ADELINA WESHIFESKY v. STATE FARM FIRE AND CASUALTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6010-04T56010-04T5

ADELINA WESHIFESKY,

Plaintiff-Appellant,

v.

STATE FARM FIRE AND CASUALTY

COMPANY,

Defendant-Respondent.

 
 

Argued March 29, 2006 - Decided May 4, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, L-3831-03.

Michael D. Fox argued the cause for appellant

(Zenstein, Gallant & Parlow, attorneys; Mr. Fox

and Scott R. Gallant, on the brief).

Julie C. Smith argued the cause for respondent

(Chierici, Chierici & Smith, attorneys; Ms. Smith,

on the brief).

PER CURIAM

Plaintiff Adelina Weshifesky appeals from an order of summary judgment dismissing her suit against defendant State Farm Fire and Casualty Company (State Farm). We reverse and remand for trial.

On July 9, 2002, plaintiff's home, located at 10 Cobblestone Road in Cherry Hill, was damaged by a heavy wind and rain storm that caused water to enter the house. At the time of the storm, the house was insured under a policy issued by State Farm. The policy insured the home against "accidental direct physical loss to the property," subject to limited specific exclusions. The policy did not cover losses resulting from "wear, tear, marring, scratching, deterioration, inherent vice, latent defect or mechanical breakdown."

Plaintiff contacted Metro Public Adjustment, Inc. (Metro) on the day of the storm to assist her with her damages claim against State Farm. On July 12, 2002, Gregg Dobrzynski, a licensed public adjuster and employee of Metro, conducted an inspection of plaintiff's home. Dobrzynski observed water damage throughout the dwelling, including stain damage to the outside siding, water damage to the carpet, drywall damage in the gym near the ceiling and window, and drywall damage in the family room and downstairs bathroom, all of which required repair and repainting. Dobrzynski also observed some roof damage and called Sommers Roofing Contractors, a company with roof repair expertise, to address the roof damage.

Dobrzynski estimated total damages to plaintiff's home at $19,684. In preparing the estimate, he spoke with plaintiff to ascertain what damage occurred and then assessed the necessary repairs room-by-room. To arrive at the appropriate dollar amounts, he took measurements of the rooms and the necessary repairs, and used those figures to obtain the industry standard numbers from a software program called "Exactimate." Dobrzynski attached the roofer's proposal, dated July 13, 2002, to his estimate to reflect the specific roof repair costs. The roof proposal, prepared by Sommers, contained both the cost of temporary repairs made to the roof following the storm and an estimate for the replacement of the roof and gutters.

On July 24, 2002, Joseph Marmon, a representative of State Farm, conducted an independent inspection of plaintiff's home. Thereafter, State Farm provided plaintiff with a revised estimate of $5,020.44 for damages to the home. The revised estimate did not include all areas of repair listed in Dobrzynski's estimate or costs for the replacement of the roof. In August 2002, plaintiff had the roof replaced by Bird Roofing Company. On August 26, 2002, State Farm sent a letter to plaintiff denying coverage for roof replacement and siding repairs because those "items are the result of wear and tear," and are therefore excluded from the policy.

On July 7, 2003, plaintiff filed suit against State Farm alleging breach of contract for failing to pay her all benefits due under the insurance policy. After completion of discovery, trial was set for May 23, 2005. However, on March 23, 2005, State Farm moved in limine to bar the testimony of plaintiff's expert, Gregg Dobrzynski, and to grant summary judgment for failure to provide expert testimony as to the cause of damage. At the same time, State Farm also moved to dismiss plaintiff's claim for roof replacement due to her failure to provide an expert opinion on the issue of causation. After briefing and oral argument on May 19, 2005, the judge granted defendant's motion to bar the testimony of Dobrzynski, concluding that he provided a net opinion because he admitted that some of the damage could have resulted from circumstances other than the storm, and because causation in this regard is outside the knowledge of a lay factfinder. The trial judge also barred testimony from Sommers Roofing as to the necessity of roof replacement, reasoning that their proposal merely stated at the end that a new roof and gutters were needed but did not explain why. Once all expert testimony was barred, the judge granted summary judgment in favor of State Farm, reasoning that plaintiff's claim for damages could not be submitted to a jury without expert testimony on the issue of causation.

On June 10, 2005, plaintiff's motion for reconsideration was denied, with the judge again emphasizing that plaintiff's expert did not address causation and could not conclusively say whether some of the damage claimed by plaintiff in fact resulted from the storm. The judge concluded that plaintiff presented nothing new on the motion that was previously unavailable or that indicated that her prior ruling was erroneous.

On appeal plaintiff argues that the judge erred in: (1) granting summary judgment on the basis that expert testimony was required to prove causation; and (2) in striking her expert's report. Subsumed within these arguments is the further contention that plaintiff's claim for damages to her roof was erroneously dismissed. We agree with plaintiff as to each argument.

I

In granting defendant's motion, the judge most fully explained her reasoning regarding lack of causation in the context of barring Dobrzynski's testimony, stating:

Put another way, you need an expert to say the storm caused the problems in this home. It caused water around the windows, it caused damage to the floor, it caused cracks in the ceiling.

And then you take it one step further. It caused the damage because. I don't have the because here. I don't know how, why, when this all occurred, and if, indeed, it was the result of this storm.

I understand that the homeowners believe it is, but many times there are other sources of damage. And it could have resulted from simple wear and tear. I don't know. I needed Mr. Dobrzynski to point out what was caused, what wasn't caused, and more importantly, to tell the fact-finders why, why the storm and how the storm caused this damage.

I cannot simply let plaintiffs come in and present their side of the story without having a factual basis for it in the form of an expert in this matter.

Therefore, I am going to bar the testimony of Mr. Dobrzynski, I find that it is a net opinion. He did no independent research, no independent studies, no independent investigation as to whether or not the storm, indeed, caused the damages alleged.

And I find that that is fatal to this case. It may be that perhaps he could not have rendered an opinion under the circumstances. I don't know and I'm not going to guess at that. He simply did not. And providing the Court with the cost to repair is not an expert report that would sustain this matter to the end of the plaintiff's case.

So with that, I am barring his testimony in this matter. Causation has not been provided. . . . And, I guess, in essence, that does enter summary judgment.

The judge similarly precluded the testimony from Sommers Roofing because it amounted to "a simple conclusion that the roof needed new shingles," and did not explain why an entire roof and gutters needed to be replaced. The judge then granted summary judgment because experts were "necessary to educate the factfinder regarding replacement of the roof and/or the damages sustained inside of the home."

Summary judgment is appropriate when the moving party successfully shows that no genuine issue as to any material fact exists, and the proponent is entitled to judgment as a matter of law. R. 4:46-2. When deciding whether to grant a motion for summary judgment, the trial court must not decide issues of fact, but must only decide whether there are any such issues. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). In making this determination, the motion judge must decide 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." Ibid. Our function on appeal is to determine de novo whether summary judgment was proper. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004). We must first determine whether plaintiff presented any genuine issues of material fact, and, if not, whether State Farm is entitled to judgment as a matter of law. Ibid. Like the motion court, we must view the facts in the light most favorable to plaintiff, giving her the benefit of all favorable inferences. Coyne v. Dep't of Transp., 182 N.J. 481, 491 (2005).

Here, plaintiff sufficiently raised genuine issues of material fact as to whether all damages claimed fell within the insurance policy. We disagree with the judge's conclusion that plaintiff needed expert testimony on causation to survive summary judgment.

An insured who asserts a claim under an insurance policy has the initial burden of bringing the claim within the basic terms of the policy. Rosario v. Haywood, 351 N.J. Super. 521, 529 (App. Div. 2002). On the other hand, an insurance carrier seeking to establish an affirmative defense to a claim has the burden to bring the case within a specific policy exclusion. Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 399 (1970); Rosario, supra, 351 N.J. Super. at 530; Morie v. N.J. Mfrs. Indem. Ins. Co., 48 N.J. Super. 70, 76-77 (App. Div. 1957). While insurance coverage clauses should be interpreted liberally, exclusionary clauses require strict construction. Simonetti, supra, 372 N.J. Super. at 429; Rosario, supra, 351 N.J. Super. at 530.

Here, the policy covered all "accidental direct physical loss to the property" subject to limited specific exclusions. Plaintiff met her burden of bringing the claim within the policy's coverage by providing evidence, in her deposition, that she witnessed the wind and rain storm, saw water "pouring" into several rooms of the house, and observed the resulting water damage. See Morie, supra, 48 N.J. Super. at 77 (explaining plaintiff met burden of proving "direct and accidental loss" so as to fall within automobile insurance coverage by providing testimony as to physical event itself; burden to establish operative facts to invoke exclusionary clause rested on defendant). We have found no cases, and defendant cites to none, requiring that a plaintiff provide expert testimony on causation to bring his or her claim within the coverage of an insurance policy. At least in this case, plaintiff's own testimony was sufficient for that purpose.

While plaintiff provided evidence that her entire claim fell within the basic terms of the insurance policy, defendant produced no evidence to explain why some of the claimed damages fell within the policy's exclusionary provisions. The estimate provided by State Farm's representative did not include all of the interior damage listed in Dobrzynksi's estimate or any of the roof repairs beyond the emergency repairs done immediately after the storm. State Farm's letter to plaintiff denying part of her claim stated merely that replacement of her roof or siding was not covered because any such damage resulted from "wear and tear" and was excluded by the policy. The letter did not explain why, in State Farm's opinion, the roof or siding damage constituted wear and tear, nor did it make any mention of the interior damage that was not included in State Farm's assessment. As plaintiff met her burden of bringing her claim within the policy, and the burden to establish an exclusion fell solely on defendant, plaintiff at the very least raised issues of fact regarding coverage of her damages, and the trial court erred in not submitting her claims to a jury. See Simonetti, supra, 372 N.J. Super. at 431 (finding factual question existed as to whether rainstorm caused some or all of damage to plaintiffs' home and stating that issues of causation are for jury to resolve).

The cases cited by the trial court and relied on by defendant for the proposition that expert testimony is required to establish causation, are inapplicable to the facts of this case. With respect to the cases involving medical malpractice actions, expert testimony is required to establish the applicable professional standard of care and deviation therefrom because a layperson lacks the requisite special skill, training, and background needed to determine the standard of care without the aid of an expert. Buckelew v. Grossbard, 87 N.J. 512, 526-27 (1981); Kelly v. Berlin, 300 N.J. Super. 256, 264-65 (App. Div. 1997) (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). Clearly, however, expert testimony is not required to establish causation in every tort action. Rubanick v. Witco Chem. Corp., 225 N.J. Super. 485, 498 (Law Div. 1998) (citing Butler v. Acme Markets, 89 N.J. 270 (1982)), rev'd on other grounds, 242 N.J. Super. 36 (App. Div. 1990), mod. on other grounds, 125 N.J. 421 (1991). Indeed, in J.W. v. L.R., 325 N.J. Super. 543 (App. Div. 1999), one of the cases cited by defendant, the court recognized that, "expert testimony is indispensable only when the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment about it." Id. at 547 (citing Butler, supra, 89 N.J. at 283).

The Court addressed a plaintiff's general burden in establishing causation in Kulas v. Pub. Serv. Elec. and Gas Co., 41 N.J. 311 (1964), a negligence action arising from a gas explosion that destroyed a home being constructed by the plaintiffs. Defendant Public Service claimed on appeal that, assuming it was negligent in responding to the emergency call, plaintiff failed to present evidence from which the jury could find that the delay contributed to the cause of the explosion. Id. at 318-19. The Court disagreed, explaining that, although plaintiffs have the burden of proving causation, they are not required to establish it by direct, indisputable evidence: "'The matter may rest upon legitimate inference, so long as the proof will justify a reasonable and logical inference as distinguished from mere speculation.'" Id. at 319 (quoting Beyer v. White, 22 N.J. Super. 137, 144 (App. Div. 1952)). The Court concluded that, from common knowledge, the jury could find that the gas would dissipate if turned off and that the flow of gas which continued after it should have been turned off increased the risk of explosion. Id. at 319-20; see also Ventura v. Ford Motor Co., 180 N.J. Super. 45, 53-54 (App. Div. 1981) (holding plaintiff not required to produce expert proof that defective mechanism caused engine of car to stall because jury could reach that conclusion by inferences from evidence at trial).

Similarly, no specialized expertise is needed here for the jury to infer from its common knowledge that the damages claimed by plaintiff resulted from the wind and rain storm on July 9, 2002, and thus fell within the policy's coverage. As explained in her deposition, plaintiff was home during the storm and witnessed the rain entering the house in several rooms, particularly from the ceiling and windows. She subsequently observed the damages, including water stains in multiple rooms, that were caused by the leaks. The jury could infer that, based on plaintiff's knowledge of the condition of her home prior to the storm and her observations during the storm, she was able to accurately identify the damages to the public adjuster, which were then documented in his estimate. Thus, plaintiff's proofs were sufficient "'to enable the factfinder to find without resort to sheer conjecture the amount of the particular loss ascribable to the hazard assumed by the carrier.'" Stone v. Royal Ins. Co., 211 N.J. Super. 246, 250 (App. Div. 1986) (quoting Brindley v. Fireman's Ins. Co. of Newark, 35 N.J. Super. 1, 6 (App. Div. 1955)).

State Farm will have ample opportunity at trial to try to bring any of the damages claimed by plaintiff within a specific policy exclusion. The mere fact that State Farm's representative, Joseph Marmon, assessed fewer damages does not necessarily mean that the damages not included in his estimate were not caused by the storm. At the very least, the conflicting estimates of Dobrzynski and Marmon, viewing the facts in the light most favorable to plaintiff, Coyne, supra, 182 N.J. at 491, created an issue of material fact for the jury.

II

As explained above, the judge barred testimony by Dobrzynski on the ground that it amounted to a mere net opinion because he did not present evidence that the damage included in his estimate resulted from the wind and rain storm of July 9, 2002; his opinion consisted only of "numbers to repair the home." The judge stated that damage causation, like causation in a medical malpractice action, is "beyond the ken of the normal fact-finder" and "is not something which is public knowledge or easily ascertained through factual circumstances."

Plaintiff argues that the judge's reasoning in precluding Dobrzynski's testimony was incorrect because she did not intend to use Dobrzynski as a causation expert but rather sought to use his testimony on the issue of estimating damages. We agree. Plaintiff sought to introduce the testimony of Dobrzynski, a licensed public adjuster with expertise in damage restoration and calculation, only to explain the extent of physical loss to her home. See N.J.R.E. 702 (a qualified expert witness may testify when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue"). Dobrzynski's deposition testimony reveals that he is knowledgeable regarding the types of repairs that are appropriate and necessary for water damage. Additionally, he is familiar with the Exactimate computer program that he used to assess the value of each repair. He testified that the values obtained from the program reflect industry standard numbers for the applicable geographic area and that the numbers used in his estimate were valid as of July 2002. As the summary judgment proceedings make clear, State Farm did not question Dobrzynski's expertise in damage restoration and calculation, and the trial court never suggested that he was not qualified to testify regarding those matters.

Because the trial court barred Dobrzynski's testimony solely on the basis that he was not qualified as an expert on causation, and plaintiff was not required to provide expert testimony on causation, Dobrzynski's testimony should have been allowed. As explained above, he is clearly qualified on the issue of damage assessment and calculation and should have been permitted to testify in that regard.

III

On July 13, 2002, four days after the wind and rain storm, a representative from Sommers Roofing Contractors assessed the damage to plaintiff's roof and performed emergency repair work. The proposal form documented the emergency repair work that was completed "due to wind and rain damage," which consisted of re-nailing loose flashing at the chimney and loose shingles, installing a patch at the chimney in place of missing shingles, sealing the chimney, patching the sewer pipes with roof cement and fabric, and re-nailing loose gutters. The proposal form also stated that "entire roof needs replacement and new shingles." The form listed $250 as the cost of the temporary repairs and $4500 as the estimate for "new roof, and gutter replacement." State Farm reimbursed plaintiff for the emergency repair work, but denied coverage for the replacement of plaintiff's roof based on the "wear and tear" exclusion found in plaintiff's policy.

In dismissing plaintiff's claim for roof replacement, the trial judge found that the proposal from Sommers Roofing detailing the emergency roof repairs and indicating that a new roof and gutters were needed, did not sufficiently establish causation. The trial court stated:

I, again, find that this is an opinion which will not be permitted to be placed on the record at trial for several reasons.

First of all, entire roof needs replacement of new shingles. I don't know if that's because of the storm, I don't know if that's at the request of, perhaps, a homeowner, how much would it cost to replace the roof now that you're up there, nor do I know if the entire roof needs replacement because of this storm. I, again, don't have the why and wherefore.

I have someone who went out and did emergency patching because of the wind and rain, but I don't know, for a fact, that the entire roof needed replacement of shingles because of this storm. I just had one sentence at the end of a paragraph on a proposal.

I don't know why the roof needed replacement, if the entire roof needed replacement, if part of the roof needed replacement and if replacement was due to the storm or due to necessity, or perhaps due to just a homeowner wanting a new look on her roof.

I also have another problem with Sommers testifying as to what was needed, as he was ultimately not the person who did the repair.

So, therefore, even if he surmised, at the time . . . that this roof needed new shingles, once the work was actually done, he was not the person who was actually up there performing the entire replacement of this roof. He was there on an emergency basis, he nailed, he hammered, he patched, but there's nothing here that says that the entire roof needed replacement.

Also interestingly, this doesn't just say a new roof. It says, "And gutter replacement." All he did was renail loose gutters. How much of the $4500 is for gutters, are the gutters necessary, were they something that were damaged, again, or is this just an estimate for a future cosmetic situation.

. . . .

I do not know why an entire roof, and I stress entire roof and/or gutters needed replacement if, indeed, they did at all.

So with that, again, I am precluding his testimony at the time of trial.

Plaintiff contends that the trial judge erred in barring Sommers' testimony and in granting summary judgment in favor of State Farm on the roof replacement claim. We agree. The same rationale that we have discussed in Point I is applicable to the roof claim, precluding summary judgment. State Farm will have ample opportunity at trial to counter plaintiff's proofs.

 
Reversed and remanded for trial.

The net amount payable to plaintiff was $4,520.44, which took into account the $500 deductible under the policy.

The complaint also contained a count for bad faith, which was subsequently dismissed by consent.

State Farm had earlier made a motion to edit Dobrzynski's deposition testimony to delete the portion that discussed the "Exactimate" computer program used to arrive at the repair values. The judge denied the motion, and counsel for State Farm indicated during the summary judgment proceedings that she understood the judge's ruling in that regard. Thus, the court had already accepted Dobrzynski's method of arriving at his damage calculation.

(continued)

(continued)

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A-6010-04T5

May 4, 2006