Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zero Barnegat Bay, LLC v. Lexington Insurance Co.

United States District Court, D. New Jersey

March 18, 2019

ZERO BARNEGAT BAY, LLC, Plaintiff,
v.
LEXINGTON INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This 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.

         I

         During 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).

         After 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 guesthouse;
- 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 2).

         Plaintiff 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.)

         Plaintiff 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." (Id.).

         Regarding 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." (Id.).

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.