PEDROMORAN-ALVARDO,1 v. NEVADA COURT REALTY, LLC EZ DONUTS, T/A DUNKIN' DONUTS and NEVADA COURT REALTY, LLC v. EZ DONUTS, INC. AND M&M LANDSCAPING and TRAVELERS INSURANCE COMPANY 1 is also referred to in the record as Pedro Moran Alvarado

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4164-14T1

PEDRO MORAN-ALVARDO,1

        Plaintiff,

v.

NEVADA COURT REALTY, LLC,
EZ DONUTS, T/A DUNKIN' DONUTS,

        Defendants,

and

NEVADA COURT REALTY, LLC,

        Defendant/Third-Party
        Plaintiff-Respondent,

v.

EZ DONUTS, INC. AND M&M
LANDSCAPING,

        Third-Party Defendants,

and

TRAVELERS INSURANCE COMPANY,

     Third-Party Defendant-
     Appellant.
_____________________________

1
  Plaintiff is also referred to in the record as Pedro Moran-
Alvarado.
           Argued October 26, 2016 – Decided March 1, 2018

           Before Judges Fuentes, Simonelli and Gooden
           Brown.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. L-9756-
           10.

           John M. Bowens argued the cause for appellant
           (Schenck, Price, Smith & King, LLP, attorneys;
           John M. Bowens and Cynthia L. Flanagan, on the
           briefs).

           Lane M. Ferdinand       argued     the     cause   for
           respondent.

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      On December 24, 2008, plaintiff Pedro Moran-Alvarado slipped

and fell on snow in the parking lot of a strip mall owned by Nevada

Court Realty, LLC (Nevada).     EZ Donuts, Inc., d/b/a Dunkin Donuts,

was a commercial tenant in the mall.           Nearly two years later,

plaintiff filed a civil action against Nevada and EZ Donuts to

recover compensatory damages for injuries he allegedly sustained

as a result of this fall. Nevada filed a third-party claim against

EZ Donuts for contractual indemnification and a third-party claim

for   insurance   coverage   against   EZ   Donuts'    insurance    carrier,

third-party defendant Travelers Insurance Company (Travelers).

      The legal issue in this appeal concerns only the claim for

contractual indemnification made by Nevada against Travelers as

the insurer for EZ Donuts.     This is the second time this case has
                               2                             A-4164-14T1
been before this court.      In Moran-Alvarado v. Nev. Court Realty,

LLC,   No.   A-3443-12   (App.   Div.   June   27,   2014),   we   issued   a

consolidated opinion addressing: (1) Nevada's appeal from the

order of the Law Division that granted summary judgment to EZ

Donuts and dismissed the contractual indemnification claim with

prejudice; and (2) Travelers' appeal from the order of the Law

Division that granted summary judgment to Nevada and required

Travelers to provide insurance coverage to Nevada.

       After reviewing de novo the record presented to the Law

Division and applying the standard established by the Court in

Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995)

and codified in      Rule 4:46-2(c), we reversed both orders and

remanded the matter for further proceedings.           We concluded there

"were genuine issues of material fact" that precluded granting

summary judgment to EZ Donuts:

             EZ   Donuts'    contractual    indemnification
             obligations,    and   the   amount    of   any
             indemnification payment under the lease, are
             dependent on resolution of factual disputes,
             such as: whether the accident occurred on or
             about the premises; the negligence percentage
             of the parties, including whether Nevada Court
             was solely, willfully, or grossly negligent;
             and whether the amount of the settlement was
             reasonable in light of the injuries plaintiff
             sustained. These disputed factual issues
             should be resolved in Nevada Court's third-
             party action against EZ Donuts.

             [Moran-Alvarado v. Nev. Court Realty, LLC,
             slip op. at 7-8.]
                               3                                    A-4164-14T1
     With respect to Travelers' appeal, we held that "Travelers

indemnification exposure is coextensive with the scope of EZ

Donuts' liability."      Id. at 10.      We thus concluded that summary

judgment was improperly granted against Travelers "because: (1)

there are disputed factual issues regarding whether the accident

occurred on or about the leased 'premises'; and (2) if yes, then

whether the accident occurred due to Nevada's sole, gross, or

willful negligence."      Id. at 12.     Finally, we noted that "Nevada

Court would only be entitled to indemnification and insurance

coverage for EZ Donuts' percentage."         Ibid.

     On remand, the parties agreed to stipulate: (1) to the

location   of   the    accident;   and    (2)   that   the    landlord   was

contractually obligated to remove ice or snow in the area where

plaintiff fell.       Under these stipulated facts, the trial court

concluded that Nevada's failure to clear the parking lot area of

snow and ice three days after the last snow fall constituted gross

negligence,     relieving     EZ    Donuts      from    its     contractual

responsibility to indemnify landlord against any claims arising

from the use of the tenant's premises.

     The judge noted that the lease agreement indemnified Nevada

for negligence, not for gross negligence or willful misconduct.

The judge found that Nevada's failure to clear the parking lot of

snow and ice amounted to gross negligence based on plaintiff's

                               4                                    A-4164-14T1
deposition testimony, which was admitted into evidence and read

into the record.        According to plaintiff, the snow and ice had not

been "touched."       The judge ultimately found that "there is gross

negligence in this case by Nevada."                Based on these uncontested

facts,    the   judge    concluded       that    "Nevada     is   not   entitled     to

indemnification on the basis that the clear language of the lease

says we will cover you for negligence, but we will not cover you

for gross negligence or willful misconduct[.]"                      The parties did

not appeal this aspect of the trial court's ruling.

     In    this   appeal,    Travelers          challenges    the    trial    judge's

decision    finding      Nevada    was    entitled    to     coverage    under     the

additional insured policy endorsement.                Stated differently, the

issue is whether Travelers must provide coverage to Nevada under

the additional insured endorsement, notwithstanding the court's

unchallenged      finding   that    Nevada's       conduct    amounted       to   gross

negligence.        Travelers urges us to reverse the trial court's

order because it is irreconcilable with the trial court's finding

of gross negligence by Nevada and contravenes our holding in

Pennsville Shopping Ctr. Corp. v. Am. Motorists Ins.                         Co., 
315 N.J. Super. 519, 523 (App. Div. 1998), in which we held that the

obligation of the tenant's insurance company to provide coverage

to a named additional insured landlord "must be . . . coextensive

with the scope of [the] tenant's own liability."

                                    5                                         A-4164-14T1
    We agree with Travelers' argument and reverse.             The lease

agreement obligated EZ Donuts to procure and maintain a general

commercial    liability   policy   naming   Nevada   as   an   additional

insured.     The Travelers policy satisfied this obligation.           The

policy also expressly excluded coverage for an insured's acts or

omissions that constitute gross negligence or willful misconduct.

This exclusion is stated using ordinary language and must be

enforced as written.      Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 
224 N.J. 189, 200 (2016).          The trial

court's unchallenged finding that Nevada's conduct amounted to

gross negligence is sufficient, in and of itself, to defeat its

claim for coverage with respect to plaintiff's accident.

    Reversed.




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