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Dippold Marble & Granite, Inc., v. Harleysville Mutual Insurance Co.

Superior Court of Delaware, Kent

September 22, 2014

DIPPOLD MARBLE & GRANITE, INC., a Delaware corporation, Plaintiff,
v.
HARLEYSVILLE MUTUAL INSURANCE COMPANY, a corporation, Defendant.

Submitted: July 1, 2014

Upon Consideration of Defendant's Motion for Summary Judgment

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

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

ORDER

Robert B. Young J

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 claim for 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, 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 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 ...


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