MANCO et al v. THE CUMBERLAND MUTUAL FIRE INSURANCE COMPANY et al

Filing 58

OPINION. Signed by Judge Joseph H. Rodriguez on 5/7/2020. (tf, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MANCO et al,
v.

Plaintiffs,

THE CUMBERLAND
MUTUAL FIRE INSURANCE
COMPANY et al
Defendants.

:

Hon. Joseph H. Rodriguez

:
:

Civil Action No. 18-5872
OPINION

:
:
:

This matter comes before the Court on Defendant Cumberland Mutual Fire
Insurance’s Motion for Summary Judgment [Dkt. No. 28]. Having considered the
parties’ submissions, the Court decides this matter without oral argument pursuant to
Federal Rule of Civil Procedure 78(b). For the reasons stated below, the Court will deny
Defendant’s Motion for Summary Judgment.
I.

Background

This case concerns insurance coverage for water damage to Mrs. Marian Manco’s
(“Plaintiff”) 1 Sea Isle City property, ensuing from a frozen pipe in December 2017.
Plaintiff maintains a dwelling in Sea Isle City, New Jersey, which she and her late
husband had built in 1970 (the “Property”). [Dkt. No. 33-22 (“Pl. SMF”) at ¶ 1]. The
Property is currently a two story duplex. Plaintiff and her family use the first floor as a
summer home, and rent the second floor. (Id. at ¶ 2). For approximately sixteen (16)
years, Fred Marini (“Mr. Marini”) handled the plumbing needs for Plaintiff’s Property,
including winterization of the dwelling. (Id. at ¶ 3). Mr. Marini is a master plumber and

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The second plaintiff in the case is the Manco Family Trust.
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owner of Marini Plumbing & Heating, LLC, both are Defendants in this matter. (Id. at ¶
19; Compl. at ¶ 5).
Plaintiff’s son, Louis Manco (“Mr. Manco”), and his wife have been assisting
Plaintiff to open and close the Property for about thirteen years. (Pl. SMF ¶ 15). When
Mr. Manco closes the Property in the fall for the winter, he “checks to be sure the circuit
breakers are all on and operating with the exception of the hot water heater for which,
pursuant to his father's instructions, that circuit is turned off; brings in all of the deck
furniture, unhooks the hose at the bottom of the outdoor shower and drains it; places
trash cans in the shower; puts the gas grill in the shed and locks it, unplugs appliances
and removes the food and packs it for home, and unplugs the freezer in the shed and
removes the food from that appliance.” (Id.). “The home has baseboard heating
throughout the house. There are thermostats in every room.” [Dkt. No. 28 (“Def. SMF”)
at ¶ 21]. As in previous years, Mr. Manco helped Plaintiff to close the Property on or
about October 1, 2017. (Pl. SMF ¶ 18). When closing the Property that day, Mr. Manco
set all thermostats to the “low” setting. “Low” is less than 40 degrees Fahrenheit, but is
not marked with a number. (Def. SMF ¶¶ 21-22). There is no on/off switch on the
Property’s thermostats. (Id. at ¶ 22).
“Mr. Marini estimates that he has been winterizing the Manco property in Sea
Isle City since at least 2007.” (Pl. SMF ¶ 25). Mr. Marini testified that he required two
weeks’ notice when requiring seasonal water turn on and winterization; some of
Plaintiff’s invoices reflected the same. (Id. at ¶ 35). To request winterization, a customer
has to call him and leave a message on his land line. Customers could leave messages
with his message service, Big Messages, which he “personally checks . . . and, depending
on the time of year, checks . . . either every couple of hours (like in September when his
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first deposition took place) and at busy times . . . hourly.” (Id. at ¶ 23). When Mr. Marini
checks his messages, he records them into a log reflecting the date of the call and then
puts the winterization on the schedule. (Id. at ¶ 37). Clients normally call Mr. Marini
just once to request winterization, but some customers call twice to confirm the
winterization is completed. (Id. at ¶ 32).
According to Mr. Marini, “‘winterize’ meant to turn the water off at the street,
enter the client's house, drain all the water pipes, water heater and toilets, put antifreeze
in toilets and drains, dishwasher and washing machine, get all the water out and for
what water he cannot remove he adds antifreeze.” (Id. at ¶ 27). Plaintiff called Mr.
Marini’s phone on November 27, 2017 and left a message requesting winterization of the
Property. (Id. at ¶ 7). Mr. Marini received this message later the same day. (Id. at ¶ 9).
Plaintiff also placed two follow-up calls to Mr. Marini “to be sure that he got her prior
messages to winterize.” (Id. at ¶ 11).
Ultimately, Mr. Marini did not winterize Plaintiff’s Property in 2017. (Id. at ¶ 39).
On December 18, 2017, Mr. Marini was notified that water was coming from Plaintiff’s
Property, he subsequently advised Plaintiff that a pipe froze and created water damage.
(Id. at ¶ 42). The Cumberland Mutual Fire Insurance Company (“Cumberland” or
“Defendant”) insured Plaintiff’s Property. (Compl. ¶ 4). Plaintiff notified Cumberland
about the loss and damage to its Property. (Id. at ¶ 13). Soon thereafter, Cumberland
denied Plaintiff’s Property loss claim by letter dated January 2, 2018. [Dkt. No. 28-1 at
Ex. D]. “The denial letter indicated that ‘the cause of the damage was freeze in a
plumbing supply line causing a failure in the line, which resulted in leakage of water.
Heat was turned off in the building at the time of the incident. Additionally, the

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plumbing system was not winterized.” (Def. SMF at ¶ 17). Cumberland denied coverage
pursuant to the freeze-up policy exclusion. (Id.).
Plaintiff filed a Complaint with this Court on April 10, 2018 asserting a claim
against Cumberland for Breach of the Insurance Policy (Count I) and against Mr. Marini
for Negligence (Count Two). [Dkt. No. 1]. During this litigation, Cumberland retained
engineering consultant, Terrence J. Fearon (“Mr. Fearon”) from Affiliated Engineering
Laboratories “to determine the ambient temperature of the subject thermostat when set
to the ‘low’ setting”. (Id. at ¶ 25). In an effort to do so, Affiliated Engineering
Laboratories inspected a potable water supply pipe at Plaintiff’s Property that had failed.
Defendant’s experts later “removed and took custody of a remote thermostat . . . for
additional testing.” [Dkt. No. 28-1, Ex. G]. “The subject thermostat was recovered from a
2nd floor bathroom, which was located directly below the failed potable water supply
pipe.” (Id.). On April 18, 2019, Mr. Fearon conducted laboratory testing of that
thermostat at Affiliated Engineering Laboratories’ facility. (Id.). “The purpose of the
April 18th laboratory test was to determine the required ambient temperature that
would cause the subject thermostat to call for heat when it was set to the ‘LOW’ dial
setting.” (Id.). “[Mr.] Fearon concluded that if the subject thermostat was set to ‘low,’
then it would not maintain an ambient temperature above freezing in the space that it
was serving.” (Def. SMF at ¶ 31).
Plaintiff also retained an expert, William H. Green III, P.E. Mr. Green prepared
two reports, an initial report and a rebuttal report of Defendant’s Expert. [Dkt. Nos. 3319, Ex. R; 33-20, Ex. S]. Plaintiff engaged Mr. Green to investigate the water damage to
the Property at issue. He was asked to “inspect the premises and review records listed to
determine whether and when freezing conditions caused the plumbing discharge
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discovered December 18, 2017.” [Dkt. Nos. 33-19, Ex. R]. Mr. Green concluded, based
on weather data, that the “day of most likely freezing failure was December 15, 2017.”
(Id.). Mr. Green also reviewed Mr. Fearon’s report, in addition to two reports from P.E.’s
affiliated with National Forensic Consultants. Mr. Green subsequently executed a
rebuttal report in which he finds support that the electricity in Plaintiff’s Property was
on in December 2017 and notes that “none of the plumbing froze and failed anywhere in
the second floor unit including the bathroom or in the kitchen nor were there any
failures due to freezing of plumbing in the first floor unit. The failure was in the attic
above the second floor.” [Dkt. Nos. 33-20, Ex. S].
Defendant Cumberland now moves for summary judgment as to Count One [Dkt.
No. 28], and the motion has been fully briefed. As discussed herein, the Court will deny
the motion because a reasonable jury could find that Plaintiff exercised necessary and
ongoing care to maintain heat in her property.
II.

Summary Judgment Standard of Review

A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the nonmoving party,
the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech.
Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment
only when “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56 (c).

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An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether a
genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256–57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
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III.

Analysis

Defendant Cumberland argues that Plaintiff is barred from coverage under her
Cumberland insurance policy for failure to maintain adequate heat in her property.
[Dkt. No. 28]. In response, Plaintiff contends that she exercised necessary and ongoing
care to maintain adequate heat in the dwelling, and to drain the water from the
plumbing and appliances and shut off the water to the property. [Dkt. No. 33]. Mr.
Marini and Defendant Marini Plumbing and Heating agree with Plaintiff and submit
that Defendant Cumberland’s Motion for Summary Judgment should be denied because
there exists a genuine issue of fact as to whether Plaintiff and her son complied with
Cumberland’s policy provisions. [Dkt. No. 34].
Under New Jersey law, insurance contracts are subject to special rules of
interpretation because they are contracts of adhesion. Zacarias v. Allstate Ins. Co., 775
A.2d 1262, 1264 (N.J. 2001) (citations omitted). “If the policy language is clear, the
policy should be interpreted as written, [but][i]f the policy is ambiguous, the policy will
be construed in favor of the insured.” Colliers Lanard & Axilbund v. Lloyds of London,
458 F.3d 231, 236 (3d Cir. 2006) (quoting Nav–Its, Inc. v. Selective Ins. Co. of Am., 869
A.2d 929, 933 (N.J. 2005). When there is ambiguity, the insurance policy should be
interpreted to “comport with the reasonable expectations of the insured, even if a close
reading of the written text reveals a contrary meaning.” Zacarias, 775 A.2d at 126.
New Jersey courts have held that insurance policy exclusions must be narrowly
construed and that the burden is on the insurer to bring the case within the exclusion.
Am. Motorists Ins. Co. v. L-C-A Sales Co., 713 A.2d 1007, 1013 (1998) (citation omitted).
“Nevertheless, [New Jersey courts] adhere to the principle that an insurance policy

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should generally be interpreted ‘according to its plain and ordinary meaning,’ so as not
to disregard the ‘clear import and intent’ of a policy exclusion.” Id. (citations omitted).
Plaintiff’s insurance policy at issue, incorporates the following “Freezing of
Appliances or other Equipment Exclusion” for:
Leakage or overflow from air conditioning, heating, plumbing, or other
appliances or equipment, or damage to such appliances or equipment
caused by freezing that occurs while the building or any living unit within
the building is unoccupied, vacant, or under construction. To the extent that
coverage is provided by the applicable coverage form, this exclusion is
waived if necessary and ongoing care is exercised to maintain adequate heat
in the building or any living unit within the building, or such appliances or
equipment are drained and the water supply shut off.
[Dkt. No. 28, Ex. C at Sec. I D(4) (emphasis added)].
The undisputed record provides that Mrs. Manco’s property experienced water
damage in December 2017 after a pipe froze and split open. Defendant Cumberland
denied coverage of the Property’s resulting damage due to the freeze-up policy
exclusion. [Dkt. No. 28, Ex. D]. Defendant argues that the denial was proper, and
summary judgment in this case is warranted because Plaintiff thought that the
Property’s heat was turned off, and thus, failed to properly maintain heat. [Dkt. No. 28
at p. 19].
At the outset, Plaintiff argues that the Policy exclusion is waived when Plaintiff
does what is “required to be done” to prevent the freezing of her plumbing. [Dkt. No. 33
at 19]. She submits that the word “ongoing,” used “in the context of Cumberland's
policy, . . . is ambiguous.” (Id.). In particular, Plaintiff contends that “ongoing care”
paired with the word “exercised,” like here, renders the question “whether Mrs. Manco
used ongoing care to maintain heat or winterize the dwelling.” (Id. at 20 (emphasis in
original)). Defendant, however, argues that “[a]n insured MUST maintain adequate heat
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in the home or have the home winterized, period;” and Plaintiff’s intent to winterize her
Property is therefore, insufficient. [Dkt. No. 37 at p. 6-7].
“A genuine ambiguity arises only ‘where the phrasing of the policy is so confusing
that the average policyholder cannot make out the boundaries of coverage.” Dooley v.
Scottsdale Ins. Co., No. CIV.A. 12-1838, 2015 WL 685811, at *6 (D.N.J. Feb. 18, 2015)
(quoting Weedo v. Stone–E–Brick, Inc., 81 N.J. 233, 247, 405 A.2d 788 (1979)). Here,
the relevant language of the freezing exclusion is not ambiguous. To maintain heat, is to
“to keep in an existing state”—a task that can be “ongoing.” 2 To maintain adequate
heat in regard to an “exclusionary provision related to ‘freezing’” means ensuring
“the temperature in h[er] home remained above freezing.” Dooley v. Scottsdale Ins. Co.,
No. CIV.A. 12-1838, 2015 WL 685811, at *6 (D.N.J. Feb. 18, 2015). Drained, however, is
past tense, and shut off, used in this context, also indicates past tense. Accordingly, the
intent of providing waiver where “appliances or equipment are drained and the water
supply shut off,” is to have the insurer complete winterization. Additionally, the policy
language would be unworkable as written to find waiver where: “necessary and ongoing
care is exercised to . . . such appliances or equipment are drained and the water
supply shut off.”
Therefore, according to the plain terms of the agreement, the exclusion will not
preclude coverage when (1) the insured exercised continuing care required to maintain
adequate heat in the building or any living unit within the building; or (2) the insured
winterized the property subject to the policy. As such, “ongoing” efforts to winterize the
property are insufficient to trigger the exception to the policy’s exclusion. It follows that

See “Maintain.” Merriam-Webster.com, MERRIAM WEBSTER (last visited May 5, 2020),
https://www.merriam-webster.com/dictionary/maintain?src=search-dict-hed
2

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the issue before the Court is whether a genuine dispute of fact remains as to whether the
amount of heat in the Property was adequate for the building or any living unit within it.
The Court finds that such a genuine factual dispute exists.
Here, Defendant Cumberland submits that Mrs. Manco “admits” that she failed
to properly maintain heat. Mrs. Manco’s testimony provides that she did not “use” heat
while she occupied the Sea Isle dwelling. (Pl. Dep. 50:19-21). The parties agree that Mrs.
Manco only utilized the Property in the summer months, during which she would not
need heat. Plaintiff also testified that she thought her heat was turned off when she left
for the season in October 2017. (Id. at 51). However, for thirteen (13) years, Mrs.
Manco’s son assisted his mother in closing the property for the season every fall. (Pl.
SMF ¶ 16). Although Plaintiff thinks that her son would turn off electricity, he testified
that he “absolutely” never turned off the circuit breaker in all the years he was assisting
in the closing of the property. (Louis Manco Dep. 18:7-11). “Unless and until the
electrical source to the home is turned off the thermostats are on and set on low as there
is no ‘off’ setting.” (Pl. SMF ¶ 17). In October 2017, Mr. Manco and his wife “checked all
the thermostats, make sure they are on low, both floors.” (Id. at 36:18-25). In fact,
Defendant ultimately does not dispute that the thermostats in Plaintiff’s seasonal
dwelling were set to “low” when Mr. Manco closed the Property with Plaintiff in October
2017. (Def. Resp. SMF ¶¶ 16, 17).
In that regard, Defendant Cumberland contends that even if the heat was “on,”
Plaintiff fails to show adequate heat was maintained because according to its expert, Mr.
Fearon, if the subject thermostat was set to low “it would not maintain an ambient
temperature above freezing in the space that it was serving.” [Dkt. No. 28-1, Ex. H]. Mr.
Fearon reached this conclusion after he conducted a controlled experiment with one of
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Plaintiff’s thermostats, taken from her Property. (Id.) The experiment involved putting
the thermostat on the “low” setting and placing it into a temperature chamber. (Id.).
According to the Report, “temperature inside the chamber was then lowered until the
digital multimeter indicated that the thermostat's electrical contacts had closed. The
temperature at closing time was recorded from the sensors positioned on either side of
the thermostat and then the temperature in the chamber was raised until the electrical
contacts opened.” (Id.). During the experiment, the heat was triggered on when the
temperature in the chamber reached between 1.0 degree and 7.1 degrees Fahrenheit.
(See Id. at Laboratory Test Result’s Chart).
Plaintiff disputes Defendant’s expert findings and denies that the “testing was
valid or reliable.” [Dkt. No. 33-21]. Plaintiff’s own expert makes a number of
“preliminary remarks” about the test on Plaintiff’s thermostat. [Dkt. No. 33-20, Ex. S].
First, there is no indication whether Mr. Fearon tested the thermostat at other, higher,
settings to ensure the thermostat was functioning as manufactured. (Id. at 1-2). Second,
the test took place with only one of the thermostats in the second floor unit, and was
conducted approximately 16 months after the loss. (Id. at 2). Plaintiff has thermostats in
every room of the house. Moreover, upon review of electric utility bills and records from
Atlantic City Electric, Mr. Green found that the electricity in the Property was on in
December 2017 and “would be adequate to maintain a temperature above freezing in the
unit.” (Id. at 4).
Importantly, the policy exclusion is waived if necessary and ongoing care is
exercised to maintain adequate heat in the building or any living unit within the
building. [Dkt. No. 28-1, Ex. D]. Plaintiff’s expert reported that “none of the plumbing
froze and failed anywhere in the second floor unit including the bathroom or in the
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kitchen nor were there any failures due to freezing of plumbing in the first floor unit.
The failure was in the attic above the second floor.” [Dkt. Nos. 33-20, Ex. S (emphasis
added). The attic “was not in the heating zone of the house.” (Id. at 1).
Viewing these facts in the light most favorable to Plaintiff, the record
demonstrates a genuine dispute as to the adequacy of the heat maintained in the
Property’s living units in December 2017. The evidence in the record provides that the
electricity in Plaintiff’s dwelling was on, that all thermostats were on, and that those
thermostats were set to “low.” To be sure, there is no number associated with the “low”
setting on Plaintiff’s thermostat, rather the low setting was “less than 40.” (Louis Manco
Dep. at 22:9-13). While Defendant’s engineer concludes such a setting is insufficient to
sustain above freezing temperatures, Plaintiff directly disputes such finding. She
supports her position that she did what was necessary to maintain above freezing
temperatures with her own expert report. “[O]ur jurisprudence does not require the
summary judgment opponent to match, item for item, each piece of evidence proffered
by the movant, but rather he or she must only exceed the 'mere
scintilla' standard.” Rossi v. Standard Roofing, Inc., 156 F.3d 452 , 466 (3d Cir. 1998)
(citations and some quotations omitted).
Making all inferences in favor of Plaintiff, a reasonable jury could find that in
keeping to her usual routine, which did not cause pipes in either of the living units to
freeze, Plaintiff demonstrates necessary and ongoing care to maintain adequate heat in
the building. Accordingly, Plaintiff has sufficiently established a genuine factual dispute
over coverage of her insurance claim to Defendant. Therefore, the Court will deny
Defendant’s Motion for Summary Judgment.

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IV.

Conclusion

For the forgoing reasons, the Court will deny Defendant’s Motion for Summary
Judgment [Dkt. No. 28].
An appropriate order shall issue.
Dated: May 7, 2020

/s/ Joseph H. Rodriguez________
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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