SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0345-16T2

EUGENE J. PAYOR AND 

JOANN WILCZYNSKI,

Plaintiffs-Appellants,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

______________________________

Submitted October 2, 2017 – Decided 

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. L4734-14.

Melissa Payor-Mackiewicz, attorney for 

appellants.

Carton Law Firm, LLC, attorneys for respondent 

(Michael J. Lynch, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 15, 2017
2 A-0345-16T2

Plaintiffs, Eugene Payor and Joann Wilczynski, appeal from 

an August 12, 2016 order granting summary judgment in favor of 

defendant, New Jersey Manufacturers Insurance Company. 

We discern the following facts from the summary judgment 

record. In February 2011, plaintiff Wilczynski noticed a shower 

curtain rod had pierced the wall in her first-floor bathroom. She 

called defendant to report the issue and a plumber to repair the 

damage. 

On March 1, 2011, defendant sent Tri-State Insurance 

Adjusters, Inc., (Tri-State) to inspect plaintiffs' home. TriState concluded a ruptured pipe underneath the first-floor 

bathroom was the origin of the damage and confirmed water damage 

to the interior of the home and to plaintiffs' personal property. 

A few days later, a plumber arrived to fix the leak. Upon 

removing the shower, several walls, and the flooring, the plumber 

noticed the plywood underneath the floor was soaking wet and 

rotted. He repaired the leaking pipes and left the area exposed 

for Tri-State to further inspect. 

On April 12, 2011, Tri-State retained Mark 1 Restoration, 

Inc., (Mark 1) to investigate the damage. Mark 1's project manager

found visible mold spores on rotted plywood subflooring beneath 

the first-floor bathroom and determined the source of the damage 
3 A-0345-16T2

was a "probable diverter leak in the shower wall which softened 

the wall causing the curtain rod to run through the wall." 

After reviewing Mark 1's report, defendant determined

plaintiffs' additional damages were limited to $10,000 because of 

a mold rider in their homeowners policy. Defendant issued 

plaintiffs a $10,000 check for the mold damage in addition to

$9,944.53 for plaintiffs' damaged personal property. 

On December 9, 2014, plaintiffs filed a complaint asserting 

breach of contract and seeking declaratory relief that the $10,000 

coverage limit in the mold rider did not limit their claim. Both 

parties moved for summary judgment. On August 12, 2016, the trial 

court denied plaintiffs' motion and granted defendant's crossmotion for summary judgment. 

Plaintiffs appeal, arguing genuine issues of fact precluded

summary judgment and the trial court misinterpreted the insurance

policy. Plaintiffs also assert their personal property claim 

remains in dispute and public policy should favor the insured over 

the insurer. We have considered these arguments in light of the 

record and applicable legal principals and find them unpersuasive. 

We therefore affirm.

I.

When we review a grant of summary judgment, we use the same 

standard as that of the trial court. Globe Motor Co. v. Igdalev, 
4 A-0345-16T2

225 N.J. 469, 479 (2016). A court should grant summary judgment, 

"if 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 challenged 

and that the moving party is entitled to a judgment or order as a 

matter of law." Ibid. (citing R. 4:46-2(c)). The evidence must 

be viewed in "the light most favorable to the non-moving party." 

Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).

Plaintiffs assert the mold rider does not limit recovery 

because the homeowners policy is susceptible to differing

interpretations, which should be construed against defendant. In 

interpreting an insurance policy, we "start with the plain language 

of the policy and 'give the words their plain, ordinary meaning.'" 

Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009) 

(quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). "Even 

exclusionary provisions are presumptively valid and will be given 

effect if specific, plain, clear, prominent, and not contrary to 

public policy." Id. at 102 (citations omitted). "In the absence 

of any ambiguity, courts should not write for the insured a better 

policy of insurance than the one purchased." Zacarias v. Allstate 

Ins. Co., 168 N.J. 590, 595 (2001) (quoting Gibson v. Callaghan, 

158 N.J. 662, 670 (1999)). If an ambiguity exists, it must be 

resolved against the insurer. Di Orio v. N.J. Mfrs. Ins. Co., 79 
5 A-0345-16T2

N.J. 257, 269 (1979). An ambiguity arises "where the phrasing of 

the policy is so confusing that the average policyholder cannot 

make out the boundaries of coverage." Lee v. Gen. Accident Ins. 

Co., 337 N.J. Super. 509, 513 (App. Div. 2001) (citing Weedo v. 

Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). Here, there is no 

ambiguity.

The homeowners policy in effect at the time of the incident 

insured against loss to property from water as a result of damaged 

plumbing, but specifically excluded mold or "fungi, wet or dry rot 

or bacteria." The policy also included an anti-concurrent/antisequential causation clause (sequential clause) applicable to the 

policy's exclusions. The sequential clause excluded "fungi, wet 

or dry rot or bacteria", regardless of any other cause or event 

contributing concurrently or in any sequence to the loss. The 

policy also contained a rider which gave back some excluded mold 

coverage, on a limited basis up to $10,000.

The trial judge correctly applied the sequential clause to 

plaintiffs' claim because the policy was written to provide 

coverage for damage from the broken pipe, but expressly limited 

additional recovery to $10,000 when an undetected leak caused mold 

and rot. By combining the sequential clause and the mold 

exclusion, the trial court reasoned plaintiffs' recovery was 

restricted to the mold endorsement's limit of $10,000. We agree.
6 A-0345-16T2

Sequential clauses resolve coverage issues, where two perils, 

one covered and one excluded, contribute to cause one loss.

Sequential clauses are enforceable in New Jersey. See Simonetti 

v. Selective Ins. Co., 372 N.J. Super. 421 (App. Div. 2004); 

Assurance Co. of America v. Jay-Mar, Inc., 38 F. Supp. 2d 349 

(D.N.J. 1998). Noting a lack of prohibition from the New Jersey 

Supreme Court, the United States District Court for the District 

of New Jersey found New Jersey would follow the majority rule that 

sequential clauses are enforceable. Assurance, supra, 38 F. Supp.

2d at 354. In particular, the court stated "there is no violation 

of public policy when parties to an insurance contract agree that 

there will be no coverage for loss due to sequential causes even 

where the first or the last cause is an included cause of loss." 

Ibid. We endorsed the District Court's reasoning in Simonetti, 

supra, 372 N.J. Super. at 431. Accordingly, we find the same 

rationale applicable here.

Plaintiffs assert defendant had the burden of proving the 

$10,000 mold exclusion applied and contend the trial court erred 

because it allowed defendant to satisfy its burden by showing mold 

was present, instead of showing it was the cause of the damage. 

"The insurer has the burden of establishing application of an 

exclusion." Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J. Super.

392, 401 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999) 
7 A-0345-16T2

(citing Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 

98 N.J. 18, 26 (1984)). Defendant submitted the Mark 1 report in 

support of summary judgment and established the presence of mold 

spores in the first-floor's plywood subflooring. Consistent with 

the language of the sequential clause, defendant satisfied its 

burden because mold was a concurrent part of the damage. We reject

plaintiffs' assertion that defendant had to show mold was the sole 

cause of loss, or at least caused an increase in loss, for the 

exclusion to apply. 

Plaintiffs argue material facts exist as to the extent of 

damage caused by the mold and whether the mold existed when the 

damage was reported. Because the sequential clause applies and 

defendant demonstrated, through the unrebutted Mark 1 report, mold 

was a sequential part of the loss, there are no material relevant 

facts in dispute. 

II.

Plaintiffs argue their personal property claim remains in 

dispute because the trial court did not consider it when granting 

summary judgment for defendant. However, we are confined to the 

summary judgment record and plaintiffs did not raise this argument 

in opposing defendant's motion for summary judgment. Lombardi v. 

Masso, 207 N.J. 517, 542 (2011) (citing Ji v. Palmer, 333 N.J. 

Super. 451, 463-64 (2000)). 
8 A-0345-16T2

Any additional arguments introduced by plaintiffs are without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). 

Affirmed.