                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5415-15T3

AIR MASTER & COOLING, INC.,

      Plaintiff-Appellant,
                                      APPROVED FOR PUBLICATION
v.
                                            October 10, 2017
SELECTIVE INSURANCE COMPANY
                                         APPELLATE DIVISION
OF AMERICA,

      Defendant-Respondent,

and

HARLEYSVILLE INSURANCE COMPANY,

     Defendant.
_________________________________

          Argued September 25, 2017 – Decided October 10, 2017

          Before Judges Sabatino, Whipple and Rose.

          On appeal from Superior Court of New Jersey,
          Law Division, Essex County, Docket No. L-6861-
          14.

          Sharon K. Galpern argued the cause for
          appellant (Stahl & DeLaurentis, PC, attorneys;
          Ms. Galpern, on the briefs).

          Todd J. Leon argued the cause for respondent
          (Hill Wallack, LLP, attorneys; Mr. Leon, of
          counsel and on the brief; Victoria J. Airgood,
          on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.
     This declaratory judgment action poses several fundamental

legal    issues   concerning    property     damage       coverage     under     a

Commercial   General    Liability    ("CGL")     insurance       policy.       The

coverage issues arise out of lawsuits brought by a condominium

association and unit owners to remediate construction defects

within a residential building.       The insured, Air Master & Cooling,

Inc. ("Air Master"), had performed work as a subcontractor on the

roof and elsewhere in the building.              The construction defects

concern property damage resulting from, among other things, the

apparent progressive infiltration of water within the building.

     After Air Master was named as a third-party defendant in the

underlying construction defects cases, it sought a defense and

indemnity    from      Selective     Insurance      Company       of    America

("Selective"). Selective was one of a series of different insurers

that had issued CGL policies to Air Master over successive policy

periods.

     The trial court granted summary judgment to Selective in the

declaratory judgment action, agreeing with the insurer that the

property damage to the building already had manifested before

Selective's policy period commenced.               In appealing from that

ruling, Air Master raises several legal issues, some of which are

either   completely    novel   or   which   have    not   been    definitively

addressed under New Jersey law.



                                     2
                                                                       A-5415-15T3
     For the reasons explained in this opinion, we hold, first,

that a "continuous trigger" theory of insurance coverage may be

applied in this State to third-party liability claims involving

progressive damage to property caused by an insured's allegedly

defective construction work.   Second, we hold that the "last pull"

of that trigger – for purposes of ascertaining the temporal end

point of a covered occurrence – happens when the essential nature

and scope of the property damage first becomes known, or when one

would have sufficient reason to know of it.    Third, we reject Air

Master's novel argument that the last pull of the trigger does not

occur until there is expert or other proof that "attributes" the

property damage to faulty conduct by the insured.

     Applying these principles, we vacate summary judgment and

remand    for   further   development   of   the   record   and    for

reconsideration of the coverage issues.       We do so because the

present factual record is insufficient to determine with clarity

when the essential nature and scope of the water infiltration

damage was sufficiently known, or reasonably could have been known,

as to, respectively, (1) the individual condo units and (2) the

roof.    In making that assessment with an enhanced factual record,

the trial court shall be particularly guided by the manifestation

analysis set forth in Winding Hills Condominium Association, Inc.




                                 3
                                                             A-5415-15T3
v. North American Specialty Insurance Co., 332 N.J. Super. 85, 88-

93 (App. Div. 2000).

                                      I.

     The limited record provided on appeal presents the following

relevant   chronology.     The   insured,        Air   Master,      worked    as   a

subcontractor on the construction of a seven-story, 101-unit,

mostly-residential     condominium        building     in    Montclair.        The

construction manager hired Air Master to perform HVAC1 work in the

building, which Air Master conducted between November 2005 and

April   2008.   As   described   in       the   record,     Air    Master's   work

consisted of installing condenser units on rails on the building's

roof, and also HVAC devices within each individual unit.

     Starting in early 2008, some of the unit owners began to

notice water infiltration and damage in their windows, ceilings,

and other portions of their individual units.                     According to a

November 4, 2010 story published in a local newspaper, unit owner

Carlton Schultz, a fifth-floor resident, noticed by February 2008

the presence of leaks in his walls and windows.               In addition, the

story reported that another resident on the same floor, Raniya

Kassem, noticed similar damage to her unit by July 2008.                       The

newspaper story indicated that "[w]orkers eventually began to


1
  HVAC commonly refers to heating, ventilation, and air
conditioning. See, e.g., State v. Perini Corp., 221 N.J. 412, 419
(2015).

                                      4
                                                                         A-5415-15T3
suspect that some of the leaks resulted from improper drainage

from the balcony above Kassem's condo," and the workers "tried

making some adjustments to that balcony to halt that flow."      The

article further reported that leaks had been discovered in common

area stairwells and the building's parking garage.   The project's

general contractor and developer began to respond to the problems,

and certain investigations and remedial measures were commenced.

     Eventually, on April 29, 2010, an expert consultant, Jersey

Infrared Consultants ("Jersey Infrared"), performed a moisture

survey of the roof for water damage, as documented in a May 3,

2010 report.   The report identified 111 spots on the roof damaged

by moisture from water infiltration.   The expert recommended that

these damaged areas of the roof be removed and replaced.

     With respect to the timing of these conditions, the Jersey

Infrared report stated that "it is impossible to determine when

moisture infiltration occurred."    The report raised a potential

link of the water infiltration that the consultant had discovered

on the roof to the previously-detected water problems on the floors

below, noting that "[t]he absence of leaks in some areas [of the

roof] may be due to the travel of moisture on the deck to another

location where it could leak into the building."

     Schultz, Kassem, and the condominium association each sued

the project's developer and other defendants for property damage



                                5
                                                           A-5415-15T3
and   the    costs   of    remediation.         The     three   lawsuits   were

consolidated.        The   defendants,    in    turn,    brought   third-party

complaints against Air Master and multiple other subcontractors

that had worked on the project.           Air Master then sought defense

and indemnity from its various insurers that covered it under a

succession of CGL policies.

      In    particular,    Air   Master   was   insured    by   Penn   National

Insurance Company ("Penn National") for the policy period from

June 22, 2004 (or 2005) 2 through June 22, 2009.                   Air Master

thereafter had a policy with Selective covering June 22, 2009

through June 22, 2012.           Finally, Air Master had a policy from

Harleysville Insurance Company ("Harleysville") covering June 22,

2012 through June 22, 2015.

      Both Selective and Harleysville disclaimed coverage, denying

that they had any duty to defend or indemnify Air Master against

the property damages claims.        They argued that the property damage

had already manifested before their respective policy periods

began.

      Penn National, which insured Air Master during the November

2005 to April 2008 time frame when it performed the work on the




2
  The documentation in the record is inconsistent as to the start
year of Penn National's coverage. In any event, the analysis of
Selective's potential coverage is not affected by whether Penn
National's policy began in 2004 or 2005.

                                      6
                                                                       A-5415-15T3
building,   assumed    the   defense   of   the   third-party   complaints,

subject to a reservation of its rights.            Meanwhile, Harleysville

moved for and obtained summary judgment because its policy did not

commence until June 2012, long after the leaks had materialized. 3

That left open the coverage issues with respect to the middle

carrier in the time sequence, Selective.

     Selective's CGL policy states, in relevant part, that the

insurer is to provide coverage for bodily injury or property damage

that occurs "during the policy period."            In addition, the policy

defines an "occurrence" as "an accident, including continuous or

repeated    exposure   to    substantially   the    same   general   harmful

conditions."    Further, the policy defines "property damage" as

"physical injury to tangible property, including all resulting

loss of use of that property.      All such loss of use shall be deemed

to occur at the time of the physical injury that caused it."

Property damage also is defined to encompass "loss of use of

tangible property that is not physically injured."              Similarly,

"[a]ll such loss of use shall be deemed to occur at the time of

the 'occurrence' that caused it."

     Air Master filed this declaratory judgment action against

Selective and Harleysville in the Law Division in September 2014.




3
  That ruling as to Harleysville, which was made by a different
Law Division judge, is not being appealed by Air Master.

                                       7
                                                                     A-5415-15T3
After   limited    discovery,    including     apparently     interrogatory

responses and document exchanges, Selective moved for summary

judgment.

     Selective argued that it is not responsible for water damage

that had materialized or manifested before the beginning of its

coverage period in June 2009.      In opposition, Air Master countered

that under a continuous-trigger theory, coverage by all applicable

insurers continues until the "last pull" of the trigger of an

injury occurs.     According to Air Master, manifestation does not

happen until it becomes known, or reasonably knowable, that such

damage is "attributable" to the work of the insured.              Based on

those assertions, Air Master argued that, at the very earliest,

the last "pull" of the coverage trigger here was in May 2010, when

Jersey Infrared issued its roof moisture report.

     In her initial written decision dated June 10, 2016, the

motion judge granted summary judgment to Selective on the ground

that the continuous-trigger theory of coverage does not apply in

New Jersey to first-party claims.          See Winding Hills, supra, 332

N.J. Super. at 90-93 (articulating this distinction between first-

party   and   third-party       claims).       Air   Master     moved    for

reconsideration.    It persuaded the motion judge to change her mind

and recognize that the present litigation involves, in fact, third-

party liability claims against Air Master and thus the continuous-



                                    8
                                                                   A-5415-15T3
trigger doctrine does apply.        The motion judge corrected herself

on this discrete point in her August 5, 2016 written decision on

reconsideration.

     Nonetheless, the motion judge still ruled that Selective is

not liable for coverage or a duty to defend Air Master in this

case, because she conclusively found that the damage to the

building had manifested before Selective's policy period began in

June 2009.    The judge rejected Air Master's argument that the CGL

coverage period continues until damages "attributable" to the

insured   have    been   discovered,       or   reasonably    could    have   been

discovered.      As the judge noted in her written decision, "[t]here

is no indication in the [Selective] Policy or in the case law that

manifestation requires a separate analysis [of attribution] for

each potentially liable insured."               Discerning no questions of

material fact were present, the judge added that "[i]t is not

meaningfully     contested   that   damage       manifested    at     [the    condo

building] prior to Air Master's policy with Selective," and, hence,

"Selective owes no duty to Air Master." (Emphasis added).

     This appeal ensued.

                                    II.

                                       A.

     Air Master argues this court should recognize, as a predicate

matter, that continuous-trigger principles should govern third-



                                       9
                                                                         A-5415-15T3
party liability coverage analysis in construction defect cases

that     involve    progressive      property   damage,   such    as      water

infiltration.      Next, Air Master contends that continuous-trigger

principles extend coverage to all insurance policies in effect

from the time of the insured's work on the construction project

through the time by which it was known, or there was sufficient

reason    to   know,    that   the    manifested   property      damage      was

attributable to the insured's work.

       Based on these predicates, Air Master contends that summary

judgment in this case should be reversed because it was not until

May 2010, when Jersey Infrared's roof study was issued, that

property damage attributable to Air Master's work on the roof was

first ascertained.

        Air Master contends that it is not subject to an earlier

manifestation date tied to the discovery of the leaks in the condo

units below the roof, because it allegedly "had no involvement

with windows, walls, or balconies which are the 2008 damage areas."

       In considering these arguments, "we review the trial court's

grant of summary judgment de novo under the same standard as the

trial court."      Templo Fuente De Vida Corp. v. Nat'l Union Fire Co.

of Pittsburgh, 224 N.J. 189, 199 (2016).           That familiar summary

judgment standard is whether the record, viewed in a light most

favorable to the non-moving party, shows that "there is no genuine



                                       10
                                                                       A-5415-15T3
issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."                         Ibid.

(quoting R. 4:46-2(c)); see also Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).              Moreover, in insurance coverage

cases, "[t]he interpretation of contracts and their construction

are matters of law for the court subject to de novo review."                    Duddy

v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 217-18 (App. Div.

2011) (citing Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super.

363, 375 (App. Div.), certif. denied, 196 N.J. 601 (2008)).

      Ordinarily, in construing the meaning of insurance policies,

courts look to the literal terms of the policies, and enforce

those terms if they are plain and unambiguous.                      Templo Fuente,

supra, 224 N.J. at 200.         However, in the context of CGL coverage,

our   Supreme     Court   has   considered       public    policy    factors     when

construing and applying such contractual provisions, including,

as here, language that defines covered occurrences as losses that

transpire "during" a policy period.

      In   the    seminal     case   of   Owens-Illinois,       Inc.    v.    United

Insurance Co., 138 N.J. 437, 454-56 (1994), the Supreme Court

adopted    the     continuous-trigger          theory     for   property      damage

insurance claims that arose from the installation of asbestos-

related products.         As Justice O'Hern's opinion in Owens-Illinois

explained,       the   most   frequently       offered    theories     defining       a



                                          11
                                                                             A-5415-15T3
"trigger" of coverage recognized in other jurisdictions are: (1)

the "exposure" theory; (2) the "manifestation" theory; and (3) the

"continuous-trigger" theory.     Id. at 449-50.4

     The exposure theory deems the trigger date of an occurrence

that causes bodily injury to be "the date on which the injury-

producing agent first contacts the body."              Id. at 450 (quoting

Developments in the Law – Toxic Waste Litigation, 99 Harv. L. Rev.

1458, 1579-81 (1986)).      Alternatively, the manifestation theory

entails ascertaining the point in time when an injury or disease

first   presented   or   manifested    itself.        Ibid.    Lastly,   the

continuous-trigger theory recognizes that, because certain harms

such as asbestos-related diseases will progressively develop over

time, "the date of the occurrence should be the continuous period

from exposure to manifestation."           Ibid.   Under such a continuous-

trigger approach, "all the insurers over that period [are] liable

for the continuous development of the disease."            Id. at 450-51.




4
  The Court also mentioned "two other less-frequently followed
theories[:]" (1) the injury-in-fact or damage-in-fact approach,
which holds that the time of the "actual injury or damage producing
event" triggers coverage, and (2) the "double-trigger" theory,
which holds that "injury occurs at the time of exposure and the
time of manifestation, but not necessarily during the intervening
period."   Id. at 451.    We need not discuss these alternatives
here, in light of the continuous-trigger theory adopted by the
Court in Owen-Illinois for the progressive injury claims in
question. Id. at 458-59.

                                      12
                                                                   A-5415-15T3
     The Court in Owens-Illinois endorsed the application of the

continuous-trigger coverage doctrine in the specific context of

asbestos-disease coverage cases, largely because that approach has

the effect of maximizing coverage.             Id. at 458-59.           Unlike the

manifestation theory, the continuous-trigger approach requires

multiple successive insurers up to the point of manifestation to

cover a loss.        Id. at 451.         Hence, more aggregate coverage is

available   to     pay    meritorious     claims.     The    continuous-trigger

approach    also     encourages     insurers    to   monitor     progressively-

developing risks and to charge appropriate premiums for those

risks.    Ibid.

     Analytically, the continuous-trigger theory shares the same

coverage endpoint as the manifestation theory, i.e., the date when

the harm has sufficiently become apparent to trigger a covered

occurrence.      The difference between the two approaches is that the

manifestation theory confines coverage to the CGL insurer that

happens to be on the risk at the time when the manifestation

occurs,    whereas       the   continuous-trigger     theory     will    aggregate

coverage from all insurers that were on the risk from the date of

first exposure through the manifestation date.

     Here, for example, if the property damage started during Penn

National's policy period, but progressively advanced or worsened

through     Selective's         policy    period     up     to   the     time    of



                                          13
                                                                          A-5415-15T3
"manifestation," then both Penn National and Selective would be

liable to provide a defense and coverage to Air Master, subject

to potential allocation or apportionment between the carriers.

     Although the use of the continuous-trigger doctrine is most

readily justified in the context of progressive bodily injury, the

Court in Owens-Illinois noted that the doctrine also can sensibly

be applied to property damage that progresses after the time of

initial exposure.   "Like a person exposed to toxic elements, the

environment does not necessarily display the harmful effects until

long after the initial exposure."    Id. at 455.   For that reason,

the Court held in Owens-Illinois that "claims of asbestos-related

property damage from installation through discovery or remediation

(the injurious process) trigger the policies on the risk throughout

that period."   Id. at 456 (emphasis added).

     Since 1994 when Owens-Illinois was decided, case law has

extended the continuous-trigger theory beyond the asbestos context

to other progressive forms of third-party injuries. These include,

for example, environmental contamination cases; see, e.g., Carter-

Wallace v. Admiral Ins. Co., 154 N.J. 312, 321 (1998), and Quincy

Ins. Co. v. Borough of Bellmawr, 172 N.J. 409, 411-12 (2002); and

cases involving harmful exposure to substances, such as food

flavorings containing the toxic chemical diacetyl; see, e.g.,




                                14
                                                           A-5415-15T3
Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241,

260-63 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009).

       Notably, the Court in Owens-Illinois declined to articulate

what exactly is the "end" point, or the "last pull" of the coverage

trigger, for a progressively-developing injury.           Owens-Illinois,

supra, 138 N.J. at 456. That question was later answered, however,

by this court in Polarome, supra, 404 N.J. Super. at 266-69.

       The insured in Polarome, a product manufacturer, sought CGL

coverage after it had been named as a defendant in multiple

lawsuits alleging serious progressive bodily injury as to persons

who had inhaled diacetyl, a chemical used as a flavoring in the

company's product.     Id. at 250.     One such claimant, Kuttner, had

been exposed to diacetyl at his workplace through 1991, and the

other claimant, Blaylock, had been exposed through 2001.          Id. at

256.   Both claimants' exposure at work ended before the insurers'

policies came into effect.     Ibid.

       Applying   a   continuous-trigger   theory,   we    concluded    in

Polarome that the "last pull" of the coverage trigger did not

occur for the claimants' progressive, indivisible injuries until

the point of "the initial manifestation of [their] toxin-related

disease."    Id. at 272.    For claimant Kuttner, that manifestation

occurred by October 1993, by which point he had been diagnosed

with obstructive lung disease and his bodily injury had thus become



                                     15
                                                                 A-5415-15T3
manifest.     Id. at 257.     For Blaylock, the "last pull" was deemed

to be manifest by March 2002, when he reasonably could have been

clinically diagnosed for bronchiolitis obliterans, following a

lung biopsy that had been performed the previous month.                     Ibid.

       Summarizing the key timing principles in Polarome, we stated

that   "the   last    pull   of   the    trigger     occurs   with    the    initial

manifestation of a toxic-tort personal injury."                Id. at 268.         "It

is only the undetectable injuries at and after exposure and prior

to initial manifestation that are progressive and indivisible[,]

such that the occurrence of an injury cannot be known."                     Ibid.

       None of the reported decisions in our state to date have

specifically    addressed     the       key    issues   presented    here,     which

involve   the   appropriate       manner       for   identifying     the    date    of

manifestation    of    property     damage      that    progressively       advances

within a multi-unit building for purposes of third-party liability

claims under a CGL policy.

                                         B.

       Having stated this overall analytical framework, we turn

first to the threshold question of whether a continuous-trigger

theory of CGL coverage sensibly applies to claims for third-party,

progressive property damage in construction defect cases.                           We

conclude that it does. Indeed, the motion judge correctly presumed

as much in her decision on reconsideration.



                                          16
                                                                            A-5415-15T3
      As we have already noted, our Supreme Court has endorsed the

continuous-trigger    doctrine   in     certain    factual   contexts      for

reasons of public policy, by treating all insurance policies in

effect during the aggregate trigger period to be "activated and .

. . be called on to respond to a loss."           Quincy, supra, 172 N.J.

at 417.     The doctrine was fashioned to address the difficulties

of establishing with scientific certainty when the harmful effects

of a progressive disease or injury have occurred.            Winding Hills,

supra, 332 N.J. Super. at 90-91.            The doctrine promotes the

availability to the general public of coverage in such progressive

injury situations.    Id. at 91.

      As an equitable matter, the continuous-trigger doctrine is

not fundamentally unfair to insurers that were on the risk during

policy periods as an injury progressed to the point of ultimate

manifestation.    Such insurers simply would be bearing a portion

of the aggregate coverage burden that had accumulated while the

yet-to-be-manifested harm worsened.

      In at least one case, the Supreme Court implicitly approved

the   use    of   continuous-trigger      coverage     principles     in     a

construction defect context.       See Potomac Ins. Co. v. PMA Ins.

Co., 215 N.J. 409, 422 (2013).         There, the Court was presented

with the question of whether an insurer may assert, against a co-

insurer, a claim for costs incurred in defending litigation over



                                   17
                                                                    A-5415-15T3
construction defects in a school roof.       The property damage to the

roof had manifested over a period of years, during which time the

insured was insured by successive carriers.              Id. at 413-15.

Relying on its prior opinions in Owens-Illinois, supra, 138 N.J.

at 478-80, and Carter-Wallace, supra, 154 N.J. at 317, the Court

found   that   a   continuous-trigger    analysis   in   that   particular

setting was appropriate.       Id. at 425.     In doing so, the Court

observed that the Owens-Illinois methodology had been applied to

"a variety" of disputes between policyholders and insurers.           Ibid.

     Although      Potomac   Insurance   specifically     concerned     the

allocation of past defense costs incurred in a construction case

by a common policyholder of several insurers, we discern no

principled reason to refrain from applying continuous-trigger

principles to cases like the present one, where issues of both

past and future defense costs and indemnification are implicated.

The public policies favoring a continuous-trigger approach in

progressive injury matters are likewise germane here.            Property

damage within a building can be latent and undetected, behind

walls and above ceiling tiles, and can gradually worsen and advance

over time.     Indeed, as the Supreme Court very recently observed,

albeit in a somewhat different context, in The Palisades at Fort

Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, __

N.J. __, __ (2017) (slip op. at 34), "[m]any construction defects



                                    18
                                                                  A-5415-15T3
will not be obvious immediately."               The progressively-worsening

nature    of   a   variety    of   construction      defects,   such    as   water

infiltration or mold, logically support the application of the

continuous-trigger doctrine.          We thus endorse the doctrine's use

in this context.5

                                       C.

     We next consider Air Master's novel conceptual argument that

the end date for a continuous trigger should be delayed until it

first appears, or reasonably could be known, that the damage is

"attributable" to the conduct of the specific insured.                 Air Master

contends that such an attribution requirement is consistent with

the public policies underlying the continuous-trigger doctrine.

It asserts that adding such a requirement would have the coverage-

maximizing impact of extending the aggregate period of coverage

to the point in time when a manifested injury could be reasonably

linked to the particular conduct of an insured.

     We    agree    that     the   trial     court   sensibly   rejected      this

attribution argument, for several reasons.               First, we note that

Air Master does not cite to any published opinions – nor could we




5
  In any event, as we shall discuss in Part II (C) and (D), infra,
even if a "manifestation trigger" approach is followed here instead
of a continuous-trigger approach, the same pivotal questions
concerning the trigger "end date" need to be resolved for this
case.


                                        19
                                                                         A-5415-15T3
find one – in which courts have engrafted such an attribution

element upon continuous-trigger analysis.6

       Second, we concur with the trial court and Selective that it

would be unwise to delay the coverage trigger date to a date by

which there is sufficient information to link an insured's faulty

conduct to the progressive injury.             Such an attribution analysis

could be highly fact-dependent, and difficult to resolve when an

insured makes a request for defense and indemnification after

being named in a complaint. The attribution analysis would require

a    defendant-specific        determination      of    when   each    defendant

reasonably could have been deemed to be at fault in contributing

to   the   progressive    harm.        Those   sorts    of   defendant-specific

inquires      could   easily   spawn    lengthy   and    expensive    collateral

discovery and motion practice.            Indeed, in this very case, more

than    two     dozen   subcontractors         were    named   as     third-party

defendants, and it would be a colossal undertaking to conduct a

defendant-by-defendant analysis of when the property damage first




6
  The two unpublished opinions cited by Air Master in support of
recognizing an attribution element are not binding authority. See
R. 1:36-3.   In any event, those opinions are not particularly
helpful to Air Master because the court concluded in both cases
that coverage was inapplicable, since the property damage had been
attributed to the insured before the insurance company's policy
period had begun. Hence, in both unpublished cases cited by Air
Master, the date of initial manifestation – which the trial judge
here found and we agree is the correct "last pull" date – obviously
preceded the date of attribution.

                                         20
                                                                         A-5415-15T3
became attributable to each of them.         By contrast, using a date

of initial manifestation that is common to all parties – regardless

of which contractor or subcontractor may be "at fault" for the

occurrence – promotes efficiency and certainty.

     In effect, Air Master is attempting, by analogy, to import

to this present coverage realm the "equitable tolling" doctrine

developed for and applied in the statute-of-limitations context.

Under   such   equitable    tolling    principles    (also    known   as    the

"discovery rule"), injured plaintiffs may be granted additional

time to file suit until the point in time that they have reason

(1) to know they are injured and (2) to attribute that injury to

the fault of a particular defendant.         See, e.g., Lopez v. Swyer,

62 N.J. 267 (1973).

     This      analogy     fails,     however,      because    the     policy

considerations that justify the equitable tolling of statutes of

limitations for plaintiffs do not pertain to insured defendants

who have potentially caused a progressive injury.             Plaintiffs who

have sustained such injuries often lack fault of their own.                They

also typically have less access to information than do defendants

to identify the causes of the inflicted harm.

     Statutes of limitations do not need to be coterminous with

insurance coverage periods.           Indeed, it is not uncommon, when

equitable tolling is applied, for a plaintiff to file suit years



                                       21
                                                                      A-5415-15T3
after an injury had manifested, if the plaintiff had no reason to

know   until   that    later      point    in    time   what     party(ies)    were

responsible for that harm. See, e.g., Kendall v. Hoffman-La Roche,

Inc., 209 N.J. 173, 185-86 (2012) (applying tolling to allow a

plaintiff who allegedly had been injured by the effects of taking

a drug to extend her time to file suit by approximately four

years).

       It would be unfair and inappropriate to use statute-of-

limitations equitable tolling concepts to impose coverage and

defense obligations upon insurers that issued "occurrence-based"

policies    years    after   an    injury      had   clearly    been   manifested.

Adopting such an approach would likely escalate premiums, or, even

worse,     deter    insurers      from    writing     such     new   CGL   policies

altogether, lest they be entangled in covering losses that had

manifested long ago.           We decline to adopt a novel theory that

would, in effect, transform CGL occurrence-based policies into

instruments that would be more akin, if not identical, to "claims-

made" policies.7       The latter are based upon entirely different

underwriting considerations.


7
  See Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304,
310-11 (1985) (explaining the difference between an "occurrence"
liability insurance policy, in which coverage applies to negligent
or omitted acts happening during the policy period even if the
claim is not presented until sometime later, and a "claims made"
policy, in which coverage applies if the negligent or omitted act
is discovered and brought to the insurer's attention during the

                                          22
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      Hence, we reject Air Master's attribution theory as unsound

and unsupported in the law.




                                     D.

      We now address the most pivotal aspect of this appeal, namely

the   determination    of   when   the    property   damage       due   to   water

infiltration in the condominium building had first sufficiently

"manifested" to comprise the "last pull" of the coverage trigger.

In approaching this issue, we are guided by the illustrative

analysis of Judge Pressler in her opinion in Winding Hills, supra,

332 N.J. Super. at 85.       Although Winding Hills was a first-party

case applying the manifestation theory of coverage, the core

question   of   what   constitutes   manifestation     in     a    progressive,

continuous-trigger construction defect setting involves a similar

task in identifying the appropriate end date.

      The facts in Winding Hills concerned, as here, a multi-unit

condominium project with construction defects that emerged over a

period of time.    In November 1989, the condominium association in

that case retained an engineering consultant, Trinity Dynamics

("Trinity"), to evaluate the project's buildings in connection




policy period, regardless of when the act occurred); see also
Templo Fuente, supra, 224 N.J. at 200-03.

                                     23
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with a review of the sufficiency of its capital reserve funding.

Id. at 88.     During that initial undertaking, Trinity discovered

structural deficiencies within two of the buildings, which it

reported to the association.           Ibid.     The association then retained

Trinity in June 1990 to undertake an expert analysis "to determine

the extent and cause of the deficiencies."                  Ibid.

      Trinity delivered an extensive report to the association in

January     1991.       Ibid.      That     expert    report        delineated    how

deficiencies in the project's on-site drainage system had led to

structural failures in the buildings' foundations.                      Ibid.     The

report theorized that the detected foundation problems could have

stemmed     from    improper    backfill,       subsurface     soil    erosion,   or

underground springs.           Ibid.    Thereafter, the association hired

another engineering company, Becht, to remediate the foundation

problem.     Id. at 88-89.      Becht issued a report to the association

in   June    1993,    reporting    further       structural     distress     caused

primarily by water infiltration.               Id. at 89.

      Given this chronology, the trial judge in Winding Hills fixed

the date of manifestation for insurance coverage purposes as of

January 1991, the month when Trinity's expert report was issued.

Id. at 89-90.        This court affirmed that determination.              Ibid.

      As Judge Pressler noted, "[w]hile it might have been arguable

that [the association] should have been charged with notice of the



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loss as early as 1989 when Trinity first reported to it that there

were foundation problems, we do not see how there can be any other

conclusion, respecting the effect of the 1991 report."          Id. at 89-

90.    She   added,   "[c]ertainly    the   later   Becht   report,   which

uncovered additional problems, cannot reasonably impugn the extent

of [the association's] awareness of the essential difficulties in

January 1991."     Id. at 90 (emphasis added).         Consequently, the

panel in Winding Hills held that the issuance of Trinity's expert

report in 1991 delineating the "essential" nature of the harm –

and not its initial discovery that preceded it in 1989-90 – was

the appropriate trigger date to use for coverage analysis.            Ibid.

      The opinion in Winding Hills did not define "essential," as

that term was used within its discussion.           We presume the panel

contemplated   a   meaning    consistent    with    standard   dictionary

definitions for "essential," i.e., "constituting or part of the

nature of something," "inherent," or "basic."           See Webster's II

New College Dictionary       384 (2001 ed.); see also Black's Law

Dictionary 663 (10th ed. 2014) (defining "essential" as "relating

to or involving the essence or intrinsic nature of something[,]"

"[o]f utmost importance[,]" or "basic and necessary").

      In the present insurance context involving the "essential"

manifestation of an injury, we regard the term to connote the

revelation of the inherent nature and scope of that injury.              On



                                     25
                                                                  A-5415-15T3
one end of the spectrum, manifestation cannot be merely tentative

(as Trinity's original observations of structural problems in

Winding Hills apparently were).         See Winding Hills, supra, 332

N.J. Super. at 88-89.      Nor must the manifestation be definitive

or comprehensive (as apparently was Becht's later report, after

it had remediated the structural harm).       Ibid.   The critical term

"essential," as used in this coverage context, should be understood

and applied consistent with such concepts.

     Here, Air Master likens Jersey Infrared's May 2010 expert

report, which delineated the nature and extent of the rooftop

moisture damage, to Trinity's expert report in Winding Hills.

Ibid.    Air Master urges that the May 2010 report provides an

appropriate demarcation of the time of manifestation. By contrast,

Selective urges that the point of manifestation happened much

earlier in 2008, when residents Schultz and Kassem had noticed and

reported water infiltration in their units, prompting remedial

investigations.

     The sparse record in this case provides an insufficient basis

to resolve the manifestation question.       Apparently no depositions

were taken in this declaratory judgment action of persons who

might have knowledge of what information was known at what times

about   the   building's   construction   defects,    and   whether   that




                                   26
                                                                 A-5415-15T3
information had emerged or could reasonably have been known before

or after Selective's policy period began in June 2009.8

     We decline to treat the news article containing hearsay

statements that some unit owners had observed water problems in

their   units   as    early   as   2008   as   conclusive   proof   that   the

progressive injury had sufficiently "manifested" by that time. 9

If such original complaints were analytically dispositive, then

Trinity's preliminary discovery in 1989-90 of structural defects

in Winding Hills would have been deemed by the court to have

established the date of manifestation in that case.            Instead, the

issuance of Trinity's later January 1991 report delineating the

nature and extent of the problems comprised the proper date of

manifestation.       Winding Hills, supra, 332 N.J. Super. at 88-89.




8
  We do note that the appellate record alludes to (but does not
contain) two expert reports ("the Desman reports") issued by a
different consultant in May and July 2010. Since those reports
post-date the May 2010 Jersey Infrared study, and are within
Selective's policy period, we need not concern ourselves with
their contents at this time, although they may have some relevance
on remand depending on what they may say about the chain of events.
9
  We reject Selective's argument that Air Master has "conceded"
the accuracy of the unsworn statements made in the news article.
Air Master expressly denied the article's accuracy in its summary
judgment motion filings.      In addition, the unsworn hearsay
statements made in the article by unit owners and unidentified
"workers" are not presented in a form prescribed by Rule 1:6-6.
See Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168, 179-
80 (App. Div. 2015). See also N.J.R.E. 805 (concerning embedded
hearsay statements cited for their truth).

                                      27
                                                                     A-5415-15T3
     By further comparison, we note that the dates of the patients'

initial lung symptoms in Polarome were not dispositive of the

trigger end date.       Polarome, supra, 404 N.J. Super. at 256-57.

Rather, the times of the clinical diagnosis of Kuttner and the

biopsy test results of Blaylock were deemed to have been the points

of manifestation.      Id. at 257.

     Here, we cannot tell with any confidence what, if any, other

information about the building defects was or reasonably could

have been revealed between the time of the unit owners' complaints

to the time of the start of Selective's policy in June 2009.           This

case must be remanded to ascertain that vital information.

     The temporal analysis in this case is complicated further

because it appears that the water infiltration problems identified

on the roof might not have been detected until the May 2010 expert

report   by   Jersey   Infrared.     The   newspaper   article   cited   by

Selective does not mention any water damage on the roof.             To be

sure, it generally would not be surprising that a leaky roof could

be responsible for water damage observed on residential floors

below.   Even so, there appear to be genuine issues of material

fact concerning when the water infiltration problems on the roof




                                     28
                                                                  A-5415-15T3
first became known, or reasonably could have been known.10     See R.

4:46-2.

     For these many reasons, we vacate summary judgment in favor

of Selective and remand for further proceedings, guided by the

legal principles set forth in this opinion.   The trial court shall

have discretion to reopen discovery to explore the critical factual

issues we have spotlighted, followed by appropriate renewed motion

practice or, if warranted to enable witness credibility findings,

an evidentiary hearing.   We do not retain jurisdiction.

     Vacated and remanded.




10
  This also raises a possible factual question to address on remand
as to whether the damage to the roof and its replacement is harm
that is "indivisible" from the damage to the rest of the building,
or whether, conversely, the deterioration of the roof comprises
distinct property damage stemming from entirely distinct
construction defects. The May 2010 expert report issued by Jersey
Infrared is notably inconclusive on that point.

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                                                             A-5415-15T3
