1 

NOT FOR PUBLICATION [Docket No. 14] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE 

DAVID WOJCIECHOWSKI and JENNIFER 

WOJCIECHOWSKI, 

 Plaintiffs, 

 v. 

STATE FARM FIRE & CASUALTY 

COMPANY, 

 Defendant. 

 

 

Civil No. 11-566 RMB/AMD 

 OPINION 

Jonathan Wheeler 

Law Offices of Jonathan Wheeler 

1617 JFK Boulevard, Suite 1270 

One Penn Center 

Philadelphia, PA 1910 

 Attorney for Plaintiffs 

Charles M. Fisher 

Windels, Marx, Lane & Mittendorf, LLP 

104 Carnegie Center, Suite 201 

Princeton, NJ 08540 

 Attorneys for Defendant 

 BUMB, United States District Judge: 

Plaintiffs David and Jennifer Wojciechowski (“Plaintiffs”) 

claim that Defendant State Farm Fire and Casualty Company 

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(“Defendant”) improperly denied coverage on a homeowner’s 

insurance policy issued by the Defendant to the Plaintiffs. 

Plaintiffs further claim that Defendant misrepresented the scope 

of the insurance policy Plaintiffs purchased. Defendant has 

moved for summary judgment. For the reasons that follow, that 

motion is GRANTED. 

I. Background 

Plaintiffs purchased a homeowner’s insurance policy (the 

“Policy”) from Defendant to cover their home located at 36 

Merion Road, Marlton, New Jersey. The Policy covers, among 

other things, “accidental direct physical loss” to the home. 

Certification of Gerry Brannigan, Ex. B at 7. The Policy 

excludes from coverage a variety of losses. Among the losses it 

excludes are losses that “consist of, or [are] directly and 

immediately caused by[:]” (1) “wear, tear, marring, scratching, 

deterioration, inherent vice, latent defect or mechanical 

breakdown” (the “Wear and Tear Exclusion”); (2) “continuous or 

repeated seepage or leaking of water or steam from a . . . 

plumbing system . . . or other plumbing fixture . . . which 

occurs over a period of time” (the “Leak Exclusion”); or (3) 

“Water Damage, meaning . . . water below the surface of the 

ground” (the “Sub-Surface Water Exclusion”). Id. at 9, 10. 

These exclusions apply “regardless of whether the loss occurs 

suddenly or gradually, involves isolated or widespread damages, 

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arises from natural or external forces, or occurs as a result of 

any combination of these.” Id. at 9, 10. However, as an 

exception to these exclusions, the Policy does “insure for any 

resulting loss from [the exclusions], unless the resulting loss 

is itself a Loss Not Insured by” the exclusions section of the 

Policy (the “Resulting Loss Exception”). Id. at 10, 11. The 

Policy also indicates that if “loss to covered property is 

caused by water or steam not otherwise excluded”, the Policy 

will cover “the cost of tearing out and replacing any part of 

the building necessary to repair the system or appliance” (the 

“Tear and Repair Coverage”). Id. at 9. Under a special fungus 

policy endorsement, the Policy generally excludes coverage for 

mold. See Certification of Jonathan Wheeler, Ex. 1 at 9. 

However, the Policy provides for coverage (the “Mold Coverage”) 

if it is caused by a “covered cause of loss” and the Leak 

Exclusion does not apply. Id. at 11. Finally, the Policy 

provides certain coverage to direct loss to personal property 

for “[s]udden and accidental discharge or overflow of water” 

(the “Sudden And Accidental Discharge Coverage”). Id. at 27. 

When, in January 2010, Plaintiffs discovered water on the 

carpet of their family room, they hired a plumber, who 

determined the water was coming from a broken drain pipe. 

Plaintiffs sought coverage under the Policy for water damage as 

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a result of the broken pipe, as well as damages incurred in 

accessing the broken pipe.1 

Defendant denied coverage under the Policy Exclusions 

discussed above. Plaintiffs then filed this suit claiming that: 

(1) they were owed coverage for the losses at issue under the 

policy; (2) Defendant’s denial of coverage was in bad faith; and 

(3) Defendant misrepresented the scope of coverage prior to 

Plaintiffs’ purchase and led Plaintiffs to believe coverage 

would extend to the type of loss at issue. 

II. Standard

Summary judgment should only be granted if “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 

“An issue is genuine only if there is a sufficient evidentiary 

basis on which a reasonable jury could find for the non-moving 

party, and a factual dispute is material only if it might affect 

the outcome of the suit under governing law.” Mollo v. Passaic 

 

1

 In their briefing, Plaintiffs also alluded to the cost of repairing the 

broken pipe, but later conceded that that cost was excluded. Docket 

No. 15 at p. 6 (“Therefore, even if the broken pipe itself is not 

covered under the State Farm policy, the policy specifically provides 

that the cost to tear out and replace it is covered.”)(emphasis in 

original); Docket No. 25 at p. 2 (“In the matter before this Court, 

Plaintiffs do not dispute that the cost to repair the damage to the 

pipe which broke because of wear and tear is not covered.”). 

Plaintiffs also alluded to coverage for damages associated with mold. 

Docket No. 15 at p. 3. However, Plaintiffs have pointed to no evidence 

that they, in fact, suffered mold damages. In any event, as discussed 

below, mold is generally excluded from coverage unless certain 

conditions - not applicable here - are present. 

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5 

Valley Sewerage Commissioners, 406 F. App’x 664, (3d Cir. 

2011)(quotation and citation omitted). 

When deciding the existence of a genuine dispute of 

material fact, a court's role is not to weigh the evidence; all 

reasonable “inferences, doubts, and issues of credibility should 

be resolved against the moving party.” Meyer v. Riegel Products 

Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983). However, “the mere 

existence of a scintilla of evidence,” without more, will not 

give rise to a genuine dispute for trial. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). In the face of such 

evidence, summary judgment is still appropriate “where the 

record ... could not lead a rational trier of fact to find for 

the nonmoving party ....“ Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 

(1986). “Summary judgment motions thus require judges to ‘assess 

how one-sided evidence is, or what a ‘fair-minded’ jury could 

‘reasonably’ decide.'” Williams v. Borough of West Chester, Pa., 

891 F.2d 458, 460 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 

265). 

The movant “always bears the initial responsibility of 

informing the district court of the basis for its motion, and 

identifying those portions of the pleadings, depositions, 

answers to interrogatories, and admissions on file, together 

with the affidavits, if any, which it believes demonstrate the 

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absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 

(1986)(internal citations omitted). Then, “when a properly 

supported motion for summary judgment [has been] made, the 

adverse party must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 

(internal citations and quotations omitted). 

III. Analysis

 The Court addresses each of Plaintiffs’ three claims in 

turn. Both parties cite to and, therefore, this Court will 

apply New Jersey law in assessing the claims. See Transportes 

Ferreos de Venezuela II CA v.NKK Corp., 239 F.3d 555, 560 (3d 

Cir. 2001)(applying New Jersey law where there was no dispute as 

to its application). 

 A. Plaintiffs’ Coverage Claim

With respect to Plaintiffs’ first claim, for coverage under 

the Policy, Defendant has moved to dismiss this claim based on 

the Exclusions described above. The Court addresses each 

Exclusion in turn. 

1. The Wear and Tear Exclusion 

The Wear and Tear Exclusion provides that: 

1. We do not insure for any loss to the property described 

in Coverage A which consists of, or is directly and 

immediately caused by one or more of the perils listed in 

items a. through n. below, regardless of whether the loss 

occurs suddenly or gradually, involves isolated or 

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widespread damage, arises from natural or external forces, 

or occurs as a result of any combination of these. . . . 

g. wear, tear, marring, scratching, deterioration, 

inherent vice, latent defect or mechanical 

breakdown. 

Defendant’s expert Gary Popolizio opined that wear and tear 

caused the pipe at issue to leak and that the claimed water 

damage was the result of the leak. See Certification of Charles 

M. Fisher, Ex. E at 7 (“[I]t is my opinion that the drain line 

servicing the kitchen for the subject home was replaced due to a 

leakage problem caused by . . . wear and tear of the drain pipe 

. . . that this “failure of the pipe (i.e. leaks) caused water 

to permeate into the soils below the kitchen . . . [and that] 

the claimed damage to the family room was caused by this ongoing 

leak.”). Plaintiffs do not dispute these conclusions. See Oral 

Argument by Plaintiffs’ Counsel of 3/14/2012 (“We don’t have 

expert testimony to dispute that [the pipe’s leaking was caused 

by wear and tear.] . . . My answer would be there’s no dispute 

that this leak was caused by the pipe, by the failure of the 

pipe. . . . [The losses] were caused by water which discharged 

from the pipe.”); See also Deposition of David Wojciechowski at 

59-60 (“Q: So it was your understanding that all of the water 

damage in this case came from the drain line that ran from the 

kitchen to the family room wall? A: Yes.”). There is also no 

dispute that Plaintiffs suffered losses from having to access 

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the broken pipe. See Certification of Jonathan Wheeler, Ex. 5 

at p. 2. The only issue in dispute therefore is whether these 

undisputed damages are excluded under the terms of the Policy. 

Because there is no factual issue in this regard, this Court may 

resolve, as a matter of law, whether such damages are excluded 

under the Policy under the Wear and Tear Exclusion. Gladstone 

v. Westport Ins. Corp., No. 10-652, 2011 WL 5825985, at *5 

(D.N.J. Nov. 16, 2011)(holding that interpretation of insurance 

contract terms is a matter of law for the court). They are. 

Affording the Policy its plain and ordinary meaning, as 

required under New Jersey law (Colliers Lanard & Axilbund v. 

Lloyds of London, 458 F.3d 231, 236 (3d Cir. 2006)), the Wear 

and Tear Exclusion plainly excludes the losses at issue here. 

The Wear and Tear Exclusion excludes losses directly and 

immediately caused by wear and tear and it is undisputed that 

the pipe broke due to wear and tear. Therefore, the losses at 

issue will be excluded from coverage under the Exclusion if they 

are “directly and immediately caused by” the undisputed wear and 

tear to the pipe. Looking to the context of the phrase, 

particularly the fact that the Policy excludes loss whether they 

occurred suddenly or gradually, as well as the phrase’s ordinary 

meaning, this Court interprets “directly and immediately caused 

by” to mean caused by, without an intervening event. See Merriam 

Webster’s Dictionary (defining “directly” as “in a direct 

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manner”; defining “direct” as “marked by absence of intervening 

agency, instrumentality, or influence”; defining “immediately” 

as “in direct connection or relation”; defining “immediate” as 

“acting or being without the intervention of another object, 

cause, or agency”; defining “caused” as “to serve as a cause or 

occasion of”). Here, applying this definition and considering 

the evidence presented by the parties, all of the claimed 

damages were directly and immediately caused, without any type 

of intervening event, by wear and tear to the pipe. Plaintiffs 

attempted at oral argument, but not in their briefing or through 

the submission of evidence, to dispute that the water damage 

losses were “directly and immediately caused” by wear and tear 

to the pipe. Plaintiffs’ counsel argued, with respect to 

damages, that: “Ok, first of all Judge, it wasn’t caused by wear 

and tear. It was caused by water which discharged from that 

pipe.” This is an empty distinction. The water’s leakage from 

the pipe is not an intervening event; it was the direct and 

immediate consequence of the damage to the pipe. With respect 

to loss incurred from “accessing” the pipe to repair it, those 

damages are not meaningfully divisible from loss incurred to 

repair the pipe, which Plaintiffs concede is not covered. 

Obtaining access to the pipe is an intrinsic aspect of the pipe 

repair process. Even if these damages were somehow severable, 

Plaintiffs have not disputed that the damages from accessing the 

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broken pipe to repair it were also “directly and immediately 

caused” by wear and tear to the pipe and therefore excluded. 

Plaintiffs also argue that, even if the Wear and Tear 

Exception applies, the Resulting Loss Exception nevertheless 

provides for coverage. It does not. While this Court must read 

the Policy generously in favor of the insured and its reasonable 

expectations, an exception to an exclusion, like the Resulting 

Loss Exception, cannot be read so broadly that the exception 

swallows the exclusion. GTE Corp. v. Allendale Mutual Ins. Co., 

372 F.3d 598, 609, 614 (3d Cir. 2004). Here, Plaintiffs’ 

interpretation of the Exception would do just that. The 

Resulting Loss Exception reads: 

However, we do insure for any resulting loss from items a. 

through m. unless the resulting loss is itself a Loss Not 

Insured by this Section. 

(Certification of Gerry Brannigan in support of Defendant’s 

Motion for Summary Judgment at Ex. B at 10)(emphasis added). The 

provision affirms coverage to losses that result from a listed 

exclusion, which includes the Wear and Tear Exclusion. Id.

(“However, we do insure for any resulting loss from items a. 

through m.”). However, it then excludes from coverage losses 

that meet the definition of excluded loss. Id. (“unless the 

resulting loss is itself a Loss Not Insured by this Section.”). 

Losses that are excluded under the Policy include those that 

directly and immediately result from wear and tear. Id. at 9. 

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Read together, these provisions only allow for coverage for 

losses that result from, but are not directly and immediately 

caused by, wear and tear, or any other applicable exclusions. 

TMW Enterprises, Inc. v. Fed’l Ins. Co., 619 F.3d 574, 576-78 

(6th Cir. 2010)(interpreting similar exclusion and exception 

similarly). 

An illustration of allowable resulting loss exception might 

be helpful. For example, the Policy could potentially cover the 

hypothetical loss stemming from a workman accidentally breaking 

a window on the Plaintiffs’ home while repairing the home from 

the water damage at issue here. While the wear and tear of the 

pipe would be the but-for cause of the broken window in that 

scenario, it would not be the direct and immediate cause because 

of the intervening negligence by the workman. Such loss would 

therefore be entitled to coverage. Plaintiff’s proposed 

construction of the Resulting Loss Exception, in contrast, would 

almost entirely swallow the Wear and Tear Exclusion, by allowing 

for coverage for losses directly and immediately caused by wear 

and tear, like the losses here. This cannot be. Because 

Plaintiffs’ losses are the direct and immediate result of wear 

and tear, they are excluded by the wear and tear exclusion and 

are not saved by the resulting loss exception, which does not 

extend to losses otherwise not insured – i.e. losses that are 

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the direct and immediate result of wear and tear. Therefore, 

Plaintiffs’ coverage claim fails and must be dismissed. 

2. The Leak Exclusion 

The Leak Exclusion provides that: 

1. We do not insure for any loss to the property 

described in Coverage A which consists of, or is 

directly and immediately caused by one or more of the 

perils listed in items a. through n. below, regardless 

of whether the loss occurs suddenly or gradually, 

involves isolated or widespread damage, arises from 

natural or external forces, or occurs as a result of 

any combination of these. . . . 

f. continuous or repeated seepage or leakage of 

water or steam from a: 

 

(1) heating, air condition or automatic fire 

protective sprinkler system; 

(2) household appliances; or 

(3) plumbing system, including from, within or 

around any shower stall, shower bath, tub 

installation, or other plumbing fixture, 

including their walls, ceilings or floors; 

Defendant’s expert Gary Popolizio opined that the leak 

occurred over time and caused all of the water damage at issue. 

See Certification of Charles M. Fisher, Ex. E at 7 (describing 

the leak as “an ongoing concern over a period of time” and that 

the “claimed damage to the family room was caused by this 

ongoing leak”). Plaintiffs have submitted no evidence to 

dispute this. In fact, as discussed above, Plaintiffs have 

admitted that all of the claimed water damage was a result of 

the leaking. And Plaintiffs’ responses to Defendant’s requests 

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for admission acknowledge that Plaintiffs observed leakage weeks 

prior to reporting it to State Farm and, therefore, the leak 

occurred “over time.” See Certification of Charles M. Fisher, 

Ex. A. Therefore, at least with respect to the claimed water 

damages, these damages are excluded under the Policy because 

they were caused by “continuous . . . leaking of water . . . 

from a . . . plumbing system . . . or other plumbing fixture . . 

. which occurs over a period of time.” 

 3. The Sub-Surface Water Exclusion 

The Sub-Surface Water Exclusion provides that: 

2. We do not insure under any coverage for any loss which 

would not have occurred in the absence of one or more 

of the following excluded events. We do not insure 

for such loss regardless of: (a) the cause of the 

excluded event; or (b) other causes of the loss; or 

(c) whether other causes acted concurrently or in any 

sequence with the excluded event to produce the loss; 

or (d) whether the event occurs suddenly or gradually, 

involves isolated or widespread damage, arises from 

natural or external forces, or occurs as a result of 

any combination of these: 

 c. Water Damage meaning: 

(1) flood, surface water, waves, tidal water, 

tsunami, seiche, overflow of a body of water 

or spray from any of these, all whether 

driven by wind or rot; 

(2) water or sewage from outside the residence 

premises plumbing system that enters through 

sewers or drains, or water which enters into 

and overflows from within a sump pump, sump 

pump well or any other system designed to 

remove subsurface water which is drained 

from the foundation area; or 

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(3) water below the surface of the ground, 

including water which exerts pressure on, or 

seeps or leaks through a building, sidewalk, 

driveway, foundation, swimming pool or other 

structure. 

Defendants rely on two pieces of evidence in support of the 

application of the exclusion, which excludes losses that would 

not have occurred without water damage from water “below the 

surface of the ground”: (1) Gary Popolizio’s expert report; and 

(2) the Second Certification of State Farm Team Manager Gerry 

Brannigan. The expert report indicates that the broken pipe 

“was clearly located below the surface of the concrete floor 

slab and was buried in the soils that reside beneath the home.” 

Certification of Charles M. Fisher, Ex. E at 8. Likewise, Gerry 

Brannigan’s Certification indicates that the “the broken pipe 

was buried in the dirt underneath the kitchen floor” and 

provides authenticated photographs that confirm the pipe’s 

location as beneath the ground. Second Certification of Gerry 

Brannigan. Plaintiffs agree that the pipe was below the 

concrete slab but nonetheless contend that its placement was 

above the ground. Docket No. 15 at 6 (“In the present case, the 

facts demonstrate that the water which caused damage to the 

Wojciechowski residence came from a pipe below the slab, but 

above the ground.”)(emphasis in original). However, they cite 

no evidence in support of this statement. The only cited 

evidence is testimony from Plaintiff David Wojciechowski in 

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which he actually indicates that the pipe is located inside the 

concrete slab – evidence that Plaintiffs appear to disclaim in 

their briefing and that is belied by the photographs. 

Therefore, the only competent evidence before this Court is that 

the water that caused the water damage at issue came from 

beneath the surface of the ground. Accordingly, the Sub-Surface 

Water Exclusion applies and Plaintiffs cannot recover for any 

water damage. 

4. Other Arguments Presented By Plaintiffs 

Plaintiffs also argue in passing that they are entitled to 

coverage under the Tear and Repair Coverage, Mold Coverage, and 

Sudden and Accidental Discharge Coverage provisions. With 

respect to the first provision, as discussed above, that 

coverage only extends to losses that are not “otherwise 

excluded.” Because all three Exclusions described above are 

applicable, any losses are “otherwise excluded” and this 

coverage is inapplicable. With respect to the second provision, 

Plaintiffs have pointed to no evidence that they sustained mold 

losses and, in any event, they would not be entitled to any 

coverage here. As discussed above, that coverage only extends 

to losses caused by a “covered cause of loss” and in which the 

Leak Exclusion is inapplicable. Here, the losses are not caused 

by a covered cause of loss and the Leak Exclusion is applicable. 

Plaintiffs are therefore not entitled to any coverage under 

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either of these provisions. Finally, with respect to the third 

provision, this coverage is for personal property, not damage to 

Plaintiffs’ dwelling, and Plaintiffs have not pointed to any 

damage to their personal property. 

B. Plaintiffs’ Bad Faith Claim

 The dismissal of Plaintiffs’ first claim is fatal to their 

second – for bad faith denial of coverage. “In order to impose 

‘bad faith’ liability, the insured must demonstrate that no 

debatable reasons existed for denial of the benefits available 

under the policy. Under the ‘fairly debatable’ standard, a 

claimant who could not have established as a matter of law a 

right to summary judgment on the substantive claim would not be 

entitled to assert a claim for an insurer's bad faith refusal to 

pay the claim.” Hudson Universal, Ltd. v. Aetna Ins., Co., 987 

F. Supp. 337, 342 (D.N.J. 1997)(quotation and citation omitted). 

Here, because Plaintiffs’ underlying coverage claim fails, so 

too does their bad faith denial claim. See New Jersey Title 

Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, No. 11-CV0630, 2011 WL 6887130, at *7 (D.N.J. Dec. 27, 2011)(holding that 

dismissal of bad faith claim is warranted where the plaintiff 

cannot prevail at summary judgment on the underlying coverage 

claim). Dismissal is therefore warranted for this claim. 

 C. Plaintiffs’ Negligent Misrepresentation Claim

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Plaintiffs have pointed to no evidence to support their 

negligent misrepresentation claim, and the only evidence 

presented to the Court is that no such representations were 

made. Deposition of David Wojciechowski at 41-42 (Q: Do you know 

of any fact that would support this claim in the third count 

that we just read that you relied upon State Farm’s 

representations that you would be insured for various losses, 

including the loss that was suffered on January 26, 2010? . . . 

A: No, no one specifically told me. Q: There were no 

representations from State Farm about the types of losses that 

were covered under the policy. Is that fair? A: Yes.”). 

Because it was Plaintiffs’ burden to establish this claim, 

and they failed to present any argument or evidence in support 

of it, it must be dismissed. Conoshenti v. Public Serv. Elec. & 

Gas Co., 364 F.3d 135, 140 (3d Cir. 2004)(holding that, where 

the plaintiff bears the burden of proof on an issue, summary 

judgment is appropriate when the defendant demonstrates “that 

there is an absence of evidence to support the nonmoving party’s 

case”)(quotation and citation omitted); Moffatt Ents., Inc. v. 

Borden Inc., 807 F.2d 1169, 1174 (3d Cir. 1986)(recognizing that 

the plaintiff bears the burden, in opposing summary judgment on 

fraud and negligent misrepresentation claims, to present 

evidence in support of their claims). 

IV. Conclusion

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For all these reasons, Defendant’s motions for summary 

judgment is GRANTED and the case is DISMISSED with prejudice. 

 s/Renée Marie Bumb 

 RENÉE MARIE BUMB 

 United States District Judge 

Dated: May 8, 2012

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