SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0402-21

1401 OCEAN LLC, 

ASTOR HOTEL, 465 LLC, 

MARCEL 201 LLC, 

PLAZA EAST HOTEL LLC, 

JENNAS LLC, ALI BABA 

HOTEL CORP., 

63 WEST REALTY CORP. 

and 63 WEST LLC, 

 Plaintiffs-Appellants, 

v. 

ZURICH AMERICAN 

INSURANCE COMPANY, 

 Defendant-Respondent. 

_________________________ 

Argued January 25, 2023 – Decided February 12, 2024 

Before Judges Accurso, Vernoia and Natali. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-3315-20. 

Scott P. DeVries of the New York bar, admitted pro hac 

vice, argued the cause for appellants (Hunton Andrews 

Kurth, LLP, attorneys; Walter J. Andrews, of the New 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0402-21

York bar, Kevin Vincent Small and Scott P. DeVries, 

on the briefs). 

David R. Roth (Wiggin and Dana, LLP) of the 

Connecticut bar, admitted pro hac vice, argued the 

cause for respondent (Wiggin and Dana, LLP, 

attorneys; Michael Menapace, of the Connecticut bar, 

admitted pro hac vice, and Susan Marie Kennedy, on 

the brief). 

The opinion of the court was delivered by 

VERNOIA, J.A.D. 

 In this breach of contract and declaratory judgment

1

 action against 

defendant Zurich American Insurance Company (defendant), plaintiffs 1401 

Ocean LLC, Astor Hotel 465 LLC, Marcel 201 LLC, Plaza East Hotel LLC, 

Jennas LLC, Ali Baba Hotel Corporation, 63 West Realty Corporation, and 63 

West LLC (collectively, "plaintiffs"), seek coverage for losses allegedly 

incurred as the result of the presence of COVID-19 at their insured premises and 

1

 Plaintiffs invoke 28 U.S.C. § 2201 in their complaint, rather than the New 

Jersey Declaratory Judgment Act, N.J.S.A. 2A:16-50 to 

-62, in requesting the court issue a "declaration of the parties' rights and 

duties[.]" The "general rule that state and federal courts share concurrent 

jurisdiction over cases arising from federal statutes unless Congress determines 

otherwise" applies here because we find 28 U.S.C. § 2201 does not 

"'affirmatively divest State courts of their presumptively concurrent 

jurisdiction.'" J.H.R. v. Bd. of Educ. of Twp. of E. Brunswick, 308 N.J. Super. 

100, 115-16 (App. Div. 1998) (quoting Yellow Freight Sys., Inc. v. Donnelly, 

494 U.S. 820, 823 (1990)). 
3 A-0402-21

related Executive Orders (EOs)2 issued in response to the COVID-19 pandemic. 

Plaintiffs appeal from an August 23, 2021 order dismissing their first amended 

complaint with prejudice for failure to state a claim for coverage under their 

commercial insurance policy (the policy) with defendant. Plaintiffs argue the

court erred by dismissing their complaint because they sufficiently pled 

allegations of direct physical loss of or damage to their insured properties, 

resulting from COVID-19 and the related EOs, under several policy provisions. 

Unpersuaded by plaintiffs' arguments, we affirm. 

I.

Plaintiffs are a group of eight corporations and LLCs operating residential 

rental properties and hotels under the umbrella of Amsterdam Hospitality Group, 

which is the named insured under plaintiffs' "all-risk" insurance policy. Seven 

of the corporate entities operate properties in New York and one operates a hotel 

in New Jersey. 

2

 In their first amended complaint, plaintiffs cite to the following EOs that 

were issued in response to the COVID-19 pandemic: a March 16, 2020 EO

issued by New York City Mayor Bill DeBlasio which plaintiffs assert required 

residents to "shelter in place or remain in their homes unless performing 

'essential' activities"; New York Governor Andrew Cuomo's EO 205 which 

"severely restrict[ed] travel to the State of New York"; and New Jersey Governor 

Phil Murphy's EO 107 "temporarily closing non-essential businesses." 
4 A-0402-21

Plaintiffs' policy with defendant had an effective date of October 28, 2019, 

and provided up to $150 million in coverage, subject to certain limits, in 

exchange for a nearly $600,000 premium payment. The policy insures "against 

direct physical loss of or damage caused by a Covered Cause of Loss to Covered 

Property, at an Insured Location . . . subject to the terms, conditions[,] and 

exclusions stated in th[e] [p]olicy." The policy defines "Covered Cause of Loss" 

as "[a]ll risks of direct physical loss of or damage from any cause unless 

excluded." 

Plaintiffs allege they are entitled to business interruption coverage under 

the policy's Time Element and Special Coverages options. The Time Element 

coverage option insures business interruption losses sustained as a result of a 

"necessary [s]uspension . . . due to direct physical loss of or damage to 

[p]roperty." The Special Coverages option's Civil or Military Authority 

provision extends business interruption coverage to losses resulting from the 

necessary suspension of plaintiffs' business activities at an insured location if 

the suspension is caused by an order of civil or military authority that prohibits 

access to the location. To qualify for coverage under the Civil or Military 

Authority provision, the order "must result from a civil authority's response to 

direct physical loss of or damage caused by a Covered Cause of Loss to property 
5 A-0402-21

not owned, occupied, leased or rented by the Insured . . . and located within" 

one mile of insured property. 

The Special Coverages provision also includes a Contingent Time 

Element option that covers losses, including business income losses, incurred 

during a "[p]eriod of [l]iability" that "directly result[s] from the necessary 

[s]uspension of the Insured's business activities at an Insured Location if the 

[s]uspension results from direct physical loss or damage caused by a Covered 

Cause of Loss to [p]roperty." The Contingent Time Element coverage option 

differs from the Time Element option in that the predicate suspension under the 

former must "result from direct physical loss of or damage caused by a Covered 

Cause of Loss to Property . . . at Direct Dependent Time Element Locations, 

Indirect Time Element Locations, and Attraction Properties. . . ." 

Under the policy, "Direct Dependent Time Element Locations" are

locations of direct suppliers, customers, or service providers. "Indirect 

Dependent Time Element Locations" are locations of suppliers, customers, or 

service providers of Direct Dependent Time Element Locations. And 

"Attraction Properties" are "propert[ies] within [one mile] of an Insured 

Location that attract[] customers to the Insured's business." The policy also 

includes an Ingress/Egress coverage option that applies when there is an 
6 A-0402-21

interruption of business activities because ingress or egress at the insured 

property "is prevented by physical obstruction due to direct physical loss or 

damage caused by a Covered Cause of Loss" to a third-party's property within 

one mile of plaintiffs' insured properties. 

The policy also includes exclusions. In pertinent part, the policy excludes 

coverage for "[c]ontamination, and any cost due to [c]ontamination including 

the inability to use or occupy property or any cost of making property safe or 

suitable for use or occupancy . . . ." The policy defines contamination as "[a]ny 

condition of property due to the actual presence of any foreign substance, 

impurity, pollutant, hazardous material, poison, toxin, pathogen or pathogenic 

organism, bacteria, virus, disease causing or illness causing agent, [f]ungus, 

mold[,] or mildew." 

The policy additionally excludes from coverage risks related to the 

possible loss of use of covered property. For example, the policy excludes 

"[l]oss or damage arising from the enforcement of any law, ordinance, 

regulation[,] or rule regulating or restricting the . . . occupancy, operation[,] or 

other use . . . of any property." The policy also excludes "[l]oss or damage 

arising from delay, loss of market, or loss of use" and "[l]oss or damage resulting 
7 A-0402-21

from the Insured's suspension of business activities, except to the extent 

provided by th[e] [p]olicy[.]" 

The policy includes a series of endorsements, some of which are state 

specific. Each endorsement provides that, except for specific provisions stating 

otherwise, that "[a]ll other terms, conditions[,] and limitations of th[e] [p]olicy 

remain unchanged." One such endorsement, which is specific to Louisiana, 

replaces the policy's definition of contamination with another definition that 

excludes "pathogen or pathogenic organism, bacteria, virus, [and] disease 

causing or illness causing agent" from its definition. 

In their first amended complaint, plaintiffs allege the presence of COVID19 at their insured premises caused business losses for which they are entitled 

to coverage under the policy. Plaintiffs allege it was "statistically indisputable 

that COVID-19 is present and/or was present at [their] locations" and nearby 

locations given "the prevalence of COVID-19 cases in the New York and New 

Jersey region[s.]" Plaintiffs allege that they closed their locations in response 

to the EOs that were issued following the start of the COVID-19 pandemic. 

They also assert that the presence of COVID-19 at properties they did not own 
8 A-0402-21

or occupy, that are located within five miles of the insured premises, led to 

issuance of the EOs that caused their business losses.3

Following argument on defendant's motion to dismiss, the motion court 

found plaintiffs failed to allege sufficient facts supporting a finding of coverage 

under the policy. The court explained the alleged presence of COVID-19 at the 

insured premises did not constitute a direct physical loss of or damage to the 

insured property such that plaintiffs are entitled to coverage under any of the 

policy's various provisions. The court also determined the EOs did not prohibit 

access to the insured property and that any limit on access to the property 

resulting from the EOs did not result from a direct physical loss of or damage to 

the insured premises within the policy's plain terms. The court further found no 

coverage under the Civil or Military Authority provisions based on the EOs, 

again finding the presence of COVID-19 at locations within one mile of an 

insured premises did not constitute direct physical loss of or damage to those 

3

 Although plaintiffs' complaint alleges they suffered losses due to the presence 

of COVID-19 at properties located within five miles of their various insured 

premises, as we explain, certain policy provisions afford coverage based on 

direct physical loss of or damage to uninsured properties located within one mile 

of plaintiffs' insured properties. In other words, there is no relevant provision 

of the policy that provides coverage for losses suffered as the result of alleged 

direct physical loss or damage to uninsured properties located within five miles 

of plaintiffs' insured properties. 
9 A-0402-21

locations such as to require coverage. The motion court also determined the 

policy's Contamination Exclusion barred coverage for any losses incurred 

attributable to contamination due to the presence of a virus—COVID-19—that 

rendered the property unsafe for use or occupancy. 

The court entered an order dismissing plaintiffs' complaint with prejudice. 

This appeal followed. 

II. 

As a threshold matter, we address defendant's argument that New York 

law should govern the determination of the issues on appeal to the extent it 

differs from applicable New Jersey law. The argument is founded on the 

contention that New Jersey's only connection to the issues in dispute is the 

presence of one plaintiff and its insured property in New Jersey and that New 

York has a greater interest in the matter because the remaining plaintiffs and 

their insured properties are in New York. 

In making the argument, defendant acknowledges there is no actual 

conflict between the applicable laws of the respective states such that a choice 

of law analysis is required. See Cont'l Ins. Co. v. Honeywell Int'l, Inc., 234 N.J. 

23, 46 (2018) (explaining where there is no "actual conflict between the laws of 

the states with interests in the litigation" "then the choice-of-law question is 
10 A-0402-21

inconsequential, and the forum state applies its own law to resolve the disputed 

issue" (citations omitted)). Plaintiffs do not disagree. And, based on our 

consideration of the applicable legal principles, and finding no actual conflict 

between New York and New Jersey law pertinent to a disposition of the issues 

present on appeal, we apply the law of the forum state, New Jersey. Ibid. 

We review the motion court's dismissal decision de novo. 

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 

N.J. 91, 108 (2019). Our review is plenary, Bacon v. N.J. State Dep't of Educ., 

443 N.J. Super. 24, 33 (App. Div. 2015), meaning we owe no deference to the 

motion court's legal or factual conclusions supporting the dismissal order, 

Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 

(App. Div. 2011). 

A claim for relief must "contain a statement of facts on which the claim is 

based" which must "show[] that the pleader is entitled to relief[.]" R. 4:5-2. "In 

deciding whether to grant dismissal, the complaint's allegations are accepted as 

true and with all favorable inferences accorded to plaintiff." MAC Prop. Grp. 

LLC v. Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1,16 (App. Div. 2022) 

(citing Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 

2017)). Therefore, to survive dismissal under Rule 4:6-2(e), the complaint must 
11 A-0402-21

allege facts sufficient to support a claim upon which relief can be granted. See 

R. 4:6-2(e). If a complaint sets forth conclusory allegations, and, in doing so, 

fails to present the essential facts required by the claimed cause of action, the 

complaint will not survive a motion to dismiss. See Neuwirth v. State, 476 N.J. 

Super. 377, 390 (App. Div. 2023). 

We limit our inquiry "to examining the legal sufficiency of the facts 

alleged on the face of the complaint[,]" Green v. Morgan Props., 215 N.J. 431, 

451 (2013) (citation omitted), and whether the allegations, if proven, "would 

constitute a valid cause of action[,]" Leon v. Rite Aid Corp., 340 N.J. Super. 

462, 472 (App. Div. 2001). Thus, dismissal is warranted where the complaint's 

allegations are "palpably insufficient to support a claim upon which relief can 

be granted[,]" Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552 (App. 

Div. 1987), or if "discovery will not give rise to such a claim," Dimitrakopoulos, 

237 N.J. at 107. That is the case here. 

When "interpreting insurance contracts, we 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 (quoting 

Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001)). The policy must "be 

enforced as written when its terms are clear" so the "expectations of the parties 
12 A-0402-21

will be fulfilled." Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010) (citations 

omitted). 

We nevertheless recognize that insurance policies are generally 

"contract[s] of adhesion between parties who are not equally situated." Oxford 

Realty Grp. Cedar v. Travelers Excess & Surplus Lines Co., 229 N.J. 196, 215 

(2017) (quoting Nav-Its, Inc. v. Selective Ins. Co. of Am., 183 N.J. 110, 118 

(2005) (alteration in original)). Thus, where an insurance policy is ambiguous, 

courts construe the terms in favor of the insured. MAC Prop. Grp. LLC, 473 

N.J. Super. at 18 (citation omitted). A genuine ambiguity arises when "'the 

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

out the boundaries of coverage.'" Birmingham v. Travelers N.J. Ins. Co., 475 

N.J. Super. 246, 256 (App. Div. 2023) (quoting Weedo v. Stone-E-Brick, Inc., 

81 N.J. 233, 247 (1979)). Or, "when 'the text appears overly technical or 

contains hidden pitfalls, cannot be understood without employing subtle or 

legalistic distinction, is obscured by fine print, or requires strenuous study to 

comprehend[,]'" ibid. (quoting Zacarias, 168 N.J. at 601). 

"[E]xclusions in insurance contracts 'are presumptively valid and will be 

given effect if'" they are "'specific, plain, clear, prominent, and not contrary to 

public policy.'" MAC Prop. Grp. LLC, 473 N.J. Super. at 35 (quoting Princeton 
13 A-0402-21

Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997)). "'[T]he basic notion [is] that 

the premium paid by the insured does not buy coverage for all . . . damage but 

only for that type of damage provided for in the policy.'" Id. at 19 (quoting 

Weedo, 81 N.J. at 237). Limitations on coverage "designed 'to restrict and shape 

the coverage otherwise afforded'" are therefore permissible. Ibid. (quoting 

Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 102 (2009)). 

 Plaintiffs argue they are entitled to coverage under various coverage 

options of their policy—all of which are contingent on a finding plaintiffs' 

losses were caused by, or otherwise attributable to, direct physical loss of or 

damage to either covered property, another's property within one mile of covered 

property, or property at or within 1,000 feet of covered property, which plaintiffs 

allege occurred in part due to the physical presence of COVID-19 at their 

properties and the EOs. 

Plaintiffs assert "COVID-19 was physically present in the air and on the 

walls, floors, and every other surface exposed to human contact at each and 

every one of its locations." Plaintiffs allege in the complaint that "[a]ccording 

to a study documented in the New England Journal of Medicine, COVID-19 was 

detectable for up to three hours in aerosols, up to twenty-four hours on 

cardboard, and up to seventy-two hours on plastic and stainless steel[,]" meaning 
14 A-0402-21

"individuals can become infected with COVID-19 through indirect contact with 

surfaces or objects used by an infected person, whether they are symptomatic or 

not." Plaintiffs further allege "[t]here may be instances where COVID-19 was 

present onsite at an insured location including with respect to a customer, but 

the individual was pre-symptomatic, such that [plaintiffs] w[ere] not aware of 

the presence of the virus." 

In other words, plaintiffs' claims for coverage are founded on the presence 

of COVID-19 on their insured premises. And, in recognition of the plain 

language of the various policy provisions—including the "Attraction 

Properties," "Direct Dependent Time Element Locations," and "Indirect 

Dependent Time Element Locations" provisions—under which they claim 

coverage, plaintiffs further allege that the presence of COVID-19 caused direct 

physical loss of and damage to the properties, resulting in the "necessary 

slowdown" or cessation of plaintiffs' business activities. 

In MAC Property Group LLC, we rejected virtually identical arguments—

regarding virtually identical policy provisions—as those asserted by plaintiffs 

here. 473 N.J. Super at 19-27. We considered an insurance policy that provided 

business income loss coverage where the plaintiff had alleged it suffered losses 

due to "direct physical loss of or damage to" covered property resulting in a 
15 A-0402-21

period of suspension of business operations during the period of restoration of 

the property.4 Id. at 19-20. We held that business losses suffered as the result 

of EOs barring or curtailing the plaintiff's operations in response to the COVID19 pandemic did not constitute "direct physical loss of or damage to" the insured 

property such as to permit or require coverage. Id. at 10. We explained the 

phrase "direct physical loss of or damage to" property under the policy was 

neither ambiguous nor "so confusing that average policyholders . . . could not 

understand that coverage extended only to instances where the insured property 

has suffered a detrimental physical altercation of some kind, or there was a 

physical loss of the insured property." Id. at 21-22. 

We also explained in MAC Property Group LLC that "scores of federal 

and state appellate-level courts . . . have addressed" claims for coverage for 

losses due to EOs limiting or curtailing business operations due to COVID-19 

under insurance policies providing coverage for "direct physical loss of or 

damage" to insured property, and the "overwhelming majority of them have" 

dismissed the complaints "because the losses were not due to physical loss or 

4

 Time Element coverage is frequently referred to as, and considered 

interchangeable with, "Business Interruption" coverage. See e.g., AC Ocean 

Walk, LLC v. Am. Guar. & Liab. Ins. Co., ___ N.J. ___, ___ (2024) (slip op. at 

29-30) (collecting cases). 
16 A-0402-21

damage to their insured premises." Id. at 26-27; see also Verveine Corp. v. 

Strathmore Ins. Co, 489 Mass. 534, 542 (2022) (noting that "[e]very appellate 

court that has been asked to review COVID-19 insurance claims has agreed" that 

"'direct physical loss of or damage to' property requires some 'distinct, 

demonstrable, physical alteration of the property'"); see, e.g., Wilson v. USI Ins. 

Serv. LLC, 57 F.4th 131, 142-43 (3d Cir. 2023) (applying New Jersey Law and 

finding COVID-19 executive orders limiting or curtailing operation of an 

insured's business did not result in a "direct physical loss of or damage" to the 

insured's property because the orders were not issued in response to physical 

damage to the property and "[t]he propert[y] could certainly be used and 

inhabited, just not in the way the business[] would have liked"). 

Applying what we determined was the plain and ordinary meaning of the 

phrase "direct physical loss of or damage to property," we also explained that 

because New Jersey has "adopted a broad notion of the term 'physical[,]'" when 

the word is paired with another word, e.g. "'physical injury,'" "the resulting term 

means a 'detrimental alteration[],' or 'damage or harm to the physical condition 

of a thing.'" MAC Prop. Grp. LLC, 473 N.J. Super. at 20. We concluded the 

plaintiffs' claimed losses allegedly resulting from the presence of COVID-19 at 

the insured premises were not covered losses arising from a direct physical loss 
17 A-0402-21

of or damage to their property within the plain and unambiguous meaning of the 

policy. Id. at 23. More recently, in AC Ocean Walk, LLC v. American 

Guarantee and Liability Insurance Company, our Supreme Court affirmed the 

dismissal of a complaint under Rule 4:6-2(e) based on its determination that 

business losses claimed as the result of the presence of COVID-19 are not 

covered under an insurance policy that provides coverage for "direct physical 

loss or damage to" the insured's property. AC Ocean Walk, LLC, slip op. at 25-

29.

 Thus, for there to be coverage under the policy, plaintiffs' alleged losses 

"must be a 'direct physical' loss, clearly requiring a direct, physical deprivation 

of possession," and a curtailment of the use of a premises "'without any physical 

alteration [to the premises] to accompany it'" does not amount to such. MAC 

Prop. Grp. LLC, 473 N.J. Super. at 26 (alteration in original) (quoting Verveine 

Corp, 489 Mass. at 545); see also Wilson, 57 F.4th at 142-43. Accordingly, 

plaintiffs' allegation that COVID-19's presence on its properties, and other 

properties located within one mile of insured premises, caused "physical 

alteration of the integrity of the [properties]" and physical loss and damage by 

"impairing the value, usefulness, [and] normal function of the [properties][,]" is 
18 A-0402-21

insufficient to support their claimed entitlement to coverage under the policy. 

AC Ocean Walk, LLC, slip op. at 25-29.

 Simply put, the facts as alleged by plaintiffs do not support a claim that 

they suffered physical damage to equipment or a physical alteration or damage 

to an insured property such that plaintiffs suffered a direct physical loss of or 

damage to the insured properties under the plain language of the policy. See 

ibid.; Verveine Corp., 489 Mass. at 544 ("Evanescent presence of a harmful 

airborne substance [like COVID-19] that will quickly dissipate on its own, or 

surface-level contamination, that can be removed by simple cleaning, does not 

physically alter or affect property"). Thus, plaintiffs' complaint does not allege 

facts that if proven, "would constitute a valid cause of action" for coverage under 

the policy. Leon, 340 N.J. Super. at 472. 

Additionally, in plaintiffs' complaint they do not allege—nor could they—

that the EOs complained of "selectively closed" their premises "due to damage 

to nearby property" as required for the Special Coverages, Time Ingress/Egress, 

and Civil or Military Authority provisions to apply. Coverage under those 

provisions requires a direct physical loss of or damage to properties and, again, 

plaintiffs allege only the presence of COVID-19 as the basis for their coverage 

claims. The presence of COVID-19 does not result in the requisite direct 
19 A-0402-21

physical loss of or damage to property for coverage under the policy's plain 

language. See AC Ocean Walk, LLC, slip op. at 25-29. 

Moreover, the policy plainly excludes coverage for suspensions of use of 

the premises resulting from "enforcement of any law, ordinance, regulation[,] or 

rule regulating or restricting the . . . occupancy, operation[,] or other use . . . of 

any property." The policy also excludes "[l]oss or damage arising from delay, 

loss of market, or loss of use" and "[l]oss or damage resulting from the 

[i]nsured's suspension of business activities, except to the extent provided by 

th[e] [p]olicy" which, as we have explained, otherwise does not provide 

coverage for losses attributable to the effect of the EOs. 

Such exclusions are presumptively valid. See MAC Prop. Grp. LLC, 473 

N.J. Super. at 35. Thus, on plaintiffs' claims for coverage for losses they 

attribute to the suspension of business operations effected by EOs issued to curb 

COVID-19's spread, we affirm the motion court's dismissal of the first amended 

complaint seeking coverage under the Time Element, Civil Authority or Military 

Authority, Contingent Time Element, and Ingress/Egress coverage options. 

 We acknowledge plaintiffs additionally argue the policy's Contamination 

Exclusion does not apply to COVID-19 and is therefore unenforceable under the 

facts as they allege them. We find it unnecessary to address the claim, because 
20 A-0402-21

plaintiffs otherwise failed to sufficiently allege an entitlement to coverage under 

the policy provisions under which they sought coverage. Stated differently, we 

need not address the applicability or the validity of the Contamination Exclusion 

because plaintiffs failed to allege facts showing an entitlement to coverage in 

the first instance. 

 To the extent we have not expressly addressed any of plaintiffs' remaining 

 arguments, we find they are without sufficient merit to warrant written 

discussion in this opinion. R. 2:11-3(e)(1)(E). 

 Affirmed.