NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5415-15T3

AIR MASTER & COOLING, INC.,

Plaintiff-Appellant,

v.

SELECTIVE INSURANCE COMPANY 

OF AMERICA,

Defendant-Respondent,

and

HARLEYSVILLE INSURANCE COMPANY,

Defendant.

_________________________________

Argued September 25, 2017 – Decided

Before Judges Sabatino, Whipple and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. L-6861-

14.

Sharon K. Galpern argued the cause for

appellant (Stahl & DeLaurentis, PC, attorneys; 

Ms. Galpern, on the briefs).

Todd J. Leon argued the cause for respondent 

(Hill Wallack, LLP, attorneys; Mr. Leon, of 

counsel and on the brief; Victoria J. Airgood, 

on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D. 

APPROVED FOR PUBLICATION

October 10, 2017

APPELLATE DIVISION

October 10, 2017
A-5415-15T3

2

This declaratory judgment action poses several fundamental 

legal issues concerning property damage coverage under a 

Commercial General Liability ("CGL") insurance policy. The 

coverage issues arise out of lawsuits brought by a condominium 

association and unit owners to remediate construction defects 

within a residential building. The insured, Air Master & Cooling, 

Inc. ("Air Master"), had performed work as a subcontractor on the 

roof and elsewhere in the building. The construction defects 

concern property damage resulting from, among other things, the 

apparent progressive infiltration of water within the building.

After Air Master was named as a third-party defendant in the 

underlying construction defects cases, it sought a defense and 

indemnity from Selective Insurance Company of America 

("Selective"). Selective was one of a series of different insurers 

that had issued CGL policies to Air Master over successive policy 

periods. 

The trial court granted summary judgment to Selective in the 

declaratory judgment action, agreeing with the insurer that the 

property damage to the building already had manifested before 

Selective's policy period commenced. In appealing from that 

ruling, Air Master raises several legal issues, some of which are 

either completely novel or which have not been definitively 

addressed under New Jersey law.
A-5415-15T3

3

For the reasons explained in this opinion, we hold, first, 

that a "continuous trigger" theory of insurance coverage may be 

applied in this State to third-party liability claims involving 

progressive damage to property caused by an insured's allegedly 

defective construction work. Second, we hold that the "last pull" 

of that trigger – for purposes of ascertaining the temporal end 

point of a covered occurrence – happens when the essential nature 

and scope of the property damage first becomes known, or when one 

would have sufficient reason to know of it. Third, we reject Air 

Master's novel argument that the last pull of the trigger does not 

occur until there is expert or other proof that "attributes" the 

property damage to faulty conduct by the insured.

Applying these principles, we vacate summary judgment and 

remand for further development of the record and for 

reconsideration of the coverage issues. We do so because the 

present factual record is insufficient to determine with clarity 

when the essential nature and scope of the water infiltration 

damage was sufficiently known, or reasonably could have been known, 

as to, respectively, (1) the individual condo units and (2) the 

roof. In making that assessment with an enhanced factual record, 

the trial court shall be particularly guided by the manifestation 

analysis set forth in Winding Hills Condominium Association, Inc. 
A-5415-15T3

4

v. North American Specialty Insurance Co., 332 N.J. Super. 85, 88-

93 (App. Div. 2000).

I.

The limited record provided on appeal presents the following 

relevant chronology. The insured, Air Master, worked as a 

subcontractor on the construction of a seven-story, 101-unit, 

mostly-residential condominium building in Montclair. The 

construction manager hired Air Master to perform HVAC1 work in the 

building, which Air Master conducted between November 2005 and 

April 2008. As described in the record, Air Master's work 

consisted of installing condenser units on rails on the building's 

roof, and also HVAC devices within each individual unit.

Starting in early 2008, some of the unit owners began to 

notice water infiltration and damage in their windows, ceilings, 

and other portions of their individual units. According to a 

November 4, 2010 story published in a local newspaper, unit owner 

Carlton Schultz, a fifth-floor resident, noticed by February 2008 

the presence of leaks in his walls and windows. In addition, the 

story reported that another resident on the same floor, Raniya 

Kassem, noticed similar damage to her unit by July 2008. The 

newspaper story indicated that "[w]orkers eventually began to 

 

1 HVAC commonly refers to heating, ventilation, and air 

conditioning. See, e.g., State v. Perini Corp., 221 N.J. 412, 419 

(2015).
A-5415-15T3

5

suspect that some of the leaks resulted from improper drainage 

from the balcony above Kassem's condo," and the workers "tried 

making some adjustments to that balcony to halt that flow." The 

article further reported that leaks had been discovered in common 

area stairwells and the building's parking garage. The project's 

general contractor and developer began to respond to the problems, 

and certain investigations and remedial measures were commenced.

Eventually, on April 29, 2010, an expert consultant, Jersey 

Infrared Consultants ("Jersey Infrared"), performed a moisture 

survey of the roof for water damage, as documented in a May 3, 

2010 report. The report identified 111 spots on the roof damaged 

by moisture from water infiltration. The expert recommended that 

these damaged areas of the roof be removed and replaced. 

With respect to the timing of these conditions, the Jersey 

Infrared report stated that "it is impossible to determine when 

moisture infiltration occurred." The report raised a potential 

link of the water infiltration that the consultant had discovered 

on the roof to the previously-detected water problems on the floors 

below, noting that "[t]he absence of leaks in some areas [of the 

roof] may be due to the travel of moisture on the deck to another 

location where it could leak into the building."

Schultz, Kassem, and the condominium association each sued 

the project's developer and other defendants for property damage 
A-5415-15T3

6

and the costs of remediation. The three lawsuits were 

consolidated. The defendants, in turn, brought third-party 

complaints against Air Master and multiple other subcontractors 

that had worked on the project. Air Master then sought defense 

and indemnity from its various insurers that covered it under a 

succession of CGL policies.

In particular, Air Master was insured by Penn National 

Insurance Company ("Penn National") for the policy period from 

June 22, 2004 (or 2005)2 through June 22, 2009. Air Master 

thereafter had a policy with Selective covering June 22, 2009 

through June 22, 2012. Finally, Air Master had a policy from 

Harleysville Insurance Company ("Harleysville") covering June 22, 

2012 through June 22, 2015. 

Both Selective and Harleysville disclaimed coverage, denying 

that they had any duty to defend or indemnify Air Master against 

the property damages claims. They argued that the property damage 

had already manifested before their respective policy periods 

began.

Penn National, which insured Air Master during the November 

2005 to April 2008 time frame when it performed the work on the 

 

2 The documentation in the record is inconsistent as to the start 

year of Penn National's coverage. In any event, the analysis of 

Selective's potential coverage is not affected by whether Penn 

National's policy began in 2004 or 2005.
A-5415-15T3

7

building, assumed the defense of the third-party complaints, 

subject to a reservation of its rights. Meanwhile, Harleysville 

moved for and obtained summary judgment because its policy did not 

commence until June 2012, long after the leaks had materialized.3 

That left open the coverage issues with respect to the middle 

carrier in the time sequence, Selective.

Selective's CGL policy states, in relevant part, that the 

insurer is to provide coverage for bodily injury or property damage 

that occurs "during the policy period." In addition, the policy 

defines an "occurrence" as "an accident, including continuous or 

repeated exposure to substantially the same general harmful 

conditions." Further, the policy defines "property damage" as 

"physical injury to tangible property, including all resulting 

loss of use of that property. All such loss of use shall be deemed 

to occur at the time of the physical injury that caused it." 

Property damage also is defined to encompass "loss of use of 

tangible property that is not physically injured." Similarly, 

"[a]ll such loss of use shall be deemed to occur at the time of 

the 'occurrence' that caused it."

Air Master filed this declaratory judgment action against 

Selective and Harleysville in the Law Division in September 2014. 

 

3 That ruling as to Harleysville, which was made by a different 

Law Division judge, is not being appealed by Air Master.
A-5415-15T3

8

After limited discovery, including apparently interrogatory 

responses and document exchanges, Selective moved for summary 

judgment.

Selective argued that it is not responsible for water damage 

that had materialized or manifested before the beginning of its 

coverage period in June 2009. In opposition, Air Master countered 

that under a continuous-trigger theory, coverage by all applicable 

insurers continues until the "last pull" of the trigger of an 

injury occurs. According to Air Master, manifestation does not 

happen until it becomes known, or reasonably knowable, that such 

damage is "attributable" to the work of the insured. Based on 

those assertions, Air Master argued that, at the very earliest, 

the last "pull" of the coverage trigger here was in May 2010, when 

Jersey Infrared issued its roof moisture report.

In her initial written decision dated June 10, 2016, the 

motion judge granted summary judgment to Selective on the ground 

that the continuous-trigger theory of coverage does not apply in 

New Jersey to first-party claims. See Winding Hills, supra, 332 

N.J. Super. at 90-93 (articulating this distinction between firstparty and third-party claims). Air Master moved for 

reconsideration. It persuaded the motion judge to change her mind 

and recognize that the present litigation involves, in fact, thirdparty liability claims against Air Master and thus the continuous-
A-5415-15T3

9

trigger doctrine does apply. The motion judge corrected herself 

on this discrete point in her August 5, 2016 written decision on 

reconsideration.

Nonetheless, the motion judge still ruled that Selective is 

not liable for coverage or a duty to defend Air Master in this 

case, because she conclusively found that the damage to the 

building had manifested before Selective's policy period began in 

June 2009. The judge rejected Air Master's argument that the CGL 

coverage period continues until damages "attributable" to the 

insured have been discovered, or reasonably could have been 

discovered. As the judge noted in her written decision, "[t]here 

is no indication in the [Selective] Policy or in the case law that 

manifestation requires a separate analysis [of attribution] for 

each potentially liable insured." Discerning no questions of 

material fact were present, the judge added that "[i]t is not 

meaningfully contested that damage manifested at [the condo 

building] prior to Air Master's policy with Selective," and, hence,

"Selective owes no duty to Air Master." (Emphasis added). 

This appeal ensued. 

II.

A.

Air Master argues this court should recognize, as a predicate 

matter, that continuous-trigger principles should govern third-
A-5415-15T3

10

party liability coverage analysis in construction defect cases 

that involve progressive property damage, such as water 

infiltration. Next, Air Master contends that continuous-trigger 

principles extend coverage to all insurance policies in effect 

from the time of the insured's work on the construction project 

through the time by which it was known, or there was sufficient 

reason to know, that the manifested property damage was 

attributable to the insured's work. 

Based on these predicates, Air Master contends that summary 

judgment in this case should be reversed because it was not until 

May 2010, when Jersey Infrared's roof study was issued, that 

property damage attributable to Air Master's work on the roof was 

first ascertained.

Air Master contends that it is not subject to an earlier 

manifestation date tied to the discovery of the leaks in the condo 

units below the roof, because it allegedly "had no involvement 

with windows, walls, or balconies which are the 2008 damage areas."

In considering these arguments, "we review the trial court's 

grant of summary judgment de novo under the same standard as the 

trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Co. 

of Pittsburgh, 224 N.J. 189, 199 (2016). That familiar summary 

judgment standard is whether the record, viewed in a light most 

favorable to the non-moving party, shows that "there is no genuine 
A-5415-15T3

11

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.

(quoting R. 4:46-2(c)); see also Brill v. Guardian Life Ins. Co. 

of Am., 142 N.J. 520, 540 (1995). Moreover, in insurance coverage 

cases, "[t]he interpretation of contracts and their construction 

are matters of law for the court subject to de novo review." Duddy 

v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 217-18 (App. Div. 

2011) (citing Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super.

363, 375 (App. Div.), certif. denied, 196 N.J. 601 (2008)). 

Ordinarily, in construing the meaning of insurance policies, 

courts look to the literal terms of the policies, and enforce 

those terms if they are plain and unambiguous. Templo Fuente, 

supra, 224 N.J. at 200. However, in the context of CGL coverage, 

our Supreme Court has considered public policy factors when 

construing and applying such contractual provisions, including, 

as here, language that defines covered occurrences as losses that 

transpire "during" a policy period.

In the seminal case of Owens-Illinois, Inc. v. United 

Insurance Co., 138 N.J. 437, 454-56 (1994), the Supreme Court 

adopted the continuous-trigger theory for property damage 

insurance claims that arose from the installation of asbestosrelated products. As Justice O'Hern's opinion in Owens-Illinois

explained, the most frequently offered theories defining a 
A-5415-15T3

12

"trigger" of coverage recognized in other jurisdictions are: (1) 

the "exposure" theory; (2) the "manifestation" theory; and (3) the 

"continuous-trigger" theory. Id. at 449-50.4 

The exposure theory deems the trigger date of an occurrence

that causes bodily injury to be "the date on which the injuryproducing agent first contacts the body." Id. at 450 (quoting 

Developments in the Law – Toxic Waste Litigation, 99 Harv. L. Rev.

1458, 1579-81 (1986)). Alternatively, the manifestation theory 

entails ascertaining the point in time when an injury or disease 

first presented or manifested itself. Ibid. Lastly, the 

continuous-trigger theory recognizes that, because certain harms 

such as asbestos-related diseases will progressively develop over 

time, "the date of the occurrence should be the continuous period 

from exposure to manifestation." Ibid. Under such a continuoustrigger approach, "all the insurers over that period [are] liable 

for the continuous development of the disease." Id. at 450-51.

 

4 The Court also mentioned "two other less-frequently followed 

theories[:]" (1) the injury-in-fact or damage-in-fact approach, 

which holds that the time of the "actual injury or damage producing 

event" triggers coverage, and (2) the "double-trigger" theory, 

which holds that "injury occurs at the time of exposure and the 

time of manifestation, but not necessarily during the intervening 

period." Id. at 451. We need not discuss these alternatives 

here, in light of the continuous-trigger theory adopted by the 

Court in Owen-Illinois for the progressive injury claims in 

question. Id. at 458-59. 
A-5415-15T3

13

The Court in Owens-Illinois endorsed the application of the 

continuous-trigger coverage doctrine in the specific context of 

asbestos-disease coverage cases, largely because that approach has 

the effect of maximizing coverage. Id. at 458-59. Unlike the 

manifestation theory, the continuous-trigger approach requires 

multiple successive insurers up to the point of manifestation to 

cover a loss. Id. at 451. Hence, more aggregate coverage is 

available to pay meritorious claims. The continuous-trigger 

approach also encourages insurers to monitor progressivelydeveloping risks and to charge appropriate premiums for those 

risks. Ibid.

Analytically, the continuous-trigger theory shares the same 

coverage endpoint as the manifestation theory, i.e., the date when 

the harm has sufficiently become apparent to trigger a covered 

occurrence. The difference between the two approaches is that the 

manifestation theory confines coverage to the CGL insurer that 

happens to be on the risk at the time when the manifestation 

occurs, whereas the continuous-trigger theory will aggregate 

coverage from all insurers that were on the risk from the date of 

first exposure through the manifestation date. 

Here, for example, if the property damage started during Penn 

National's policy period, but progressively advanced or worsened 

through Selective's policy period up to the time of 
A-5415-15T3

14

"manifestation," then both Penn National and Selective would be 

liable to provide a defense and coverage to Air Master, subject 

to potential allocation or apportionment between the carriers.

Although the use of the continuous-trigger doctrine is most 

readily justified in the context of progressive bodily injury, the 

Court in Owens-Illinois noted that the doctrine also can sensibly 

be applied to property damage that progresses after the time of 

initial exposure. "Like a person exposed to toxic elements, the 

environment does not necessarily display the harmful effects until 

long after the initial exposure." Id. at 455. For that reason, 

the Court held in Owens-Illinois that "claims of asbestos-related 

property damage from installation through discovery or remediation

(the injurious process) trigger the policies on the risk throughout 

that period." Id. at 456 (emphasis added).

Since 1994 when Owens-Illinois was decided, case law has 

extended the continuous-trigger theory beyond the asbestos context 

to other progressive forms of third-party injuries. These include, 

for example, environmental contamination cases; see, e.g., CarterWallace v. Admiral Ins. Co., 154 N.J. 312, 321 (1998), and Quincy 

Ins. Co. v. Borough of Bellmawr, 172 N.J. 409, 411-12 (2002); and 

cases involving harmful exposure to substances, such as food 

flavorings containing the toxic chemical diacetyl; see, e.g., 
A-5415-15T3

15

Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 

260-63 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009). 

Notably, the Court in Owens-Illinois declined to articulate 

what exactly is the "end" point, or the "last pull" of the coverage 

trigger, for a progressively-developing injury. Owens-Illinois, 

supra, 138 N.J. at 456. That question was later answered, however, 

by this court in Polarome, supra, 404 N.J. Super. at 266-69. 

The insured in Polarome, a product manufacturer, sought CGL 

coverage after it had been named as a defendant in multiple 

lawsuits alleging serious progressive bodily injury as to persons 

who had inhaled diacetyl, a chemical used as a flavoring in the 

company's product. Id. at 250. One such claimant, Kuttner, had 

been exposed to diacetyl at his workplace through 1991, and the 

other claimant, Blaylock, had been exposed through 2001. Id. at 

256. Both claimants' exposure at work ended before the insurers' 

policies came into effect. Ibid. 

Applying a continuous-trigger theory, we concluded in 

Polarome that the "last pull" of the coverage trigger did not 

occur for the claimants' progressive, indivisible injuries until 

the point of "the initial manifestation of [their] toxin-related 

disease." Id. at 272. For claimant Kuttner, that manifestation 

occurred by October 1993, by which point he had been diagnosed 

with obstructive lung disease and his bodily injury had thus become 
A-5415-15T3

16

manifest. Id. at 257. For Blaylock, the "last pull" was deemed 

to be manifest by March 2002, when he reasonably could have been 

clinically diagnosed for bronchiolitis obliterans, following a 

lung biopsy that had been performed the previous month. Ibid. 

Summarizing the key timing principles in Polarome, we stated 

that "the last pull of the trigger occurs with the initial

manifestation of a toxic-tort personal injury." Id. at 268. "It 

is only the undetectable injuries at and after exposure and prior 

to initial manifestation that are progressive and indivisible[,] 

such that the occurrence of an injury cannot be known." Ibid.

None of the reported decisions in our state to date have 

specifically addressed the key issues presented here, which 

involve the appropriate manner for identifying the date of 

manifestation of property damage that progressively advances 

within a multi-unit building for purposes of third-party liability 

claims under a CGL policy. 

B.

Having stated this overall analytical framework, we turn 

first to the threshold question of whether a continuous-trigger 

theory of CGL coverage sensibly applies to claims for third-party, 

progressive property damage in construction defect cases. We 

conclude that it does. Indeed, the motion judge correctly presumed 

as much in her decision on reconsideration.
A-5415-15T3

17

As we have already noted, our Supreme Court has endorsed the 

continuous-trigger doctrine in certain factual contexts for 

reasons of public policy, by treating all insurance policies in 

effect during the aggregate trigger period to be "activated and . 

. . be called on to respond to a loss." Quincy, supra, 172 N.J.

at 417. The doctrine was fashioned to address the difficulties 

of establishing with scientific certainty when the harmful effects 

of a progressive disease or injury have occurred. Winding Hills, 

supra, 332 N.J. Super. at 90-91. The doctrine promotes the 

availability to the general public of coverage in such progressive 

injury situations. Id. at 91. 

As an equitable matter, the continuous-trigger doctrine is 

not fundamentally unfair to insurers that were on the risk during 

policy periods as an injury progressed to the point of ultimate 

manifestation. Such insurers simply would be bearing a portion 

of the aggregate coverage burden that had accumulated while the 

yet-to-be-manifested harm worsened.

In at least one case, the Supreme Court implicitly approved 

the use of continuous-trigger coverage principles in a 

construction defect context. See Potomac Ins. Co. v. PMA Ins.

Co., 215 N.J. 409, 422 (2013). There, the Court was presented 

with the question of whether an insurer may assert, against a coinsurer, a claim for costs incurred in defending litigation over
A-5415-15T3

18

construction defects in a school roof. The property damage to the 

roof had manifested over a period of years, during which time the 

insured was insured by successive carriers. Id. at 413-15. 

Relying on its prior opinions in Owens-Illinois, supra, 138 N.J.

at 478-80, and Carter-Wallace, supra, 154 N.J. at 317, the Court 

found that a continuous-trigger analysis in that particular 

setting was appropriate. Id. at 425. In doing so, the Court

observed that the Owens-Illinois methodology had been applied to 

"a variety" of disputes between policyholders and insurers. Ibid.

Although Potomac Insurance specifically concerned the 

allocation of past defense costs incurred in a construction case 

by a common policyholder of several insurers, we discern no 

principled reason to refrain from applying continuous-trigger 

principles to cases like the present one, where issues of both 

past and future defense costs and indemnification are implicated. 

The public policies favoring a continuous-trigger approach in 

progressive injury matters are likewise germane here. Property 

damage within a building can be latent and undetected, behind 

walls and above ceiling tiles, and can gradually worsen and advance 

over time. Indeed, as the Supreme Court very recently observed, 

albeit in a somewhat different context, in The Palisades at Fort 

Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, __ 

N.J. __, __ (2017) (slip op. at 34), "[m]any construction defects 
A-5415-15T3

19

will not be obvious immediately." The progressively-worsening 

nature of a variety of construction defects, such as water 

infiltration or mold, logically support the application of the 

continuous-trigger doctrine. We thus endorse the doctrine's use 

in this context.5 

C.

We next consider Air Master's novel conceptual argument that 

the end date for a continuous trigger should be delayed until it 

first appears, or reasonably could be known, that the damage is 

"attributable" to the conduct of the specific insured. Air Master 

contends that such an attribution requirement is consistent with 

the public policies underlying the continuous-trigger doctrine. 

It asserts that adding such a requirement would have the coveragemaximizing impact of extending the aggregate period of coverage 

to the point in time when a manifested injury could be reasonably 

linked to the particular conduct of an insured.

We agree that the trial court sensibly rejected this 

attribution argument, for several reasons. First, we note that 

Air Master does not cite to any published opinions – nor could we 

 

5 In any event, as we shall discuss in Part II (C) and (D), infra,

even if a "manifestation trigger" approach is followed here instead 

of a continuous-trigger approach, the same pivotal questions 

concerning the trigger "end date" need to be resolved for this 

case.
A-5415-15T3

20

find one – in which courts have engrafted such an attribution 

element upon continuous-trigger analysis.6

Second, we concur with the trial court and Selective that it 

would be unwise to delay the coverage trigger date to a date by 

which there is sufficient information to link an insured's faulty 

conduct to the progressive injury. Such an attribution analysis 

could be highly fact-dependent, and difficult to resolve when an 

insured makes a request for defense and indemnification after 

being named in a complaint. The attribution analysis would require 

a defendant-specific determination of when each defendant 

reasonably could have been deemed to be at fault in contributing 

to the progressive harm. Those sorts of defendant-specific 

inquires could easily spawn lengthy and expensive collateral 

discovery and motion practice. Indeed, in this very case, more 

than two dozen subcontractors were named as third-party 

defendants, and it would be a colossal undertaking to conduct a 

defendant-by-defendant analysis of when the property damage first 

 

6 The two unpublished opinions cited by Air Master in support of 

recognizing an attribution element are not binding authority. See

R. 1:36-3. In any event, those opinions are not particularly 

helpful to Air Master because the court concluded in both cases 

that coverage was inapplicable, since the property damage had been 

attributed to the insured before the insurance company's policy 

period had begun. Hence, in both unpublished cases cited by Air 

Master, the date of initial manifestation – which the trial judge 

here found and we agree is the correct "last pull" date – obviously 

preceded the date of attribution.
A-5415-15T3

21

became attributable to each of them. By contrast, using a date 

of initial manifestation that is common to all parties – regardless 

of which contractor or subcontractor may be "at fault" for the 

occurrence – promotes efficiency and certainty.

In effect, Air Master is attempting, by analogy, to import 

to this present coverage realm the "equitable tolling" doctrine 

developed for and applied in the statute-of-limitations context. 

Under such equitable tolling principles (also known as the 

"discovery rule"), injured plaintiffs may be granted additional 

time to file suit until the point in time that they have reason 

(1) to know they are injured and (2) to attribute that injury to 

the fault of a particular defendant. See, e.g., Lopez v. Swyer, 

62 N.J. 267 (1973). 

This analogy fails, however, because the policy 

considerations that justify the equitable tolling of statutes of 

limitations for plaintiffs do not pertain to insured defendants

who have potentially caused a progressive injury. Plaintiffs who 

have sustained such injuries often lack fault of their own. They 

also typically have less access to information than do defendants 

to identify the causes of the inflicted harm. 

Statutes of limitations do not need to be coterminous with 

insurance coverage periods. Indeed, it is not uncommon, when 

equitable tolling is applied, for a plaintiff to file suit years 
A-5415-15T3

22

after an injury had manifested, if the plaintiff had no reason to 

know until that later point in time what party(ies) were 

responsible for that harm. See, e.g., Kendall v. Hoffman-La Roche, 

Inc., 209 N.J. 173, 185-86 (2012) (applying tolling to allow a 

plaintiff who allegedly had been injured by the effects of taking 

a drug to extend her time to file suit by approximately four 

years). 

It would be unfair and inappropriate to use statute-oflimitations equitable tolling concepts to impose coverage and 

defense obligations upon insurers that issued "occurrence-based" 

policies years after an injury had clearly been manifested. 

Adopting such an approach would likely escalate premiums, or, even 

worse, deter insurers from writing such new CGL policies 

altogether, lest they be entangled in covering losses that had 

manifested long ago. We decline to adopt a novel theory that 

would, in effect, transform CGL occurrence-based policies into 

instruments that would be more akin, if not identical, to "claimsmade" policies.7 The latter are based upon entirely different 

underwriting considerations.

 

7 See Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304, 

310-11 (1985) (explaining the difference between an "occurrence" 

liability insurance policy, in which coverage applies to negligent 

or omitted acts happening during the policy period even if the 

claim is not presented until sometime later, and a "claims made" 

policy, in which coverage applies if the negligent or omitted act 

is discovered and brought to the insurer's attention during the 
A-5415-15T3

23

Hence, we reject Air Master's attribution theory as unsound 

and unsupported in the law.

D.

We now address the most pivotal aspect of this appeal, namely 

the determination of when the property damage due to water 

infiltration in the condominium building had first sufficiently 

"manifested" to comprise the "last pull" of the coverage trigger. 

In approaching this issue, we are guided by the illustrative 

analysis of Judge Pressler in her opinion in Winding Hills, supra,

332 N.J. Super. at 85. Although Winding Hills was a first-party 

case applying the manifestation theory of coverage, the core 

question of what constitutes manifestation in a progressive, 

continuous-trigger construction defect setting involves a similar 

task in identifying the appropriate end date.

The facts in Winding Hills concerned, as here, a multi-unit 

condominium project with construction defects that emerged over a 

period of time. In November 1989, the condominium association in 

that case retained an engineering consultant, Trinity Dynamics 

("Trinity"), to evaluate the project's buildings in connection 

 

policy period, regardless of when the act occurred); see also

Templo Fuente, supra, 224 N.J. at 200-03.
A-5415-15T3

24

with a review of the sufficiency of its capital reserve funding. 

Id. at 88. During that initial undertaking, Trinity discovered 

structural deficiencies within two of the buildings, which it 

reported to the association. Ibid. The association then retained 

Trinity in June 1990 to undertake an expert analysis "to determine 

the extent and cause of the deficiencies." Ibid.

Trinity delivered an extensive report to the association in 

January 1991. Ibid. That expert report delineated how 

deficiencies in the project's on-site drainage system had led to 

structural failures in the buildings' foundations. Ibid. The 

report theorized that the detected foundation problems could have 

stemmed from improper backfill, subsurface soil erosion, or 

underground springs. Ibid. Thereafter, the association hired 

another engineering company, Becht, to remediate the foundation 

problem. Id. at 88-89. Becht issued a report to the association 

in June 1993, reporting further structural distress caused 

primarily by water infiltration. Id. at 89. 

Given this chronology, the trial judge in Winding Hills fixed 

the date of manifestation for insurance coverage purposes as of 

January 1991, the month when Trinity's expert report was issued. 

Id. at 89-90. This court affirmed that determination. Ibid.

As Judge Pressler noted, "[w]hile it might have been arguable 

that [the association] should have been charged with notice of the 
A-5415-15T3

25

loss as early as 1989 when Trinity first reported to it that there 

were foundation problems, we do not see how there can be any other 

conclusion, respecting the effect of the 1991 report." Id. at 89-

90. She added, "[c]ertainly the later Becht report, which 

uncovered additional problems, cannot reasonably impugn the extent 

of [the association's] awareness of the essential difficulties in 

January 1991." Id. at 90 (emphasis added). Consequently, the 

panel in Winding Hills held that the issuance of Trinity's expert 

report in 1991 delineating the "essential" nature of the harm –

and not its initial discovery that preceded it in 1989-90 – was 

the appropriate trigger date to use for coverage analysis. Ibid.

The opinion in Winding Hills did not define "essential," as 

that term was used within its discussion. We presume the panel 

contemplated a meaning consistent with standard dictionary 

definitions for "essential," i.e., "constituting or part of the 

nature of something," "inherent," or "basic." See Webster's II 

New College Dictionary 384 (2001 ed.); see also Black's Law 

Dictionary 663 (10th ed. 2014) (defining "essential" as "relating 

to or involving the essence or intrinsic nature of something[,]" 

"[o]f utmost importance[,]" or "basic and necessary").

In the present insurance context involving the "essential" 

manifestation of an injury, we regard the term to connote the 

revelation of the inherent nature and scope of that injury. On 
A-5415-15T3

26

one end of the spectrum, manifestation cannot be merely tentative 

(as Trinity's original observations of structural problems in 

Winding Hills apparently were). See Winding Hills, supra, 332 

N.J. Super. at 88-89. Nor must the manifestation be definitive 

or comprehensive (as apparently was Becht's later report, after 

it had remediated the structural harm). Ibid. The critical term 

"essential," as used in this coverage context, should be understood 

and applied consistent with such concepts.

Here, Air Master likens Jersey Infrared's May 2010 expert 

report, which delineated the nature and extent of the rooftop 

moisture damage, to Trinity's expert report in Winding Hills. 

Ibid. Air Master urges that the May 2010 report provides an 

appropriate demarcation of the time of manifestation. By contrast, 

Selective urges that the point of manifestation happened much 

earlier in 2008, when residents Schultz and Kassem had noticed and 

reported water infiltration in their units, prompting remedial 

investigations.

The sparse record in this case provides an insufficient basis 

to resolve the manifestation question. Apparently no depositions 

were taken in this declaratory judgment action of persons who 

might have knowledge of what information was known at what times 

about the building's construction defects, and whether that 
A-5415-15T3

27

information had emerged or could reasonably have been known before 

or after Selective's policy period began in June 2009.8 

We decline to treat the news article containing hearsay 

statements that some unit owners had observed water problems in 

their units as early as 2008 as conclusive proof that the 

progressive injury had sufficiently "manifested" by that time.9 

If such original complaints were analytically dispositive, then 

Trinity's preliminary discovery in 1989-90 of structural defects 

in Winding Hills would have been deemed by the court to have 

established the date of manifestation in that case. Instead, the 

issuance of Trinity's later January 1991 report delineating the 

nature and extent of the problems comprised the proper date of 

manifestation. Winding Hills, supra, 332 N.J. Super. at 88-89. 

 

8 We do note that the appellate record alludes to (but does not 

contain) two expert reports ("the Desman reports") issued by a 

different consultant in May and July 2010. Since those reports 

post-date the May 2010 Jersey Infrared study, and are within 

Selective's policy period, we need not concern ourselves with 

their contents at this time, although they may have some relevance 

on remand depending on what they may say about the chain of events.

9 We reject Selective's argument that Air Master has "conceded" 

the accuracy of the unsworn statements made in the news article. 

Air Master expressly denied the article's accuracy in its summary 

judgment motion filings. In addition, the unsworn hearsay 

statements made in the article by unit owners and unidentified 

"workers" are not presented in a form prescribed by Rule 1:6-6. 

See Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168, 179-

80 (App. Div. 2015). See also N.J.R.E. 805 (concerning embedded 

hearsay statements cited for their truth).
A-5415-15T3

28

By further comparison, we note that the dates of the patients' 

initial lung symptoms in Polarome were not dispositive of the 

trigger end date. Polarome, supra, 404 N.J. Super. at 256-57. 

Rather, the times of the clinical diagnosis of Kuttner and the 

biopsy test results of Blaylock were deemed to have been the points 

of manifestation. Id. at 257.

Here, we cannot tell with any confidence what, if any, other 

information about the building defects was or reasonably could 

have been revealed between the time of the unit owners' complaints 

to the time of the start of Selective's policy in June 2009. This 

case must be remanded to ascertain that vital information.

The temporal analysis in this case is complicated further 

because it appears that the water infiltration problems identified 

on the roof might not have been detected until the May 2010 expert 

report by Jersey Infrared. The newspaper article cited by 

Selective does not mention any water damage on the roof. To be 

sure, it generally would not be surprising that a leaky roof could 

be responsible for water damage observed on residential floors 

below. Even so, there appear to be genuine issues of material 

fact concerning when the water infiltration problems on the roof 
A-5415-15T3

29

first became known, or reasonably could have been known.10 See R.

4:46-2.

For these many reasons, we vacate summary judgment in favor 

of Selective and remand for further proceedings, guided by the 

legal principles set forth in this opinion. The trial court shall 

have discretion to reopen discovery to explore the critical factual 

issues we have spotlighted, followed by appropriate renewed motion 

practice or, if warranted to enable witness credibility findings, 

an evidentiary hearing. We do not retain jurisdiction.

Vacated and remanded.

 

10 This also raises a possible factual question to address on remand 

as to whether the damage to the roof and its replacement is harm 

that is "indivisible" from the damage to the rest of the building, 

or whether, conversely, the deterioration of the roof comprises 

distinct property damage stemming from entirely distinct 

construction defects. The May 2010 expert report issued by Jersey 

Infrared is notably inconclusive on that point.