AMERICAN FIRE AND CASUALTY COMPANY V. CRUM & FORSTER SPECIALTY INSURANCE COMPANY

Filing 39

OPINION. Signed by Judge John Michael Vazquez on 4/12/17. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication

AMERICAN
COMPANY,

FIRE

AND

CASUALTY

Civil Action No. 2:14-cv-04696

Plaintff
v.

OPINION
CRUM
&
FORSTER
INSURANCE COMPANY,

SPECIALTY

Defendant.

John Michael Vazguez, U.S.D.J.
The present matter comes before the Court on two motions: (1) Plaintiff American Fire and
Casualty Company’s (“American Fire” or “Plaintiff’) motion for summary judgment; and (2)
Defendant Cairn & Forster Specialty Insurance Company’s (“Defendant” or “Cairn & “Forster”)
motion for summary judgment, both pursuant to federal Rule of Civil Procedure 56.1 Plaintiff
also seeks fees and costs. At different times, both parties provided insurance coverage for Elite
Construction Company (“Elite”). Plaintiff contends that Defendant is responsible for a portion of
Elite’s defense and settlement costs stemming from an underlying suit. Defendant takes a contrary

Plaintiffs brief in support of its motion for summary judgment will be referred to hereinafter as
“P1. Br.” (D.E. 30); Defendant’s opposition to Plaintiffs motion will be referred to hereinafter as
“Def. Opp’n” (D.E. 36); and Plaintiffs reply brief will be referred to “P1. R.Br.” (D.E. 37).
Defendant’s brief in support of its motion for summary judgment will be referred to
hereinafter as “Def. Br.” (D.E. 29-1); Plaintiffs opposition to Defendant’s motion will be referred
to as “P1. Opp’n” (D.E. 35); and Defendant’s reply brief will be referred to as “Def. R.Br.” (D.E.
3$).

view. This motion was decided without oral argument pursuant to Federal Rule of Civil Procedure
7$ and Local Civil Rule 78.1. The Court has considered the parties’ submissions, and for the
reasons stated below, the Court denies both Plaintiff and Defendant’s motions for summary
judgment as well as Plaintiffs motion for fees and costs.
I.

BACKGROUND

This case sterns from an underlying action brought by K. Hovnanian Construction
Management, Inc. (“Hovnanian”) in Pennsylvania state court.2 Hovnanian sought damages from
several defendants,3 including Elite, for construction defects at the Four Seasons at Hershey’s Mill
—

Yardley Village (“the Project”) located in West Chester, Pennsylvania. See Declaration of

Denise DePekary (“DePekary Deci.”) (D.E. 29-3) Ex. A ¶J 170-73. Hovnanian, the builder, hired
Elite as a window subcontractor, and Elite agreed to perfonn “framing work and installation of
windows, flashing and waterproofing.” Id.

¶J 170-71. Hovnanian alleged that Elite improperly

installed windows in 138 homes in the Project, resulting in water damage to the homes’ interiors.
Id. ¶j 170-75. In failing to properly seal and flash the windows it installed, Hovnanian alleged

that Elite breached their agreement. Id.

¶ 172-73. As a result, Hovnanian claimed it was required

to “perform, at great expense, significant and substantial repair work to the homes

.

.

.

to correct

2

The underlying matter was filed in Chester County’s Court of Common Pleas and was entitled,
K. Hovnanian Construction Management, Inc. et al. v. Pennoni Asoc, et al., Civil Action No. 0910654.
The other defendants in the underlying action were: Pennoni Associates (project engineer), Lyons
& Hohl, Inc. (project site contractor), B&M Landscaping Co., Inc. (project landscaping company),
(“Stone Works”)
Stone Works
Environmental
Materials d/b/a Environmental
(manufacturer/installer of stone veneer), A- 1 Bracket, Inc. (“A-i Bracket”) (installer of stucco
exterior facade), J.M. Pereria & Sons, Inc. (concrete and masonry foundation contractor), and
Metal Tech Roofing and Siding (roofing contractor). DePekary Decl. Ex. A ¶J 3-1 1; Ex. 0, at 3.
The Falcon report found that three parties were responsible for the stone, caulking and flashing
issues with the windows that resulted in water damage: Elite, A- 1 Bracket, and Stone Works.
DePekary Decl. Ex. 0, at 13.
2

the damages caused by Elite.” Id.

¶ 174.

American Fire defended Elite in the underlying lawsuit.

DePekary Decl. Ex. K ¶ 1$; see also Plaintiffs Statement of Material Facts (“PSOMF”) (D.E. 30)

¶

13. In this matter, American Fire seeks a declaration that Crum & Forster owes defense and

indemnification costs to Elite and requests contribution from Crum & F orster for its purported
share of the defense and indemnity expenses in the underlying action.
Elite performed construction work for Hovnanian on the Project, which was substantially
completed in June of 2001. PSOMF ¶ 7. American Fire issued an insurance policy to Elite which
covered the period from June 1, 2001 (the date the work was completed at the project) to June 1,
2003. Id. Crum & forster also issued a general commercial liability insurance policy to Elite for
two policy periods: from June 1, 2003 through June 1, 2004 and then from June 1, 2004 through
June 1,2005. DePekaryDecl. Ex. B. Harleysville Insurance Company issue apolicyto Elite after
the Crurn & Forster’s policies. P$OMF

¶ 9.

American Fire and Harleysville provided defense to

Elite in the underlying case and also contributed to a settlement. Id.

¶ 13.

The critical issue in this case turns on when water damage, caused by Elite’s allegedly
faulty workmanship, “manifested” at the Project.

Unit-owners at the Project provided

documentation of water infiltration in their residences. See DePekary Decl. Ex. G. These notes
date from 2001 through 2007, and some include notation of specific leaks in or around the
windows installed by Elite. See, e.g., DePekary Dccl. Ex. G, at 12 (note from unit-owners Joseph
and Linda Feronni stating that their unit has water intrusion “around [their] Master Bedroom
window and the single casement window in [their] lower level”); Id. at 10 (letter from unit owner

Many of the notes in the latter part of this time frame refer back to prior notes and service tickets
that occurred soon after the unit-owners moved into their homes. See Def. Opp’n at 2-17. The
unit-owners moved into their homes sometime between 2000 and 2002. See Defendant’s
Statement of Material Facts (“DSOMF”) (D.E. 29-20) ¶ 27.
3

Meg McCaim stating that the leakage problem was “due to the stucco not applied properly around
the bedroom windows”). As would be expected from non-experts, the documents do not indicate
the actual cause of the leakage and instead indicate the location of the water. Other notes refer to
more generalized water leakage but fail to indicate its origin. See, e.g., DePekary Deci. Ex. G
(note from unit-owner Janet Day which states that she had noticed a water mark on a family room
ceiling and “suffered from other water intrusion issues”); Id. at 13 (letter from unit owner Harold
Carstensen stating that he “[has] not been able to determine where on the roof the water is initially
entering”).
On January 25, 2008, moisture testing was performed at the Project. See Declaration of
Kyle Heisner (“Heisner Deci.”) (D.E. 35-1) Ex. S, Ex. T. This testing, done by the Falcon Group,
found a lack of sealant where the window trim met the windows and showed deficiencies related
to the ftashings5 and sealant around the windows. Id. Thus, there was evidence of water infiltration
spanning from 2001 through 2008. However, Falcon’s report in 2008 was the first expert opinion
as to its cause.
II. PROCEDURAL HISTORY

Plaintiff initiated the current action on July 28, 2014. D.E. 1.

Defendant answered

Plaintiffs complaint on September 9, 2014, alleging numerous affirmative defenses and a
counterclaim seeking a declaratory judgment “declaring the rights and obligations of the parties
under policies of insurance” issued by each party to this action. D.E. 6. After the close of
discovery, each party moved for summary judgment. D.E. 29, 30. Both parties oppose each
other’s motions. D.E. 35, 36.

The parties do not define the term flashing, and the Court assumes that the parties are referring
to thin material that is installed at necessary locations to prevent water from entering a unit.
4

III. STANDARD OF REVIEW

A moving party is entitled to summary judgment where “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.”
fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence

and decide the truth of the matter, but rather “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
The showing required to establish that there is no genuine issue of material fact depends
on whether the moving party bears the burden of proof at trial. On claims for which the moving
party does not bear the burden of proof, the movant must demonstrate “that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). In contrast, “[w]hen the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact.” In re Bressman, 327 f.3d
229, 23$ (3d Cir. 2003) (quoting United States v. four Parcels ofRealfrop., 941 F.2d 142$, 1438
(11th Cir. 1991)). This affirmative showing requires the moving party to show that “on all the

5

essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” Id.
Once the moving party satisfies its initial burden, the burden shifis to the nonmoving party
to “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex Corp., 477 U.S. at 324 (internal quotation marks omitted). To withstand
a properly supported motion for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. “[I]f
the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the court may
grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d 523, 52$
(D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
IV. DISCUSSION

Both parties agree that under New Jersey Law, the manifestation trigger theory applies to
first-party insurance cases while the continuous trigger theory applies to third-party insurance
cases. P1. Br at 13-15; Def Opp’n at 21. Plaintiff argues that since the underlying matter was a
third-party claim, the continuous trigger theory applies. P1. Br. at 15. Defendant responds that
under either theory, its insurance responsibilities end once the occurrence giving rise to coverage
manifests. Def Opp’n at 2024.6

6

Plaintiff makes two additional arguments: (1) that the damage here falls into Crum & Forster
policy’s requirement for an “occurrence” causing “property damage;” and (2) that Crum & Forster
initially disclaimed liability based on different theories than they now assert. P1. Br. at 10-12.
Defendant responds to Plaintiffs first argument by stating that “the crux of Crum & Forster’s
disclaimer of coverage to Elite is (and has always been) based primarily on the timing requirements
in the relevant Crum & Forster policies.” Def. Opp’n at 1. The Court views this assertion by
Crum & Foster as admitting American Fire’s first point. As to the second issue, “facts outside the
complaint may trigger the duty to defend.” SL Inthts., Inc. v. Am. Motorists Ins. Co., 12$ N.J. 18$,
6

In the insurance context, a “trigger” refers to an event or occurrence that requires coverage
under a policy. Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 447 (1994) (“[T]he term
‘trigger’ is merely a label for the event or events that under the terms of the insurance policy
determines whether a policy must respond to a claim in a given set of circumstances.” (internal
quotations and citation omitted)). Depending on the type of policy, New Jersey courts have found
different types of triggers to apply. A “continuous trigger” results in continual coverage for the
entire time from initial exposure to actual manifestation of the injury or damage. Id. at 450; see
also El-Ad Grp. v. Northbrook Prop. & Cas. Ins. Co., No. 03-0041, 2006 WL 840683$, at *4

(D.N.J. Mar. 15, 2006) (“The continuous trigger theory “holds that a loss occurs for purposes of
coverage continuously from the point in time when the damage actually began to the time when it
became manifest.”). For example, in a case of asbestos inhalation, the continuous trigger theory
results in coverage from the date of the initial exposure through the date the asbestosis manifested.
Owens-Illinois, 13$ N.J. at 450. A “manifest trigger,” by comparison, results in coverage only on

the date that the damage or injury manifests. Id.
The applicable trigger can materially impact the amount of coverage available.

In

particular, under the continuous trigger theory, coverage may be available under multiple policies.
Id. In other words, the continuous trigger captures any applicable insurance policy in effect from

19$ (1992). Thus, “an insurer’s duty is measured by the facts,” not merely what is pled within the
complaint. Id. Here, Defendant, in reviewing Hovnanian’s complaint (and amendments thereto)
in the underlying matter, initially denied coverage based on a different trigger theory and based on
its interpretation of the word “occurrence.” Through later discovery that theory changed, and now
Defendant claims that the damage actually manifested prior to its policy period in 2003. American
fire essentially argues that it was litigating against a moving target and that Crum & foster first
reached a conclusion Elite was not covered and then searched for facts and legal theories to
support its conclusion. However, a party can change its theory of the case in light of additional
information provided in discovery.
—

—

7

the date of first exposure to manifestation. The manifest trigger, on the other hand, only applies
to the policy in effect on the date that the injury or damage manifests. However, under either
theory, the manifestation date is critical because the insured is not entitled to coverage after that
date.
In Winding Hit/s Condominium Association, Inc. v. North American Specialty Insurance
Co., 332 N.J. Super. 85, 93 (App. Div. 2000), the New Jersey Appellate Division determined that

the manifest trigger rule applies in first-party insurance cases while the continuous trigger theory
applies in third-party coverage cases. The parties here do not dispute that this is a third-party
insurance case, because it results from Hovnanian’s suit in the underlying matter, or that the
continuous trigger rule applies. See P1. Br. at 14 & Def. Opp’n at 20-21. Instead, Defendant
simply argues that under either the manifestation or continuous trigger theory, Defendant should
prevail. Def. Opp’n at 20-21. Therefore, the Court will apply the continuous trigger rule.8

The Court notes that this is not a traditional case of first-party or third-party insurance in the
sense that it is one insurance company suing another concerning an entity that both insured during
different periods. However, the issue was not raised by either party. Moreover, the underlying
case was clearly a third-party matter.
8

The policy rational for applying the continuous trigger theory in Winding Hills was based largely
on “considerations of public policy respecting the public health interest in mass exposure toxic tort
[and environmental pollution] cases.” 332 N.J. Super. at 91. The current matter does not involve
either a toxic tort or long-term environmental pollution. It is a construction defect case.
Nonetheless, New Jersey courts, and courts interpreting New Jersey law, distinguish Winding Hills
by the first-party vs. third-party difference rather than the nature of the underlying damage or
injury. See, e.g., PPG Indtts., Inc. v. Am. Home Assur. Co., No. A-2424-05T2, 2007 WL 2350646,
at * 10 (N.J. App. Div. Aug. 20, 2007) (stating that Winding Hills held that “the continuous-trigger
rule applies to third-party claims and does not apply to first-party claims”); Proformance Ins. Co.
V. Riggins, Inc., No. A-2846-O8Tl, 2010 WL 1657385, at *3 (N.J. App. Div. Apr. 27, 2010)
(distinguishing Winding Hi/is because it applied to first-party, not third-party insurance claims);
see a/so Cypress Point Condo Ass ‘n v. Selective Way Ins. Co., No. HUD-L-936-14, 2015 N.J.
Super. Unpub. LEXIS 721 (Law Div. Mar. 30, 2015) (applying the continuous trigger theory to a
third-party property claim involving defective construction at a condominium); cf El-Ad Grp.,
2006 WL $406838, at *4 (“[T]he continuous trigger theory[ is] is typically used in third-party
8

As noted, the date that the damage manifests is necessary in determining the scope of
liability under the continuous trigger theory. Under New Jersey law, the loss is “manifest” when
“the injury becomes reasonably apparent or known to the ctaimant.” El-Ad Grp., 2006 WL
8406838, at *5 In Winding Hills, the court determined the manifestation date to be when the
plaintiff was “adequately apprised.

.

.

of the general scope and causes” of the loss. 332 N.J. Super.

at 89. furthen-nore, “the fact that additional problems of the same type were uncovered at a later
date [did] not affect setting the manifestation date earlier because the plaintiff was aware of the
‘essential difficulties’ at the earlier date.” El-Ad Grp., 2006 WL 840683$, at *5 (citing Winding
Hills Condo. Ass ‘n, 332 N.J. Super. at 90).

Here, the parties dispute the date of manifestation. Compare Def. Br. at 18-19 (alleging
manifestation began prior to June 1, 2003, when the Crum & Forster policy was first issued) with
P1. Opp’n at 11 (stating that “the property damage

.

.

.

did not ‘manifest’ until January 200$”).

Both parties agree that policies in place afler the date of manifestation are not subject to coverage.
See Def. R.Br. at 1; P1. Opp’n at 11. Thus, if the manifestation date is prior to 2003, as Defendant

suggests, then Defendant is not liable under its subsequently issued policies. On the other hand, if
the manifestation date is in 200$, then both Plaintiff and Defendant would be liable for the damage
that occurred within their respective policy periods.
In support of Defendant’s contention, it cites to “ongoing complaints” by unit owners of
water infiltration “coming specifically from the windows

[]

installed by Elite.” Def. R.Br. at 7.

This, alleges Defendant, demonstrates that Elite’s work caused water infiltration prior to the
inception of the Crum & Forster policies. Def. Br. at 19. Additionally, Defendant contends that

coverage cases[.]”). Additionally, neither party contests that the continuous trigger theory applies.
Therefore, the Court will apply the continuous trigger theory.
9

the documentation shows that “both

[] Hovnanian and Elite were aware of the alleged defects and

water infiltration stemming from Elite’s work prior to the Crurn & Forster policy period(s).” Def.
R.Br. at 6-7.
Plaintiff seems to argue that an expert is required to determine when “manifestation”
occurs. See P1. Opp’n at 12. Plaintiff supports its argument by alleging that the letters sent to
Crum & Forster identifying the water issues “do not provide any indication as to the source of the
water,” and therefore “are not sufficient to establish a pre-policy manifestation.” Id. at 6. This is
because the notes from unit owners fail to demonstrate that “the alleged defective construction by
Elite Contractors was discovered or should have been discovered.” Id. Thus, Plaintiff alleges that
the appropriate manifestation date is in January of 200$, when expert moisture testing was
performed on the units and the cause of the damage was determined. Id. at 12.
In El-Ad Group v. Northbrook Property & Casualty Insurance Corporation, Judge Linares
confronted the issues of the cause of a loss and when it manifested. 2006 WE $406838, at

*59

The case stemmed from a structural collapse on the plaintiffs property in 2001. Id. at *1. Prior
to the collapse, there had been many complaints concerning the condition of the property. Id. at
*12. In 1998, cracks were noticed in the ceiling and walls, and an outside expert determined that
there had been some “settlement” of the building. Id. at * 1. Other professionals the same year
also concluded that the building’s foundation had settled and caused “structural distress.” Id. In
1999, a tenant complained that the building was sinking, and the tenant had experienced unlevel
floors, severe cracks, and windows that were “out of plumb.” Id. at *2. The town then sent the

The court in El-Ad Grottp applied the manifest trigger rule since the underlying policy concerned
a first-party property loss claim. Id. Nonetheless, the key issue there, as in this matter, was the
date of manifestation.
10

owners a notice that the building was not safe. Id. In January 2000, the building owner hired a
professional to inject concrete in certain areas to stabilize the building. Id.

The applicable

insurance policy became effective in June 2000, and the building suffered a collapse the following
year. Id.
The first issue in El-Ad Grottp was whether the loss was due to a “settlement” or a
“collapse.” Id. at *5 If it was due to a collapse, then the plaintiff was covered, but if it was due
to a settlement, then plaintiff was not covered. Id. The second issue was the date that the damage
became manifest. If the loss was manifest prior to the policy period, then the plaintiff lacked
coverage. After weighing “numerous tenant complaints,” expert reports, and other evidence,
Judge Linares determined that there were genuine issues of material fact as to both the nature of
the loss and the date the loss was manifest. Id. at *6. Thus, the court in El-Ad Group found that a
reasonable factfindei- could find that the loss was either a settlement or a collapse, and that under
either scenario, there were facts suggesting that the loss manifested both before and after the
effective date of the policy. Id. Therefore, Judge Linares denied each party’s motions for summary
judgment. Id.
As to the manifestation date, Judge Linares observed that before the policy, there were
numerous tenant complaints, expert reports, and remediation efforts. Id. at *5

As a result, the

court concluded that there was “evidence prior to the policy start date of June 2000 from which a
fact finder could determine that a

.

.

.

loss should have been reasonably apparent to [the plaintiff]

before this date.” Id. at *6. Judge Linares also determined that a reasonable factfinder could reach
the opposite conclusion, i.e. that the loss occurred during the policy period, in light of the evidence.
Id. Among other evidence, Judge Linares pointed to the fact that the town had only required repairs

prior to the damage in 2001 and that no tenants had been forced to vacate before that date. Id.

11

Here, as in El-Ad Gro tip, a reasonable factfinder could find that the damage manifested
prior to Defendant’s policy period, but a reasonable factfinder could also find that the damage
manifested later.

Importantly, when viewing Plaintiffs motion, the Court must make all

reasonable inferences in favor of Defendant and then do the reverse when reviewing Defendant’s
motion. In short, there is a combination of factors, including the unit-owner reports and expert
testing, that creates a genuine issue of material factual as to when Elite should have been
“reasonably aware” that its actions caused the damage.
In Defendant’s favor, the Project was, at a minimum, substantially completed prior to the
effective date of Crum & forster’s policies. See Cypress Point Condo Ass ‘n v. Selective Way Ins.

Co., No. HUD-L-936-14, 2015 N.J. Super. Unpub. LEXIS 721, at *15 (Law Div. Mar. 30, 2015)
(noting that a factor supporting a finding of manifestation was that the damage occurred soon afler
the project was substantially completed and eight years before the insurance policy was effective).
In addition, there is evidence from unit-owners’ written complaints indicating water infiltration
beginning in 2001 in the areas worked on by Elite. See DePekary Deci., Ex. G (notes from unit
owners complaining of water infiltration in 2003), id. Ex. N, at 7-8 (note from Joe and Linda
Ferroni on December 16, 2002 complaining of water infiltration in and around lower level
windows). Thus, when reviewing Plaintiffs motion, and drawing all factual inferences in favor
of Defendant, there is evidence from which a reasonable factfinder could conclude that the damage
manifested before Defendant’s policies.
On the other hand, the only expert report cited indicates that causation was definitively
determined after Defendant’s policies were in effect.1° Moreover, while there is some evidence
10

The Court does not necessarily agree with Plaintiff that an expert is required to establish
manifestation. Plaintiff is correct that in many cases, courts look to the date of an expert opinion
as conclusively establishing manifestation. See Winding Hilts, 332 N.J. Super. at 89-90 (observing
12

that the infiltration stemmed from the areas of work performed by Elite prior to June 1, 2003, see,
e.g., DePekary Decl. Ex. G & Ex. N, the letters do not definitively establish that water damage
was due to Elite’s (as opposed to another contractor’s) shoddy work. This is for the simple reason
that the owners are not construction experts. In addition, other owner letters fail to indicate the
source of water leakage. See, e.g., id. Ex. G, at 7 (complaining of water infiltration but not
specifying where the water is coming from); Id. Ex. N, at 2 (complaining of water infiltration
coming from areas other than the windows installed by Elite). Additionally, other complaints from
unit owners do not definitively indicate when the water infiltration began. See, e.g., Id. Ex. G, at
12 (letter from Joseph Ferroni in 2007 indicating that “[he has] gotten water intrusion into [his]
home countless times over the last 5 years”). Therefore, it is difficult to ascertain the precise date
at which the damage became “reasonably apparent or known to the claimant.” El-Ad Grp., 2006
WL 8406838, at *5

In sum, when reviewing Defendant’s motion, and drawing all factual

inferences in favor of Plaintiff, there is evidence from which a reasonable factfinder could
conclude that the damage manifested afler Defendant’s policies.
Finally, Plaintiff requests recovery of attorneys’ fees and costs in prosecuting this matter
pursuant to New Jersey Rule 4:42-9(a)(6). See P1. Br. at 16. Since the Court is denying Plaintiffs
motion for summary judgment, it is not a “successful claimant” as required by Rule 4:42-9(a)(6).
See Rule 4:42-9(a)(6) (permitting an award of counsel fees in “an action upon a liability or

that damage was manifest no later than the date of the expert report although it was “arguable”
that manifestation occurred earlier when the problem was first reported). However, as Judge
Linares noted in El-Ad Group, it appears that an expert report is merely one factor to consider in
determining manifestation.
13

indemnity policy of insurance, in favor of a sitccessful claimant”) (emphasis added). Therefore,
the Court denies Plaintiffs request for attorneys’ fees and costs.11
3. CONCLUSION

For the reasons set forth above and for good cause shown, the Court DENIES Defendant’s
motion for summary judgment and DENIES Plaintiffs motion for summary judgment.
Additionally, Plaintiffs request for attorneys’ fees and costs is DENIED. An appropriate form of
order accompanies this opinion.

Date: April 12, 2017

JOHN MICHAEL Vt3ZtJEZ
UNITED STATES DISTRICT IUDGE

Additionally, Plaintiff moved to strike Exhibit M to the DePekary Declaration from the record
pursuant to Rule 56(c). P1. Opp’n at 6 n.3. Defendant did not respond to Plaintiffs request and
the Court did not rely on this exhibit in its Opinion. Therefore, the Court will not address the
request at this time.
14