United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant Lexington
Insurance Company's motion for summary judgment, ECF No.
39. This case arises from an insurance coverage dispute over
the amount of wind damage and cost of repairs sustained at
Plaintiff Zero Barnegat Bay, LLC's property on October
29, 2012, during Superstorm Sandy. For the reasons expressed
herein, Defendant's motion is denied in part and granted
in part. As part of Defendant's motion, it seeks to
excluded the report and testimony of Shannon Cook, as an
expert. It is preferable to decide same on an in limine
motion, rather than by summary judgment. As such, that part
of the motion is denied without prejudice.
the time of Superstorm Sandy, and thereafter, Plaintiff Zero
Barnegat Bay, LLC (hereinafter "Zero Barnegat" or
Plaintiff) maintained a homeowner's insurance policy for
property located at Middle Sedge Island, in Normandy Beach,
New Jersey. (Def. Statement of Facts ("SOF") ECF
No. 39-2, at ¶¶ 2-3). The policy was underwritten
by Defendant Lexington Insurance Company, (hereinafter
"Lexington" or Defendant). (Def. SOF at ¶ 3;
see also Lexington Ins. Policy, ECF No. 39-4).
Plaintiffs deductible for claims arising out of wind and hail
damage was $21, 860.00, or 2% of the total coverage
dwellings. (See Lexington Ins. Policy, at 1; see
also Def. SOF at ¶ 4).
Plaintiffs property sustained damage from Superstorm Sandy,
Plaintiff submitted a claim to Lexington. (Def. SOF at ¶
5). Lexington then had the property inspected by Vertex.
(See Vertex Report, ECF No. 43-3). Vertex issued a
report, concluding that high winds caused and contributed to:
- The damage to the roof shingles along the leave edge on the
north-facing side of the uppermost roof of the main house;
- The broken window on the north-facing side of the
- The water intrusion at the south-facing bank of windows in
the living room on the first level of the main house, however
most of the observed damage to the windows existed prior to
Hurricane Sandy; and
- The cracks in the gypsum ceiling and walls of the main
house, however most of the observed damage to the ceiling and
walls existed prior to Hurricane Sandy.
(Id. at 7). In accordance with the report, the
claims adjuster from East Coast Claims Services, Inc.
("East Coast") determined the wind damage amounted
to $17, 344.79. (Lexington Estimate, ECF No. 39-5).
Specifically, the damages noted by East Coast included line
item costs detailing the damage that Vertex had identified as
caused by wind. Based on the Vertex report and the East Coast
estimate, Lexington denied Plaintiffs claim, because
Plaintiffs the damage cost ($17, 344.79) was less than the
deductible ($21, 860.00). (Denial Letter, ECF No. 39-6, at
then hired its own inspector, Shannon Cook, to assess the
damages and prepare an estimate of the cost of repairs.
(See Cook Report, ECF No. 39-7). Cook noted that the
type of loss was "wind damage," and upon inspection
of the property, estimated that the total for the wind damage
was $466, 550.47. (Id. at 1, 51). Cook identifies
substantially the same items as wind- damaged that the
Lexington report and East Coast estimate had identified;
however, the Cook report includes more repairs than the East
Coast estimate. (Id.)
also hired its own causation expert, Todd Heacock, who
submitted a report regarding the "condition and
circumstances that may have led to the . . . damage to an
in-ground pool, the timber framed promenade adjacent to the
marine bulkhead, and the transformer located near the eastern
side of the island." (Heacock Report, ECF No. 39-9, at
1). Regarding damage to the boardwalk, Heacock opined that
"at many locations along the bulkhead, nails or the
remnants of nails were observed to be pried up and, in many
cases, bent over. The tides during the storm event did extend
above the top of the bulkhead and boardwalk. However, high
winds occurred prior to the rise in the water level."
(Id. at 3). Heacock explained, "[o]nce lifted,
direct wind pressure would cause the nails at the bulkhead to
bend and fail. Later, when the water levels rose, the tide
would have carried the remains of the boardwalk away."
the electrical transformer, Heacock opined that the wind
"caused the transformer to slide off its base" and
that "[t]he connection of the power wires below the
transforme[r] prevented the upper section of the transformer
from being carried away by the wind, or by the effects of
flood that occurred after the high wind."
(Id.). Finally, regarding the pool, Heacock
explained that "due to movement caused by wind and later
by flood water the pool is severely damaged . . . ."
(Id. at 4). Heacock concluded, "[t]he effects
of wind and rising water caused significant disturbance at
the residential property on Middle Sledge Island . . . [i]t
is evident from our analysis that wind likely caused
significant damage to these items. Additional damage may have
occurred due to flood after the severe wind event."
summary, Lexington noted wind damage to the property's
roof, an exterior window, siding, and the interior of the
property. (See ECF No. 39-5). However, because this
damage amounted to $17, 344.79, less than the $21, 860.00
deductible, Lexington denied coverage for the claims. In
contrast, Cook, Plaintiffs damages expert, identified $466,
550.57 worth of wind damage to interior and exterior of the
property, however, he did not provide estimates for the pool,
boardwalk, or electrical transformer. Finally, Plaintiffs
causation expert only ...