JEANETTE LANIER VS. FARMERS MUTUAL FIRE INSURANCE COMPANY OF SALEM COUNTY (L-3156-18, PASSAIC COUNTY AND STATEWIDE)

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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1398-19T2

JEANETTE LANIER,

          Plaintiff-Appellant,

v.

FARMERS MUTUAL FIRE
INSURANCE COMPANY OF
SALEM COUNTY,

          Defendant-Respondent.


                   Submitted December 9, 2020  Decided December 31, 2020

                   Before Judges Whipple, Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Docket No. L-3156-18.

                   Merlin Law Group, PA, attorneys for appellant (Paul L.
                   LaSalle, on the briefs).

                   Methfessel & Werbel, PC, attorneys for respondent
                   (Marc L. Dembling, of counsel and on the brief).

PER CURIAM
      In this insurance coverage dispute, plaintiff Jeanette Lanier appeals from

an October 4, 2019 Law Division order granting summary judgment to

defendant Farmers Mutual Fire Insurance Company of Salem County, and a

November 21, 2019 order denying her motion for reconsideration. Because we

conclude there are no genuine issues of material fact that precluded judgment as

a matter of law under Rule 4:46-2(c), we affirm.

      Viewed in the light most favorable to plaintiff, Templo Fuente De Vida

Corp. v. National Union Fire Insurance Co. of Pittsburgh, 

224 N.J. 189

, 199

(2016), the pertinent facts are as follows. In December 2016, plaintiff's home

was damaged when a pipe suddenly burst. Plaintiff submitted a timely claim

under the homeowner's insurance policy issued by defendant, which accepted

the claim as a covered loss.

      The parties thereafter disputed the extent of damages to plaintiff's home

and the cost of repairs. Defendant's adjuster provided an estimate of damages,

with a replacement cost value (RCV) of $48,997.31.        Plaintiff retained an

inspector, who estimated the RCV at $174,635.         Defendant paid plaintiff




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$39,163.25 as the actual cash value (ACV) for damages to the building after

removing $9,834.06 for depreciation. 1

      Plaintiff's policy provided $305,000 in coverage for the building, with a

$1000 deductible. The policy also contained the following precondition for

replacement coverage:

            We are not liable for payment on a replacement basis
            until the repair or replacement is completed by you or
            us, unless the total cost for full repair or replacement is
            less than $2,000. You may submit a claim on an actual
            cash value basis and then, no later than 180 days
            following settlement on an actual cash value basis (or
            our offer of such if you decline settlement) make further
            claim on repair or replacement. Repair or replacement
            is to be completed by the time you make such claim.

It is undisputed that plaintiff did not provide proof of "repair or replacement"

under the terms of the policy. Nor did plaintiff request payment of depreciation

holdback.

      Instead, plaintiff filed a three-count complaint against defendant, alleging:

breach of contract (count one); breach of implied covenant of good faith and fair


1
   Total building loss was calculated by subtracting the depreciation holdback of
$9,834.06 from defendant's estimated RCV of $48,997.31. Defendant contends
it also paid a total of $122,876.24, representing: $31,000 for loss of use; $10,000
for mold loss; and $38,863.59 as the ACV for plaintiff's loss of personal
property, with $9,688.24 for depreciation holdback. Before the trial court,
plaintiff apparently asserted defendant's total payout was $119,026. The amount
of the other losses paid are not at issue on this appeal.
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dealing (count two); and violations of the Consumer Fraud Act, N.J.S.A. 56:8-

1 to -226 (count three). Plaintiff thereafter retained an expert, who opined in

his December 2018 report that the RCV was $129,166.82.

      When deposed in June 2019, plaintiff said her contractor had begun

repairs two weeks prior. In that regard, plaintiff produced in discovery a May

9, 2019 repair contract with a total repair price of $210,041.         Plaintiff

acknowledged defendant's 2017 estimate for RCV for the structure but testified

she did not select defendant's contractor to perform the work because its

estimates were "very low" compared to other estimates she had received.

Plaintiff therefore assumed defendant's contractor would "do bad, shoddy

work."

      Following the close of discovery, defendant moved for summary

judgment. Relevant here, defendant primarily argued plaintiff failed to produce

any evidence "that the ACV of payments made" was "inadequate." Plaintiff

countered that an "impossibility of performance" excused the satisfaction of the

precondition set forth in the policy. Plaintiff argued she could not afford to

repair or replace the property without the insurance proceeds for the total

amount of repairs sought.




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      In a comprehensive statement of reasons that accompanied the order,

Judge Frank Covello granted defendant's motion. 2 Squarely addressing the

issues raised in view of the governing law, the judge concluded the terms of the

policy were clear and plaintiff failed to provide defendant with proof of repair

or replacement. The judge further found plaintiff "did not provide evidence to

show that the ACV [wa]s not sufficient." And, plaintiff conceded "she did not

produce reports on the ACV of building loss."

      Citing our decision in Ward v. Merrimack Mutual Fire Insurance Co., 

332 N.J. Super. 515

, 522 (App. Div. 2000), the motion judge recognized "a party to

a contract may not avail itself of a condition precedent where its own conduct

rendered compliance with the condition impossible."       The judge noted his

concern that defendant "appears to have no mechanism to provide payment of

RCV value until the repairs or replacements are completed[,]" thereby requiring

the insured to "'front' the money and seek reimbursement later." But the judge

nonetheless found "the plain language of the contract provides for a process




2
   The judge granted defendant's motion as to all three counts of plaintiff's
complaint after comprehensively addressing the law as to each count. Because
plaintiff's argument on appeal is limited to count one, we need not discuss the
judge's analysis of the remaining counts.
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whether RCV can only occur after the acceptance of a settlement amount or

rejection thereof."

      Recognizing caselaw that supported his conclusion, the judge elaborated:

            [Plaintiff] admits to accepting and cashing a check from
            [defendant] that reflects the ACV [defendant] proposed
            covered the building loss. Had [p]laintiff presented an
            expert report contravening the ACV valuation of
            [defendant] prior to the [d]iscovery [e]nd [d]ate . . . a
            question of material fact would exist sufficient to defeat
            the . . . motion. Such a dispute does not here exist
            ....

      On reconsideration, Judge Covello fully addressed plaintiff's contentions

that he misapplied our decision in Ward, and "fail[ed] to determine if

impossibility of performance existed." Again, the judge noted plaintiff had

accepted the ACV. At the conclusion of argument, the judge issued a cogent

oral decision, denying plaintiff's motion.

      The motion judge found the facts of the present matter differed from those

in Ward, where the insurance carrier had denied coverage and, as such, had not

made an ACV payment. 

See 332 N.J. Super. at 518

. As the judge recognized,

in Ward, we remanded the matter to the trial court to determine whether the

failure to make that payment made it impossible for the plaintiff to replace his

three-story building.

Ibid. Accordingly, the judge

reiterated his earlier

conclusion that the precondition "is a valid and enforceable policy provision."

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This appeal followed.

      On appeal, plaintiff reprises her argument that issues of fact precluded

summary judgment "as to whether impossibility of performance existed,"

thereby excusing the "policy's replacement precondition for recovery of [RCV]."

After de novo review, Cypress Point Condominium Ass'n v. Adria Towers,

L.L.C., 

226 N.J. 403

, 414 (2016), we affirm the orders under review

substantially for the thoughtful and thorough reasons articulated by Judge

Covello in his accompanying decisions. Having employed the same standard as

the motion judge, Brill v. Guardian Life Insurance Co. of America, 

142 N.J. 520

,

539-40 (1995), we conclude there are no material factual disputes. Plaintiff

raises no issues on appeal that warrant further discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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