FRANCINE SCHNEIDER v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0776-10T2

FRANCINE SCHNEIDER, a/k/a

FRANCINE SCHNEIDER WROCLAWSKI,

a/k/a FRANCINE WROCLAWSKI,

Individually and as Administratrix

of the Estate of MICHEL TONY

WROCLAWSKI,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

______________________________________________________

Argued June 7, 2011 Decided June 27, 2011

Before Judges Parrillo, Yannotti and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket

No. L-328-09.

David E. Maitlin argued the cause for appellant (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Maitlin, of counsel and on the briefs).

Elizabeth Callaghan Flanagan argued the cause for respondent (Purcell, Mulcahy, O'Neill & Hawkins, attorneys; Ms. Flanagan and Alyssa K. Weinstein, on the brief).

PER CURIAM

This is an appeal from a summary judgment dismissing a complaint by the administratrix of an estate that asserted a claim under the deceased's homeowners insurance policy. The deceased, Michel Tony Wroclawski, had a homeowners policy with defendant New Jersey Manufacturers Insurance Company (NJM) insuring his home in East Brunswick. Wroclawski failed to pay the premium for renewal of his policy. Consequently, NJM cancelled the policy, effective April 13, 2007.

After the cancellation, Wroclawski placed a telephone call to NJM to reinstate his policy. The NJM representative with whom Wroclawski spoke informed him that NJM would not simply renew his prior policy, but would issue a new homeowners policy instead. The representative also informed Wroclawski that the new policy NJM would be willing to issue, which was a standard form HO-2 policy, would not provide as extensive coverage as the policy that had been cancelled, which was a standard form HO-3 policy. NJM recorded the conversation between Wroclawski and its representative.

Wroclawski applied for and was issued a standard form HO-2 homeowners insurance policy, which was effective June 7, 2007. NJM subsequently conducted an exterior inspection of Wroclawski's house for the purpose, as described by NJM, of "evaluat[ing] the risk we are insuring." This inspection revealed various needed repairs. By letter dated June 29, 2007, NJM asked Wroclawski to complete those repairs by September 26, 2007, and informed him that if the repairs were not made by that date, "your policy will be reviewed for possible further underwriting action."

This letter also responded to an apparent request by Wroclawski for an upgrade in his coverage from that provided by the HO-2 policy to that provided by the HO-3 policy, stating:

"As we discussed when your new Homeowners Policy was put into effect, . . . [a]s part of the inspection, we considered your request for an upgrade in coverage to the HO-3 policy." NJM's letter informed Wroclawski that it would not provide the HO-3 coverage unless he completed the necessary repairs to his house.

On October 12, 2007, NJM sent a second letter to Wroclawski which stated that it had conducted another inspection of his house and found that the repairs identified in its June 29, 2007 letter had not been completed. This letter again indicated that if the repairs were not made by February 7, 2008, "your policy will be reviewed for possible further underwriting action."

On January 12, 2008, Wroclawski and two of his cats were found dead in the house. The deaths had occurred approximately six weeks before discovery of the bodies, which were in an advanced state of decomposition. The decomposition of the bodies within the house caused substantial damages to the house and its contents.

Plaintiff, who was Wroclawski's estranged wife and administratrix of his estate, filed a claim with NJM for the recovery of those damages under his homeowners policy. After NJM denied the claim, plaintiff brought this action against NJM. The parties conducted discovery, following which the case was brought before the trial court by cross-motions for summary judgment. The court issued a short oral opinion granting NJM's motion and dismissing plaintiff's complaint. Plaintiff now appeals.

Plaintiff concedes that the HO-2 policy issued to Wroclawski does not provide coverage for her claim. However, she contends that the policy should be reformed to afford the coverage provided by the HO-3 policy, which apparently would include damages caused by decomposing bodies. Plaintiff alleges that the explanation NJM's representative gave to Wroclawski regarding the differences between the HO-2 and HO-3 policies was "incomplete and misleading" and that this was the proximate cause of Wroclawski not having coverage for damages to the house and its contents from the decomposition of dead bodies. Plaintiff asserts that this inadequate explanation constituted negligence. Plaintiff also relies upon theories of equitable estoppel and the reasonable expectations of an insured.

We assume, without deciding, that the explanation the NJM representative provided Wroclawski regarding the differences between the HO-2 and HO-3 policies was inadequate and that if plaintiff could show that Wroclawski lacked coverage for damages to the house and its contents caused by decomposition of bodies because of that inadequacy, he would be entitled to relief. However, there is no evidence upon which a trier of fact could find such a causal relationship.

It is undisputed that NJM would not have issued Wroclawski a standard form HO-3 policy under its underwriting standards. Plaintiff has not cited any authority to support her expert's opinion that a representative of a direct writer of insurance such as NJM has an obligation to inform one of its insureds about the possible availability of insurance from another insurer. In any event, Wroclawski was clearly aware that other insurance companies write homeowners insurance because he had a policy with State Farm on a rental property he owned. Moreover, there is no evidence that another insurance company would have insured Wroclawski's house under a standard form HO-3 policy or that Wroclawski would have changed insurance companies to obtain such coverage even if it had been available. Indeed, Wroclawski did not complete the repairs on his house that NJM required to assure maintenance of the coverage under the HO-2 policy and possibly to qualify for an upgrade to the HO-3 policy coverage. Additionally, we note that Wroclawski could have read the new HO-2 policy NJM issued to him, which would have corrected any misconception he may have had after his conversation with the NJM representative concerning the scope of the more limited coverage provided by that policy. See Bauman v. Royal Indem. Ins. Co., 36 N.J. 12, 25 (1961) ("When an insured purchases an original policy of insurance he may be expected to read it and the law may fairly impose upon him such restrictions, conditions and limitations as the average insured would ascertain from such reading.") Plaintiff's arguments do not warrant any further discussion. R. 2:11-3(e)(1)(E).

Affirmed.