QUINCY MUTUAL INSURANCE COMPANY v. UNION ROOFING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

QUINCY MUTUAL INSURANCE

COMPANY, A/S/O CLIPPER CONDO,

Plaintiff-Respondent,

v.

UNION ROOFING,

Defendant-Appellant.

____________________________________

July 3, 2014

Submitted January 15, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-334-10.

Brian A. Pelloni (Hornstine & Pelloni, LLC), attorney for appellant.

Methfessel & Werbel, attorneys for respondent (Jason M. Judovin and Kyle E. Vellutato, on the brief).

PER CURIAM

In this subrogation action, defendant Union Roofing appeals from a $27,975.58 judgment entered in favor of plaintiff Quincy Mutual Insurance Company, as subrogee of Clipper Condo (Clipper), following a bench trial. We affirm.

Clipper hired defendant in 2002 to put a new roof on its residential building in North Wildwood. Defendant completed the roof and was paid $9500. In 2006, Clipper again retained defendant to address water leaks over the deck area in the front of the building. Defendant recommended the installation of a cricket, designed to divert water on the roof away from that problem area above the decks in the front of the building. Defendant installed the cricket, for which it was paid $9400. Following additional leaks on the front deck in 2008, defendant performed maintenance on the roof. Specifically, defendant "tied in" a ninety-foot seam in the front of the roof with roofing cement and fabric.

In 2009, six unit owners on the second floor discovered water damage inside their units, mainly along the front of the building. Clipper called defendant. Defendant's employee, Mike Powers, inspected the damage to one of the units but was apparently unable to locate the source of the problem.

Clipper then contacted another roofer, Robert Pyott, to assess the roof. Pyott reported finding sixteen leaks along the back edge of the roof near the downspouts. Clipper hired Pyott to repair the roof, which he did for $2885 in 2009. Clipper also replaced the "T1-11" wood sheathing along the front of the building with vinyl siding shortly after Pyott worked on the roof. Following those repairs, the leaks stopped.

At trial, Quincy presented testimony about the sums it paid to Clipper for repairs to the units and Clipper's deductible. A representative of the condo association testified that the water damage was largely in the front, but also in the middle of the units. An adjuster testified to damage throughout the living spaces. Pyott was qualified as an expert, without objection, and provided his opinion as to the source of the leaks. According to Pyott, the leaks he found at the rear edge of the roof were caused by defendant's failure to properly "torch" down that section. Pyott inspected two of the damaged units and testified that the leaks he found on the roof corresponded to the damage he saw in the rear of the units.

Defendant presented one witness, its employee Steven Smith. In his opening, defendant's counsel stated that Smith had been on the roof and would testify "that there were several things with this building that could cause water to come in. One of them being the wood on the front of the . . . building. Another is that [Clipper is] to maintain the roofing system[,] meaning debris."

Quincy moved to bar any expert testimony from Smith because defendant had not provided a report from Smith in discovery. Defendant's counsel conceded that point but argued that Smith represented a party and notice of Smith's opinions was provided in the pre-trial order. In response to the court's question, neither counsel could produce plaintiff's interrogatories. Defense counsel was in possession of his answers to plaintiff's interrogatories and did not advise that he had identified Smith as an expert. The trial court determined to allow Smith to testify as a fact witness and to provide his opinion "at least to some extent as to what he thinks based on having performed work on the roof" but declined to give it "the weight of expert testimony."

Smith testified that he inspected the roof in 2006 when defendant installed the cricket. He found that the drains in the rear of the roof, which Clipper did not retain defendant to replace when it put on the new roof in 2002, were of galvanized metal that had rusted in the sea air. According to Smith, seagulls congregate on the roofs in the area resulting in a great deal of debris. Because a roof is pitched to direct water to the drains, rainwater would carry the debris to the rusted drains, which would clog and cause water to pool on the roof around the drains, causing damage to the roof and leading to water infiltration. Smith also testified that he found the roof deck butted up to the "T1-11" sheathing on the front of the building. According to Smith, gaps in that sheathing were allowing water to "travel[] straight back into the building" resulting in rotted and water-damaged wood.

Smith testified that he advised his boss when defendant installed the cricket that "the T1-11 was a major contributing factor to the leaks and that the drain system was a major contributing factor to the leaks." Smith admitted that he had not advised Clipper of his findings. He testified that he reported it to his boss, who reported it to Clipper. Smith's understanding was that Clipper chose only to install the cricket, but to defer replacement of the drains and the "T1-11" siding and fascia board because of the cost.

The judge found that although both Pyott and Smith testified that the fascia and front siding were of "T1-11," which "was susceptible to leaks," neither testified that it "did in fact cause the leaks" in 2009. Noting that both testified that Clipper replaced the "T1-11" with vinyl siding in 2009, the judge concluded that "[w]hile this is not dispositive proof that the fascia was a cause or contributor to the leaking, it is sufficient first person testimony in this court's opinion from credible and knowledgeable witnesses that the roof itself may not have been the only issue leading to water infiltration."

The judge rejected the notion that the drains had resulted in the leaks because there was no testimony from anyone that the drains were ever clogged. Instead, he accepted Pyott's "undisputed testimony" that he found sixteen leaks along the rear edge of the roof and that those leaks corresponded to the damage in the two units he inspected. Finding on the basis of the testimony and the photos in evidence that the damage in those units was consistent with the damage to the other four units, the court found that Quincy had established liability for the damages to all of the units and the building exterior. The court itemized the damages and entered judgment for $26,307.30, plus pre-judgment interest of $1668.28, for a total of $27,975.58.

Defendant appeals contending that the trial court improperly denied defendant's motion for directed verdict, that the evidence did not support a verdict for Quincy, and that the court's decision to bar Smith from testifying as an expert was improper and prejudicial. We reject those arguments.

The limited scope of our review in appeals from bench trials is well-established: "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (citations omitted). We review the denial of a motion for directed verdict de novo. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008). Like the trial court, we "must accept as true all the evidence which supports the position of the non-moving party, according [that party] the benefit of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). If reasonable minds could differ on the result, the motion must be denied. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). Applying those standards, it is clear the trial court did not err in denying the motion for directed verdict or entering judgment for plaintiff.

The thrust of defendant's arguments is that Pyott failed to explain how leaks along the rear edge of the roof caused the water damage, which was largely along the front wall of the units where the "T1-11" was located. To the extent that Pyott and other witnesses testified to damage in other areas, defendant claims that Quincy's witnesses contradicted Pyott and each other, and that "the only logical conclusion that a jury could have reached, without some explanation otherwise, is that the damage was caused solely by leaks in front of the building through the T1-11 and had nothing to do with the separation of the roof layers in the rear."

First, as defendant implicitly concedes, Pyott testified that the leaks he found along the rear edge of the roof in the vicinity of the drains were consistent with the damage he observed in the rear of the condominium units.1 To the extent that Quincy's other witnesses testified to damage in other areas, some of which was consistent with Pyott's observations and some not, that inconsistency would not support a motion for directed verdict. If anything, such differences merely underscore that reasonable minds might differ as to the source of the water infiltration, thus commanding denial of the motion. See Verdicchio, supra, 179 N.J. at 30.

As to the evidence supporting the judgment, defendant's own witness testified that the drains located in the rear of the roof were a "major contributing factor" to the leaks complained of in 2006, which all agree occurred in the front of the building. Reviewing the testimony adduced at trial in light of our scope of review, we find no error which would allow us to set aside the judgment.

Finally, we can ascertain no prejudice from the trial court's unwillingness to accord Smith's opinion testimony the weight he would give an expert's opinion on this record. It is of course well-established that a party with expertise may express an opinion ordinarily reserved for an expert, Cast Art Indus., LLC v. KPMG LLP, 416 N.J. Super. 76, 100 (App. Div. 2010), rev'd on other grounds, 209 N.J. 208 (2012), and that a defendant's qualified employee may testify as an expert on its behalf, Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 173 (App. Div. 1999), aff d, 164 N.J. 1 (2000). See also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 702 (2014). Any bias, as a party, goes solely to the weight of the testimony. Cast Art Indus., supra, 416 N.J. Super. at 100.

Quincy moved to bar expert testimony by Smith on the ground that no expert report had been served. Defendant opposed Quincy's motion arguing that the pre-trial order advised Quincy of the substance of Smith's opinions. Neither the pre-trial order nor the interrogatories were included in the record on appeal, thus precluding us from considering whether Quincy was sufficiently on notice of the substance of Smith's opinions or whether fairness dictated more formal notice or the provision of a report. Further, defendant points us to nothing in the record that would demonstrate how the judge's ruling precluded Smith from "adequately defend[ing] against the baseless conclusions of [p]laintiff's expert." Accordingly, we are provided with no basis on which we might set aside the trial court's ruling barring Smith from testifying as an expert. See State v. Buda, 195 N.J. 278, 294 (2008), cert. denied sub nom., Sweet v. New Jersey, 557 U.S. 934, 129 S. Ct. 2858, 179 L. Ed. 2d 601 (2009).

Affirmed.

1 Defendant also argues for the first time that the court should have rejected Pyott's testimony as net opinion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).

As Pyott's testimony was based on comparing his personal observations of the roof with the damage he observed to the units, see N.J.R.E. 703, we do not find plain error. R. 2:10-2; State v. Miller, 205 N.J. 109, 126 (2011).