SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1756-18T3

TEN WEST APPAREL, INC.,

Plaintiff-Appellant,

v.

MUESER RUTLEDGE 

CONSULTING ENGINEERS,

ENTACT, LLC, and SAMSUNG 

FIRE & MARINE INSURANCE 

CO., LTD., 

Defendants-Respondents.

___________________________

Argued December 11, 2019 – Decided 

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3680-16.

John T. Lillis, Jr. argued the cause for appellant 

(Kennedy Lillis Schmidt & English, attorneys; John T. 

Lillis, Jr., on the brief).

Scott K. Winikow argued the cause for respondent 

Mueser Rutledge Consulting Engineers (Donovan 

NOT FOR PUBLICATION WITHOUT THE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.

February 28, 2020
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A-1756-18T3

Hatem LLP, attorneys; Scott K. Winikow and Lauren 

M. Ippolito, on the brief).

Greg Keith Vitali argued the cause for respondent 

Entact, LLC (Lindabury McCormick Estabrook & 

Cooper, attorneys; Greg Keith Vitali, of counsel and on 

the brief).

Adam Stark argued the cause for respondent Samsung 

Fire & Marine Insurance Co., Ltd. (Fleischner Potash, 

attorneys; Adam Stark, on the brief).

PER CURIAM

Plaintiff Ten West Apparel, Inc. appeals from three orders entered on

November 15, 2018, granting respective motions for summary judgment to 

defendants Mueser Rutledge Consulting Engineers (MRCE), Entact, LLC, and 

Samsung Fire and Marine Insurance Co., Ltd. (Samsung). We affirm.

Ten West is a clothing wholesaler and a tenant in a Jersey City warehouse 

which is the subject of this appeal. The warehouse is owned by Mid-Newark, 

L.P. Solomon Gadeh wholly owns both Ten West and Mid-Newark, and his son 

Teddy Gadeh, works closely with him. 

Ten West's next-door neighbor, paint manufacturer PPG Industries, Inc., 

had allowed chromium to seep into and contaminate the soil beneath and around 

its building. Pursuant to a 2009 consent decree between PPG and the New Jersey 
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Department of Environmental Protection, PPG agreed to investigate and 

remediate the contaminated soil. 

PPG hired MRCE to design and oversee the remediation project. MRCE 

advised that sheet piles should be installed to quarantine and remove the 

contaminated soil. Sheet piles are large metal fences driven into the ground

around the perimeter of an excavation site to shore up the site walls and prevent 

the surrounding soil from collapsing. Sheet piles are installed with a pile driving 

technique where a vibrating hammer is used to force the sheet piles deep into 

the ground. Entact was hired to install the sheet piles. 

On July 7, 2014, prior to installation, MRCE conducted a pre-construction 

condition survey of the Ten West warehouse and observed numerous cracks 

along the wall, noticed that the concrete floor was sloping and cracked, and that 

the roof was leaking in several places. MRCE determined sheet piles should 

and could be installed fifteen feet from the Ten West warehouse.

Entact installed sheet piles over the course of four days in September. On 

the fourth day, Ten West's warehouse manager felt the building shake and 

noticed a crack had emerged on the warehouse's northeast wall. Ten West hired 

Alan Sare, an engineer, to assess the damage. Sare opined that the pile driving 

caused a differential settlement of the soil beneath the northeast end of the Ten 
4

A-1756-18T3

West warehouse, causing an imbalance in the warehouse's foundation and an 

expansion of the pre-existing cracks along the northeast wall. The sheet piles 

were driven about fifteen feet from the warehouse's eastern wall and Sare opined 

this was too close. Sare also observed that the vibrations caused the roof's 

membrane to crack. 

MRCE was immediately alerted of the damage. In an email, an MRCE 

supervisor explained that a "[c]rack has opened up, but [it] was pre-existing for 

sure and already patched. Previous weak point [that was] easily disturbed by 

additional[] increment of settlement or lateral displacement. Sheet piling 

appears to be the cause. . . ." 

In October 2014, PPG offered to make $100,000 worth of repairs to the 

warehouse for the damage. The Gadehs rejected PPG's offer because the 

proposed fixes were "merely cosmetic." 

During this time, PPG was negotiating for access to the warehouse 

property to further its remediation efforts. The Gadehs resisted, and PPG 

offered to buy the warehouse so they could demolish the warehouse rather than 

work around the existing structure. Negotiations stalled over the price, and in 

September 2015, PPG filed a complaint and requested an order requiring Ten 

West to vacate the warehouse. 
5

A-1756-18T3

A year later, in September 2016, Ten West filed this suit against MRCE, 

Entact, and Samsung. Ten West alleged MRCE and Entact negligently damaged 

Ten West's building, and that Samsung improperly denied coverage. Ten West 

represented it owned the warehouse property, and Mid-Newark was not named 

as a plaintiff in the complaint. In December 2016, Ten West and Mid-Newark 

filed a counterclaim against PPG seeking damages, in part, for sheet pile 

damage. On the case information statement accompanying the answer and 

counterclaim, Ten West and Mid-Newark answered "Yes" to the question "Do 

you anticipate adding any parties (arising out of the same transaction or 

occurrence)?" However, no other parties were added to the counterclaim. Thus, 

the Gadehs maintained concurrent lawsuits against the parties involved in the 

remediation, claiming the same damages in both cases.

Ten West had also filed a claim with Samsung, its insurance carrier, for 

the damage caused by the sheet pile. Ten West's adjustor estimated repairs 

would cost $921,615.63. Ten West's general commercial liability coverage 

policy with Samsung contained the following earth movement exclusion:

B. Exclusions

1. We will not pay for loss or damage caused 

directly or indirectly by any of the following. 

Such loss or damage is excluded regardless of 
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A-1756-18T3

any other cause or event that contributes 

concurrently or in any sequence to the loss.

. . . .

b. Earth Movement

. . . .

(4) Earth sinking (other than 

sinkhole collapse), rising or shifting 

including soil conditions which 

cause settling, cracking or other 

disarrangement of foundations or 

other parts of realty. Soil conditions 

include contraction, expansion, 

freezing, thawing, erosion, 

improperly compacted soil and the 

action of water under the ground 

surface.

. . . .

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.

The policy also contained the following relevant exclusions:

B. Exclusions

. . . .

2. We will not pay for loss or damage caused by 

or resulting from any of the following:

. . . .
7

A-1756-18T3

d. (1) Wear and tear;

(2) Rust or other corrosion, decay, 

deterioration, hidden or latent defect 

or any quality in property that causes 

it to damage or destroy itself;

. . . .

(4) Settling, cracking, shrinking or 

expansion

. . . .

3. We will not pay for loss or damage caused by 

or resulting from any of the following . . . .

c. Faulty, inadequate or defective:

(1) Planning, zoning, development, 

surveying, siting;

(2) Design, specifications, 

workmanship, repair, construction, 

renovation, remodeling, grading, 

compaction;

(3) Materials used in repair, 

constructions, renovation or 

remodeling; or

(4) Maintenance;

of part or all of any property on or 

off the described premises.
8

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Samsung's own investigator observed cracks along the northern and 

eastern walls and concluded they were either caused or exacerbated by the sheet 

pile installation. The investigator also concluded the roofing issues were related 

to deferred maintenance, not building movement. 

Samsung then denied coverage, because the damage fell under the earth 

movement exclusion of Ten West's policy. Samsung agreed with Sare's 

conclusion that the sheet pile installation caused soil movement, which in turn 

caused the damage. Samsung also cited the pre-existing cracks and the deficient 

sheet pile installation as triggering exclusions under policy subsections

B(2)(d)(4) and B(3)(c)(1) – (4). 

In the interim, on February 2, 2018, PPG settled with Ten West and MidNewark, agreeing PPG would purchase the warehouse property for $10 million 

dollars. Ten West was permitted to occupy the warehouse—rent free—until 

2020. PPG agreed to maintain the warehouse until Ten West vacated the 

property but disclaimed any responsibility to repair the damage caused by the 

sheet piles. In exchange, Ten West and Mid-Newark agreed not to lease any 

portion of the warehouse and warranted there were no other tenants of the 

warehouse aside from Ten West. Ten West and Mid-Newark were permitted to 

continue leasing the warehouse's parking lot to Family Senior Health LLC, an 
9

A-1756-18T3

elder care facility.1 Additionally, Ten West released PPG from any past or 

future claims relating to the warehouse property. 

In its suit against MRCE, Entact, and Samsung, Ten West estimated 

damages at $921,615.13—the amount of its denied insurance claim. In response 

to an interrogatory, Ten West alleged damages of $1,161,000, which included 

the estimated $921,000 repair cost plus an additional $240,000 arising out of 

Ten West's inability to use the damaged portion of the warehouse. 

In a deposition, after Teddy Gadeh was asked whether, in fact, Ten West 

was deprived of beneficial use of the warehouse, he testified Ten West had not 

ceased operations since the sheet pile incident. He also explained Ten West was 

using the damaged portion of the warehouse, which amounted to about 25,000 

of the warehouse's 75,000 square feet, for storage. At no point since the sheet 

pile incident did Ten West need to rent space elsewhere to store overflow 

merchandise. 

Teddy Gadeh was also pressed on whether Ten West was currently 

claiming the same damages it had during the PPG litigation. When asked 

whether the property damage alleged in the PPG counterclaim was the same as 

the current claim against MRCE, Entact, and Samsung, he responded, "It's the 

1

 The closing occurred on March 24, 2018. 
10 A-1756-18T3

same claim, but it has nothing to do with the settlement agreement." When asked 

whether the cause of the damage was the same, Gadeh answered, "Correct, the 

cause can be the same, I'm assuming yes." He also acknowledged the warehouse 

was never repaired. 

Nevertheless, Ten West claimed lost rent damages. The Gadehs hired 

Maurice Stack to perform a real estate valuation on the warehouse's damaged 

25,000 square feet. Stack opined Ten West lost $1.3 million in rent between 

2014 and 2019. However, in his deposition, Stack admitted his valuation did

not take into account the PPG settlement agreement, and that he only considered 

the use and occupancy rights of the warehouse "in a vacuum." Stack also did 

not consider how Ten West's rent-free occupancy affected his valuation. All 

told, Ten West sought approximately $2.46 million in damages from defendants.

In October 2018, MRCE, Entact, and Samsung each moved for summary 

judgment. At argument, the motion judge asked why Mid-Newark, the 

warehouse's owner, was not a party. Ten West agreed that Mid-Newark should 

have been named a plaintiff and orally moved for leave to file an amended 

complaint, but the motion judge denied leave because Ten West did not file a 

formal cross motion. 
11 A-1756-18T3

On November 6, 2018, Ten West filed an order to show cause seeking 

leave to file an amended complaint to add Mid-Newark as a plaintiff, as well as 

to bring a lost rent claim. Ten West's attorney certified the Gadehs had failed 

to explain to him the relationship between Mid-Newark and Ten West, and he 

had also been unaware that Mid-Newark owned the warehouse. The motion 

judge denied Ten West's order to show cause, noting an order to show cause 

should not be a substitute for regular motion proceedings. Moreover, the motion 

judge pointed out that while both parties realized in January 2018 that MidNewark was the owner of the warehouse, a motion for leave to file an amended 

complaint was only improperly made in a responsive summary judgment brief. 

On November 15, 2018, the motion judge granted defendants' summary 

judgment motions. On the negligence claim, the motion judge found Ten West 

did not prove damages. There was pre-existing damage to the building and, per 

the settlement, Ten West was relieved of responsibility to make repairs. 

Moreover, the lost rent claim was speculative because no tangible efforts were 

made to rent the property. 

The motion judge also concluded Ten West's negligence claim was barred 

by the entire controversy doctrine noting Ten West was currently claiming the 

same damages as it did in its PPG counterclaim. Thus, Ten West should have, 
12 A-1756-18T3

but failed to, add MRCE or Entact to the PPG litigation as third-party 

defendants. 

Entact argued it was immune from liability under the Spearin2 doctrine, 

which provides contractors cannot be held liable for defects in plans they are

merely carrying out. Although the motion judge granted summary judgment 

because Ten West failed to prove damages, she further found no evidential 

support that Entact deviated from the plans it was hired to carry out, or that it

was independently negligent. 

As for the Samsung policy, the motion judge found Ten West's claim was 

excludable pursuant to the earth movement exclusion in its policy. Thus, the 

motion judge granted all three summary judgment motions and dismissed Ten 

West's complaint. 

On November 30, 2018, Ten West moved for leave to amend its complaint 

after the motions for summary judgment were granted, but it was denied as moot. 

This appeal followed.

 On appeal, Ten West argues the trial court erred in finding no damages 

and in denying leave to add Mid-Newark as a plaintiff. Ten West also argues 

2

 United States v. Spearin, 248 U.S. 132 (1918).
13 A-1756-18T3

error in the court's application of the entire controversy doctrine, the Spearin

doctrine, and the earth movement exclusion. Because we agree with the motion 

judge's finding that Ten West did not prove damages, we need not address the 

other 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 Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for summary 

judgment should be granted "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." R. 4:46-

2(c). The evidence must be viewed in "the light most favorable to the nonmoving party." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 

(2012).

The motion judge found Ten West failed to prove actual damages as a 

matter of law. Ten West's proofs do not distinguish between pre-existing 

damage caused by deferred maintenance and the damage allegedly caused by 

MRCE and Entact's negligence. Instead, Ten West seeks a sum equivalent to 
14 A-1756-18T3

the cost to fully repair the warehouse, the perceived loss of beneficial use, and 

compensation for theoretical lost rent. 

Ten West argues it is indisputable that the sheet pile incident damaged the 

warehouse, and for that fact alone Ten West's negligence claim should have 

survived summary judgment. According to Ten West, the motion judge applied 

an overly strict standard for proof of damages where, in New Jersey, the jury is 

permitted to estimate the exact amount of damages caused by a tortfeasor. 

Ten West cites to its adjustor's conclusion that it would take $921,615.63 

to repair the warehouse and argues this constitutes proof of damages with 

reasonable certainty. Ten West argues St. Louis, LLC v. Final Touch Glass & 

Mirror, Inc., 386 N.J. Super. 177 (App. Div. 2006) supports the proposition that 

Ten West's decision not to make repairs does not preclude it from recovering an 

amount equal to what it would cost to repair the warehouse. Ten West argues 

the settlement agreement released PPG from repairing the warehouse, which 

means Ten West is still responsible for repairs. 

Ten West also argues it is entitled to damages equal to the warehouse's 

diminution in value due to the sheet pile incident. Ten West claims the 

warehouse's value was diminished by $980,000, based on Solomon Gadeh's 

personal valuation of the warehouse. Solomon Gadeh claimed that before the 
15 A-1756-18T3

sheet pile incident the warehouse was worth at least $10,980,000, and that he 

and his son sustained a $980,000 loss when they sold the warehouse to PPG. 

Finally, Ten West argues it proved $1.3 million dollars in lost lease 

revenue, and that the motion judge erred by concluding the claim was 

speculative because Ten West failed to take any tangible steps towards leasing 

the warehouse. We reject these arguments.

"To defeat a motion for summary judgment, the opponent must 'come 

forward with evidence that creates a genuine issue of material fact.'" Cortez v. 

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue 

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). 

"[C]onclusory and self-serving assertions by one of the parties are insufficient 

to overcome the motion." Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super. 

276, 283 (App. Div. 2017) (alteration in original) (quoting Puder v. Buechel, 

183 N.J. 428, 440–41 (2005)). "Competent opposition requires 'competent 

evidential material' beyond mere 'speculation' and 'fanciful arguments.'" 

Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) 

(quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 

556, 563 (App. Div. 2005)).
16 A-1756-18T3

A negligence claim should only be given to a jury if there is a genuine 

dispute of material fact concerning "the act of negligence itself and a 

consequential injury resulting therefrom." Montag v. Bergen Bluestone Co., 

145 N.J. Super. 140, 144 (App. Div. 1976). "Mere knowledge of a negligent act 

is insufficient to institute a cause of action for negligence; it is essential that a 

plaintiff also demonstrate that he or she has suffered actual injury or damages 

. . . ." White v. Mattera, 175 N.J. 158, 165 (2003).

Although "[d]amages need not be proved with precision where that is 

impractical or impossible[,]" Borough of Fort Lee v. Banque Nat'l de Paris, 311 

N.J. Super. 280, 291 (App. Div. 1998), they must be proven "with such certainty 

as the nature of the case may permit, laying a foundation which will enable the 

trier of the facts to make a fair and reasonable estimate." Lane v. Oil Delivery, 

Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). "The plaintiff . . . bears the 

burden of proof and it is the responsibility of the plaintiff to provide for the jury 

some evidentiary and logical basis for calculating or, at least, rationally 

estimating a compensatory award." Caldwell v. Haynes, 136 N.J. 422, 436 

(1994) (quoting Huddell v. Levin, 537 F.2d 726, 743 (3d Cir. 1976)). "[T]he 

plaintiff must proffer evidence of loss that is not hypothetical or illusory. It 

must be presented with some certainty demonstrating that it is capable of 
17 A-1756-18T3

calculation, although it need not be demonstrated in all its particularity to avoid 

summary judgment." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 

248 (2005). Thus, the record need only "support[] a reasonable estimate of 

damages, based upon more than mere speculation[.]" Fin. Servs. Vehicle Tr. v. 

Panter, 458 N.J. Super. 244, 251 (App. Div. 2019) (quoting Borough of Fort 

Lee, 311 N.J. Super. at 291).

Ten West alleges the sheet pile incident caused $921,615.63 in damages 

to the warehouse, but this number does not distinguish between pre-existing 

damage to the warehouse and that caused by the sheet pile incident. Ten West 

seeks compensation for all the repairs the warehouse needed both before and 

after the sheet pile incident. Thus, the motion judge correctly found, as a matter 

of law, Ten West did not submit a reasonable estimate of damages.

Neither the Sare reports nor the Samsung investigation offered any 

comparison between the damage before and after the sheet pile incident. As a 

result, there is no reliable or reasonable estimate of damages caused by the sheet 

piles.

MRCE's pre-construction condition survey described numerous cracks 

along the wall, noted that the concrete floor was sloping and cracked, and that 
18 A-1756-18T3

the roof was leaking in several places. The sheet pile incident exacerbated 

existing damage, but no competent proof demonstrated it caused new damage.

The true measure of damages is somewhere between that identified in the 

pre-construction condition survey and what was observed in the adjuster's 

report. Yet, Ten West claims MRCE and Entact are responsible for all the 

damage to the warehouse, even damage unrelated to their negligence. Ten 

West's proofs do not demonstrate what, exactly, MRCE and Entact were 

responsible for. Not only did Ten West fail to provide a reasonable estimate of 

damages, but it did not prove MRCE and Entact's negligence caused actual 

damages.

Ten West's reliance on St. Louis does not alter this conclusion. In that 

case, the defendants were a construction manager and sub-contractor tasked with 

building the plaintiff's house. 386 N.J. Super. at 179. The sub-contractor 

negligently punctured several drain and vent pipes, and the plaintiff's expert 

estimated repair costs to total at least $774,000. Id. at 179-80. While the 

plaintiff's lawsuit was pending, it sold the house for $2.5 million, $300,000 less 

than its prior value. Id. at 179, 191. The trial judge permitted both parties to 

submit proof of damages, and the plaintiff argued the cost of repairs—

$774,000—was the true measure of damages, while the defendants' real estate 
19 A-1756-18T3

expert testified that the difference between the pre-damage valuation and sale 

price was the proper way to gauge damages. Id. at 190-91. The jury sided with 

the plaintiff, and, on appeal, the defendants argued the trial judge should only 

have permitted the jury to hear evidence on diminished value because the 

plaintiff sold the house before making repairs. Id. at 191-92. We disagreed, 

noting compensatory damages are intended to make the plaintiff whole, and do 

not necessarily depend on whether repairs are feasible. Id. at 192. Thus, as long 

as the plaintiff doesn't receive a windfall, both measures of damages were 

appropriate and it was up to the jury to decide which to choose. Id. at 193.

Ten West cites St. Louis to argue that just because it was no longer 

responsible for making repairs to the warehouse per the settlement, it could still

collect compensatory damages. This misses St. Louis's point. Compensatory 

damages are intended to make the plaintiff whole, and any award should not 

result in a windfall. 386 N.J. Super. at 188, 192. Ten West requests 

compensation for all the damage to the warehouse, regardless of whether it was 

related to MRCE or Entact's conduct. In other words, Ten West seeks a windfall 

equal to the damage caused by its own neglect of the property. See Velop, Inc. 

v. Kaplan, 301 N.J. Super. 32, 66 (App. Div. 1997) (rejecting restoration cost as 

a measure of damages because the plaintiff's property, worth roughly $3.7 
20 A-1756-18T3

million, would cost $5.4 million to restore); Correa v. Maggiore, 196 N.J. Super. 

273, 283–86 (App. Div. 1984) (reversing a jury award that gave the plaintiff 

more in compensatory damages than the purchase price of the property). Again, 

Ten West's failure to accurately determine the damage caused by MRCE and 

Entact dooms its case. Additionally, Ten West's diminution in value and lost 

rent claims, as well as a claim for loss of beneficial use, are only relevant if Ten 

West is able to prove the extent to which the warehouse was damaged.

Ten West's claim for $1.3 million in lost rent is entirely speculative and 

unsubstantiated by competent proof that Ten West, or the Gadehs, actually had 

a tenant in place prior to the sheet pile incident. Thus, summary judgment for 

MRCE and Entact was properly granted. The only proof of their intent was an 

alleged conversation, where they broached the prospect but ultimately decided 

against it. Such a "conclusory and self-serving assertion[] . . . [is] insufficient 

to overcome the [summary judgment] motion." Sullivan, 449 N.J. Super. at 283 

(alteration in original) (quoting Puder, 183 N.J. at 440–41).

Ten West also alleged approximately $240,000 in damages related to loss 

of beneficial use of the damaged portion of the warehouse. However, Ten West 

does not here address the issue or factor the figure into its claimed damages. 

Therefore, the issue is deemed waived. See Sklodowsky v. Lushis, 417 N.J. 
21 A-1756-18T3

Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court 

Rules, cmt. 5 on R. 2:6-2 (2019).

The motion judge found that Ten West presented no evidence tending to 

show Entact deviated from MRCE's plans or was otherwise independently 

negligent. Sare's reports focus on MRCE's mistakes but do not comment on 

whether Entact was independently at fault. Ten West argues that the Spearin

doctrine, which Entact cites in support of its argument that it bears no liability

for any alleged damages, only applies to government contracts and serves to 

limit a contractor's liability to the contracting party. In Spearin, a contractor 

sued the federal government for payment on a contract. 248 U.S. at 133. Due 

to defects in the property, the contractor stopped work, and the government 

argued the contractor was responsible for remedying the property defects. Id. at 

135. The Supreme Court explained the government's request was outside the 

contract's specifications and if a "contractor is bound to build according to plans 

and specifications prepared by the owner, the contractor will not be responsible 

for the consequences of defects in the plans and specifications." Id. at 136.

In New Jersey, the Spearin doctrine has not explicitly been applied outside 

government contracts. See P.T. & L. Const. Co., Inc. v. Dep't of Transp., 108 

N.J. 539, 548–49 (1987). The Supreme Court provided no indication Spearin
22 A-1756-18T3

applied to negligence cases. Nevertheless, in this case, the Spearin doctrine 

provides a helpful articulation of a sub-contractor's duty of care and the standard 

of proof for breach of that duty.

To sustain a cause of action for negligence, a plaintiff must establish four 

elements: "(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proximate cause, 

and (4) actual damages[.]" Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008) 

(alterations in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). 

A "plaintiff bears the burden of establishing those elements 'by some competent 

proof[.]'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) 

(citation omitted) (quoting Overby v. Union Laundry Co., 28 N.J. Super. 100, 

104 (App. Div. 1953)). "In most negligence cases, the plaintiff is not required 

to establish the applicable standard of care." Ibid. However, when the "'jury is 

not competent to supply the standard by which to measure the defendant's 

conduct,' the plaintiff must instead 'establish the requisite standard of care and 

[the defendant's] deviation from that standard' by 'present[ing] reliable expert 

testimony on the subject.'" Id. at 407 (first quoting Sanzari v. Rosenfeld, 34 N.J. 

128, 134–35 (1961); and then quoting Giantonnio v. Taccard, 291 N.J. Super. 

31, 43 (App. Div. 1996)).
23 A-1756-18T3

Here, Ten West's proofs fail to show Entact's installation of the sheet piles 

fell below an identifiable standard of care. After conducting tests, MRCE 

concluded sheet piles should be installed fifteen feet from Ten West's warehouse 

with a vibratory hammer. Indeed, Entact installed the sheet piles consistent with 

MRCE's specifications, and, notably, Ten West failed to produce an expert 

report opining that either Entact deviated from MRCE's plans or that it was 

otherwise negligent. Rather, Sare's reports criticize MRCE's specifications but 

do not offer an opinion on whether Entact's installation was somehow faulty.

Sare discussed the soil conditions beneath the warehouse and, based on 

his observations, concluded that the sheet piles should have been installed at 

least thirty feet away from Ten West's warehouse. Based on that conclusion, 

Sare opined MRCE's testing and plans deviated from industry norms and that 

MRCE and Entact were careless. 

However, Sare does not explain whether Entact knew or should have 

known it was installing the sheet piles too close to the warehouse. Moreover, 

Sare does not independently evaluate Entact's actual installation of the sheet 

piles nor does he make a judgment as to whether the sheet piles were installed 

incorrectly. As Entact argues, Ten West failed to produce an expert in sheet pile 

installation to prove Entact's conduct was negligent. At best, Sare's reports 
24 A-1756-18T3

suggest MRCE, but not Entact, fell below a standard of care. Therefore, Ten 

West's proofs fail to show Entact breached a duty of care.

Finally, the motion judge correctly found Ten West's insurance claim fell 

under the policy's earth movement exclusion.

To argue for coverage, Ten West distances itself from Sare's opinion that 

the warehouse was damaged by differential soil settlement caused by the sheet 

piles installation. Ten West asserts a distinction between the exacerbation of 

existing cracks caused by the sheet pile installation versus cracks caused by 

differential soil settlement. The difference being the cause of the damage—

some of which was due to deferred maintenance—not the consequence, which 

was the cracking.

Samsung contends this distinction is irrelevant. Both Sare and Samsung's 

expert agreed that the warehouse was damaged due to differential soil settlement 

beneath the east wall. This cause of loss clearly fits under the earth movement 

exclusion. 

Whether the claimed damages were due to deferred maintenance or MRCE 

and Entact's faulty workmanship, both causes are excluded. Sare's reports 

concluded MRCE's sheet-pile-installation plan was defective, which brings the 

cause of the loss under exclusion (B)(3)(c) of the policy. Similarly, Samsung 
25 A-1756-18T3

points out the warehouse was deteriorated before the sheet pile incident, which 

clearly falls under the "wear and tear" exclusion. 

We give "special scrutiny to insurance contracts because of the stark 

imbalance between insurance companies and insureds in their respective 

understanding of the terms and conditions of insurance policies." Zacarias v. 

Allstate Ins. Co., 168 N.J. 590, 594 (2001). "[W]e first examine the plain 

language of the policy and, if the terms are clear, they 'are to be given their plain, 

ordinary meaning.'" Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 270 (2008) 

(quoting Zacarias, 168 N.J. at 595). "If the language is clear, that is the end of 

the inquiry." Oxford Realty Grp. Cedar v. Travelers Excess & Surplus Lines 

Co., 229 N.J. 196, 207 (2017) (quoting Chubb Custom Ins. Co. v. Prudential Ins. 

Co. of Am., 195 N.J. 231, 238 (2008)). We must refrain from "writing a better 

insurance policy than the one purchased." President v. Jenkins, 180 N.J. 550, 

562 (2004).

Exclusionary clauses "are typically construed narrowly with the onus 'on 

the insurer to bring the case within the exclusion.'" Mem'l Props., LLC, 210 

N.J. at 528 (quoting Flomerfelt v. Cardiello, 202 N.J. 432, 442 (2010)). 

"Exclusionary clauses are presumed valid if they are 'specific, plain, clear, 

prominent and not contrary to public policy.'" Ibid. (quoting Princeton Ins. Co. 
26 A-1756-18T3

v. Chunmuang, 151 N.J. 80, 95 (1997)). "If the words used in an exclusionary 

clause are clear and unambiguous, 'a court should not engage in a strained 

construction to support the imposition of liability.'" Ibid. (quoting Longobardi 

v. Chubb Ins. Co. of N.J., 121 N.J. 530, 537 (1990)).

Ten West's arguments are undermined by Sare's reports. Sare opined that 

the warehouse walls cracked because of differential settlement of the soils 

beneath it. The differential soil settlement was caused by the vibrations within 

the soil triggered by the vibratory hammer used to install the sheet piles, and 

Samsung's expert agreed with this determination. Thus, the cause of loss falls 

under the earth movement exclusion.

Ten West's attempt to draw a distinction between damage caused by soil 

movement versus damage caused by the sheet pile installation does not alter this 

conclusion, as the exclusion's prefatory language renders any additional or 

contributing causes of the damage irrelevant. Subsection (B)(1) of the exclusion 

portion of the policy states, in part, "Such loss or damage is excluded regardless 

of any other cause or event that contributes concurrently or in any sequence to 

the loss." Samsung identifies this language as an "anti-concurrent/antisequential" clause, which excludes coverage if one or more enumerated causes 

contributes to the loss, even if otherwise-covered causes also contributed to the 
27 A-1756-18T3

loss. If an excluded cause contributed to the loss, the exclusion applies. Thus, 

Ten West's attempt to argue that the sheet piles, not the differential soil 

settlement, caused the damage is irrelevant.

All parties agree that the warehouse walls cracked when the sheet piles 

were installed. Because the cracks in the warehouse walls were caused by 

differential soil settlement, Ten West cannot credibly argue that the sheet piles 

alone caused the damage, as if the sheet piles themselves made contact with the 

warehouse. The cause of loss unambiguously falls under the earth movement 

exclusion.

Even if the earth movement exclusion were not applicable, the faulty 

workmanship provision, subsection (B)(3)(c), provides a backstop. The 

exclusion's modifying phrase—"of part or all of any property on or off the 

described premises"—means the damage caused by the sheet pile installation, 

even though it occurred on an adjacent property, is not covered.

To the extent Ten West's claim included damage not caused by the sheet 

pile incident, Samsung was entitled to deny coverage pursuant to the "wear and 

tear" exclusion under subsection (B)(2)(d). Ten West's adjustor, Samsung's 

expert, and MRCE's pre-construction condition survey all observed that the 

warehouse was damaged prior to the sheet pile incident and that the deterioration 
28 A-1756-18T3

was caused by deferred maintenance. In particular, the roof needed a full 

replacement before the sheet pile incident caused the membrane to tear. Thus, 

the "wear and tear" exclusion unambiguously applies.

All additional arguments introduced by plaintiff are without sufficient 

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

Affirmed.