BRYAN NEWTON and NEWTON ENVIRONMENTAL v. JOSEPH T. CUTRUZZULA, JR
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." 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-0365-20
BRYAN NEWTON and NEWTON
ENVIRONMENTAL d/b/a WASTE
AWAY CARTING LLC,
Plaintiffs-Appellants,
v.
JOSEPH T. CUTRUZZULA, JR.,
MARIO CUTRUZZULA, and
MARIO'S CARTING, NEW JERSEY
TRUCK SERVICES,
Defendants,
and
THE ANDOVER COMPANIES,
and MERRIMACK MUTUAL FIRE
INSURANCE CO.,
Defendants-Respondents,
Argued February 7, 2022 – Decided April 11, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5773-18.
Gwyneth K. Murray-Nolan argued the cause for
appellants (Murray-Nolan Berutti, LLC, attorneys;
Gwyneth K. Murray-Nolan, of counsel and on the
briefs; Rachel E. Smith, on the briefs).
Richard A. Nelke argued the cause for respondents
(Methfessel & Werbel, attorneys; Richard A. Nelke, of
counsel and on the brief; Christian R. Baillie, on the
brief).
PER CURIAM
Plaintiffs appeal from the trial court's order granting summary judgment
to defendants, The Andover Companies and Merrimack Mutual Fire Insurance
Company.1 We affirm.
In June 2016, plaintiffs purchased an excavator that was subsequently
transported from Long Island to East Rutherford, New Jersey, where it was
stored in a lot owned by Mario Cutruzzula. The excavator was to stay on the lot
until plaintiffs paid Joseph Cutruzzula, Jr. for the transportation costs. Plaintiff
Bryan Newton recalled seeing the excavator on the lot on August 13, 2016.
Video surveillance of the lot showed the excavator on the property on August
23, 2016.
However, when one of plaintiffs' employees went to the lot on September
8, 2016, the excavator was missing. Newton reported the theft to the East
1
Plaintiffs settled their claims with the remaining defendants.
A-0365-20
2
Rutherford Police Department that day. After speaking with Joseph Cutruzzula,
Jr. and Newton, the police prepared an incident report. Cutruzzula stated he had
last seen the excavator on September 1, 2016. He told police the surveillance
camera system had stopped working approximately three weeks earlier.
Plaintiffs still owed money to the Cutruzzulas for the transportation costs.
Defendants issued a Commercial Island Marine Insurance policy
providing coverage for the excavator, effective August 2, 2016. On September
12, Newton told defendants the excavator was missing. Defendants assigned the
claim to Decker Associates, an independent adjusting firm. On September 13,
Decker contacted plaintiffs requesting an inspection of plaintiffs' business, a
recorded statement from Newton, and certain documentation.
Decker took a recorded statement from Newton on September 14. The
following day, Decker reiterated its request for documents. Decker also
contacted the East Rutherford police.
Decker made several phone calls to Newton requesting additional
information. In an October 5 letter, Decker informed plaintiffs their claim was
not finalized and again asked for additional information, including the bill of
sale for the remaining balance due for the excavator, contact information for all
parties involved in the transportation and storage of the excavator, photographs
A-0365-20
3
of the machine, and cancelled checks for any payments made in connection with
the purchase of the excavator.
On November 21, Newton provided a bill of sale stating the purchase price
for the excavator was $50,000. The document noted Newton paid $16,000 to
the seller and still owed $34,000. Although Newton told Decker he paid the
balance due after the excavator was delivered to the Cutruzzula's lot, he did
could not provide any proofs of the payment and could not recall whether he
issued a check for the balance.
In an October 5 status report to defendants, Decker recommended the
transfer of the case to counsel to obtain an examination under oath (EUO) from
Newton. Defense counsel contacted Newton on October 26 requesting certain
documentation and scheduling an EUO for November 10. After Newton
retained counsel, he requested an adjournment of the EUO in order to meet with
counsel and gather documents. The EUO was rescheduled to December 21.
At the request of plaintiffs' counsel, the EUO was again rescheduled—to
February 2, 2017. Although the parties appeared on February 2, there was a
miscommunication with the court reporter requiring a new date to be set—now
February 17.
Plaintiffs' counsel later adjourned the February 17 EUO and all parties
agreed upon March 27 for the proceeding. Although the EUO took place on that
A-0365-20
4
date, it was not completed. On March 31, defendants reiterated, in writing, their
requests for documents made during the March 27 EUO, including tax records,
invoices, and involved parties' contact information.
On April 4, 2017, East Rutherford police received an anonymous tip
advising that the missing excavator was located in Lake Ariel, Pennsylvania.
After the Pennsylvania state police later found the excavator at the location, they
notified the East Rutherford police who informed plaintiffs of the discovery.
Plaintiffs requested defendants pay for the transportation costs to return
the machine to New Jersey. Defense counsel responded that transportation costs
were not covered under the policy.
On April 24, 2017, defendants denied plaintiffs' claim for the loss of the
excavator and the request for transportation and recovery costs. Defendants
denied the claim for the loss of the excavator because the "policy excludes
coverage for the unexplained disappearance of property." As to the denial of
recovery costs, defendants stated, "The 'Recovered Property' section of the
policy . . . concerns the recovery of property after the company had already made
payment. Since the Company has not made any loss payments, . . . you are not
entitled to recovery expenses."
Plaintiffs instituted suit, alleging defendants had breached the parties'
contract to provide coverage for the loss and recovery of the excavator.
A-0365-20
5
Plaintiffs also alleged defendants acted in bad faith in delaying and denying the
claim. Plaintiffs sought damages under a bad faith claim for their loss of
business revenue during the period of time the excavator was missing.
Defendants moved for partial summary judgment on the bad faith claims,
stating there was no longer a valid insurance claim because the excavator was
recovered. And the recovery costs were denied because they were not covered
under the policy. Plaintiffs opposed the motion, contending defendants denied
the claim before the investigation was complete. Plaintiffs also asserted the
motion was premature because discovery was not yet complete.
In a detailed oral decision, the judge granted defendants' motion for partial
summary judgment on the bad faith claims. The court discussed the timeline
and actions taken by defendants during the seven months between the report of
the loss and the excavator's recovery. This included the adjuster's multiple
requests for documents, the adjuster's contact with police and the attorney who
executed the excavator's bill of sale, and the delay in obtaining Newton's EUO.
The judge also noted plaintiffs' argument that defendants did not obtain certain
documents, such as Pennsylvania state police reports and police officer
depositions, prior to the denial of the claim; however, those documents did not
A-0365-20
6
exist until after the excavator was found. 2 Defendants' investigation concluded
upon the recovery of the excavator.
In reviewing defendants' reasons for the denial of coverage, the court also
noted the provision in the policy stating, "[I]f either you or we recover any
property after a loss settlement, that party must give the other prompt notice [.]
[At] your option . . . [the] property will be returned to you. You must, then,
return the amount we paid to you for the property." The court granted
defendants partial summary judgment on the bad faith claims and
extracontractual damages on March 13, 2020.
Shortly thereafter, defendants moved for summary judgment on the
remaining breach of contract claims. Plaintiffs cross-moved for reconsideration
of the court's March 13, 2020 order. Plaintiffs served an expert report with the
cross-motion in which the expert opined on defendants' bad faith actions.
After extensive oral argument on the motions, the court stated it was
unable to determine whether the expert report was net opinion. The court noted
that, despite the issuance of a twenty-eight-page report, the expert had not
2
The reports prepared by Pennsylvania and New York state police in late 2017
and 2018 indicate investigators suspected Joseph Cutruzzula, Jr. as having sold
the excavator in September 2016. The reports do not indicate Cutruzzula was
charged with any crime. The reports were not provided to defendants until
November 2018.
A-0365-20
7
specifically articulated the applicable standard of care and whether defendants
deviated from it in handling the claim. The court told the parties to take the
expert's deposition to flesh out the expert's opinions. Although initially the court
stated it would deny the motion for reconsideration, the parties requested the
court to hold any decision on the motion pending the deposition and
supplemental briefing.
After the completion of the expert's deposition, the parties again convened
for oral argument. Plaintiffs contended their expert opined that defendants acted
in bad faith because they should have paid Newton for the loss immediately after
receiving the police report and the initial recorded statement. Defendants
asserted in response that the policy required Newton to cooperate and provide
an EUO. The EUO had not been completed when the excavator was recovered.
And once the excavator was recovered, there was no longer a need for further
investigation. Finally, defendants emphasized that the expert agreed that it was
clear under the policy there would be no payment for recovery costs if a payment
for a loss was not made prior to the recovery of the property.
Defendants further advised the court that the expert never referenced the
seminal New Jersey case on bad faith—Pickett v. Lloyd's 3—and did not analyze
3
131 N.J. 457 (1993).
A-0365-20
8
these circumstances in light of Pickett. Therefore, defendants contended the
expert report was net opinion.
In a comprehensive written opinion and accompanying order dated August
28, 2020, the motion judge denied plaintiffs' motion for reconsideration and
granted defendants summary judgment on the remaining claims. In her decision,
the judge established a timeline of the actions and inactions taken by plaintiffs
and defendants regarding the excavator. The court then evaluated the validity
of plaintiffs' bad faith claims against the principles espoused in Pickett.
The judge also noted that Pickett required she only consider the actions
taken by defendants based upon the information available to them during the
applicable timeframe—September 12, 2016 through April 24, 2017. Plaintiffs'
expert's opinion relied on several individuals' deposition testimony conducted
"years after the excavator was recovered and the claims for recovery costs were
denied." The court stated that any new information revealed in those depositions
was not relevant to defendants' state of mind during the applicable time period.
The court went through the expert's opinions. Initially, the court noted
that the expert's opinion that defendants should have known Joseph Cutruzzula
was responsible for stealing the excavator was net opinion because he was never
charged with any crime and no investigative authority ever made that
determination.
A-0365-20
9
Plaintiffs contended it was standard practice in the insurance industry to
pay a claim of stolen property even if there were doubts as to the viability of the
claim. However, their expert did not support that proposition. Instead, he
proffered options defendants had regarding the handling of the claim.
Moreover, the court stated, the expert did not analyze the circumstances
under the bad faith standard set forth in Pickett. To the contrary, the expert was
not familiar with Pickett or its holding. Therefore, the court concluded the
report was inadmissible net opinion and it denied plaintiffs' motion for
reconsideration.
In addressing and granting defendants' motion for summary judgment on
the breach of contract claim, the court found the language of the insurance policy
was clear. An insured was only entitled to reimbursement of recovery costs if a
loss settlement was made. Here, defendants did not settle the claim with
plaintiffs prior to the recovery of the excavator. Therefore, they were not
entitled to recovery costs.
On appeal, plaintiffs contend the court erred in granting summary
judgment because discovery was ongoing and genuine issues of material fact
existed regarding the bad faith claims.
Our review of a trial court's grant or denial of a motion for summary
judgment is de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).
A-0365-20
10
We apply the same standard as the motion judge and consider "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." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See Rozenblit v. Lyles,
245 N.J. 105, 121 (2021).
We reject plaintiffs' contention that the grant of summary judgment was
premature. The discovery end date was September 30, 2020. The court denied
the motion for reconsideration of its order for summary judgment on the bad
faith claims and granted summary judgment on the remaining claims on August
28, 2020.
A motion for summary judgment is "not premature merely because
discovery has not been completed," Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,
555 (2012), but a plaintiff must "demonstrate with some degree of particularity
the likelihood that further discovery will supply the missing elements of the
cause of action." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496
(App. Div. 2003) (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div.
1977)). Plaintiffs did not satisfy that burden.
In her March 13, 2020 decision, the judge found that additional discovery
would not change the facts that (1) defendants investigated the circumstances of
A-0365-20
11
the missing excavator; (2) the excavator was found prior to the creation of most
of the documents and testimony that plaintiffs relied on; and (3) the recovery
costs claim was denied based on unambiguous policy provisions that "had
nothing to do with whether the vehicle was stolen as opposed to it disappearing."
We are satisfied that the grant of summary judgment was not premature.
To establish an insurer acted in bad faith in denying or delaying an insured's
first party claim, the plaintiff must show that "no debatable reasons existed for
denial of the benefits." Badiali, 220 N.J. at 554 (quoting Pickett, 131 N.J. at
473). Simple negligence is not enough for a finding of bad faith. Pickett, 131 N.J. at 481. There were sufficient facts for defendants to make their coverage
decision. In analyzing an application for summary judgment on a bad faith
claim, a court considers only what information defendants knew or was available
to them at the time of the investigation. All of the discovery plaintiffs proffer
they still needed was created after the recovery of the excavator. It was not error
for the court to consider the summary judgment motion.
We are also satisfied there was no error in granting summary judgment on
the bad faith claim. The trial court thoroughly outlined defendants' actions taken
throughout the seven months of the investigation. Much of the delay in the
investigation arose from plaintiffs' failure to timely cooperate with defendants
and their adjuster. Newton failed to provide requested documents on several
A-0365-20
12
occasions. He was unable to provide proof that the excavator was fully paid and
could not remember if he paid the balance due with a check. The EUO was
delayed for four months primarily due to adjournments by plaintiffs' counsel.
The EUO was not completed and there were outstanding requests for documents
when the excavator was found. It is well-established that an insurer has the right
to investigate whether a claim is covered under the applicable policy. Griggs v.
Bertram, 88 N.J. 347, 357 (1982).
In addition, plaintiffs were accorded the opportunity to bolster their expert
report with deposition testimony to support their allegations of bad faith. But
the expert report and subsequent deposition contained nothing but net opinions.
The expert's conclusions were not based upon the information available to
defendants during the period of investigation, and the expert was unaware of
and did not refer to the bad faith standard enunciated in Pickett. The expert also
failed to state the applicable standard of care. His opinion, providing options
defendants could have taken regarding the claim, is not equivalent to opining
what the standard of practice is in the industry regarding a payment of a theft
claim.
A-0365-20
13
Under the presented circumstances, there was a fairly debatable reason for
the delay in handling the claim. Therefore, plaintiffs could not demonstrate any
bad faith on defendants' part in handling and investigating the claim and finally
denying it. There was no error in denying reconsideration.
We also affirm the August 28, 2020 order granting defendants summary
judgment on the breach of contract claims. In construing an insurance policy,
we give its words "their ordinary meaning." Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). Plaintiffs sought their costs of recovery after the excavator
was found. However, under the clear reading of the policy, they were not
entitled to the recovery costs because there was no loss settlement payment.
Here, the excavator was found prior to the payment for its loss.
Affirmed.
A-0365-20
14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
