IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY

DIPPOLD MAR

BLE & GRANITE, : INC., a Delawa re corporati on, : C.A. No: K12C-09-021 RBY : Plaintiff, : : v. : : HARLEYSVILLE MUTUAL : INSUR ANCE COMPA

NY, a : corporation, : : Defendant. :

Submitted: July 1, 20 14 Decided : Septem ber 22, 2014
Upon Consideration of Defendant’s Motion for Summ ary Judgment

DENIED
ORDER
Jayce R. Lesniewski, Esquire, A Delaware Lawy

er , Inc., Dover, Delaw are for Plaintiff.
Shae L. Chasanov, Esq uire, S wartz C ampbe ll, LL C, Wi lmingt on, Dela ware f or Defendant.

Young, J.Dippold v. Harleysville

C.A. No.: K12C-09-021 RBY September 22, 2014

2 SUMMARY Harl eysvil le Mutual Insurance Company ( “Defendant”) m oves for summa

ry judgm ent pursuant to Superior

Court Civi l Rule 56(c ). This m atter ar ises from Dippold Marble & Gran ite, Inc.’s (“P lainti ff”) Co mplaint, alleg ing breac h of contra ct, with re spec t to Defendant’s denial of insurance coverage for Plaintiff’ s insurance cl aim for damaged personal property. There are several genuine issues of ma terial fact regardin g the extent to which the insurance policy between Plaintif f and Def endant (“P oli cy”) co vers t he cau ses o f Plai ntif f’s pro perty lo ss. Th erefo re, Defe ndan t’s Motion for Summ

ary J udgmen t is DENIED

. FACTS AND PROCEDURE Plaintiff was a le ssee of a comm

ercial r ental unit l ocated at

314 Bay West Boulevard, New Castle, Delaw are (“the Rental U nit”). Defendant insured Plaintiff aga ins t pr ope rty d amage to t he c ont ent s of the Ren tal Unit und er it s Po lic y. Plaintiff used the Rental Unit p rima rily f or ware house purpose s, storing equipm ent, m aterials , and suppli es for her mar ble and gra

nite stone b usiness. Plaintiff a ccessed th e Rental Unit occasion ally as needed. On Septe mber

14, 2012, P laintiff filed a C omplaint allegin g breach o f contract , with respect to D efendant’ s denial of insurance

coverage arising out

of an insuranc e claim

raised by Plaintif f. Plaintiff’ s Comp laint alle ges that, on September 21, 2010, a dem olition performed on the unit neighboring her Rental Unit lef t her per sonal prope rty e xposed to rain and wind. Plaintif f had no pri or notice of t

hat demolition. F urther, Plaintif f was ex cluded fr

om the premises. T he other De fendants in this actio n, the subj ects of Co unt I of Pl aintiff’ s Comp laint,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 tim e Plaintiff discovere d that her p ersonal pr operty was expos ed to the el emen ts, the c ontents had been da

mage d. Plaint

iff clai ms dam

ages in the

amoun t of $90,995 .52 plus costs for a

dumpst er, re moval

and disposal

fees, a nd labor cos ts to dispose of the dama ged content s. Count II of

Plaintif f’s Com plaint, th e subjec t of the inst ant ma tter, is a contract claim against Defendant, alleging that Defendant wrongfully denied coverage, and thereby breached its insurance contract w ith Plaintiff. At the time of the dem

olition, Plaintiff had insurance coverage that applied to her re ntal unit thr

ough Defe ndant. This Policy provided tha

t Defend ant would

no t p ay fo r lo ss or d amag e ca us ed b y or r esu lt in g fr om:

(f) Continuous or rep eate d seepage or leakage of water, or the prese nce of

condensati on of hum

idity, moistu

re 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 Febr

uary 2 010, prec luding her f rom ga ining acce ss until Sep tember 2010. Once sheregained

access t o her prope rty, she hired d umpste rs, disposi

ng of dama ged goods. D uring her d eposition, Plaintif f also test ified that portions of

the building appe ared to ha

ve collapse d. 1 The property di sposed of w as unavaila ble for inspection b y De fendant’ s expert, Frank Cog ent. How ever, F rank Cogen t was able to exam ine som e of Plaintiff’ s purported damaged proper

ty, c oncluding tha

t theDippold 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. Sizemoor

e , 405 A.2d 679, 680-81 (Del. 1979).

4 surface appeara nce of the property within the

storage un it had the c haracte ristics of mold growth. Further, Fr ank Cogent opined that the bulk of the mold growth seen on Plaint iff’s person al propert y occurred duri ng June, J uly, and Augus t of 2010 . On May 15, 2014, Defen dant sub mitted the ins tant Moti on for Summary Judgment. On June 1, 2014, Plaintiff submitted her Response to Defendant’s Motion for Sum mary Judgment. STANDARD OF REVIEW Summ ary j udgmen

t is grante d upon a show ing that the re is no gen uine issue of material fact, wher e the moving p arty is entitl ed to judgment as a matter of law. 2 The C our t vi ews t he e vid enc e in the lig ht mo st f avo rab le t o th e no n-mov ing part y. 3 The moving party bea

rs the burden of showing that no material issues of fact are present, but once a m

otion is suppor

ted by s uch a showi

ng, the bur

den shifts t o the non-moving party to demonstrate that there is a genuine dispute as to material issues of f

act. 4 DISCUSSION Defenda nt argues t

hat the m old growth on Plaintif

f’s dam aged prope rty occurred during a time period of 14 days or m ore, such that the Policy excludes coverage for this in cident. D efendant contends tha t the language containe d in the Policy, as well as the rele vant 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(0 4-02) Cause o f Loss- Special For m. Exhi bit B.

7 Plaintiff’s Response, Exhibit B, p. 6. 5 Defenda nt asserts that the P olicy s hould be const rued base d on its plain

term s, resulting in Defend ant’s di smissal. In response, Plaintiff argues that there are genuine issues of mater ial fact as to the caus es of dam

age, the extent to w

hich Plain

tiff’s property

was dam aged by those cause s, and the

extent to w

hich the Po licy c overs those causes of loss. Howeve r, Plaintiff conc edes that t he Policy does contai

n specificexclusions f

rom coverage. Examples of material issues in dispute include whether “Business Personal Property located in

or on the bui lding” 5 is Covere d Propert y as w ell as whe ther the costs of de

bris rem oval are to be cover ed by D efendant under Sec tion 4, page 5 of the Policy. Moreover, there a re material disputes concerning whether covered causes of loss are “ Risks of D irect Ph

ysical Loss unle ss the loss is1. Excl uded in Section B., Excl usions , or 2. Limited in Sect ion C., Limitatio ns; that follow.” 6 According to Plaintiff, losses not specifically excluded or limited are covered los ses und er th e Pol icy. Plaintif f testifi ed that por

tions of thebuilding appe ared to ha ve collapse d. Physical loss caused by collapse of a building is covered in Subsection D titled “Additional Co verage– Co llapse.” 7 Plaintiff also testified that she observedDippold 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 weat her -rel ated damag e to the pro per ty. 8 Losses caused by weather conditions are specific ally c overed unde r Subsect ions B.3 a

nd C.1 of t

he Policy . Exclus ions for water from e xternal sources is covered under Subsection B.1.g., and the Water Exclusion E

ndorsem ent Modific ation of the Policy . The pa

rties are in disagreement as to wheth er the damage t o whic h Plai ntif f test ified is cov ered u nder D efend ant’s pol icy. In addition, Plaintif

f assert s that, upo n Plaintif f’s subm ission of the

claim to Defendant, and prior to the disposal of the property, Defendant’ s claims adjuster reviewe d the damaged prope rty. Defenda nt has ref used to discl ose any

inform ation relating t o that claims adj uster or th e results o f that re view. P laintiff intends to dis cov er th e id ent ity o f th at cl aims a djus ter, for p ote nti al d isc ove ry. Plaintiff also argue s that the e xclusion cit ed by D efendant, name ly “cont inuous or re

peated se epage or l eakage of water” is inapplic able to the

facts of this case. Water from

external sources entering the building is covered in other provisions of

the contra ct. 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 f oregoing re asons, D efendant’ s Motion for Summ ary J udgmen t is DENIED

. Many f actual cl aims that have b een devel oped by the respe ctive par ties, the interpretation arguments, and the legal effects are in sharp dispute. Hence, Summary Judgment is not app ropriate.Dippold v. Harleysville

C.A. No.: K12C-09-021 RBY September 22, 2014

7 IT IS SO ORDERED

. /s/ Rober t B. Youn g J. RBY /l mc oc: Prothonotary cc: Counsel Opinion Di stribution File