SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4215-18T1

 A-4217-18T1

ESTATE OF RONALD 

DOERFLER and STEPHANIE 

E. DOERFLER,

Plaintiffs-Appellants,

v.

FEDERAL INSURANCE 

COMPANY,

Defendant-Respondent.

_____________________________

STEPHANIE E. DOERFLER,

Plaintiff-Appellant,

v.

CHUBB INSURANCE COMPANY

OF NEW JERSEY,

Defendant-Respondent.

_____________________________

Argued telephonically April 29, 2020 –

Decided May 14, 2020

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-4215-18T1

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket Nos. L-2960-14 and 

L-0483-14.

John N. Ellison (Reed Smith LLP) of the Pennsylvania 

Bar, admitted pro hac vice, argued the cause for 

appellants (Reed Smith LLP, attorneys; John N. Ellison 

and Douglas R. Widin, on the briefs).

Thomas Mc Kay, III argued the cause for respondents 

(Cozen O'Connor, attorneys; Thomas Mc Kay, III, 

Charles J. Jesuit, and Richard M. Mackowsky, on the 

brief).

PER CURIAM

These consolidated insurance coverage matters return to us after remand 

proceedings directed by our previous decision. Estate of Doerfler v. Fed. Ins. 

Co., 454 N.J. Super. 298, 301 (App. Div. 2018). In compliance with our 

instructions, the trial judge again considered the parties' cross-motions for 

summary judgment and rendered a thorough written opinion addressing each 

one of their respective contentions. 

As explained in his decision, the judge found that the losses claimed by 

plaintiffs Estate of Ronald Doerfler (the estate) and Stephanie Doerfler 

(Doerfler) were not covered under their insurance policies when their homes 

were destroyed by flooding during Superstorm Sandy. As a result, the judge 
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granted the insurance companies' (defendants') motions for summary judgment, 

and denied plaintiffs' applications.

Plaintiffs now appeal from the judge's April 17, 2019 order memorializing 

his rulings and repeat the same arguments they unsuccessfully presented to the 

trial court. Having considered these contentions in light of the record and 

applicable law, we affirm substantially for the reasons set forth in the judge's 

thoughtful written decision.

In light of our determination, we need only briefly summarize the most 

salient facts. Doerfler owned a home located in Mantoloking and procured an 

insurance policy from defendant Chubb Insurance Company of America 

covering her real and personal property. Ronald Doerfler,1 who lived on the 

same street in Mantoloking, obtained an identical policy insuring his home from 

defendant Federal Insurance Company, which is also a member of the Chubb 

Group of Insurance Companies.

The policies provided "deluxe contents coverage," but clearly stated that 

damage resulting from flood was not covered. The policies included the 

mandatory New Jersey notification that the policies did not cover damages from 

flood.

1

 Mr. Doerfler is now deceased.
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A-4215-18T1

Unless an exclusion applied, the policies covered "all risk" of physical 

loss. The "surface water exclusion" included the following language: 

[W]e do not cover any loss caused by: 

flood, surface water, waves, tidal water, overflow of 

water from a body of water, . . . ; or spray from any of 

these even if driven by wind.

 

In the exclusions sections, the policies specifically stated: "the words 'caused 

by' mean any loss that is contributed to, made worse by, or in any way results 

from that peril."

Plaintiffs also purchased separate flood insurance policies from Fidelity 

National Indemnity Insurance Company (Fidelity) which insured the structure 

of each of their homes for $250,000 and provided some coverage for the contents 

of their homes. 

On October 29 and 30, 2012, Superstorm Sandy made landfall near 

Atlantic City, sixty miles south of Mantoloking. Wind gusts were as high as 

eighty miles per hour. A severe storm surge occurred with tides in Mantoloking 

rising between nine and eleven feet, not including wave height. The storm surge 

caused surface water to flood onto plaintiffs' properties and their homes 

ultimately collapsed. Plaintiffs notified defendants of their losses and submitted 

claims to Fidelity. 
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Scott Shearer was Chubb's claims adjuster for the estate's property. 

Shearer retained Kimball J. Beasley of Wiss, Janney, Elstner Associates, Inc., 

an engineering firm, to investigate the damage to the estate's property. Beasley 

reported that wind was not a significant factor in the collapse of the home and 

instead, the damage was caused by storm surge. Based on Beasley's report, on 

January 18, 2013, Shearer informed the estate that the damage was caused by 

surface water and was therefore not covered by the policy.

Stephen Constanzo was Chubb's claims adjuster for Doerfler's property. 

On December 3, 2012, Jason Peddle and Harald Greve of Applied Engineering 

and Technology submitted a report based on their inspection of Doerfler's 

property. They concluded that the damage to Doerfler's home occurred because 

of storm surge and flood waters, not wind. "The structure was displaced from 

its foundation and collapsed by the force of the water surge and waves." On 

December 12, 2012, Constanzo denied Doerfler's insurance claim because of the 

surface water exclusion. 

In March 2013, Fidelity paid plaintiffs the maximum available under their 

flood insurance policies.

Anthony Johnson of the American Meteorological Society prepared a 

report on behalf of defendants. Johnson concluded that the winds during Sandy 
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were not of sufficient magnitude to cause structural damage to plaintiffs' 

properties. Instead, the combination of "storm surge, tide, wave setup and 

waves" caused much higher water levels which damaged the properties. Johnson 

found that in Superstorm Sandy, a long period of "swell" waves struck the coast 

prior to the "gale force" winds. Johnson stated, "[t]he unique aspect of Sandy 

. . . was the multi-tide cycle increase of onshore winds prior to landfall. This 

caused multiple high tide cycles with tidal flooding and also helped produce 

catastrophic wave action." Johnson also noted that the width of the dunes and 

the location of the dunes near plaintiffs' properties prevented the dunes from 

absorbing the energy from the waves and providing sufficient protection to the 

homes.

Travis Miles, PhD, a professor of marine and coastal sciences at Rutgers 

University, submitted a report on behalf of plaintiffs. Miles discussed the 

uniqueness of Sandy compared to other types of hurricanes and tropical storms. 

Wind gusts near plaintiffs' properties were ninety-one miles per hour, while total 

rainfall was only between one and three inches. Miles agreed with Beasley that 

storm surge caused the damage to the properties, but according to Miles, storm 

surge is a "wind created and driven phenomenon."
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On the basis of this record, the parties filed cross-motions for summary 

judgment on the question of whether the surface water exclusion in plaintiffs' 

insurance policies barred them from recovering after their homes were destroyed 

in the flood that inundated their properties. In addressing this issue, the judge 

applied the well-settled legal principles governing the interpretation of 

insurance contracts.

"An insurance policy is a contract that will be enforced as written when 

its terms are clear in order that the expectations of the parties will be fulfilled." 

Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010). An insurance policy should 

be interpreted in accordance with the "plain and ordinary meaning" of its terms. 

Mem'l Props. v. Zurich Am. Ins. Co., 210 N.J. 512, 525 (2012) (citing 

Flomerfelt, 202 N.J. at 441).

Exclusions in insurance policies are presumptively valid and enforceable 

"if they are 'specific, plain, clear, prominent, and not contrary to public policy.'" 

Flomerfelt, 202 N.J. at 441 (quoting Princeton Ins. Co. v. Chunmuang, 151 N.J. 

80, 95 (1997)). In contrast, courts will find "a genuine ambiguity to arise where 

the phrasing of the policy is so confusing that the average policyholder cannot 

make out the boundaries of coverage." Weedo v. Stone-E-Brick, Inc., 81 N.J. 

233, 247 (1979). 
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Generally, exclusions are narrowly construed. Flomerfelt, 202 N.J. at 

442. The insurer has the burden of bringing the case within the exclusion. Am. 

Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 41 (1998). Courts must be 

careful, however, "not to disregard the 'clear import and intent' of a policy's 

exclusion." Flomerfelt, 202 N.J. at 442 (quoting Westchester Fire Ins. Co. v. 

Cont'l Ins. Cos., 126 N.J. Super. 29, 41 (App. Div. 1973)). "[F]ar-fetched 

interpretation[s] of a policy exclusion" are "insufficient to create an ambiguity 

requiring coverage." Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97, 105 (App. 

Div. 1998). Thus, "[i]n the absence of any ambiguity, courts 'should not write 

for the insured a better policy of insurance than the one purchased.'" Gibson v. 

Callaghan, 158 N.J. 662, 670 (1999) (quoting Longobardi v. Chubb Ins. Co., 

121 N.J. 530, 537 (1990)).

After reviewing the record through the prism of these rules of insurance 

contract interpretation, the judge correctly concluded that plaintiffs' policies did 

not cover the losses they sustained in the flood that destroyed their homes. As 

noted above, the surface water exclusion in the policies clearly applies to "any 

loss caused by: flood, surface water, waves, tidal water, overflow of water from 

a body of water, . . .; or spray from any of these even if driven by wind." Here, 

the record clearly indicates that plaintiffs' homes were destroyed by the surface 
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water that flooded their properties during the storm. Therefore, the judge 

properly concluded that the exclusions barred plaintiffs from recovering under 

their policies.

In so ruling, the judge correctly rejected plaintiffs' contention that "wind 

was the initiating and efficient proximate cause of the storm surge that destroyed 

plaintiffs' homes" and, because wind damage was covered under their policies, 

"the surface water exclusions do not apply" to them under Appleman's Rule. 

The efficient proximate cause doctrine, more commonly referred to as 

Appleman's Rule, applies to risks and exclusions where a non-covered peril is 

set in motion by a covered peril in a chain of causation. N.J. Transit Corp. v. 

Certain Underwriters at Lloyd's London, 461 N.J. Super. 440, 460 (App. Div. 

2019); Franklin Packaging Co. v. Cal. Union Ins. Co., 171 N.J. Super. 188, 191 

(App. Div. 1979). 

Where a peril specifically insured against sets other 

causes in motion which, in an unbroken sequence and 

connection between the act and final loss, produced the 

result for which recovery is sought, the insured peril is 

regarded as the proximate cause of the entire loss. It is 

not necessarily the last act in a chain of events which 

is, therefore, regarded as the proximate cause, but the 

efficient or predominant cause which sets into motion 

the chain of events producing the loss. An incidental 

peril outside the policy, contributing to the risk insured 

against, will not defeat recovery[.] In other words, it 

has been held that recovery may be allowed [w]here the 
10 A-4215-18T1

insured risk was the last step in the chain of causation 

set in motion by an uninsured peril, or where the 

insured risk itself set into operation a chain of causation 

in which the last step may have been an excepted risk. 

[Franklin Packaging Co., 171 N.J. Super. at 191 

(quoting 5 Appleman, Insurance Law & Practice § 3083 

at 309-11 (1970)).]

We are satisfied that the trial judge correctly concluded that Appleman's 

Rule was inapplicable under the facts presented in this case. Here, the judge 

made the following findings: (1) the wind and the flood waters were not separate 

events; (2) "[w]hen a body of water overflows its normal boundaries and 

inundates an area of land that is normally dry, the event is a flood"; (3) 

Appleman's Rule was not helpful to plaintiffs because there were no sequential 

causes of their losses; (4) the term "caused by" in the policies was sufficiently 

clear and unambiguous; and (5) plaintiffs' damages were not caused by the wind.

The judge recognized that insurers may include "anti-sequential language"

in their policies, stating that if multiple causes, some covered and some 

excluded, occur in a sequence of events to produce an individual loss, there is 

no coverage. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 431 (App. 

Div. 2004). An anti-sequential clause can exclude coverage when an excluded 

peril, alongside a covered peril, either simultaneously or sequentially, causes

damage to the insured. Ibid.
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Here, plaintiffs' policies included a "caused by" provision that fulfilled the 

purpose of an anti-sequential clause. As noted above, this provision stated that 

"the words 'caused by' mean any loss that is contributed to, made worse by, or 

in any way results from that peril." In interpreting this provision to bar plaintiffs' 

contentions under Appleman's Rule, the judge stated:

[T]he definition of "caused by["] provides sufficient 

explanation to be readily understood by the 

policyholder. The policy language defines the term 

"caused by" so as to eliminate any interpretation that 

occurrence must be a sole, independent and exclusive 

event. The policy language indicates that other causes 

may contribute to the loss without divesting the 

exclusion language of its ability to prohibit coverage 

for the loss. Had [defendants] intended to include 

sequential perils, [they] would have explicitly provided 

for a remedy within the language of the policy. 

Thus, because plaintiffs' policies excluded them from recovering for any loss 

"contributed to, made worse by, or in any way results from" or caused by "flood, 

surface water, waves, tidal water, [or] overflow from a body of water," their 

claims were barred regardless of whether wind played any role in the loss. See

Simonetti, 372 N.J. Super. at 431.

Plaintiffs also argued that the damage to their homes was caused by "storm 

surge" and, because "the surface water exclusions do not exclude loss caused by 

storm surge," their claims were covered by their policies. The judge correctly 
12 A-4215-18T1

rejected this contention, and found that the plain meaning of the surface water 

exclusion was to exclude damages caused by floodwaters. As stated above, 

plaintiffs' policies excluded losses caused by "flood, surface water, waves, tidal 

water, [or an] overflow of water from a body of water." The exclusion was 

unambiguous, and defendants were not required to list every synonym that could 

be used to describe a flood. See Stafford, 309 N.J. Super. at 105.

Finally, plaintiffs alleged that their residences "collapsed" during the 

flood and because "building collapse" was not an excluded loss under their 

policies, their damages should have been covered. The judge properly 

concluded that this argument lacked merit.

The judge found that the collapse of the homes was the "form" of the 

damages plaintiffs suffered, and not the "cause" of these damages. Indeed, there 

is no evidence in the record suggesting there was a defect within the walls of 

plaintiffs' homes that would account for the collapse of the structures. Instead, 

the record clearly established that the water pressure caused by the flood waters 

inundating the properties directly caused their collapse. Because the surface 

waters that destroyed the homes was an excluded peril, the judge properly denied 

coverage.
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On appeal, plaintiffs' arguments are identical to those considered and 

rejected by the trial judge. Our review of a ruling on summary judgment is de 

novo, applying the same legal standard as the trial court, namely, the standard 

set forth in Rule 4:46-2(c). Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, 

we consider, as the trial judge did, 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." Town of Kearny v. Brandt, 214 N.J. 76, 91 

(2013) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995)). If there is no genuine issue of material fact, we must then "decide 

whether the trial court correctly interpreted the law." Massachi v. AHL Servs., 

Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. 

Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We accord no 

deference to the trial judge's conclusions on issues of law and review issues of 

law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying these principles, we are satisfied that the trial judge properly 

granted summary judgment to defendants on the coverage issues discussed in 

this opinion. We affirm substantially for the reasons expressed by the judge in 

his comprehensive April 17, 2019 written decision. To the extent we have not 
14 A-4215-18T1

addressed any of plaintiffs' remaining arguments, we conclude they are without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.