BALIN v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

Filing 38

MEMORANDUM ORDER denying 32 Motion for Summary Judgment. Signed by Judge Renee Marie Bumb on 1/31/2017. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

GREGG S. BALIN,
Plaintiff,
Civil No. 14-5001 (RMB/AMD)
v.
MEMORANDUM ORDER

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant.

The instant matter arises out of a claim for damages
following Superstorm Sandy.

Defendant, New Jersey Re-Insurance

Company (“Defendant” or “NJRIC”), improperly named New Jersey
Manufacturers Insurance Company in the Complaint, is a WriteYour-Own Program carrier participating in the United States
Government’s National Flood Insurance Program (“NFIP”).
Plaintiff, Gregg Balin, is the holder of a Standard Flood
Insurance Policy (“SFIP”) Dwelling Form issued by NJRIC bearing
policy number 00N0223685, for the property located at 1200
Pleasure Ave, Ocean City, NJ 08226 (“Property”).

The relevant

policy period for Plaintiff’s SFIP was December 5, 2011 to
December 5, 2012, and the coverage limit for the property was
$250,000 for Coverage A (building) and $100,000 for Coverage B
(contents) both subject to a $1,000.
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On October 29, 2012, the Property sustained damage caused
by flooding and wind associated with Superstorm Sandy.
Following Sandy, Plaintiff made a claim under both his wind
policy and flood policy.

Upon receipt of the Plaintiff’s flood

loss claim, NJRIC assigned Plaintiff’s flood loss claim to
Advanced Adjusting Ltd who in turn arranged for Andy Gaillard,
an independent adjuster, to assist the Plaintiff in his flood
loss claim.

Mr. Gaillard inspected the property and determined

there to have been a general condition of flooding, with
resulting damages.
NJRIC moves pursuant to Fed. R. Civ. Proc. Rule 56(e) for
summary judgment as to all claims asserted against it.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

When deciding the

existence of a genuine dispute of material fact, a court’s role
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is not to weigh the evidence: all reasonable “inferences,
doubts, and issues of credibility should be resolved against the
moving party.”

Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307

n.2 (3d Cir. 1983).
The following facts are in dispute.

Defendant avers that

Plaintiff failed to submit the mandatory pre-suit, signed and
sworn Proof of Loss.

In support, Defendant submits the

Affidavit of Melanie Neal, as the custodian of records for
NJIRC, who states that she can find no record of a Proof of
Loss.

[Docket No. 36].
Plaintiff, however, avers that he submitted the Proof of

Loss to a fax number that was provided to him by a
representative of Defendant.
three affidavits.

In support, Plaintiff submits

First, he submits the Certification of Sonia

Bequer, an employee of Paramount Public Adjusters LLC
(“Paramount”), Plaintiff’s public adjusting firm.

Ms. Bequer

certifies:
On April 28, 2014, I caused the Proof of Loss signed
by the insured, Gregg Balin, to be faxed to a number
supplied by the insurance company. I always call the
insurance company to verify the number before sending.
Docket No. 35-4.

Defendant takes issue with Ms. Bequer’s

Certification, contending that it lacks specifics and
substantiation.

A fair inference, however, is that Ms. Bequer
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spoke with a representative of NJRIC, not an unrelated entity.
As such, Defendant’s opposition goes to the weight of the
evidence, not its admissibility.
Plaintiff also submits a Certification of Steven Baglivo, a
former principal of Paramount.

Mr. Baglivo certifies that a

Proof of Loss was faxed to the Defendant from Ms. Bequer from
the Miami office of Paramount.

Although Defendant attacks the

reliability of such statement because it conflicts with his
earlier deposition testimony, Mr. Baglivo provides a sufficient
explanation for his prior testimony that does not appear to be
done in bad faith.
here).

(Indeed, Defendant has not argued bad faith

Again, Defendant’s argument goes to the weight of the

evidence.
Finally, Plaintiff submits a certification from a private
investigator who states that the fax number given by Bequer and
Baglivo is, in fact, a fax number.

This is of limited

evidentiary value, as Defendant argues, but nonetheless
corroborates Plaintiff’s version of the facts.
In the end, there is a genuine issue of material as to
whether Plaintiff submitted and Defendant received the Proof of
Loss.

Accordingly, Defendant’s Motion for Summary Judgment is

DENIED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
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_____

UNITED STATES DISTRICT JUDGE
Dated: January 31, 2017

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