JOSEPH CRIVELLI, et al. v. SELECTIVE INSURANCE COMPANY OF AMERICA

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5649-03T3

JOSEPH CRIVELLI,
CAROL A. CRIVELLI,
JOSEPH P. CRIVELLI,
JR., and ANDREA
CRIVELLI-STAVOLA,
assignees of
Harry Svenson,
Jr.,

Plaintiffs-Appellants,

v.

SELECTIVE INSURANCE
COMPANY OF AMERICA,

Defendant-Respondent,

and

ST. PAUL INSURANCE
COMPANIES, successor
in interest to UNITED
STATES FIDELITY GUARANTEE
INSURANCE COMPANY,

Defendant.
_________________________________

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September 27, 2005

Argued: September 13, 2005 - Decided:

Before Judges Skillman, Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4358-02.

Francis E. Wilton argued the cause for appellants.

Gary S. Kull argued the cause for respondent (Carroll, McNulty & Kull, attorneys; Mr. Kull and Denise M. Marra, on the brief).

 
PER CURIAM

In this insurance coverage case, plaintiffs Joseph and Carol Crivelli and their children appeal from a grant of summary judgment to defendant, Selective Insurance Company of America (Selective), and denial of their motion for reconsideration. The court found plaintiffs suffered no bodily injury or property damage during the policy period, there was no basis to extend coverage under the continuous trigger theory of liability and the policy's pollution exclusion applied to bar recovery of their claim. We affirm.
In December l986 Harry Svenson, Jr. installed asphalt shingles on the existing roof of plaintiffs' residence. In March l988 he performed additional repairs to their roof, trimming the soffit and fascia. Plaintiffs filed suit against Svenson in l996, alleging the contractor's negligent workmanship resulted in water infiltration and mold contamination in their home, causing property damage and bodily injury to their family. By consent order of June l8, 2002, plaintiffs obtained a $400,000 judgment against Svenson for the sole purpose of effectuating an assignment of all rights held by Svenson and Svenson Brothers, Inc. under commercial general liability insurance policies that had been issued to them.
Pertinent to this appeal is the policy issued to Svenson by Selective effective from December 6, 1992 to December 6, 1993. The policy provided coverage for bodily injury and property damage caused by an "occurrence" taking place in the "coverage territory" during the policy period. "Occurrence" was defined, in pertinent part, as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy also contained a pollution exclusion. United States Fidelity & Guaranty Co. (USF&G) had issued three commercial liability insurance policies to Svenson Custom Exteriors, Inc. for the period from November 2, 1988 to November 2, 1992.
In September 2002 plaintiffs filed a declaratory judgment action against Selective and St. Paul Insurance Companies, the successor in interest to USF&G, seeking a determination that the insurers were obligated to indemnify Svenson under these policies and to satisfy the judgment they had obtained against Svenson. By summary judgment of July 22, 2003, the complaint was dismissed against St. Paul. Judge Quinn found that Svenson, in his individual capacity, had no rights under the corporate policies and there were no "occurrences" during the policy period or basis to invoke the continuous trigger theory of liability as has been applied in asbestos and environmental contamination cases. Quincy Mut. Fire Ins. Co. v. Borough of Bellmawr, 172 N.J. 409 (2002); Aetna Cas. & Sur. Co. v. Ply Gem Indus., Inc., 343 N.J. Super. 430 (App. Div.), certif. denied, 170 N.J. 390 (2001). The judge expressly found the "earliest conceivable notation" of water infiltration to be in January l994 when plaintiffs observed leakage in the roof and obtained estimates.
On March 3, 2004 Judge Quinn granted Selective's cross-motion for summary judgment, adopting his factual findings and legal conclusions in the previous motion. He found, in pertinent part, plaintiffs had suffered no bodily injury or property damage during the term of the policy, the continuous trigger theory of liability did not apply, and plaintiffs' claim was excluded by the pollution exclusion of the policy. He denied plaintiffs' motion for reconsideration.
Plaintiffs assert the following arguments on appeal: (1) Selective is obligated to provide indemnification for damages asserted in their underlying action against Svenson because they alleged bodily injury and property damage caused by an occurrence during the policy term, as well as progressive injury from environmental contamination triggering continuous coverage; (2) the pollution exclusion contained in the policy is inapplicable because it is ambiguous as it relates to their claims, and mold is not a pollutant as defined in the policy; (3) the work product exclusion contained in the policy does not apply to their damages; and (4) the court erroneously applied the "law of the case" doctrine. We affirm summary judgment based on a finding of insufficient evidence that plaintiffs suffered any bodily injuries or property damage during the policy period or demonstrated progressive injury to trigger continuous coverage. Accordingly, we need not address the balance of plaintiffs' arguments.
In determining whether there exists a genuine issue of material fact that precludes summary judgment under Rule 4:46-2, the motion judge is to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is appropriate when the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). On appeal, we apply the same standard as the trial court with respect to the motion record and determine whether the motion judge's ruling on the law was correct. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 200l), rev'd on other grounds, 171 N.J. 46 (2002); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. l998).
In their underlying action against Svenson, plaintiffs claimed bodily injury and property damage from exposure to toxic mold arising from improper installation by Svenson of a roof on their house in December l986 and his improper repairs in March l988. The leaking roof and water infiltration resulting in mold is the sole basis for plaintiffs' property and bodily injury claims. Plaintiffs' complaint did not allege any water infiltration into the house, much less property damage or bodily injury, prior to January l994. Joseph and Carol Crivelli's April 3, 1997 interrogatory answers stated:

2. In approximately, l99l plaintiffs noticed water leaking around windows in garden room, the leakage occurred sporadically, whenever it snowed, or when the wind blew strongly in certain directions. . . . By l994 the matter worsened. Plaintiffs became aware that items of personal property stored in the attic were ruined by moisture, condensation and mold. . . .

5. Beginning in approximately l994, conversations were held with Mr. Svenson with regard to the moisture and water problem stemming from the faulty work on the roof.

In her deposition taken on July 21, l998 Carol Crivelli stated:
Q. When did you first learn of any conditions in the home which you ultimately learned had something to do with the roof?

A. Probably mid 90's.

Q. Okay, and what was the first condition that you noticed?

A. A drip from a window . . . [in the] [s]un-room.

She further indicated that no one in the family experienced any health problems more than two or there years prior, which would have been l995 at the earliest.
According to the medical evaluations before the court, the family members came to the Eastern New York Occupational & Environmental Health Center on April 8, 1999 "because of health problems that they felt were related to a water leakage problem and subsequent mold growth." "They reported that they had experienced a water roof leak in l992 which started in the sun room and masterbed room area" and Carol Crivelli "reported that her health symptoms started in l993 to l994 . . ." Plaintiffs were first diagnosed with "rhinitis, sinusitis, cognitive impairment consistent with fungal syndrome and fungal allergy as a result of indoor air mold exposure" in April l999.
There are two other expert reports in the record, neither identifying the presence of water infiltration or mold in the house before the expiration of the Selective policy nor in any way relating any condition in the house during the December 6, 1992 to December 6, 1993 policy period to plaintiffs' bodily injuries or property damage. The May 27, 1998 inspection report of the property indicates
clear evidence of significant, long standing and continuing water penetration through the roof assembly and into the building at the left and rear of the enclosed sun space. Sheetrock wall/ceiling finishes, associated trim elements and window frames/sashes at the left and rear of this room show significant mold/mildew growth and damage resulting from long standing exposure to water.
 
The report contains the express comment that "issues relating to the presence of and implications associated with mold/mildew growth are left to others." The February l0, l999 environmental report states "[t]he water problem in the residence has clearly been on-going for some time. If this water problem had been corrected when it had first occurred, there would have been much less mold growth."
An allegation, though sufficient to trigger a duty to defend, is insufficient to impose a duty to indemnify. See Grand Cove II Condo. Assoc., Inc. v. Ginsberg, 29l N.J. Super. 58, 71 (App. Div. 1996) (recognizing the longstanding principle that "an insurer's duty to defend is typically broader than its duty to indemnify"). Insurance policies generally cover losses resulting from "occurrences" that take place during the policy period. Quincy Mut. Fire Ins. Co., supra, 172 N.J. at 415. Plaintiffs failed to present any factual or expert evidence that the roof began leaking prior to December 6, 1993 or that toxic mold caused by water infiltration was present in the house during the policy period. Even accepting plaintiffs' allegation of negligent installation of a roof that proximately caused damage that was not discovered for some time, they failed to present any proofs that demonstrate an ongoing, progressive type of injury or damage resulting from the work performed by Svenson in l986 or the repairs in l988 that would trigger coverage under the Svenson policies issued for the periods from l988 through l993.
Accordingly, Judge Quinn appropriately concluded as a matter of law there was no "occurrence" within the December 6, 1992 to December 6, 2003 period of Selective's policy. Moreover, there was no basis to apply the continuous trigger approach to the issue of coverage under the Selective policy.
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Affirmed.

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