      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


DIPPOLD MARBLE & GRANITE,                   :
INC., a Delaware corporation,               :     C.A. No: K12C-09-021 RBY
                                            :
            Plaintiff,                      :
                                            :
     v.                                     :
                                            :
HARLEYSVILLE MUTUAL                         :
INSURANCE COMPANY, a                        :
corporation,                                :
                                            :
            Defendant.                      :


                              Submitted: July 1, 2014
                            Decided: September 22, 2014


                         Upon Consideration of Defendant’s
                          Motion for Summary Judgment
                                    DENIED

                                     ORDER


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

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




Young, J.
Dippold v. Harleysville
C.A. No.: K12C-09-021 RBY
September 22, 2014

                                    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,

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

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



       1
           Pltf’s Dep. Tr. At p.45: 6-11. Exhibit E.

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

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 June, July, and August of 2010. On
May 15, 2014, Defendant submitted the instant Motion for Summary Judgment. On
June 1, 2014, Plaintiff submitted her Response to Defendant’s Motion for Summary
Judgment.
                                 STANDARD OF REVIEW
       Summary judgment is granted upon a showing that there is no genuine issue
of material fact, where the moving party is entitled to judgment as a matter of law.2
The Court views the evidence in the light most favorable to the non-moving party.3
The moving party bears the burden of showing that no material issues of fact are
present, but once a motion is supported by such a showing, the burden shifts to the
non-moving party to demonstrate that there is a genuine dispute as to material
issues of fact.4
                                       DISCUSSION
       Defendant argues that the mold growth on Plaintiff’s damaged property
occurred during a time period of 14 days or more, such that the Policy excludes
coverage for this incident. Defendant contends that the language contained in the
Policy, as well as the relevant exclusion, is clear and unambiguous. Therefore,


       2
           Super. Ct. Civ. R. 65(c).
       3
           Windom v. Ungerer, 903 A.2d 276, 280 (Del. 2006).
       4
           Moore v. Sizemoore, 405 A.2d 679, 680-81 (Del. 1979).

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

Defendant asserts that the Policy should be construed based on its plain terms,
resulting in Defendant’s dismissal.
      In response, Plaintiff argues that there are genuine issues of material fact as
to the causes of damage, the extent to which Plaintiff’s property was damaged by
those causes, and the extent to which the Policy covers those causes of loss.
However, Plaintiff concedes that the Policy does contain specific exclusions from
coverage.
      Examples of material issues in dispute include whether “Business Personal
Property located in or on the building”5 is Covered Property as well as whether the
costs of debris removal are to be covered by Defendant under Section 4, page 5 of
the Policy. Moreover, there are material disputes concerning whether covered
causes of loss are “Risks of Direct Physical Loss unless the loss is 1. Excluded in
Section B., Exclusions, or 2. Limited in Section C., Limitations; that follow.”6
According to Plaintiff, losses not specifically excluded or limited are covered
losses under the Policy.
       Plaintiff testified that portions of the building appeared to have collapsed.
Physical loss caused by collapse of a building is covered in Subsection D titled
“Additional Coverage– Collapse.”7 Plaintiff also testified that she observed




       5
           CP0010(04-02) Building and Personal Property Coverage Form. Exhibit A.
       6
           CP1030(04-02) Cause of Loss- Special Form. Exhibit B.
       7
           Plaintiff’s Response, Exhibit B, p. 6.

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

weather-related damage to the property.8 Losses caused by weather conditions are
specifically covered under Subsections B.3 and C.1 of the Policy. Exclusions for
water from external sources is covered under Subsection B.1.g., and the Water
Exclusion Endorsement Modification of the Policy. The parties are in disagreement
as to whether the damage to which Plaintiff testified is covered under Defendant’s
policy.
      In addition, Plaintiff asserts that, upon Plaintiff’s submission of the claim to
Defendant, and prior to the disposal of the property, Defendant’s claims adjuster
reviewed the damaged property. Defendant has refused to disclose any information
relating to that claims adjuster or the results of that review. Plaintiff intends to
discover the identity of that claims adjuster, for potential discovery.
      Plaintiff also argues that the exclusion cited by Defendant, namely
“continuous or repeated seepage or leakage of water” is inapplicable to the facts of
this case. Water from external sources entering the building is covered in other
provisions of the contract.
      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 foregoing reasons, Defendant’s Motion for Summary Judgment is
DENIED.
      Many factual claims that have been developed by the respective parties, the
interpretation arguments, and the legal effects are in sharp dispute. Hence,
Summary Judgment is not appropriate.



          8
              Plaintiff’s Dep. Tr. at p. 104: 16-17, p. 108: 18-21. Exhibit E.

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

     IT IS SO ORDERED.
                            /s/ Robert B. Young
                                       J.
RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
     File




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