Docket No. A-0895-15T3.


Superior Court of New Jersey, Appellate Division.

Decided February 8, 2017.

Attorney(s) appearing for the Case

Goldman, Davis & Gutfleish, P.C., attorneys for appellant ( Evan L. Goldman , on the brief).

Methfessel & Werbel, attorneys for respondent ( Fredric P. Gallin , of counsel and on the brief).

Respondents Travelers Property Casualty Company of America, Martin Beck and Absolute Coverage LLC have not filed briefs.

Before Judges Simonelli and Carroll.


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.


Plaintiff A.M. Express Freight, Inc. appeals from the September 18, 2015 Law Division order, which granted summary judgment to defendant Lumer Associates, LLC and dismissed the complaint with prejudice. We affirm.

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).

Plaintiff is a trucking and logistics company that transports and ships goods for its customers. On June 11, 2012, plaintiff leased Unit 3 in a commercial facility owned by defendant, where it stored non-perishable food products for its customers. Plaintiff stored the goods on pallets that were stacked to the usable height of the premises, and used motorized equipment to unload, store, and load the goods.

The lease contained a provision requiring plaintiff to indemnify and hold defendant harmless "from . . . any and all claims and liability for . . . any cause or reason whatsoever arising out of or by reason of the occupancy by [plaintiff] and the conduct of [plaintiff's] business." The lease required plaintiff to obtain

[c]omprehensive general liability insurance, including property damage, with a broad form of contractual liability endorsement, protecting and indemnifying . . . Landlord. . . against any and all claims for damage to . . . property, or for loss of . . . property occurring in or about the Premises or arising out of the ownership, maintenance, use or occupancy thereof of from any of the matters in this Lease against which Tenant is required to indemnify Landlord.

The lease also contained a "waiver of subrogation rights" clause whereby plaintiff waived all rights of recovery against defendant for "any loss, damages or injury of any nature whatsoever" to property for which plaintiff was insured.

On May 20, 2013, the concrete slab floor of Unit 3 collapsed, allegedly causing plaintiff damages, including the destruction of customers' goods stored in the unit. Plaintiff filed a complaint, alleging that defendant failed to deliver a secure location for storage of the goods, and failed to properly inspect, maintain, remedy, and repair any defects in the premises.

There was no dispute that plaintiff failed to obtain the required insurance. Defendant filed a motion for summary judgment, arguing, in part, that plaintiff was not entitled to damages because it breached the lease provision requiring it to obtain insurance. At oral argument, the following colloquy occurred between the court and plaintiff's counsel:

THE COURT: And had [plaintiff obtained insurance], had [plaintiff] done that, we wouldn't be here today because [plaintiff's] carrier would have paid [plaintiff's customer], as a third party [and] would have paid [plaintiff] as a first party, and no subrogation against [plaintiff] or [plaintiff's] carrier? [PLAINTIFF'S COUNSEL]: Yes.. . . . THE COURT: . . . do you agree . . . that [under] the [lease] language . . . that the tenant is responsible to get its own insurance is clear and unambiguous? [PLAINTIFF'S COUNSEL]: It is. I mean, it's stated in [the lease] that the tenant was to get insurance. There's no question that that's in the lease. THE COURT: Okay. And the tenant failed to get the appropriate insurance. [PLAINTIFF'S COUNSEL]: That's correct, Judge. THE COURT: And had [the] tenant had the appropriate insurance, then in that event we wouldn't be here. [PLAINTIFF'S COUNSEL]: That's correct.

The motion judge granted summary judgment and dismissed the complaint with prejudice, finding, in part, that the lease provision requiring plaintiff to obtain insurance was clear and unambiguous; the provision required plaintiff to obtain insurance for the loss that occurred here; and plaintiff breached the lease by failing to obtain insurance. This appeal followed.

We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (citation omitted).

Summary judgment must 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). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J.Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Applying these standards, we discern no reason to disturb the judge's ruling.

"Under New Jersey law a lease is like any other written contract." Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 153 N.J.Super. 294, 309 (Law Div. 1977), aff'd, 166 N.J.Super. 36 (App. Div. 1979). Where the terms of a contract are clear and unambiguous, the courts must enforce those terms as written. Levison v. Weintraub, 215 N.J.Super. 273, 276 (App. Div.), certif. denied, 107 N.J. 650 (1987). A party who fails to perform a lease provision has breached the lease. Ringwood Assocs., Ltd., supra, 153 N.J. Super. at 309.

Here, plaintiff contracted to provide liability insurance coverage for defendant. Plaintiff conceded before the trial court that the lease provision requiring it to obtain insurance was clear and unambiguous; it breached that provision; its insurance carrier would have paid the damages it sustained; and it had no right of subrogation for the claim. A concession made during a summary judgment motion forecloses a contrary argument on appeal. Ji. v. Palmer, 333 N.J.Super. 451, 459 (App. Div. 2000).

Because plaintiff breached the lease, it was liable to provide defendant with the benefits defendant would have received had plaintiff obtained liability insurance coverage. See Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J.Super. 124, 131 (App. Div. 1986); Robinson v. Janay, 105 N.J.Super. 585, 592 (App. Div.), certif. denied, 54 N.J. 508 (1969). That defendant had its own liability insurance policy did not operate to absolve plaintiff from the consequence of failing to comply with its contractual obligations under the lease. Antenucci, supra, 212 N.J. Super. at 131.



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