RICHARD KLEIN VS. FRANKLIN MUTUAL INSURANCE COMPANY VS. CHRIS DEBROCK(L-3099-14, MORRIS COUNTY AND STATEWIDE)
A-0125-16T1
| N.J. Super. Ct. App. Div. | Oct 23, 2017Background
- Plaintiffs Richard and Vicki Klein filed a homeowners-insurance claim with Franklin Mutual Insurance Company (FMI) after discovering tears in their in-ground pool cover and vinyl liner, and bowing pool walls following winter snow/ice melt.
- Plaintiffs suspected a rotted tree branch from a neighbor’s property fell into the pool and punctured the cover, causing drainage and subsequent wall bowing; neither witnessed the event.
- Plaintiffs submitted a one-paragraph opinion from a public adjuster concluding wind-displaced branch punctured the cover, initiating the damage sequence.
- FMI retained engineer Craig Moskowitz, who inspected the pool and attributed the wall bowing to long-term deterioration, weakened connections, corrosion, and soil movement occurring over 5–10 years.
- FMI denied the claim under the policy’s wear-and-tear exclusion; the trial court excluded the plaintiffs’ adjuster report as an improper net opinion and later granted FMI’s summary-judgment motion.
- The Appellate Division affirmed, finding FMI met its burden via unrebutted expert evidence and plaintiffs failed to present admissible expert proof to create a factual dispute on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs needed expert proof of causation to defeat summary judgment | Klein: causation need not be established by expert; credibility and inferences for jury | FMI: insurer met exclusion burden with expert showing long-term wear; plaintiffs offered no admissible expert rebuttal | Court: Expert proof required here; plaintiffs’ theory speculative; no genuine factual dispute; summary judgment affirmed |
| Whether FMI satisfied its burden to show claim fell within the wear-and-tear exclusion | Klein: insurer bears exclusion burden and must not simply rely on expert conclusions | FMI: Moskowitz’s detailed inspection and opinion showed damage occurred over 5–10 years from deterioration | Court: Moskowitz’s unrebutted opinion met insurer’s burden to show exclusion applied |
| Admissibility of plaintiffs’ public-adjuster opinion | Klein: adjuster’s opinion should be considered on causation | FMI: adjuster’s one-paragraph opinion is an impermissible net opinion | Court: Trial judge properly excluded the adjuster’s report; plaintiffs do not appeal that ruling |
| Whether any genuine issue of material fact remained to send to a jury | Klein: disputed cause (fallen branch) creates question for jury | FMI: without admissible expert to contradict Moskowitz, plaintiffs cannot show proximate cause | Court: No material factual dispute; summary judgment appropriate |
Key Cases Cited
- Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189 (discussing de novo review on summary judgment)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (summary-judgment standard and burdens on non-moving party)
- Princeton Ins. Co. v. Chunmuang, 151 N.J. 80 (insurer bears burden to bring case within policy exclusion)
- S.T. Hudson Eng'rs., Inc. v. Pa. Nat'l Mut. Cas. Co., 388 N.J. Super. 592 (App. Div.) (interpretation and application of policy exclusions)