Opinion
DOCKET NO. A-2393-11T3
01-09-2014
DAVID SELTZER, Plaintiff-Appellant/Cross-Respondent, v. KRISTOFER CHIESA, MELISSA CHIESA, A-1 HOME INSPECTIONS, LLC, JOSEPH M. VITALE, VICTOR INFANTE, and MICHELLE RAIO, Defendants, and USAA CASUALTY INSURANCE COMPANY, Defendant-Respondent/ Cross-Appellant, and AAA MID-ATLANTIC INSURANCE COMPANY OF NEW JERSEY, WEICHERT CO., and ROCHELLE TOBOLSKY, Defendants-Respondents.
Louis Giansante argued the cause for appellant/cross-respondent (Giansante & Associates, LLC, attorneys; Mr. Giansante, of counsel and on the briefs). Michael A. Gorokhovich argued the cause for respondent/cross-appellant USAA (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Gorokhovich, on the briefs). Stephen R. Dumser argued the cause for respondent AAA Mid-Atlantic Insurance Company (Swartz Campbell LLC, attorneys; Mr. Dumser, on the brief). Barry J. Wendt argued the cause for respondents Weichert Co. and Rochelle Tobolsky.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3144-09.
Louis Giansante argued the cause for appellant/cross-respondent (Giansante & Associates, LLC, attorneys; Mr. Giansante, of counsel and on the briefs).
Michael A. Gorokhovich argued the cause for respondent/cross-appellant USAA (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Gorokhovich, on the briefs).
Stephen R. Dumser argued the cause for respondent AAA Mid-Atlantic Insurance Company (Swartz Campbell LLC, attorneys; Mr. Dumser, on the brief).
Barry J. Wendt argued the cause for respondents Weichert Co. and Rochelle Tobolsky. PER CURIAM
Plaintiff David Seltzer appeals from the grant of summary judgment with prejudice to defendants AAA Mid-Atlantic Insurance Company of New Jersey (AAA), Weichert Company, and Rochelle Tobolsky, and dismissing without prejudice his complaint against defendant USAA Casualty Insurance Company. USAA cross-appeals from the with-prejudice dismissal in favor of AAA. For the reasons that follow, we affirm.
Plaintiff settled with defendants Kristofer and Melissa Chiesa. The record does not indicate the disposition of claims against defendants A-1 Home Inspections, LLC, and Joseph M. Vitale. Although not entirely clear, it appears that plaintiff also dismissed his claims against defendants Victor Infante and Michelle Raio.
Plaintiff purchased a townhouse condominium at 23 Lafayette from Kristofer and Melissa Chiesa (referred to as Kristofer, or collectively, the Chiesas) on July 30, 2007. Tobolsky, an employee of Weichert Company, acted as plaintiff's real estate agent in the transaction. The real estate contract entered into between the parties stated that there "was/were underground fuel tank(s) [(UST)] which was/were properly removed" from the property. The agreement also granted plaintiff the right to conduct inspections to ensure that "[t]here are no adverse environmental conditions affecting the property, such as . . . toxic chemicals or other pollutants in the soil, air or water."
In the seller's property disclosure statement attached to the contract, the Chiesas answered several significant questions, which responses later proved false, under the environmental hazards section. The questions included whether they had ever received written notice of a condition affecting the property, or of a condition on an adjoining property which affected the subject property, including "the quality or safety of the [] soil." They also answered in the negative the following questions:
79. Are you aware of any underground storage tanks (UST) or toxic substances now or previously present on this property or adjacent property (structure or soil), such as polychlorinated biphenyl (PCB), solvents, hydraulic fluid, petro-chemicals, hazardous wastes, pesticides, chromium, lead or other hazardous substances in the soil? If "yes," explain:
80. Are you aware if any underground storage tank has been tested? (Attach a copy of each test report or closure certificate if available).
81. Are you aware if the property has been tested for the presence of any other toxic substances, such as lead-based paint, urea-formaldehyde foam insulation, asbestos-containing materials, or others? (Attach a copy of each test report if available).
The Chiesas purchased 23 Lafayette in 2001. In 2002, they were notified of a fuel oil release from a UST located at a neighboring property, 24 Lafayette. Kristofer, who granted the firm investigating the oil release access to his property, was informed in writing that "[f]ield observation from the limited subsurface investigation indicates that [23 Lafayette] has been impacted by a fuel-oil release." The letter further stated that, based on the testing, it was possible some of the contamination may have leaked from a UST on 23 Lafayette itself.
Plaintiff eventually sued all parties related to the oil contamination, both as generated by 24 Lafayette, and the UST he subsequently discovered beneath 23 Lafayette, which UST had also released some contamination into the soil.
AAA issued the homeowner's insurance policy upon plaintiff's purchase of the home. The policy contained a fuel system exclusion for property damage "[a]rising out of the actual, alleged or threatened discharge . . . of liquid fuel intended for or from a 'fuel system' located at an 'insured location.'" Neither did the policy "cover land, including land on which the dwelling is located." The policy further excluded coverage for any ordinance or law requiring plaintiff to "test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, pollutants." Under personal liability coverage, the AAA policy provided that compensation would be paid when "a claim is made or a suit is brought against an 'insured' for damages because of 'bodily injury' or 'property damages' caused by an 'occurrence' to which this coverage applies."
Plaintiff replaced the AAA homeowner's policy with one issued by USAA, effective January 31, 2008. The USAA policy, like the AAA policy, provided that it did "not cover land." The USAA policy included a personal liability coverage provision with language nearly identical to the AAA policy. The USAA policy did not have a fuel system exclusion.
Plaintiff argues that he advised Tobolsky that he was not interested in even looking at homes that had formerly used oil heat. In his statement of undisputed material facts submitted in opposition to the motion for summary judgment, however, he stated that he "advised [] Tobolsky that [he] only would purchase a home with gas heat." Tobolsky denied that plaintiff had ever told her that he did not want to look at homes that were formerly heated by oil, and when deposed said that she informed plaintiff that the home had been previously heated with oil.
Kristofer acknowledged failing to disclose the environmental history to his realtor, and admitted that the only information he supplied to Tobolsky was on the seller's property disclosure statement denying the existence of any environmental conditions. Kristofer may have seen Tobolsky twice, once at the walk-through and once at the closing.
Plaintiff allegedly learned of the environmental issues when he received a letter from Mid-Atlantic Associates Inc. (Mid-Atlantic), dated January 2, 2008, notifying him that they had been retained by Allstate Insurance Company to investigate a fuel oil release from a UST at 24 Lafayette. The letter advised him that the New Jersey Department of Environmental Protection (NJDEP) had requested the installation of monitoring wells on his property.
Plaintiff notified AAA and USAA of potential environmental problems with his property by letters dated July 11, 2008. As a result, USAA retained Geoworx Consulting LLC (Geoworx) to investigate. Geoworx completed two borings in the front yard and one boring of the rear yard. The rear yard boring found contamination from 17 to 20 feet below grade. Groundwater was encountered at approximately 14 feet below grade, and had a light odor and mild sheen over half of the groundwater surface. One front yard boring found a light petroleum odor at 5 to 6 feet below grade, and encountered contaminated soil from 12 to 24 feet below grade. Groundwater was encountered at approximately 16 feet below grade, and had no petroleum sheen.
The second front yard boring encountered "refusal", or an object that prevented the boring's advancement. A test pit uncovered an abandoned underground storage tank filled with sand and trapped water. Grey petroleum-stained soil was found directly above the tank.
Laboratory tests showed oil contamination in the soil ranging from 2820 parts per million (ppm) to 4780 ppm, below the NJDEP action level of 5100 ppm. Benzene, however, was detected at a level above the NJDEP action level.
Geoworx concluded that "[t]he results of our investigation are interpreted to be consistent with the conclusion that an impact to a third party, via discharge from the underground storage heating oil tank to the groundwater, is INCONCLUSIVE at this time." The report noted that inspection of the actual tank after it had been removed would be necessary to determine if it had leaked. No further investigation was undertaken by USAA. While the Chiesas agreed to remove the tank as part of the settlement agreement, the record is unclear as to whether it has actually been removed.
On April 29, 2010, Moriarity Environmental Solutions, Inc. (Moriarity), Mid-Atlantic's successor, forwarded to plaintiff the results of monitoring tests detecting elevated levels of tetrachloroethylene (PCE) in the groundwater. Evidence of oil contamination in the soil was also detected, but below NJDEP action levels.
After plaintiff filed this suit, he consulted with Oxford Engineering Company (Oxford), which reviewed the reports completed by Mid-Atlantic, Moriarity, and Geoworx, but did not conduct any independent testing. Oxford concluded that there were two zones of contamination: a deep zone associated with the release from the neighboring property, and a shallow zone associated with the on-site abandoned oil tank. The deep zone had likely been reported to NJDEP; there was no contamination above NJDEP action levels associated with the shallow zone.
On September 16, 2010, the trial judge granted partial summary judgment in favor of AAA, finding that it owed no coverage for contamination related to an underground fuel oil storage tank, but the trial judge denied its motion without prejudice with respect to other contaminants. Plaintiff's cross-motion for summary judgment against AAA was denied without prejudice. On the same date, the judge found that any causes of action against USAA were premature because no third-party claims had been filed against plaintiff. The judge denied plaintiff's motion for summary judgment against USAA and granted USAA's cross-motion, dismissing all counts against USAA without prejudice.
On February 3, 2011, AAA filed a second motion for summary judgment with prejudice, seeking dismissal of all remaining causes of action against it. Plaintiff filed a cross-motion to reinstate the dismissed counts against AAA and USAA. In a May 5, 2011 order, after oral argument, the trial judge granted summary judgment with prejudice to AAA, dismissing all the counts against it. After oral arguments on May 13, 2011, the trial judge granted summary judgment to Tobolsky and Weichert with prejudice.
USAA filed a motion for reconsideration, seeking to have the dismissal of claims against AAA modified to dismissal without prejudice. The trial judge denied this motion on June 10, 2011.
Plaintiff appeals the dismissal of its claims against AAA, USAA, Tobolsky and Weichert. USAA cross-appeals the trial court's issuance of a dismissal with prejudice to AAA.
On appeal, plaintiff asserts the following:
1. THE PRESENCE OF CONTAMINATION IN THE SOIL AND GROUNDWATER BENEATH 23 LAFAYETTE LANE AND THE NEED TO INVESTIGATE THESE SOURCES OF CONTAMINATION IS SUFFICIENT TO TRIGGER THIRD PARTY COVERAGE AND THE PLAINTIFF'S INSURER'S DUTY TO DEFEND.
A. CONTAMINATION ASSOCIATED WITH THE ABANDONED UST RELEASE AND USAA'S DUTY TO DEFEND.2. THE ALLEGATIONS RAISED BY MID ATLANTIC, THAT 23 LAFAYETTE [] IS A CONTRIBUTING SOURCE TO THE GROUNDWATER CONTAMINATION UNDER 24 LAFAYETTE [] CONSTITUTES A "CLAIM" UNDER THE USAA AND AAA POLICIES.
B. PCE CONTAMINATION, NON-SITE SPECIFIC FUEL OIL CONTAMINATION AND BOTH INSURER'S DUTY TO DEFEND.
3. GEO WORX ABANDONED ITS INVESTIGATION BEFORE IT WAS COMPLETE, IN THE FACE OF OBVIOUS CONTAMINATION AND, THEREFORE, USAA BREACHED ITS DUTY TO PROPERLY INVESTIGATE THE PLAINTIFF'S CLAIM.
4. THE PLAINTIFF'S CLAIMS AGAINST WEICHERT REALTORS AND ROCHELLE TOBOLSKY SHOULD HAVE NOT BEEN DISMISSED.
USAA raises the following points for our consideration:
1. DID THE LOWER COURT ERR IN GRANTING AAA MID-ATLANTIC SUMMARY JUDGMENT "WITH PREJUDICE" WITH REGARD TO COVERAGE PERTAINING TO FUTURE CONTINGENT CLAIMS NOT YET ASSERTED AGAINST THE INSURED, SELTZER?
2. DID THE LOWER COURT HAVE SUBJECT-MATTER JURISDICTION TO DETERMINE COVERAGE
RIGHTS AND OBLIGATIONS IN THE ABSENCE OF ANY CLAIM OR SUIT ASSERTED AGAINST THE INSURED THAT WOULD GIVE RISE TO ANY SUCH OBLIGATIONS IN THE FIRST INSTANCE?
In reviewing the trial court's order, we employ the same standard as the trial court, enunciated in Rule 4:46-2(c). Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We "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 also Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 446 (2007). "When the evidence is so one-sided that one party must prevail as a matter of law, the [] court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540. (citation and internal quotation marks omitted). Interpretation of a contract is a purely legal question suitable for decision on a motion for summary judgment. Spaulding Composites Co. v. Liberty Mut. Ins. Co., 346 N.J. Super. 167, 173 (App. Div. 2001).
I
The trial judge granted summary judgment without prejudice to USAA, finding that "[a]t this point, without any counterclaims or cross-claim, . . . there's no claim made or lawsuit brought against an insured." He continued, "counsel may refile the complaint for coverage or seek coverage if the conditions of [the] policy are met."
"When interpreting an insurance policy, courts should give the policy's words 'their plain, ordinary meaning.'" President v. Jenkins, 180 N.J. 550, 562 (2004) (quoting Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2004)). Absent ambiguity, "courts should interpret the policy as written and avoid writing a better insurance policy than the one purchased." President, supra, 180 N.J. at 562. Where there is ambiguity, "the policy will be construed in favor of the insured." Nav-Its, Inc. v. Selective Ins. Co. of Am., 183 N.J. 110, 118 (2005). "[C]overage provisions are to be read broadly, exclusions are to be read narrowly, potential ambiguities must be resolved in favor of the insured, and the policy is to be read in a manner that fulfills the insured's reasonable expectations." Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy, 210 N.J. 597, 605 (2012).
Both parties rely on Metex Corp. v. Federal Insurance Co., 290 N.J. Super. 95 (App. Div. 1996), in support of their arguments, though they read the case differently. In Metex, the insured property had environmental contamination covered by a third-party comprehensive general liability insurance policy. Id. at 99-100. The insurer asserted it was not liable for the contamination because the NJDEP had not initiated enforcement proceedings and there was no proof of off-site contamination. Id. at 100.
The policy in Metex Corp., however, was an occurrence not a claims-made policy. See id. at 103. We therefore interpreted the word "damages" to include environmental response costs and remediation expenses. Ibid. (citing Morton Int'l, Inc. v. Gen. Accident Ins. Co. of Am., 134 N.J. 1, 27 ( 1993), cert. denied 512 U.S. 1245, 114 S. Ct. 2764, 129 L. Ed. 2d 878 (1994)).
In other words, the policy did "not require any 'enforcement,' 'claim' or 'suit' by a third party in order to entitle the plaintiff to coverage." Metex Corp., supra, 290 N.J. Super. at 104. Thus we held that coverage for "damages," without any such limitation, extended to compliance with statutory mandates, including the Spill Act, N.J.S.A. 58:10-23.11. Metex Corp., supra, 290 N.J. Super. at 104.
The policy language in Metex Corp. stands in stark contrast to USAA's policy. The latter provides coverage only "[i]f a claim is made or a suit is brought against an insured." Hence USAA argues that the absence of any formal claim or lawsuit against plaintiff takes this case outside the scope of Metex Corp.
Plaintiff contends a covered "claim" arose when Mid-Atlantic reported contamination on plaintiff's property, unrelated to the discharge at 24 Lafayette, to NJDEP, and that the report triggered USAA's duty to investigate and defend.
Plaintiff also argues that, even in the absence of any notice given to NJDEP by Mid-Atlantic, the detection of soil and groundwater contamination required USAA to undertake a more detailed investigation than it conducted, based on potential liability under the Spill Act, N.J.S.A. 58:10-23.11. It is undisputed that, as of the filing of this appeal, NJDEP had not filed any suit, enforcement action, or entered into any discussions with plaintiff about remediating the property.
USAA responds that plaintiff's failure to argue before the trial court that his status vis-à-vis the NJDEP constitutes the equivalent of a claim covered by the insurance, bars him from raising the point now.
We agree with plaintiff that "claim" does have a different meaning than the word "suit" in the language of the policy, which states that compensation will be paid when "a claim is made or a suit is brought against an insured because of bodily injury or property damages caused by an occurrence to which this coverage applies." Unlike plaintiff, however, we conclude that the term in this case means more than just the potential, for example, that NJDEP might at some point in the future require plaintiff to engage in remedial action. NJDEP has likely been informed of contamination on plaintiff's land, yet to this date, no action has been taken against him as a result. Plaintiff did not include the NJDEP as a party to this suit. The record contains no reference to any demand the NJDEP may have made with regard to the necessity for clean-up on plaintiff's site.
Plaintiff's argument with reference to potential liability under the Spill Act, which holds any person responsible for a discharge strictly liable for clean-up costs, does not apply to his situation. See N.J.S.A. 58:10-23.11g(c)(1). Interpreting "claim" to include this future possibility, in the absence of any known demand by any entity or person, is to unreasonably expand policy coverage.
And, plaintiff purchased a policy that specifically excludes coverage for his land. Courts interpreting a policy should "avoid writing a better insurance policy than the one purchased." President, supra, 180 N.J. at 562. To extend coverage in this instance, before any formal claim, demand for action, or suit has been brought, would do just that.
II
Plaintiff also argues that summary judgment was improperly granted to AAA. In its cross-appeal, USAA argues that while AAA was entitled to summary judgment, it should have been granted without prejudice, so that AAA may be required to contribute should a claim or suit be brought in the future.
The trial judge granted summary judgment to AAA because the policy excluded the UST, and because no evidence was introduced demonstrating that PCE was discharged from a source on plaintiff's property. Thus the judge found that plaintiff was not a potential responsible party under the Spill Act, and thus was not entitled to coverage under the AAA policy.
AAA's policy contained the same "claim" or "suit" precondition to third-party coverage as USAA's policy. AAA sought a broader declaration, however, seeking a determination that plaintiff was not liable under the Spill Act for remediating any PCE groundwater contamination or other contamination arising from the neighboring property, and that the policy's fuel tank exclusion precluded coverage for any contamination from the UST.
Furthermore, the policy excludes coverage for any loss caused by "ordinance or law," which is defined in part as any ordinance or law:
c. Requiring any "insured" or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, pollutants.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
This provision of the policy excludes coverage for the clean-up of any pollutant, regardless of source. This language, albeit not the reason the judge granted a dismissal with prejudice, provides a separate rationale supporting his decision.
Even if we were to consider plaintiff to be potentially liable under the Spill Act, and certainly "in any way responsible" is not defined by statute, the Court has noted that "subsequent acquisition of land on which hazardous substances have been dumped may be insufficient to hold the owner responsible." State, Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 502 (1983). Instead, "[o]wnership or control over the property at the time of the discharge . . . will suffice." Ibid.; see also Marsh v. N.J. Dept. of Envtl. Prot., 152 N.J. 137, 146 (1997). There must be "some connection between the discharge complained of and the alleged discharger." N.J. Dep't of Envtl. Prot. v. Dimant, 212 N.J. 153, 177 (2012). "A reasonable nexus or connection must be demonstrated by a preponderance of the evidence." Id. at 182. "[I]n an action to obtain damages, authorized costs and other similar relief under the Act there must be shown a reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site." Ibid. "Liability does not result from passive migration of a hazardous material that previously entered the site." White Oak Funding, Inc. v. Winning, 341 N.J. Super. 294, 299 (App. Div.), certif. denied, 170 N.J. 209 (2001).
Plaintiff contends that the trial court's determination that he was not liable under the Spill Act was error because the decision is not binding on NJDEP. But the fuel tank exclusion provision in AAA's policy precludes coverage for any leak from the underground storage tank regardless. Plaintiff has not identified any other potential discharges occurring on his property that would be covered under the policy, and under the Spill Act he is clearly not liable for pollutants that migrated onto his land from a neighboring property. See White Oak, supra, 341 N.J. Super. at 299. Therefore, under the AAA policy there is no potential for a covered claim arising from these facts.
Plaintiff cites to N.J.A.C. 7:26E1-1.6 and -1.8 as placing the burden on a potentially responsible party to demonstrate that he is not a responsible party. However, these regulations merely outline the technical reporting requirement that "[t]he person responsible for conducting the remediation" must meet. N.J.A.C. 7:26E1-1.6. They are not applicable to these facts.
The cases regarding the Spill Act place the burden on NJDEP to prove by a preponderance of the evidence that there is a reasonable nexus between the person it is seeking to hold liable and the discharge. See Dimant, supra, 212 N.J. at 182. Insurance companies should not avoid conducting thorough investigations, but there is no indication in this case that further investigation would have uncovered any evidence that would mandate coverage under the AAA policy.
In support of its position, plaintiff also relies on Flomerfelt v. Cardiello, 202 N.J. 432 (2010), but that case is distinguishable. In Flomerfelt, the Court held that "in circumstances in which the underlying coverage question cannot be decided from the face of the complaint, the insurer is obligated to provide a defense until all potentially covered claims are resolved." Id. at 447. The court required the insurer to provide a defense where it had not yet been determined whether an injury arose out of drug use, which was excluded under the policy, or something else. Id. at 458. But here, there do not appear to be any facts alleged that would trigger coverage under the AAA policy. In other words, even viewing the facts in the light most favorable to plaintiff, there are no potentially covered claims.
USAA argues in its cross-appeal that dismissal with prejudice of the counts against AAA was erroneous, as a third party could assert claims in the future that would be covered under the policy. Additionally, USAA asserts that in the absence of any actual claims, AAA's substantive coverage obligations were not ripe for determination.
Under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to - 62, "[a] person interested under a . . . written contract . . . may have determined any question of construction or validity arising under the . . . contract . . . and obtain a declaration of rights, status or other legal relations thereunder." N.J.S.A. 2A:16:53. "A contract may be construed either before or after a breach thereof." N.J.S.A. 2A:16-54. But, as USAA notes, "[it] is the threshold findings of both justiciability and standing which form the basis for relief under the Declaratory Judgment Act." In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 184 (App. Div.), certif. denied, 113 N.J. 660 (1988). "[T]he courts should not 'decide or declare the rights or status of parties upon a state of facts which is future, contingent and uncertain.'" Trial Lawyers of Am., supra, 228 N.J. Super. at 184 (quoting Tanner v. Boynton Lumber Co., 98 N.J. Eq. 85, 89 (Ch. 1925)).
While USAA correctly notes that courts do not issue advisory opinions, see G.H. v. Township of Galloway, 199 N.J. 135, 136 (2009), that did not occur here. Plaintiff sought a declaration that he was entitled to a defense under the AAA policy, but after complete discovery, was unable to prove he was entitled to a defense for leakage from his UST, or liable for discharges from neighboring properties. The issues were properly addressed under the Declaratory Judgment Act.
III
Finally, plaintiff contends that the trial court erred in granting summary judgment to Tobolsky and her employer, Weichert. Plaintiff argues that there was a dispute of material fact as to whether Tobolsky informed him about the oil tank on his property and about an oil leak on a nearby property. He asserts that he would not have purchased the property had Tobolsky disclosed this information, and that he has suffered at least $12,000 in ascertainable losses, the cost of his expert Oxford's assessment. Tobolsky responds that there is no record support for plaintiff's allegation that he claimed he was not interested in homes that had formerly used oil heat. She also points out that the real estate contract indicated that a UST had been removed from the property, and reiterates that she informed plaintiff of the only nearby environmental contamination she knew about, an oil tank leak several houses away at 16 Lafayette.
The trial judge was under the mistaken impression that he had previously found plaintiff's UST had not generated any contamination on his property. Because AAA's policy excluded such coverage, no such findings were made. The result, however, is the same whether the judge made that mistake of fact or not. Even if the UST caused discharge, summary judgment to Tobolsky and Weichert was warranted.
Plaintiff relies on Strawn v. Canuso, 140 N.J. 43 (1995), superseded by statute, L. 1995, C. 253, § 10, and N.J.A.C. 11:5-6.4(c), in asserting that Tobolsky had a duty to report off-site contamination. N.J.A.C. 11:5-6.4(c) creates a duty to disclose certain offsite conditions entirely unrelated to the one at issue. And the regulation only applies to the sale of new homes. See ibid.
In addition, while Strawn did impose a duty to disclose certain off-site conditions, it also expressly limited its holding "to professional sellers of residential housing (persons engaged in the business of building or developing residential housing) and the brokers representing them." Strawn, supra, 140 N.J. at 59. It did not impose a duty to disclose off-site conditions on resellers, because resellers do not enjoy the same superior bargaining position and access to information as professional sellers. Id. at 41-42.
Moreover, the New Residential Construction Off-Site Conditions Disclosure Act, N.J.S.A. 46:3C-1 to -12, which was intended to overturn Strawn, also imposes a duty to disclose off-site conditions only on sellers of newly constructed dwellings. N.J.S.A. 46:3C-2; see Nobrega v. Edison Glen Assocs., 167 N.J. 520, 534 (2001). The Disclosure Act, N.J.S.A. 46:3C-1 to -12, also bars common law claims and claims brought under the Consumer Fraud Act if the seller has complied with the Act, but it is not at all clear that this bar would apply to claims brought against a broker in a secondary transaction. See Nobrega, supra, 167 N.J. at 535-36. Accordingly, Tobolsky was under no duty to disclose off-site conditions of which she was unaware.
Turning to the disputes of fact with regard to what Tobolsky told plaintiff about the property, mere assertions with regard to disputed facts are not sufficient to establish material conflicts, such that the case should have gone to a jury. Generalities regarding the effect of disclosures, other than what were made, are not a sufficient basis for plaintiff's asserted claims of negligent misrepresentation, fraud, negligence, consumer fraud, and violation of the duty of good faith and fair dealing.
Nothing in the record indicated Tobolsky was aware, or had reason to know, of any underground contamination except at 16 Lafayette, a completely unrelated property. She represented plaintiff in this transaction and was not the listing agent. She only met Kristofer twice, if that. The real estate contract stated that the home had a UST previously removed, and thus plaintiff was in possession of as much information as Tobolsky. Therefore, the record justified the grant of summary judgment with prejudice to these defendants.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION