ANTHONY FOTI VS. JG ELIZABETH II, LLC D/B/A THE MILLS AT JERSEY GARDEN MALL (L-3213-17, UNION COUNTY AND STATEWIDE), A-1638-19

In 2000 Elizabeth executed a written lease for Space 1158 at the mall; Glimcher (now JG) was landlord and charged Elizabeth no rent. The lease was extended through October 31, 2016.
Lease Section 11.01 (Tenant's Insurance) was crossed out and replaced by a handwritten provision stating the landlord’s insurance requirements would be satisfied by Tenant via Tenant’s self‑insurance; landlord (JB/JG) was to be an additional insured.
On August 28, 2015, Anthony Foti, employed by the County, was injured while doing electrical work in Space 1158; no lease between the County and JB existed at that time (a written County lease was executed in August 2017 with a retroactive date of November 1, 2016).
JB (landlord) tendered its defense to Elizabeth after suit was filed; Elizabeth declined to defend or indemnify JB.
The trial court granted summary judgment to defendants on the negligence claim and later ordered Elizabeth to reimburse JB/JG $62,041.65 in defense fees and costs; Elizabeth appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did an oral lease or novation between the County and JB relieve Elizabeth of lease obligations?	No; no evidence of an agreement or mutual intent to substitute contracts.	Yes; an oral lease/novation effectively transferred obligations to the County before the accident.	No novation/oral lease proved; written lease remained in effect and Elizabeth retained obligations.
Does the handwritten self‑insurance clause require Elizabeth to provide a defense to JB for injuries occurring in Space 1158?	Yes; the parties intended landlord coverage via Elizabeth’s self‑insurance and JB was an additional insured, so Elizabeth had a duty to defend covered claims.	No; cross‑outs and lack of indemnity for landlord’s own negligence mean Elizabeth had no duty to defend JB.	The clause is unambiguous: self‑insurance supplied landlord coverage; duty to defend attaches for potentially covered claims.
Is Elizabeth liable to reimburse JB/JG for defense fees and costs?	JB/JG sought reimbursement because Elizabeth refused defense; fees were reasonable and unrebutted.	Elizabeth argued no duty to defend, so no reimbursement obligation.	Trial court award ordering Elizabeth to pay $62,041.65 was affirmed.

Serico v. Rothberg, 234 N.J. 168 (2018) (contract interpretation governed by parties’ intent, terms, and circumstances)
Fusco v. City of Union City, 261 N.J. Super. 332 (App. Div. 1993) (novation requires mutual agreement to substitute and extinguish prior contract)
Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (App. Div. 2014) (party alleging novation bears the burden of proof)
Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67 (2011) (duty to defend applies to potentially coverable claims and is broader than duty to indemnify)
Wear v. Selective Ins. Co., 455 N.J. Super. 440 (App. Div. 2018) (duty to defend/indemnify exists only for occurrences the policy covers; unresolved coverage disputes can give rise to reimbursement duties)
Passaic Valley Sewerage Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 596 (2011) (courts may permit dispute of coverage to protect both insurer and insured and address defense obligations)