Plaintiffs Richard and Vicki Klein filed a claim with Defendant Franklin Mutual Insurance Co. (“FMI”) due to damage to their in-ground pool. Plaintiffs claimed that the damage was caused by a rotted tree branch from a neighbor’s property which fell into their pool. The defendant disputed the cause of the damage, contending that it was caused by normal wear and tear, which was barred by an exclusion in their homeowner’s policy. In Klein v. Franklin Mutual Insurance Co., 2017 N.J. Super. Unpub. LEXIS 2653 (App. Div. Oct. 23, 2017), the plaintiffs appealed the trial court’s decision dismissing their case.
In the winter of 2014, plaintiffs noticed that their in-ground pool cover appeared lower than usual. After the snow and ice melted off of the pool cover, they saw a branch in the pool and tears in the pool cover and pool lining. They also observed that the pool walls were bowing inward.
Although the plaintiffs surmised that the damage was caused by their neighbor’s branch, they did not observe this event. Their public adjustor opined that wind caused the tree branch to fall, which had punctured the pool cover and vinyl lining. He further opined that “[t]his puncturing lead to the draining of the pool, which negated the counteracting lateral water pressure and thus the lateral earth pressure buckled the main wall of the pool.”
FMI retained an engineer to investigate the claim. He inspected the pool and observed several bowed walls and corroded metal connection bars, as well as the pool stairs not being level. He opined that the bowed walls were “caused by weakening support connections and differential movement of the ground/soil adjacent to such wall.” Further, in his opinion, the bowing of the wall most likely occurred over a period of the past 5-10 years. Hence, FMI denied the claim based upon the “wear and tear” exclusion of their homeowners policy.
The trial court judge barred the opinion of the plaintiff’s public adjustor as an impermissible net opinion. While the trial court agreed that it was up to FMI to demonstrate that the claim fell within an exclusion in the policy, he found that the engineer’s report satisfied that burden. Based upon the wear and tear exclusion, the trial judge granted FMI summary judgment.
Upon appeal, the plaintiffs argued that that trial judge should not have required them to prove causation for their claimed damages and that he should have permitted a jury to assess the credibility of the defense’s expert witness.
Because the plaintiff’s expert was barred from testifying, the Appellate Division found that FMI presented unrebutted expert opinion that the damage to the pool satisfied the “wear and tear” exclusion of the policy. Plaintiffs were unable to contradict this evidence, except for their unsubstantiated theory as to how the damage may have occurred. Accordingly, the Appellate Division found that summary judgment was properly granted to the defendant FMI.
