                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3551-17T1

HARLEYSVILLE INSURANCE
COMPANY OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MEGA SECURITY CORPORATION
and G.P.N. ENTERPRISES, INC.,

          Defendants,

and

COMPANION TRADING CO.,

     Defendant-Appellant.
______________________________

                    Submitted March 20, 2019 – Decided April 8, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-0378-17.

                    Graff Silverstein, LLP, attorneys for appellant (David
                    Graff, on the brief).
            Riker Danzig Scherer Hyland & Perretti, LLP,
            attorneys for respondent (Lance J. Kalik, of counsel and
            on the brief; Margriet A. Schaberg, on the brief).

PER CURIAM

      Defendant Companion Trading Co. (Companion) appeals from a March 2,

2018 order granting summary judgment in favor of plaintiff Harleysville

Insurance Company of New Jersey (Harleysville).          The judge concluded

Harleysville had no obligation under the insurance policies issued to defendant

Mega Security Corp. (Mega) to provide coverage and defend Mega in an action

pending in federal court in the Eastern District of New York, entitled Companion

Trading, Inc. v. Mega Security Corp. & G.P.N. Enters., Inc., Docket No. 13-cv-

5755 (NY action). We affirm.

      The relevant facts are essentially undisputed. Companion purchased a

safe from Mega for the storage of valuables, including semi-precious stones. In

March 2011, Companion was unable to unlock the safe and contacted Mega.

Mega sent a technician to Companion's place of business in New York where

the safe was kept. The technician was unable to access the safe at Companion's

facility. The technician, in conjunction with Mega's management, decided the

safe needed to be transported to Mega's warehouse in New Jersey.          Mega

arranged to transport the safe to its warehouse. Mega took possession of the


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                                       2
safe and its contents pursuant to a formal bill of lading printed on Mega

letterhead. Companion paid Mega $2500 to transport the safe from its place of

business in New York to Mega's warehouse in New Jersey.

      With the safe in its custody and care, Mega spent several days attempting

to open the safe. Mega hired an independent contractor, Charles DeBellis, to

assist it in unlocking the safe. DeBellis, working with Mega employees, opened

the safe using a blow torch. The safe never left Mega's warehouse during the

five or six days it took to unlock the safe. At all times, DeBellis was supervised

by Mega employees.

      On March 23, 2011, Mega employees returned the unlocked safe and its

contents to Companion. Companion alleged over $4 million worth of opals were

damaged during Mega's efforts to open the safe.

      In October 2013, Companion filed the NY action against Mega,

demanding compensation for the damaged opals. In its complaint in the NY

action, Companion alleged breach of bailment, negligence, and breach of

contract. Companion alleged Mega "had actual and/or constructive custody,

care and control of the [s]afe and opals . . . ."         Harleysville 1 assigned


1
  Harleysville issued a commercial policy and an umbrella policy to Mega for
the period February 15, 2011 to February 15, 2012.


                                                                          A-3551-17T1
                                        3
representation to Mega in the NY action subject to an express reservation of the

right to withdraw its defense and deny indemnification.

       On January 13, 2017, Harleysville filed a declaratory judgment action in

the Superior Court of New Jersey (NJ action), seeking to be relieved of

defending and indemnifying Mega in the NY action. Harleysville alleged the

policies issued to Mega excluded coverage for damage to property in Mega's

care, custody, and control, and therefore Harleysville owed no duty to Mega.

Companion filed an answer to the complaint in the NJ action. Mega failed to

answer the complaint and default was entered.2

       On February 2, 2018, Harleysville filed a motion for summary judgment

in the NJ action. On February 13, 2018, Companion filed a motion to stay the

NJ action pending the outcome of the NY action. On March 2, 2018, the motion

judge issued a written opinion granting Harleysville's summary judgment

motion and denying Companion's motion for a stay.3 The judge found "no

credible evidence which contradict[ed] the fact that the safe containing the opals

was in the care, custody and control of Mega" when the opals were damaged.



2
  Companion and Harleysville advise that Mega's principal left the country and
the corporate entity is defunct.
3
    Companion is not appealing the denial of its motion to stay the NJ action.
                                                                          A-3551-17T1
                                        4
The judge determined the policies issued to Mega contained a clear and

unambiguous exclusion of coverage for damage to "personal property in the

care, custody or control of the insured."

      On appeal, Companion claims there were genuine issues of material fact

that precluded summary judgment in favor of Harleysville in the NJ action. In

addition, Companion asserts the judge erred in applying the "care, custody and

control" exclusion in the policies issued to Mega. Further, for the first time on

appeal, Companion argues Harleysville is judicially estopped from taking a

position in the NJ action that is inconsistent with its position in the NY action.

      We review a grant of summary judgment de novo, applying the same

standard as the trial court under Rule 4:46. Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).      Summary

judgment should be granted only if the record demonstrates 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); see also Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). In determining whether a

summary judgment motion was properly granted, we review the evidence,

drawing "all legitimate inferences from the facts in favor of the non -moving




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                                        5
party." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016) (citing R. 4:46-

2(c)).

         If no genuine issue of material fact exists, the inquiry turns to "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) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).

Interpretation of an insurance contract presents a question of law "and can be

resolved on summary judgment." Adron, Inc. v. Home Ins. Co., 292 N.J. Super.

463, 473 (App. Div. 1996).

         An insurance contract "will be enforced as written when its terms are clear

in order that the expectations of the parties will be fulfilled." Flomerfelt v.

Cardiello, 202 N.J. 432, 441 (2010).          We interpret an insurance policy in

accordance with the document's "plain and ordinary meaning." Mem'l Props.,

LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 525 (2012) (quoting Flomerfelt, 202

N.J. at 441). Any ambiguities are resolved in favor of the insured. Ibid.

         Language in an insurance policy is not ambiguous simply because

different wording could potentially make a provision more understandable. See

Villa v. Short, 195 N.J. 15, 26 (2008).         "[T]he test for determining if an

ambiguity exists is whether 'the phrasing of the policy is so confusing that the


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                                          6
average policyholder cannot make out the boundaries of coverage.'" Nunn v.

Franklin Mut. Ins. Co., 274 N.J. Super. 543, 548 (App. Div. 1994) (quoting

Weedo v. Stone–E–Brick, Inc., 81 N.J. 233, 247 (1979)). When no ambiguity

exists, a reviewing court "should not write for the insured a better policy of

insurance than the one purchased." Universal Underwriters Grp. v. Heibel, 386

N.J. Super. 307, 314 (App. Div. 2006) (quoting Gibson v. Callaghan, 158 N.J.

662, 670 (1999)).

      In reviewing an exclusionary clause in a policy of insurance, we construe

the clause narrowly and "the burden is on the insurer to bring the case within the

exclusion." Gibson, 158 N.J. at 671 (quoting Am. Motorists Ins. Co. v. L-C-A

Sales Co., 155 N.J. 29, 41 (1998)). Policy exclusions are presumed valid and

"will be given effect if [they are] specific, plain, clear, prominent, and not

contrary to public policy." Homesite Ins. Co. v. Hindman, 413 N.J. Super. 41,

46 (App. Div. 2010).

      Where "the property that is damaged is under the direct and continuous

supervision of the insured and is a necessary element of the work involved, the

property will be deemed in the care, custody or control of the insured."

Condenser Serv. & Eng'g Co. v. Am. Mut. Liab. Ins. Co., 58 N.J. Super. 179,




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                                        7
183-84 (App. Div. 1959). As we held in Elcar Mobile Homes, Inc. v. D.K.

Baxter, Inc., 66 N.J. Super. 478, 491 (App. Div. 1961):

            [W]hat constitutes 'care, custody or control' . . . depends
            not only upon whether the property is realty or
            personalty, but as well upon many other facts, such as
            the location, size, shape and other characteristics of the
            property, what the insured is doing to it and how, and
            the interest in and relation of the insured and others to
            it. Whether the property is realty or personalty, and the
            precise legal relationship of the insured and others to it,
            may be material in a given situation; but when they are,
            they are merely facts (more or less important,
            depending upon the circumstances) to be taken in
            conjunction with all other facts, in determining whether
            there is exclusion.

      In this case, having reviewed the language in Harleysville's insurance

policies, we agree with the trial judge that the language in the policies is

unambiguous. Where "the words are unambiguous, they must be enforced even

though the contract be inequitable, or even useless to the insured . . . . " Boswell

v. Travelers Indem. Co., 38 N.J Super. 599, 606 (App. Div. 1956).

      Here, the safe was transported by Mega to its place of business.

Companion ceded the care, custody, and control of the safe and its contents to

Mega for the five or six days the safe remained in Mega's warehouse. The opals

were damaged while the safe was in Mega's possession, at Mega's warehouse,

and during the period that Mega employees and an independent contractor


                                                                            A-3551-17T1
                                         8
worked to open the safe. The use of an independent contractor to aid Mega in

its quest to access the safe does not change the "care, custody and control"

analysis. Mega supervised the work performed by the independent contractor,

and Mega employees were present at all times and assisted with the opening of

the safe.

      Based on the facts presented to the motion judge, we concur the safe was

in the "care, custody or control" of Mega. In accordance with the plain and

unambiguous language in Harleysville's policies, there is no coverage for

Companion's claims against Mega in the NY action.

      We next consider Companion's estoppel argument. Because Companion

failed to raise this issue before the trial court, we decline to address the

argument. See R. 2:10-2; Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973) ("Appellate courts ordinarily decline to consider issues not presented to

the trial court unless they 'go to the jurisdiction of the trial court or concern

matters of great public interest.'").

      Affirmed.




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