LORI MEYERS 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NOT FOR PUBLICATION WITHOUT THE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-4585-10T2

LORI MEYERS,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

__________________________________________________________

December 11, 2012

Submitted March 28, 2012 - Decide

Before Judges Graves and J. N. Harris.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-2325-09.

Lori Meyers, appellant pro se.

Margolis Edestein, attorneys for respondent

(Jeanine D. Clark, on the brief).

PER CURIAM

In this insurance coverage action, plaintiff Lori Meyers was the named insured on a homeowner's insurance policy issued by defendant New Jersey Manufacturers Insurance Company (NJM). Following a five-day trial, a jury found in favor of defendant. Plaintiff appeals from a judgment of no cause of action and a subsequent order denying her motion for a new trial. For the reasons that follow, we affirm.

The policy issued by NJM insured plaintiff's single-family residence located on South Woodleigh Drive, Cherry Hill, New Jersey against loss caused by fire, smoke, theft, and vandalism or malicious mischief. However, the policy did not cover any "intentional loss," which was defined as "any loss arising out of any act an insured commits or conspires to commit with the intent to cause a loss."

Plaintiff first attempted to sell her home in 2003, but her efforts were unsuccessful and she re-listed it in 2007. In June 2008, plaintiff entered into a contract for the sale of her home, and she also entered into an agreement which allowed the prospective purchasers to reside in the home prior to closing. The sale was contingent on the purchasers obtaining a mortgage.

The sale fell through when the purchasers were unable to secure a mortgage, and they vacated the premises on December 12, 2008. Before moving out, they documented the condition of the house with photographs. Plaintiff inspected the property the next day and found no damage.

When plaintiff returned to her house on December 19, 2008, she "smelled the odor of natural gas" and found the interior damaged. Plaintiff immediately contacted the Cherry Hill Police Department. The police and firefighters that responded to the scene reported that "[n]o forced entry could be found to the home" and that "a fire had occurred in the basement closet containing the water heater." In his crime scene report, Detective Jason Snyder stated:

[T]here was damage throughout the residence including a broken chandelier in the foyer, numerous holes in the walls and doors and numerous light fixtures were broken. Several broken light bulbs remained in the socket with the filaments intact without the outer glass covering. All of the cabinet doors in the main kitchen, basement kitchenette, bathrooms and laundry area were open with drawers pulled. There was debris from a small fire on the outside of the hearth of the fireplace in the first floor family room. . . . The fire on the hearth burned outside the protective metal screen where the smoke would not have directly traveled into the chimney. The fire appeared to have been intentionally set to cause damage to the residence and possibly facilitate an explosion of the residence once the residence was filled with natural gas.

An additional report prepared by the Assistant Fire Marshall, James Bird, noted two separate fire locations, one in the water heater closet, and the other "being fireplace logs stored on the hearth of the family room fireplace on the first floor." However, "[b]oth fires self extinguished with little extension to the structure." Bird also noted acts of vandalism throughout the house and that the cause of the fires was "the deliberate act of a person or persons."

Plaintiff hired John Philbin of the Citizen's Public Adjusters to appraise the damage and submit an appraisal to NJM on her behalf. Philbin's report indicated a total net loss of $118,072.72 due to vandalism. NJM hired T. Franek & Co., Inc. (Franek), a property and casualty insurance claim service, to perform adjusting services regarding plaintiff's claim. Franek alleged that plaintiff's appraisal included "everything that [was] wrong with the house regardless of how or what happened to make it that way." Franek determined "a total loss amount of $34,291.61," less plaintiff's deductible of $1000, which resulted in a net loss of $33,291.61.

On or about February 9, 2009, Philbin forwarded plaintiff's sworn statement in proof of loss to NJM, requesting payment of the "undisputed amount" of $33,291.61. However, in a letter dated February 19, 2009, NJM advised Philbin that plaintiff's claim had been referred to its Special Investigations Unit and that the claim was "stayed" pending completion of the investigation.

Ultimately, NJM rejected plaintiff's claim. Thereafter, plaintiff commenced this action alleging that NJM breached its policy by failing to pay for damages to the home, its contents, and her alternative living expenses.

During the trial, Assistant Fire Marshall Bird testified the damage to plaintiff's house "was due to [an] act of vandalism and with the intent to probably destroy the home." Detective Snyder also testified there were "no signs of any attempted or any forced entry to the home," and that "a light petroleum product," a fire accelerant, was found in the home.

Kevin Durling, a senior special investigator for NJM, testified that when he inspected the home, plaintiff stated she had contemplated upgrading "the doors from the flat panel hollow luan doors to raised panel doors." Additionally, Durling observed that "every single door had holes in it." According to Durling, plaintiff also said "that various realtors and people had suggested to her that different upgrades should be done in order to maximize her profits in selling the house." Durling also testified there were "holes in the wallpapered walls" but the painted walls in the house were not damaged.

Defendant's attorney stated in her summation that plaintiff "padded her claim." Defense counsel also noted several inconsistencies in plaintiff's testimony, and argued that plaintiff made "deliberate, intentional, knowing misrepresentation[s]." On the other hand, plaintiff's attorney emphasized that plaintiff "did not interfere with [NJM's] investigation," that "she did not intend to deceive [NJM]," and that NJM failed to comply with the terms of its contract.

The jury verdict sheet consisted of four questions. The first question asked: "Was the property [on] South Woodleigh Drive in Cherry Hill, New Jersey the subject of vandalism and/or arson and/or property theft causing damage or loss as a result of the conduct of a party other than the plaintiff?" The court instructed the jury that if it answered "no," it should cease its deliberations and return its verdict. After deliberating for less than two hours, the jury answered "no" to question one by a vote of six to one.

On March 15, 2011, the trial court entered a judgment of no cause of action in favor of NJM and dismissed plaintiff's complaint with prejudice. Following oral argument on April 1, 2011, the court denied plaintiff's motion for a new trial, reasoning as follows:

This [c]ourt finds that, in fact, the evidence that was presented, based upon critically certain evaluations of credibility factors, indeed could have supported the judgment that the jury made in this case.

First, the [c]ourt finds that [plaintiff] was, as [defense counsel] suggests, found to have been inconsistent in some of the reporting that she had made to the jury concerning information that was available to her.

. . . .

Other questions arose during the course of the testimony. Testimony about where the damage occurred, was the damage focused on areas that one would seek to be the subject of renovation in the ordinary course of events to update the house, or was the vandalism completely random in nature, such that it would be considered to be something that was simply unknown to the plaintiff in terms of why it was caused or the person who was causing it.

The suggestion of testimony in this case was that the vandalism in some substantial part was attached to areas that would have been the subject of desired upgrades if someone was, perhaps, desirous of selling their house.

The nature of that testimony may be said to arise from the presentation to the jury of before and after pictures of the house, suggesting a house that in the final analysis had been renovated to accomplish a quiet beautiful home that was, perhaps, not quite the status of the home prior to the vandalism.

That cabinets had been replaced rather than simply the replacement of doors that had been damaged, that entire floors had been replaced rather [than] areas of floors that needed to be replaced, that walls that had been damaged were walls that had wallpaper on them, not paint, and that, therefore, the damage that was incurred was damage to areas that one might have wanted to replace.

All of those factors, [the court] find[s], would have allowed a jury to conclude that the claim that [plaintiff] made was very, very substantially inflated in connection with the vandalism acts that had occurred, but critically those types of claims that [plaintiff] made.

. . . .

But the essence of the jury's conclusions concerning the extent of the loss that she claimed could easily have created for the jury a sense that [plaintiff] was quite simply not a truthful person in her presentation of information to the insurance company.

That, coupled with the fact that the damage to this home, based upon the police officer's testimony, resulted from a circumstance that reflected no forced entry to the home, could have created the circumstance that, though there was no direct testimony that [plaintiff] had herself vandalized the home or caused it to be vandalized, could have easily created for the jury a sense of utter disbelief about the entire circumstance of the alleged loss.

On appeal, plaintiff presents the following arguments:

POINT I

DID THE TRIAL COURT COMMIT PLAIN ERROR BY ENTERING JUDGMENT AGAINST THE APPELLANT WHEN THE JURY RETURNED A GENERAL VERDICT WITHOUT SPECIFYING WHICH OF THE THREE ALLOWABLE THEORIES IT FOUND AGAINST THE APPELLANT AND WHERE AT LEAST ONE OF THE THEORIES WAS NOT SUPPORTED BY THE EVIDENCE?

POINT II

DID THE TRIAL COURT ERR OR COMMIT PLAIN ERROR BY PERMITTING THE JURY TO FIND THAT THE PLAINTIFF WAS THE "CAUSE" OF THE DAMAGE TO HER HOME BY WAY OF ARSON AND/OR VANDALISM WITHOUT GIVING ANY JURY INSTRUCTIONS ON THOSE ISSUES THEREBY ENDING THE CASE IN THE DEFENDANT'S FAVOR AND PRECLUDING THE JURY FROM DETERMINING THE ULTIMATE ISSUES OF THE CASE?

POINT III

DID THE TRIAL COURT COMMIT PLAIN ERROR OR AN ERROR OF LAW BY DETERMINING THAT THE INSURANCE POLICY'S EXCLUSION CLAUSE WAS UNAMBIGUOUS, THEREBY PERMITTING NO COVERAGE TO THE APPELLANT'S CLAIMS OF LOSS WHICH WERE NOT THE SUBJECT OF ALLEGED MISREPRESENTATION, CONCEALMENT OR FRAUD?

POINT IV

DID THE TRIAL COURT ERR BY DENYING APPELLANT'S MOTION FOR A NEW TRIAL/JUDGMENT NOTWITHSTANDING THE VERDICT?

After reviewing the record and the applicable law, we conclude plaintiff's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We add only the following comments.

The trial court's decision on a motion for a new trial will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1, see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial court regarding the "intangibles" of a case not transmitted by the record, such as credibility, demeanor and "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-361 n.2 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6.

In this case, the trial court found there was substantial credible evidence to support the jury verdict. Based on our independent review of the record, we agree. Accordingly, we find no miscarriage of justice and no basis for a new trial.

Affirmed.