SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3554-17T2

MARITIME PARK, LLC,

a/k/a MARITIME PARC, LLC,

a New Jersey limited liability

corporation, d/b/a MARITIME

PARC,

Plaintiff-Appellant,

v.

NOVA CASUALTY COMPANY,

Defendant-Respondent.

________________________________

Submitted March 11, 2019 – Decided March 29, 2019

Before Judges Sabatino and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Chancery Division, Middlesex County, Docket No. C000024-16.

Lee Law Firm, LLC, attorneys for appellant (Edward 

H. Lee, on the brief).

LeClair Ryan, PC, attorneys for respondent (John P. 

Malloy, on the brief).

NOT FOR PUBLICATION WITHOUT THE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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PER CURIAM

Plaintiff is the owner of a restaurant in Liberty State Park that was 

temporarily closed for several weeks after Superstorm Sandy. Although 

plaintiff’s insurer paid it for certain losses stemming from the closure, plaintiff 

sought additional coverage benefits under a "civil authority" provision set forth 

in the insurance policy. 

The trial court denied plaintiff’s claims for such additional benefits, 

construing the policy language to disallow coverage under the factual

circumstances presented. Plaintiff now appeals that ruling.

For the reasons that follow, we affirm.

I.

A.

Plaintiff's Restaurant and Its Location Within Liberty State Park

Maritime Park, LLC is the owner of Maritime Parc ("Maritime") a selfdescribed "high-end" restaurant on Audrey Zapp Drive within Liberty State Park 

in New Jersey. The restaurant is located on the waterfront within the Park in an 

area known as the Liberty Landing Marina. The Marina is situated on the 

Hudson River and has over 500 in-water boat slips, in addition to above-ground 

dry dock storage. Two restaurants are located within the Marina area: Maritime 
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and Liberty House. Maritime and Liberty House are adjacent to each other and 

share a parking lot. 

B.

Superstorm Sandy and the DEP Closure Order

On October 28, 2012, at approximately 3:00 p.m., the Commissioner of 

the New Jersey Department of Environmental Protection ("DEP") issued an 

order closing the Park in anticipation of Superstorm Sandy. Superstorm Sandy 

made landfall in New Jersey the following day on October 29. Robert 

Rodriguez, the Park's area manager during the time and current its 

superintendent, testified that all buildings within the Park were closed pursuant 

to the DEP's order. In addition, police blocked access to the Park. 

As a result of Superstorm Sandy, the Park remained closed to the public 

until November 16, 2012.1 In response to Maritime's request for information to 

facilitate its insurance claim, Rodriguez described the damage2to the Park in a 

January 14, 2015 letter as follows:

The Park roads, specifically Audrey Zapp Drive, 

Morris Pesin Drive and Freedom Way were closed at 

 

1 The record is inconsistent about this Park reopening date, but was clarified by 

Rodriguez during his deposition. We adopt the November 16 date utilized by 

the motion judge in his opinion.

2

 The letter also described damage to other areas of the Park that are not relevant 

to the case at bar. 
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interval times due to flooding and debris. Floodwaters 

and force winds carried and deposited debris all over 

the [P]ark but especially on the roads of the [P]ark. 

Debris included boats and yachts, trees, garbage of 

varying types, paverstones, chemicals and building 

materials. Some of the debris included vegetative but 

also household waste such as furniture, outdoor 

backyard equipment, playground equipment,

computers, chairs, clothing, etc. It took a considerable 

amount of time to allow for the flood waters to recede 

(approx., 2-3 weeks) and to remove the debris from the 

roads. Debris removal from [the Park] amounted to 

over 1,000 tons. Audrey Zapp Drive was reopened to 

the public and vehicles on November 16, 2012. 

[(Emphasis added).] 

Rodriguez explained in his deposition that the rising flood waters moved 

boats from the Marina to other areas of the Park. Rodriguez specifically recalled 

seeing "boats across the street from the Marina, on Audrey Zapp Drive." He 

also recalled seeing "a really large piece of a barge" on "Johnson Avenue, [a 

roadway which] turns into Audrey Zapp Drive." Rodriguez recalled Audrey 

Zapp Drive "being under water for days, maybe even a week or two." 

In his January 14, 2015 letter, Rodriguez detailed the post-storm damage 

to the sewer system that services the Marina, Maritime, and Liberty House. 

According to his letter, the "electrical and mechanical systems that service the 

sewage system . . . [were] damaged from flooding and wind. For several weeks 

the sewage system was inoperable[,] forcing all employees to utilize pot-a-sans 
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toilets." According to Rodriguez, the damage to the sewer system was the result 

of "a combination" of flooding and wind. 

On November 19, 2012, power was restored to Maritime. 3 Maritime

alleges that after the Park reopened, its hours of operation were curtailed. 

According to Maritime, the Park was only open "from 6:00 a.m. until dusk." 

Maritime maintains that "having to close [its] property at dusk in November and 

December of 2012, when it gets dark at approximately 5:00 p.m. – 6:00 p.m., 

does not make for a profitable dinnertime at a restaurant on the Hudson River." 

C. 

Maritime's Insurance Policy

During the relevant time frame, Maritime was insured by defendant Nova 

Casualty Company ("Nova" or "the insurer") under a policy with an inception 

date of November 24, 2011, and an expiration date of November 24, 2012. 

Several different portions of Maritime's insurance policy are implicated in this 

case. 

 

3 Marc Haskell, one of the owners of Maritime, testified that he recalled 

reopening the restaurant "after Thanksgiving" on either "November 29 or 

November 30." According to his recollection, Maritime opened after 

Thanksgiving because the restaurant did not have full power, the sewer system 

was not working, and the Park was not yet open. However, during this litigation, 

Maritime admitted in a counterclaim answer that its power was restored before 

Thanksgiving, on November 19, 2012.
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1.

Utility Services

The utility services provision is part of the "Restaurant Enhancement" 

endorsement included in the Policy. Subsection "u" of the endorsement states:

u. Utility Service

(1) We will pay for loss or damage caused directly or 

indirectly by the failure of power or other utility service 

supplied to the described premises, however caused, if 

the failure occurs away from the premises and the 

failure does not result in a Covered Cause of Loss.

(2) The most we will pay for loss or damage under this 

coverage is $100,000 in any one occurrence, unless a 

different limit is shown for Utility Service in the 

Supplemental Schedule. Coverage begins 24 hours 

after the failure of the utility service commences. 

Nova paid $82,318 to Maritime under this provision. The loss period ran from 

October 31, 2012 (twenty-four hours after power service was interrupted) until 

November 18, 2012 (since power was restored the next day on November 19, 

2012). 
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2. 

Civil Authority

The Civil Authority provision is included in the "Business Income" 

provision of the Policy. Under subsection 5 of this provision, titled "Additional 

Coverages," the Policy provides:

a. Civil Authority

When a Covered Cause of Loss causes damage to 

property other than property at the described premises, 

we will pay for the actual loss of Business Income you 

sustain and necessary Extra Expense caused by action 

of civil authority that prohibits access to the described 

premises, provided that both of the following apply:

(1) Access to the area immediately surrounding 

the damaged property is prohibited by civil authority as 

a result of the damage, and the described premises are 

within that area but are not more than one mile from the 

damaged property; and

(2) The action of civil authority is taken in 

response to dangerous physical conditions resulting 

from the damage or continuation of the Covered Cause 

of Loss that caused the damage, or the action is taken 

to enable a civil authority to have unimpeded access to 

the damaged property.

Civil Authority Coverage for Business Income will 

begin 72 hours after the time of the first action of civil 

authority that prohibits access to the described premises 

and will apply for a period of up to four consecutive 

weeks from the date on which such coverage began.
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Civil Authority Coverage for Extra Expense will begin 

immediately after the time of the first action of civil 

authority that prohibits access to the described premises 

and will end:

(1) Four consecutive weeks after the date of that 

action; or

(2) When your Civil Authority Coverage for 

Business Income ends; whichever is later.

[(Emphasis added).]

Under the civil authority provision, the prohibition on access to the property 

experienced by the insured must be the result of damage caused by a "covered 

cause of loss." The introductory words of the provision notably state, "When a 

covered cause of loss causes damage . . . ." (Emphasis added). 

The Policy defines, in turn, the pivotal concept of a "Covered Causes of 

Loss" as:

A. Covered Causes of Loss 

When Special is shown in the Declarations, Covered 

Causes of Loss means Risks of Direct Physical Loss 

unless the loss is: 

1. Excluded in Section B., Exclusions; or 

2. Limited in Section C., Limitations.

[(Emphasis added).]
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3. 

Water Exclusion

Section B of the Policy delineates the types of claims that are excluded 

from the Policy. Among other things, Section B provides in pertinent part:

B. Exclusions 

1. We will not pay for loss or damaged caused directly 

or indirectly by any of the following. Such loss or 

damage is excluded regardless of any other cause or 

event that contributes concurrently or in any sequence 

to the loss. 

[(Emphasis added).]

One of the exclusions listed under Section B is for "water." That term is 

described in the water exclusion endorsement, as follows: 

B. Water

(1) Flood, surface water, waves (including tidal wave 

and tsunami), tides, tidal water, overflow of any body 

of water, or spray from any of these, all whether or not 

driven by wind (including storm surge); 

(2) Mudslide or mudflow;

(3) Water that backs up or overflows or is otherwise 

discharged from a sewer, drain, sump, sump pump or 

related equipment;

(4) Water under the ground surface pressing on, or 

flowing or seeping through:
10 A-3554-17T2

(a) Foundations, walls, floors or paved surfaces;

(b) Basements, whether paved or not; or

(c) Doors, windows or other openings; or

(5) Waterborne material carried or otherwise moved by 

any of the water referred to in Paragraph 1., 3. or 4., or 

material carried or otherwise moved by mudslide or 

mudflow.

This exclusion applies regardless of whether any of the 

above, in Paragraphs 1, through 5, is caused by an act 

of nature or is otherwise caused. An example of a 

situation to which this exclusion applies is the situation 

where a dam, levee, sea-wall or other boundary or 

containment system fails in whole or in part, for any 

reason, to contain the water. . . . 

[(Emphasis added).] 

D. 

Maritime's Coverage Claims

Although it sustained other forms of physical damage from the storm, 

Maritime suffered no water damage or flooding in the interior of its building. 

Haskell, who checked on the restaurant two days after the storm had passed, 

testified that "most of the damage was contained to the exterior of the building 

and exterior patio area." Haskell stated most of the physical damage occurred 

to Maritime's outdoor patio, which contained an outdoor bar and seating. 

Meanwhile, Nova described the damage as "relatively minor wind damage and 

the loss of electrical power." 
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After the storm, Maritime retained the services of a licensed public 

insurance adjuster, who filed a property insurance claim on its behalf with Nova 

for "losses of business personal property and business income and extra 

expenses as such losses are defined in said policy of insurance." The claim was 

categorized under the policy category of "wind and hail" and was described as 

"Hurricane Sandy – Wind/water damage to insured location." 

Upon investigating the claim, Nova determined that Maritime sustained 

wind damage, and loss of electrical power from October 29 to November 19,

2012 which resulted in Maritime being unable to operate. Nova consequently 

paid Maritime the following sums on portions of its claims: $25,000 for food 

spoilage; $63,111.24 for damage to property; and the aforementioned $82,318

for loss of business income and extra expense under the "utility services" portion 

of the Policy. 

Maritime originally claimed an aggregate loss of business income of 

$385,226.08. Therefore, it maintained that the $82,318 payment by Nova for 

lost income was insufficient. Pursuant to a procedure set forth in the Policy, 

Maritime requested an appraisal of this business income claim.4 

 

4

 As described by Nova, "[u]nder this process, Maritime and Nova each select 

an appraiser. The two appraisers then select a neutral third appraiser, to 

comprise a panel of three. A decision by two of the three appraisers on the 
12 A-3554-17T2

The parties disagreed over the appropriate scope of an appraisal. Nova

maintained that Maritime was entitled to coverage only for the loss of income 

under the utility service provision, i.e., for loss associated with the loss of 

electrical power to the restaurant. Therefore, Nova sought to limit the appraisal 

to the issue of the amount of income lost during the specific period the restaurant 

was without power. Maritime disagreed with that scope, contending that it was 

separately entitled to coverage for loss of business income under the Civil 

Authority provision. Nova had denied coverage under that provision, finding it 

inapplicable. 

E. 

The Litigation

In March 2016, Maritime filed a complaint in the Chancery Division 

against Nova to pursue its claims for additional coverage. The complaint sought, 

among other things, a declaratory judgment that Nova was required to proceed 

to an appraisal on Maritime's claim for civil authority coverage.5 Nova denied 

 

amount of the loss is binding as to the amount of loss, but not whether coverage 

exists." 

5

 The complaint also includes counts for: judgment declaring Maritime’s claim 

for business income and extra expense are insured under the Policy (second 

count); violation of N.J.S.A. 56:8-2, the Consumer Fraud Act (third count); and 

breach of the implied duty of good faith and fair dealing (fourth count). 

Maritime does not appeal from the entry of summary judgment on these claims, 
13 A-3554-17T2

liability, and asserted a counterclaim seeking a judicial declaration that the 

utility services portion of the policy was the only portion subject to an appraisal. 

F. 

The Motion Practice

Nova moved for summary judgment, and Maritime cross-moved for 

summary judgment. Both parties agreed the factual record did not require any 

further development in order to resolve the coverage issues.

After hearing oral argument, Judge Arnold L. Natali, Jr., granted Nova's 

motion for summary judgment, and denied plaintiff's motion. The judge 

expressed his reasons in a detailed oral decision dated February 28, 2018. In 

particular, Judge Natali determined that Maritime was not entitled to coverage 

under the Civil Authority provision of the Policy. 

This appeal followed.

II.

On appeal, Maritime argues the trial court erred in rejecting its claim for 

additional coverage under the insurance policy's Civil Authority provision. We 

consider that argument de novo because the interpretation of an insurance policy 

 

as its appellate brief contains no argument challenging the trial court’s decision 

on these counts. See R. 2:6-2(a); see also Morris v. T.D. Bank, 454 N.J. Super. 

203, 206 n.2 (App. Div. 2018) ("An issue that is not briefed is deemed waived 

upon appeal."). 
14 A-3554-17T2

provision, and its application to record facts, is essentially a legal analysis. See, 

e.g., Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004)

("[T]he interpretation of an insurance contract is a question of law which we decide 

independent of the trial court's conclusions."). 

The insurance contract is "construed in accordance with principles that govern 

the interpretation of contracts." Mem'l Properties, LLC v. Zurich Am. Ins. Co., 210 

N.J. 512, 525 (2012). Accordingly, an insurance policy will be enforced as written 

when its terms are clear and unambiguous. Simonetti, 372 N.J. Super. at 428. "If 

the plain language of the policy is unambiguous, we will 'not engage in a strained 

construction to support the imposition of liability or write a better policy for the 

insured than the one purchased.'" Templo Fuente De Vida Corp. v. Nat'l Union Fire 

Ins. Co. of Pittsburgh, 224 N.J. 189, 200 (2016) (quoting Chubb Custom Ins. Co. v. 

Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)). In addition, we afford no 

special deference to a trial court in reviewing a decision rendered on summary 

judgment. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012). 

Having applied these principles here, we affirm the trial court's summary 

judgment ruling, substantially based upon the well-reasoned oral opinion of 

Judge Natali. We add only a few comments by way of amplification.
15 A-3554-17T2

Succinctly stated, the Policy furnishes Civil Authority coverage when: (1) 

a "covered cause" of loss causes damage; (2) the damage is to property at a 

location other than the insured location, but located within a mile of it; and (3) 

the action of a civil authority prohibits access to the described premises. For 

purposes of the coverage analysis, Maritime argues that the act of "civil 

authority" here is the DEP Commissioner's October 28, 2012 order closing the 

Park in anticipation of Superstorm Sandy.

As the motion judge correctly recognized, even if the Commissioner's 

closure order restricting access to the Park due to the storm is deemed a cause 

of Maritime's loss of business revenue, Maritime cannot be paid under the Civil 

Authority provision unless the circumstances involve a "covered claim of loss." 

As we have highlighted above, the Policy's definition of a "covered claim 

of loss" contains various exclusions in Section B that operate to nullify 

coverage. In particular, the Policy makes clear that Nova "will not pay for loss 

or damage caused directly or indirectly" by any of Section B's listed exclusions, 

including water infiltration, sewage back-up or overflow and waterborne 

material that has been carried or moved. (Emphasis added). 

Importantly, the Policy states "[s]uch loss or damage is excluded

regardless of any causes or events that constitutes concurrently or in any 
16 A-3554-17T2

sequence to the loss." This language is commonly known as an "anti-concurrent 

causation clause." The clause bars coverage when two identifiable causes – one 

covered and one not covered – contributes to a single loss. See, e.g., Wear v. 

Selective Ins. Co., 455 N.J. Super. 440, 454-55 (App. Div. 2018) (enforcing such 

an anti-concurrent causation clause); Simonetti, 372 N.J. Super. at 431 (same); 

see also Assurance Co. of Am., Inc. v. Jay-Mar, Inc., 38 F.Supp.2d 349, 352-54 

(D.N.J. 1999) (same).

Judge Natali correctly applied the Policy's anti-concurrent causation 

clause in this case. The record clearly shows that one of the reasons the Park 

was kept closed for several weeks – if not the sole reason – was the flood waters 

that overflowed portions of the Park. This was confirmed by Rodriguez's 

January 2015 letter, as well as his subsequent deposition testimony. The flood 

waters, combined with wind and other factors, caused debris to be moved about 

the Park, including large objects on Audrey Zapp Drive that impeded safe access 

to Maritime. 

It is inconsequential that Maritime's property itself was not damaged by 

flooding. Due to the anti-concurrent cause provision, the Civil Authority 

language affords no coverage where the restrictions on Park access were 

produced, at least in part, by flooding. Moreover, it is immaterial that the Park 
17 A-3554-17T2

was not actually flooded when it closed in anticipation of the storm on October 

28. The Civil Authority provision specifically provides that coverage begins 

only "72 hours after the time of the first action of civil authority that prohibits 

access to the described premises." (Emphasis added). 

Because the terms of the Policy language are clear and ambiguous, the 

trial court appropriately did not "engage in a strained construction to . . . write 

a better policy for the insured than the one [Maritime] purchased." Templo 

Fuente De Vida Corp., 224 N.J. at 200.

The remaining arguments raised by Maritime on appeal lack sufficient 

merit to warrant any further comment. R. 2:11-3(e)(1)(E).

Affirmed.