claim and the
interpretation of a protective devices condition in an
insurance contract. Presently before the Court is Defendant,
United States Liability Insurance Company's
(“USLIC”) Motion for Summary Judgment, Defendants
Biondi Insurance Agency, Inc.'s (“Biondi”)
and Steven Tramontana's Motion for Summary Judgment and
Plaintiff's Cross-Motion for Summary Judgment. For the
reasons expressed below, Defendants' motions will be
granted and Plaintiff's motion will be denied.
our brief recitation of the facts from Defendants'
Statements of Material Facts. Plaintiff, Vineland 820 N. Main
Road, LLC (“Vineland 820”), is solely owned by
Inderpreet Singh. Vineland 820 owns premises located at 820
N. Main Road, Vineland, New Jersey. It appears that sometime
in 2014, either Paula Jones or Sandy Davis, two individuals
working for Vineland 820 who managed the property, contacted
Tramontana, an insurance producer with Biondi, about
obtaining property insurance. The contents of those
conversations is unknown. In order to procure insurance, Biondi
worked with a company named Tri-State. Tri-State would
provide insurance quotes and send out applications to
different insurance companies, including USLIC, based on the
information Biondi provided. Biondi did not write insurance
policies and could not bind coverage.
stated that he believed he also spoke with Tramontana at some
point, but could not remember the content of the
conversation. Singh only remembers that he spoke with
Tramontana about payment and that at some point an individual
at Biondi requested “some building patch up” to
be done before issuance of a bond. According to Singh, the
request was to fix paint on the building and “some
flashing of the roof or something along those lines”
before coverage was bound. Singh did not believe “any
electrical issue[s]” needed to be fixed nor that Biondi
or Tramontana asked him to do so.
Biondi - through Tri-State - found that USLIC was willing to
insure the property. On September 19, 2014, USLIC issued a
property insurance policy covering the premises located at
820 N. Main Road, Vineland, New Jersey. Part of the
policy contained a form labeled CP 142 and titled
“Protective Devices Or Services
Provisions.” The policy required, as a condition of
insuring the building, that Plaintiff “have and
maintain the Protective Devices or Services listed” in
an incorporated schedule.
schedule required that “[a]ll electric is on
functioning and operational circuit
breakers.” This was identified by symbol
“P-6” on the schedule. The policy stated:
respect to . . . “P-6” . . . [USLIC] will not pay
for loss or damage caused by or resulting from fire if, prior
to the fire, [Plaintiff]:
(1) Knew of any suspension or impairment in any protective
safeguard listed in the Schedule . . . and failed to notify
[USLIC] of that fact; or
(2) Failed to maintain any protective safeguard listed in the
Schedule . . ., and over which you had control, in complete
to both USLIC's and Plaintiff's expert reports, on
May 7, 2015, a fire started in the wiring on the second floor
of 820 N. Main Road. USLIC's expert, Louis H. Gahagan,
opined that the “main electrical panel” for the
second-floor apartment that caught fire was actually a
“fuse panel box.” Undisputed pictures reveal
that, in fact, this was a fuse panel box with four fuses.
Plaintiff's own expert admits the existence of this
“fused subpanel, ” states that the
“original wiring serving the fuse box was in use,
” and “3 of the type TL 30A fuses were open and
showed signs of current through them.”
however, suggests in his argument that the “fused
subpanel was protected by a circuit breaker.” Plaintiff
suggests that his expert, John M. Tobias, opined that the
circuit breaker serving the fused subpanel, was operational
and confirmed “no malfunction of the fuses.” This
is not consonant with the expert's own words, which
state, in full: “It is not circuit breakers.” No.
similar form has been produced in relation to the policy with
USLIC. known if these breaker [sic] functioned (opened) but
the report that an occupant functioned the circuit breakers
prior to arrival of the fire department suggests they did
not.” (emphasis added).
Plaintiff points to the expert reports and a Vineland Fire
Investigation Unit Incident Report (“Incident
Report”) to assert that the fuses were not the cause of
the fire. Instead, the two expert reports and the Incident
Report suggest a wire in the ceiling leading to the ceiling
fan was the likely cause of the fire. Defendants do not
dispute that this was the likely cause of the fire.
the fire, Tramontana forwarded Vineland 820's claim to
USLIC. Besides this ministerial act, Tramontana testified
that Biondi “do[es] nothing with claims” and that
he did nothing further with the instant claim. USLIC denied
Plaintiff's insurance claim in a June 8, 2015 letter,
citing the above-mentioned breach of the Protective Device
filed a complaint on May 2, 2017, alleging wrongful denial of
claims, bad faith, failure to conduct a reasonable
investigation, breach of contract, breach of implied covenant
of good faith and fair dealing, breach of fiduciary duty, and
requested punitive damages. USLIC answered on June 8, 2017
and Biondi and Tramontana answered on June 9, 2017. Discovery
ensued. USLIC filed a Motion for Summary Judgment on December
14, 2017, Plaintiff filed its opposition on January 2, 2018,
USLIC filed its reply brief on January 9, 2018. On March 1,
2018, Biondi and Tramontana filed a Motion for Summary
Judgment, Plaintiff filed its opposition on April 9, 2018,
and Biondi and Tramontana filed their reply brief on April
30, 2018. Plaintiff filed its Motion for Summary Judgment on
March 15, 2018, Defendants filed their opposition on April 9
and 10, 2018, and Plaintiff filed its reply on May 1, 2018.
Subject Matter Jurisdiction
Court has jurisdiction over Plaintiff's claims under 28
U.S.C. § 1332, as the requirements of diversity are met.
Standard for Motion for Summary Judgment
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” and that the moving
party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986) (citing Fed.R.Civ.P. 56).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. “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) (citing Anderson,
477 U.S. at 255).
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.”); see Singletary v. Pa. Dep't
of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be
discharged by “showing”-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case' when the
nonmoving party bears the ultimate burden of proof.”
(citing Celotex, 477 U.S. at 325)).
the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. A “party opposing
summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s].'”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001). For “the non-moving party to prevail, [that
party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party's
case, and on which that party will bear the burden of proof
at trial.'” Cooper v. Sniezek, 418
Fed.Appx. 56, 58 (3d Cir. 2011) (citing Celotex, 477
U.S. at 322). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Anderson, 477 U.S. at
Choice of Law Governing USLIC Insurance Policy
deciding the substantive issues presented in these
cross-motions for summary judgment, this Court must first
determine which state's law to apply in interpreting the
insurance contract. Only USLIC has identified and briefed
this choice of law issue. None of the parties dispute - in
either their motions, responses, or replies - USLIC's
position requiring New Jersey substantive law to be
applied.Nevertheless, the Court briefly includes a
choice of law analysis in order to satisfy itself that New
Jersey substantive law is correctly applied in this case.
first step in determining which state's substantive law
should apply is to determine which state's choice of law
rules apply. Federal law requires a federal court sitting in
diversity to apply the choice of law rules of the forum state
in which it sits. Klaxon v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941). This Court sits in New Jersey, so
it will apply New Jersey choice of law rules.
according to New Jersey law, the Court determines whether
there is an actual conflict between the state laws at issue.
Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir.
2006). No. party has identified a conflict between the
relevant laws of the possibly interested states. Considering
the domicile of the parties is Delaware, Pennsylvania, and
New Jersey, each of these states may potentially have an
interest in their law applying to this dispute. We will
assume here, solely for purposes of this analysis, that a
true conflict exists between the laws of these states.
the Court determines, in the face of a true conflict, which
state's substantive law should apply. When analyzing a
fire insurance policy, “a court looks first to the
Restatement [(Second) of Conflict of Laws] section
193.” Pfizer, Inc. v. Emp'rs Ins. of
Wasau, 712 A.2d 634, 637-38 (N.J. 1998) (quoting
Gilbert Spruance Co. v. Pa. Mfrs. Ass'n Ins.
Co., 629 A.2d 885, 893 (N.J. 1993)) (emphasis in
§ 193 provides:
The validity of a contract of fire, surety or casualty
insurance and the rights created thereby are determined by
the local law of the State which the parties understood was
to be the principal location of the insured risk during the
term of the policy, unless with respect to the particular