02-2847, 02-4063 | 3rd Cir. | Aug 6, 2004
Opinions of the United States Court of Appeals for the Third Circuit 2004 Decisions Buczek v. Cont Cslty Ins Co Precedential or Non-Precedential: Precedential Docket No. 02-2847 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Buczek v. Cont Cslty Ins Co" (2004). 2004 Decisions. Paper 377. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/377 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL GERARD J. JACKSON, ESQ. (Argued) 1260 Marlkress Road P.O. Box 1820 Cherry Hill, NJ 08034
Counsel for Appellees Nos. 02-2847, 02-4063 SHEILA A. HAREN, ESQ. (Argued) MONICA E. O'NEILL, ESQ. Post & Schell, P.C. 1600 John F. Kennedy Blvd, 13th Floor Four Penn Center Philadelphia, PA 19103 JACK BUCZEK; MARIE BUCZEK; MICHAEL NEILL; SANDY NEILL, an Unincorporated Association t/a MEADOWS CONDOMINIUM ASSOCIATION; MEADOWS CONDOMINIUM ASSOCIATION
Counsel for Appellant
v.
CHERTOFF, Circuit Judge. CONTINENTAL CASUALTY INSURANCE COMPANY; TRANSPORTATION INSURANCE COMPANY, Appellant Appellees Jack and Marie Buczek and Michael and Sandy Neill are the sole and exclusive members of an unincorporated condominium association known as “Meadows Condominium Association” (“Owners”). The Owners commenced the underlying contract action against Transportation Insurance Company (“Transportation”) and Continental Casualty Insurance Company (“Continental”) 1 in the United States District Court for the District of New Jersey on August 31, 2000. The Owners sued insurance companies following the denial of their condominium On Appeal from the United States District Court for the District of New Jersey (Dist. Ct. No. 00-cv-04274) District Judge: Honorable Joseph E. Irenas Argued December 9, 2003 two the Before: AMBRO, FUENTES, and CHERTOFF, Circuit Judges. 1 Continental Insurance Company is not an appellant in this matter. The Owners have not appealed the District Court’s decision to dismiss all claims against Continental. (Filed: August 6, 2004) insurance claim, and they asserted claims for breach of contract and breach of the duty of good faith dealing. At the conclusion of the proceedings, the District Court entered a judgment in favor of the Owners and against Transportation in the amount of $103,634.00. Over a series of amended orders, the District Court also granted costs and prejudgment interest to the Owners. For the reasons set out below, we will reverse the orders of the District Court and vacate the judgment entered in favor of the Owners. wooden pilings, which extended from approximately three to four feet above grade to approximately forty feet into the ground. As the District Court established and the record clearly reflects, the pilings served as the foundation for the house. About November 1, 1998, the Owners noticed that their structure was swaying in They investigated the high winds. problem in the Spring of 1999 and found visible discoloration on the surface level of the pilings that supported the building. A general contractor, exterminator, and engineer were retained to investigate the situation further.
On April 5, 1999, the structure was jacked up approximately one foot, and two longitudinal steel beams were inserted under the building for support. Local code enforcement officials deemed the temporary foundation to be unsatisfactory and dangerous and required that the building be secured and anchored to another temporary or permanent foundation. the The Buczeks, citizens of Commonwealth of Pennsylvania, and the Neills, citizens of the State of New Jersey; purchased in 1986 a three-story, two-unit s t r u c t u r e k n o w n a s M e a d o ws Condominium located in Wildwood, New Jersey. At the time of their condominium purchase, the Owners obtained from Transportation, an Illinois corporation, an all-risk policy of insurance (“the Policy”) to cover the Condominium Association. “All-risks insurance is a special type of insurance extending to risks not usually contemplated, and generally allows recovery for all fortuitous losses, unless the policy contains a specific exclusion expressly excluding from coverage.” Jane Massey Draper, Annotation, Coverage Under All-Risk Insurance, 30 A.L.R. 5th 170 (2004).
The Owners decided to replace the rotted portions of the existing pilings with concrete beams over the piles, building up a foundation wall from the concrete beams to the house. The Owners claim that the replacement costs were approximately $103,634.00. On April 22, 1999, the Owners submitted a Notice of Loss to Transportation. The Owners described the loss as follows: “supports [of] building rotted and wood boring beetles took over” and that the loss occurred on or about November 1, 1998. App. 254a. loss the Built on filled marshland, the condominium building is located on an inlet and was supported by thirty-four
On May 22, 1999, Irving Fruchtman, an engineer retained by the Owners, the property and discovered that the pilings had rotted from just below the water surface level to approximately one foot below grade. Wood samples from the pilings were analyzed, and it was determined that wood-destroying fungi and anaerobic bacteria were present in the pilings in addition Transportation’s own investigation yielded similar findings. Transportation issued a written denial of the Owners’ claim on October 6, 1999, noting, “[s]ince the pilings are the cause of the loss, and not covered property under the policy, [the company] must respectfully deny any voluntary assistance or payment for this loss.” App. 257a. appeals timely filed by Transportation contesting the District Court’s March 1, the May 31, 2002 2002 amended judgment; the June 17, 2002 order denying Appellant’s post-trial motions; and the October 16, 2002 order awarding costs. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. II.
inspected
judgment; to brown rot or decay.
Transportation appeals the District Court’s conclusion that the Owners were entitled to coverage under the Policy and argues that this Court should rule that it is entitled to judgment as a matter of law. In the alternative, Transportation argues that it is entitled to a new trial because the District Court “remov[ed] numerous critical factual issues from the jury” and improperly took judicial notice of an issue of importance in this case. Appellant’s Br. at 9. Finally, Transportation claims that it is entitled to a remittitur because the District Court granted damages not recoverable under the Policy. On August 31, 2000, the Owners filed the underlying contract action in District Court. Following a three-day jury trial, the District Court decided the matter on motions pursuant to Rules 50(a)(1) and 50(a)(2) of the Federal Rules of Civil Procedure. On March 1, 2002, the Court entered judgment against Transportation in the amount of $103,634.00. The Court subsequently granted the Owners’ request for pre-judgment interest on the contract obligation and amended the judgment to $117,197.49, reflecting interest in the amount of $13,563.49. On June 17, 2002, the District Court entered an order denying Transportation’s post-trial motions. On October 15, 2002, the District Court awarded costs of $1,778.71 to the Owners.
We exercise plenary review over the District Court’s decision to grant the Owners’ motions for judgment as a matter of law. Goodman v. Penn. Tpk. Comm’n, 293 F.3d 655" date_filed="2002-06-24" court="3rd Cir." case_name="None">293 F.3d 655, 664-65 (3d Cir. 2002). “In reviewing the grant of a judgment as a matter of law under Fed. R. Civ. P. 50 following a jury verdict, we must view the evidence in the light most favorable to the non-moving party, and determine whether the ‘minimum quantum of evidence from which a jury might reasonably afford relief.’” Glenn Distribs. Corp. v. Carlisle Plastics, Inc., record contains the This appeal consolidates four 297 F.3d 294" date_filed="2002-07-24" court="3rd Cir." case_name="Glenn Distributors Corporation v. Carlisle Plastics, Incorporated">297 F.3d 294, 299 (3d Cir. 2002) (quoting Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1993)). enforce the policy as it is written.” Royal Ins. Co. v. Rutgers Cas. Ins. Co., 638 A.2d 924, 927 (N.J. Super. Ct. App. Div. 1994) (quoting Flynn v. Hartford Fire Ins. Co., 370 A.2d 61, 63 (N.J. Super. Ct. App. Div. 1977)). However, in the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased. Vassiliu v. Daimler Chrysler Corp., 839 A.2d 863, 867 (N.J. 2004). A genuine ambiguity exists “where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.” Lee v. Gen. Accident Ins. Co., 767 A.2d 985" date_filed="2001-03-02" court="N.J. Super. Ct. App. Div." case_name="Lee v. General Acc. Ins. Co.">767 A.2d 985, 987 (N.J. Super. Ct. App. Div. 2001). When the terms of coverage are ambiguous, “that doubt is ordinarily resolved in favor of the insured.” Moore, 843 A.2d at 1103. The parties agree that New Jersey law applies to this case, as do we. Determination of the proper coverage of an insurance contract is a question of law. Atlantic Mut. Ins. Co. v. Palisades Safety and Ins. Ass’n., 837 A.2d 1096, 1098 (N.J. Super. Ct. App. Div. 2003). An insurance policy should be interpreted according to its plain meaning. Benjamin Moore & Co. v. Aetna Cas. & Sur. Co., 843 A.2d 1094" date_filed="2004-03-24" court="N.J." case_name="Benjamin Moore & Co. v. Aetna Casualty & Surety Co.">843 A.2d 1094, 1103 (N.J. 2004) (internal citations omitted). Where the express language of the policy is clear and unambiguous, “the court is bound to
in this Coverage Part, means the type of property described in this section A.1., and limited in A.2., Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property. wharves or docks;
*** Covered Causes of Loss 3. See applicable Causes of Loss Form as shown in the Declarations. App. 201-03a. The “Causes of Loss– Special Form” details the types of “Covered C a u s e s o f L os s ” c o v er e d by Transportation. It provides: a. Building, meaning the structure building or t h e i n d e s c r i b e d Declarations, including: (1) Completed additions; (2) Fixtures, outside of individual units, including outdoor fixtures; (3) Permanently installed: (a) Machinery and (b) Equipment; *** Property Not Covered
A. C O V E R E D CAUSES OF LOSS When Special is shown in the Declarations, Covered Causes of Loss means R I S KS O F D I R E CT PHYSICAL LOSS unless the loss is: 1.
Excluded in Section B., Exclusions; or Limited Limitations; that follow. Covered Property does not include:
in Section C., 2. *** f. The cost of excavations, grading, back filling or filling; g. Foundations of buildings, structures, machinery or boilers if their foundations are below:
EXCLUSIONS *** 2. We will not pay for loss or damage c a u s e d b y o r resulting from any of the following: *** lowest (1) The basement floor; or (2) The surface of the ground if there is no basement. j. Bulkheads, pilings, piers,
d. (1) Wear and tear; (2) Rust, corrosion, fungus, decay, deterioration, hidden latent defect or any or in property quality that causes it to damage or destroy itself . . . Covered Property caused by collapse of a building or any part of a building insured under this Coverage Form, if the collapse is caused by the one or more of following: App. 216-17a. In a decision issued from the bench following the conclusion of the Owners’ and Transportation’s cases, the District Court established that the Owners’ claims would not be covered under the terms of the General Insurance Policy. App. 780a. To the extent that the Owners argue otherwise and claim that the pilings are insured as “Covered Property,” we disagree. As the District Court’s opinion and the record establish, the pilings served as the foundation for the building, and the language of the Policy clearly excludes foundations and “pilings” as both “Covered Property.”
*** b. H i d d e n decay; Hidden insect o r v e r m i n damage; c.
*** App. 221a. Since the pilings were damaged by hidden decay, the applicability of this clause turns on whether there was damage to the Covered Property— i.e., the building— caused by “collapse.” The word “collapse,” as used in insurance policies, has been litigated for many years. See Annotation, What Constitutes “Collapse” of a Building Within Coverage of Property Insurance Policy, 71 A.L.R. 3d 1072 (1976). As this Court discussed in Ercolani v. Excelsior Insurance Co., 830 F.2d 31" date_filed="1987-10-05" court="3rd Cir." case_name="John Ercolani and Elaine Ercolani, in 86-5613 v. Excelsior Insurance Company, in 86-5629">830 F.2d 31 (3d Cir. 1987), courts have not uniformly agreed on what constitutes the collapse of a building under the collapse coverage of a casualty insurance policy. Id. at 34. The District Court concluded nevertheless that coverage was warranted under the Section D “Additional Coverage – Collapse” provision of the Policy (the Transportation “Collapse Clause”). disputes this ruling. The Additional Coverage clause reads: A D D I T I O N A L C O V E R A G E – COLLAPSE The term Covered Cause of Loss includes the Additional Coverage - Collapse as described and limited in D.1 through D.5 below. Some courts have adopted a requiring interpretation, “narrow” coverage only where a building has fallen down or caved in. See id. However, as the District Court noted, New Jersey follows an alternative approach, i.e., the We will pay for direct physical loss or damage to “majority rule.” Our opinion in Ercolani predicted, “New Jersey courts would . . . read the collapse peril as covering serious impairment of structural integrity making the wall no longer capable of supporting the house’s superstructure.” Id. at 34. In Fantis Foods, Inc. v. North River Insurance Co., 753 A.2d 176, 183 (N.J. Super. Ct. App. Div. 2000), the New Jersey Appellate Division echoed our holding in Ercolani and decided that the definition of collapse “must be taken to cover any serious impairment of structural integrity that connotes imminent collapse threatening the building as a structure or the health and safety of occupants and passers-by.” Fantis, 753 A.2d at 183 (emphasis added). After mulling the parameters of what would be considered “imminent,” the District Judge made two pivotal findings. First, he accepted testimony that ninety mile-per-hour winds would cause the building to collapse, and second, he took judicial notice that ninety mile-per-hour winds sometimes hit the New Jersey shore. App. 767-68a. The District Judge concluded, “I’m holding that even a risk that might be a one in ten, or one in twenty year risk, is still a very serious and imminent risk. The fact the event may or may not occur in any given point in time doesn’t mean the risk is not imminent.” Id. In short, the District Court concluded that the house’s vulnerability to ninety mile-per-hour winds, which may occur once twenty years, constituted “imminent collapse.”
in
We disagree with the District Court’s definition of “imminent collapse.” Certainly our decision in Ercolani made it clear that a house need not be in a pile of rubble before it is deemed “collapsed.” However, even if we assume that a ninety mile-per-hour wind might occur once every ten or twenty years, that is still not an “imminent” risk. 4
the preservation of 4 We do note, however, that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot re as on ab ly b e questioned.” Fed. R. Evid. 201(b). Indeed, on this appeal, the Owners’ own evidence, an Army Corps of Engineers survey, cited only two instances in the last sixty-eight years where winds at Atlantic City reached ninety miles-per-hour. Other government data seems to suggest no storms in the Jersey shore in the past century achieved winds of ninety miles- per-hour. National Climate Data Center, National Oceanic and Atmospheric Administratio n, 1899-1 996 U.S .
“Imminent” is defined as “ready to take place: near at hand,” Webster’s Third New International Dictionary 1130 (1st ed. 1966), and “likely to occur at any moment: impending,” The Random House Dictionary of the English Language 957 (2d ed. 1987). As one court has observed, “imminent” means collapse “likely to happen without delay.” See Ocean Winds Council of Co-Owners v. Auto-Owner Ins. Co., 565 S.E.2d 306" date_filed="2002-06-17" court="S.C." case_name="Ocean Winds Council of Co-Owners, Inc. v. Auto-Owner Insurance">565 S.E.2d 306, 308 (S.C. 2002); see also Doheny West Homeowners Ass’n v. Am. Guarantee & Liab. Ins. Co., 70 Cal.Rptr.2d 260, 264 (Cal. App. 2 Dist.,1997) (“‘likely to happen without delay’” (quoting Webster's New World Dictionary (3d college ed. 1991))). “heard loud moaning and shrieking noises emanating from the south basement wall, noticed a crack in it, and observed it move and bulge inward.” 830 F.2d at 33. Likewise, in Fantis Foods, the masonry consultant who inspected the damaged property noted, “‘[t]he main cause of the parapet walls [sic] displacement and imminent collapse is hidden decay of steel beams and lintels which are located or behind the brick masonry walls’” and that the the “‘[n]orth wall parapet has emergency condition.’” Fantis, 753 A.2d at 180.
In short, the District Court’s interpretation of “imminent” wrenched it from any reasonable definition of the word. 5 The District Court’s findings on the the structural to “imminent” integrity of the condominium contrast with the findings of imminence relied upon by this Court in Ercolani and by the New Jersey Appellate Division in Fantis. Here, the District Court noted, “[there was] no observable damage [to the house]. . . . [D]rywall wasn’t flying apart. Flashing wasn’t coming apart. The walls weren’t bulging or cracking which sometimes happen when a house becomes out of whack, did not exist.” App. 765a. However, in Ercolani, the policyholder
threat 5 We need not consider whether our decision would be different if there was evidence in the record that a common gust of wind would knock the structure down. The Owners chose to offer evidence only as to the effect of ninety mile-per-hour winds on the house. The District Court tried in vain to probe whether the house was threatened with collapse by less powerful winds. App. 304-05a. But as Judge Irenas explained, “[Fructman] didn’t say . . . it would collapse on its own. I tried to get him to say that. I asked, would a lesser [sic] wind, [e.g.,] a forty [or] thirty [mile-per-hour wind], . . . [would] make the thing fall. His answer was, I only did calculations for ninety miles-an-hour. Nothing [Transportation’s expert] Honig[] said [was] anything
B. By way of analogy, they point to the so- called “Sue and Labor” insurance clauses, which oblige insurance companies to reimburse expenses to insured parties who spend money to avert harm to covered property and to mitigate damages. that The Owners also argue Transportation was responsible for the renovation costs because the Owners were obliged to renovate under their duty to minimize losses and mitigate damages.
Two provisions in the Policy appear to resemble traditional “Sue and Labor” provisions found in other “all-risk” insurance policies: the “Preservation of Property” and “Duties in the Event of Loss or Damage” provisions.
from the described premises to preserve it from loss or damage by a Covered Cause of Loss , we will pay for any direct physical loss or damage to that property: (1) While it is being moved or while temporarily stored at another location; and Only if the loss or d a m a g e o c c u r s within 30 days after the property is first moved. The Owners also refer to the language of the “Duties in the Event of Loss or Damage” Clause in the Policy. This Clause provides:
3. Duties in the Event of Loss or Damage a. You must see that following are the done in the event of loss or damage to Covered Property:
*** (4) Take all reasonable steps to protect the Covered Property from further damage. . . . However, we will for any not pay subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss . App. 204a (emphasis added). The District Court indicated that it relied on the Preservation of Property Clause in concluding that the Owners were entitled to coverage. The Court explained, “I think that there is [sic] mutual obligations, obligations on the part of the insured to do that, preserve the property and obligations for them to pay for it. The insured did it.” App. 793a.
App. 208a (emphasis added). The Preservation Clause provides coverage only in instances where a “Covered Cause of Loss” is implicated. But absent a finding of “collapse” under the Collapse Clause, the Owners do not have a “Covered Cause of Loss.” Once again, the language clearly provides that loss or damage resulting from a cause of loss that is not a “Covered Cause of Loss” from coverage. Id. As we articulated in our discussion of the Preservation Clause, the Owners have not established a “Covered Cause of Loss” that would warrant coverage under the Policy.
is excluded
Realty Services, Inc. v. Fidelity and Casualty Company of New York, 528 A.2d 76 (N.J. Super. Ct. App. Div. 1987), for the proposition that an insured has a common law duty to prevent harm to the property and that an insurer has a corresponding obligation to reimburse the insured for out-of-pocket expenditures for these efforts. This case, however, is clearly distinguishable. a covered cause of loss. As we observed in GTE Corp. v. Allendale Mut. Ins. Co., addressing “Sue and Labor” clauses, “an alternative interpretation would permit [an insured party] for improvements and measures taken to address a host of uninsured risks.” 372 F.3d 598, 618 (3d Cir. 2004).
recover to Accordingly, we will vacate the judgment (as amended) of the District Court, vacate the awards of prejudgment interest and costs, and remand for judgment to be entered in favor of Transportation Insurance Company. issue First, the policy at in Broadwell was a general liability policy, not an “all-risk” policy purchased by the Owners. “General liability policies are not ‘all-risk’ policies . . . . They provide an insured with indemnification for damages up to policy limits for which the insured becomes liable as a result of tort liability to a third party.” Standard Const. Co., Inc. v. Maryland Cas. Co., 359 F.3d 846" date_filed="2004-05-10" court="6th Cir." case_name="Standard Construction Co., Inc. v. Maryland Casualty Co. And Northern Insurance Co. Of New York">359 F.3d 846, 852- 53 (6th Cir. 2004) (internal citations omitted); see also Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 584 (6th Cir. 2001) (emphasis omitted). The issue in Broadwell was whether the insurer had to reimburse the insured for steps taken to prevent damages to a third party which were covered under the policy. Significantly, the Broadwell court denied coverage for the preventive measures taken by the insured because the liability policy excluded the insured’s property from coverage. 528 A.2d at 528. Simply put, the insurer’s obligation to reimburse for acts taken to preserve or protect Covered Property does not extend to require reimbursement for prevention of damage to property that is excluded from coverage or for a circumstance that is not