IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

DIPPOLD MARBLE & GRANITE, : 

INC., a Delaware corporation, : C.A. No: K12C-09-021 RBY

:

Plaintiff, :

:

v. :

:

HARLEYSVILLE MUTUAL :

INSURANCE COMPANY, a :

corporation, :

:

Defendant. :

Submitted: July 1, 2014 

Decided: September 22, 2014

Upon Consideration of Defendant’s

Motion for Summary Judgment

DENIED 

ORDER

Jayce R. Lesniewski, Esquire, A Delaware Lawyer, Inc., Dover, Delaware for

Plaintiff. 

Shae L. Chasanov, Esquire, Swartz Campbell, LLC, Wilmington, Delaware for

Defendant. 

Young, J.
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

2

SUMMARY

Harleysville Mutual Insurance Company (“Defendant”) moves for summary

judgment pursuant to Superior Court Civil Rule 56(c). This matter arises from

Dippold Marble & Granite,Inc.’s(“Plaintiff”) Complaint, alleging breach of contract,

with respect to Defendant’s denial of insurance coverage for Plaintiff’s insurance

claimfor damaged personal property. There are several genuine issues of material fact

regarding the extent to which the insurance policy between Plaintiff and Defendant

(“Policy”) covers the causes of Plaintiff’s property loss. Therefore, Defendant’s

Motion for Summary Judgment is DENIED.

FACTS AND PROCEDURE

Plaintiff was a lessee of a commercial rental unit located at 314 Bay West

Boulevard, New Castle, Delaware (“the Rental Unit”). Defendant insured Plaintiff

against property damage to the contents of the Rental Unit under its Policy.

Plaintiff used the Rental Unit primarily for warehouse purposes, storing

equipment, materials, and supplies for her marble and granite stone business.

Plaintiff accessed the Rental Unit occasionally as needed. 

On September 14, 2012, Plaintiff filed a Complaint alleging breach of

contract, with respect to Defendant’s denial of insurance coverage arising out of

an insurance claim raised by Plaintiff. Plaintiff’s Complaint alleges that, on

September 21, 2010, a demolition performed on the unit neighboring her Rental

Unit left her personal property exposed to rain and wind. Plaintiff had no prior

notice of that demolition. Further, Plaintiff was excluded from the premises. The

other Defendants in this action, the subjects of Count I of Plaintiff’s Complaint,
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

1

 Pltf’s Dep. Tr. At p.45: 6-11. Exhibit E.

3

taped the Rental Unit, and posted notices not to enter. By the time Plaintiff

discovered that her personal property was exposed to the elements, the contents

had been damaged. Plaintiff claims damages in the amount of $90,995.52 plus

costs for a dumpster, removal and disposal fees, and labor costs to dispose of the

damaged contents.

Count II of Plaintiff’s Complaint, the subject of the instant matter, is a

contract claim against Defendant, alleging that Defendant wrongfully denied

coverage, and thereby breached its insurance contract with Plaintiff.

At the time of the demolition, Plaintiff had insurance coverage that applied

to her rental unit through Defendant. This Policy provided that Defendant would

not pay for loss or damage caused by or resulting from:

(f) Continuous or repeated seepage or leakage of water,

or the presence of condensation of humidity, moisture or

vapor, that occurs over a period of 14 days or more.

Plaintiff testified at her deposition that she was denied access to her rental

unit in February 2010, precluding her from gaining access until September 2010.

Once she regained access to her property, she hired dumpsters, disposing of

damaged goods. During her deposition, Plaintiff also testified that portions of the

building appeared to have collapsed.1 The property disposed of was unavailable for

inspection by Defendant’s expert, Frank Cogent. However, Frank Cogent was able

to examine some of Plaintiff’s purported damaged property, concluding that the
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

2

 Super. Ct. Civ. R. 65(c). 

3

 Windom v. Ungerer, 903 A.2d 276, 280 (Del. 2006).

4

 Moore v. Sizemoore, 405 A.2d 679, 680-81 (Del. 1979).

4

surface appearance of the property within the storage unit had the characteristics of

mold growth. Further, Frank Cogent opined that the bulk of the mold growth seen

on Plaintiff’s personal property occurred during June, July, and August of 2010. On

May 15, 2014, Defendant submitted the instant Motion for Summary Judgment. On

June 1, 2014, Plaintiff submitted her Response to Defendant’s Motion for Summary

Judgment. 

STANDARD OF REVIEW

Summary judgment is granted upon a showing that there is no genuine issue

of material fact, where the moving party is entitled to judgment as a matter of law.2

The Court views the evidence in the light most favorable to the non-moving party.3

The moving party bears the burden of showing that no material issues of fact are

present, but once a motion is supported by such a showing, the burden shifts to the

non-moving party to demonstrate that there is a genuine dispute as to material

issues of fact.4

DISCUSSION

Defendant argues that the mold growth on Plaintiff’s damaged property

occurred during a time period of 14 days or more, such that the Policy excludes

coverage for this incident. Defendant contends that the language contained in the

Policy, as well as the relevant exclusion, is clear and unambiguous. Therefore,
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

5

 CP0010(04-02) Building and Personal Property Coverage Form. Exhibit A.

6

 CP1030(04-02) Cause of Loss- Special Form. Exhibit B.

7

 Plaintiff’s Response, Exhibit B, p. 6.

5

Defendant asserts that the Policy should be construed based on its plain terms,

resulting in Defendant’s dismissal.

In response, Plaintiff argues that there are genuine issues of material fact as

to the causes of damage, the extent to which Plaintiff’s property was damaged by

those causes, and the extent to which the Policy covers those causes of loss.

However, Plaintiff concedes that the Policy does contain specific exclusions from

coverage. 

Examples of material issues in dispute include whether “Business Personal

Property located in or on the building”5 is Covered Property as well as whether the

costs of debris removal are to be covered by Defendant under Section 4, page 5 of

the Policy. Moreover, there are material disputes concerning whether covered

causes of loss are “Risks of Direct Physical Loss unless the loss is 1. Excluded in

Section B., Exclusions, or 2. Limited in Section C., Limitations; that follow.”6

According to Plaintiff, losses not specifically excluded or limited are covered

losses under the Policy.

 Plaintiff testified that portions of the building appeared to have collapsed.

Physical loss caused by collapse of a building is covered in Subsection D titled

“Additional Coverage– Collapse.”7 Plaintiff also testified that she observed
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

8

 Plaintiff’s Dep. Tr. at p. 104: 16-17, p. 108: 18-21. Exhibit E.

6

weather-related damage to the property.8 Losses caused by weather conditions are 

specifically covered under Subsections B.3 and C.1 of the Policy. Exclusions for

water from external sources is covered under Subsection B.1.g., and the Water

Exclusion Endorsement Modification of the Policy. The parties are in disagreement

as to whether the damage to which Plaintiff testified is covered under Defendant’s

policy.

In addition, Plaintiff asserts that, upon Plaintiff’s submission of the claim to

Defendant, and prior to the disposal of the property, Defendant’s claims adjuster

reviewed the damaged property. Defendant has refused to disclose any information

relating to that claims adjuster or the results of that review. Plaintiff intends to

discover the identity of that claims adjuster, for potential discovery.

Plaintiff also argues that the exclusion cited by Defendant, namely

“continuous or repeated seepage or leakage of water” is inapplicable to the facts of

this case. Water from external sources entering the building is covered in other

provisions of the contract.

Finally, Plaintiff asserts that there is a genuine issue of material fact

regarding whether the “seepage or leakage” was “continuous or repeated.” 

CONCLUSION

 For the foregoing reasons, Defendant’s Motion for Summary Judgment is

DENIED.

Many factual claims that have been developed by the respective parties, the

interpretation arguments, and the legal effects are in sharp dispute. Hence,

Summary Judgment is not appropriate. 
Dippold v. Harleysville 

C.A. No.: K12C-09-021 RBY

September 22, 2014 

7

IT IS SO ORDERED. 

 /s/ Robert B. Young 

 J.

RBY/lmc

oc: Prothonotary

cc: Counsel 

Opinion Distribution

File