                        NOT FOR PUBLICATION WITHOUT THE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-1527-16T3

EUGENE VIDI and
FRED TAYLOR,

        Plaintiffs-Appellants,

v.

CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,

     Defendant-Respondent.
_____________________________

              Argued May 8, 2018 – Decided July 5, 2018

              Before Judges Hoffman and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-
              2598-15.

              Anthony J. Diulio argued the cause for
              appellants (Law Offices of Jonathan Wheeler,
              PC, attorneys; Anthony J. Diulio, on the
              briefs).

              Richard A. Nelke argued the cause for
              respondent (Methfessel & Werbel, attorneys;
              Richard A. Nelke, of counsel and on the brief;
              Christian R. Baillie, on the brief).

PER CURIAM
     Plaintiffs Eugene Vidi and Fred Taylor appeal from a November

15, 2016 order granting summary judgment in favor of Defendant

Cumberland Mutual Fire Insurance Company ("Cumberland Mutual").

The matter arises from a first-party insurance coverage dispute

involving two separate losses that occurred in brief succession.

The trial court granted summary judgment based on a finding that

plaintiffs failed to cooperate, in breach of a condition precedent

to recovery under the pertinent policy.                We reverse.

     On or about February 1, 2014, plaintiffs' commercial building

suffered   a   loss   as    a   result       of   sewage      backing    up    from    a

sewer/toilet    drain      in   the   floor       of   unit    21A.       Plaintiffs

immediately    commenced        remediation.           On     February    5,     2014,

plaintiffs' building suffered a second loss, allegedly as a result

of snow on the roof that melted and seeped into the building.

     In February 2014, plaintiffs filed a claim for damages for

both losses with Cumberland Mutual as their commercial carrier.

Plaintiffs contracted with Paul Yemm, a public adjuster, to handle

their   losses.       Thereafter,        Cumberland         Mutual      assigned      an

independent adjuster, Thomas H. Ottoson of Ottoson Adjusting and

Consulting Group, Inc. ("Ottoson"), to adjust the claim.                              On

February 19 or 20, 2014, Ottoson inspected plaintiffs' property.

At the time of the inspection, plaintiffs had commenced mitigation

as required by their policy.          Defendant concedes that although the

                                         2                                     A-1527-16T3
mitigation impaired somewhat its ability to assess the loss, the

mitigation of the sewage was not a breach of the insured's duty

to cooperate.

     The subject property is a strip store center with three

commercial first floor units and a second floor apartment.                  A

February 25, 2014 confidential Property Claim Report noted that

at the time of the inspection, all three commercial units were

vacant    and   unoccupied.      Defendant    Cumberland     subsequently

requested     documents   from   plaintiffs   to   conduct    its     claim

investigation.     Specifically, Ottoson requested a copy of the

lease agreements for the last known tenants on all four commercial

spaces.     Ottoson also requested that the two losses be separated

and distinguished from one another, with estimates, photographs,

and proofs of loss attributable to each loss presented.          Finally,

Ottoson requested that the insureds appear for a statement with

regard to occupancy and the circumstances of the losses.              After

sending five letters without receiving any response, defendant

denied both claims.

      Plaintiffs' policy under the CP 00 10 06 07 Building and

Personal Property Coverage Form provides in relevant part:

            E. Loss conditions
            The following conditions apply in addition to
            the   Common   Policy  Conditions   and   the
            Commercial Property Conditions.


                                    3                               A-1527-16T3
              . . . .

         3. Duties In the Event of Loss or Damage
         a. You must see that the following are done
         in the event of loss or damage to Covered
         Property:

              . . . .

         (3) As soon as possible, give us a description
         of how, when and where the loss or damage
         occurred.
         (4) Take all reasonable steps to protect the
         Covered Property from further damage, and keep
         a record of your expenses necessary to protect
         the Covered Property, for consideration in the
         settlement of the claim.       This will not
         increase the Limit of Insurance. However, we
         will not pay for any subsequent loss or damage
         resulting from a cause of loss that is not a
         Covered Cause of Loss. Also, if feasible, set
         the damaged property aside and in the best
         possible order for examination.
         (5) At our request, give us complete
         inventories of the damaged and undamaged
         property. Include quantities, costs, values
         and amount of loss claimed.
         (6) As often as may be reasonably required,
         permit us to inspect the property providing
         the loss or damage and examine your books and
         records. Also, permit us to take samples of
         damage and undamaged property for inspection,
         testing and analysis, and permit us to make
         copies from your books and records.

              . . . .

         (8) Cooperate with us in the investigation or
         settlement of the claim.

         Furthermore, plaintiffs' policy provides at the CP 00

90 07 88 Commercial Property Conditions form:



                               4                          A-1527-16T3
         D. LEGAL ACTION AGAINST US
         No one may bring a legal action against us
         under this Coverage Part unless:
         1. There has been full compliance with all of
         the terms of this Coverage Part . . . .

    The plaintiffs' policy also provides in relevant part, at CP

00 10 06 07 Building and Personal Property Coverage Form:

              6. Vacancy
               a. Description of Terms
               (1) As used in this Vacancy Condition,
         the term building and the term vacant have the
         meanings set forth in (1)(a) and (1)(b)
         below:
              (a) When this policy is issued to a
         tenant, and with respect to that tenant's
         interest in Covered Property, building means
         the unit or suite rented or leased to the
         tenant. Such building is vacant when it does
         not contain enough business personal property
         to conduct customary operations.
              (b) When this policy is issued to the
         owner or general lessee of a building,
         building mean the entire building.         Such
         building is vacant unless 31% of its total
         square footage is:
              (i) Rented to a lessee or sublessee and
         used by the lessee or sublessee to conduct its
         customary operations; and/or
              (ii)    Used by the building owner to
         conduct customary operations.
              (2)    Buildings under construction or
         renovation are not considered to be vacant.
              b. Vacancy Provisions
              If the building where loss or damage
         occurs has been vacant for more than 60
         consecutive days before that loss or damage
         occurs:
              (1) We will not pay for any loss or damage
         caused by any of the following even if they
         are Covered Causes of Loss:
              (a) Vandalism;


                               5                            A-1527-16T3
                 (b) Sprinkler leakage, unless you have
                     protected the system against
                     freezing;
                (c) Building glass breakage;
                (d) Water damage;
                (e) Theft; or
                (f) Attempted theft.
                (2) with respect the Covered Causes of
           Loss other than those listed in b.(1)(a)
           through b.(1)(f) above, we will reduce the
           amount we would otherwise pay for the loss or
           damage by 15%.

       Based the adjuster's observation that the three commercial

units were vacant at the time of the inspection, the carrier was

understandably interested in finding out how long the units had

been   vacant,   as    that   information   may   have   impacted   on   the

determination of what if any coverage was due for the losses.              On

July 21, 2014, having received no further communication from

plaintiffs, Cumberland Mutual sent a letter denying coverage,

citing a multitude of policy provisions, including the "condition

precedent to suit" language, and the "insured's duties after a

loss" section.

       Plaintiffs filed suit on July 6, 2015.            After plaintiffs

failed to respond to discovery requests, Cumberland Mutual filed

a motion to dismiss pursuant to Rule 4:23-5(a)(1).             On May 13,

2016, the court entered an order dismissing plaintiff's complaint

without prejudice for failure to answer interrogatories.                   In

response, plaintiffs provided a loss statement.            The production


                                     6                              A-1527-16T3
was twenty-six months after the initial request for documents and

information; twenty-two months after the claim was denied; and ten

months after the complaint was filed.       On June 14, 2016, a consent

order     to    reinstate   plaintiff's   complaint      was   executed      by

plaintiff's counsel and counsel for Cumberland Mutual.              On August

11, 2016, the court extended discovery for ninety days to September

20, 2016.

     On October 5, 2016, Cumberland Mutual filed a motion for

summary     judgment.       Defendant's   motion   was    granted    without

prejudice, in error, on November 4, 2016.          On November 15, 2016,

the court issued a corrected order dismissing the claim with

prejudice.       The trial court indicated that summary judgment was

warranted because

               I think that the problem that the Court has
               here is that there hasn't been any evidence
               from the plaintiff that they've complied with
               the conditions of the policy to cooperate in
               the investigation. I've . . . nothing to view
               . . . in [the] light most favorable to the
               non-moving party other than a statement saying
               that we complied, which compliance was after
               suit was filed. Which the policy, I think is
               pretty clear and unambiguous, that you have
               to cooperate before you file suit. The record
               is just void of any evidence of compliance at
               all. So the Court has nothing to assess or
               even view in [the] light most favorable to the
               non-moving party.

     This appeal ensued.



                                     7                                A-1527-16T3
     On appeal, plaintiffs argue that there were genuine issues

of material fact concerning whether they willfully refused to

provide the requested information to the defendant and whether the

claim was properly denied.          Plaintiffs contend these fact issues

should have precluded the trial court's grant of summary judgment.

     On appeal from summary judgment orders, we use a de novo

standard of review and apply the same standard employed by the

trial court.      Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405 (2014).      Accordingly, we determine whether the moving parties

have demonstrated that there are no genuine disputes as to any

material facts and, if so, whether the facts, viewed in the light

most favorable to the non-moving party, entitled the moving parties

to judgment as a matter of law.         R. 4:46-2(c); Davis, 219 N.J. at

405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523

(1995).

     This   is    a   first-party    breach    of   contract   claim   against

plaintiff's carrier.      In the first-party context, coverage may be

forfeited upon a finding that there was a material and willful

breach of the insured's duty to cooperate with the insurer's

investigation that materially diluted the insurer's ability to

evaluate the claim. DiFrancisco v. Chubb Ins. Co., 283 N.J. Super.

601, 612-13 (App. Div. 1995).              An insured's duty to cooperate

encompasses the obligation to appear for an examination under oath

                                       8                               A-1527-16T3
(EUO) if requested and to provide documentation verifying the

loss.    Id. at 611.    We recognized in DiFrancisco that "delays in

obtaining requested information frequently result in 'a material

dilution of the insurer's rights.'" Ibid.

       DiFrancisco involved a claim for alleged theft of personal

property.     Under those facts, we held that due to the suspicious

nature of the claim, the insured's willful refusal to provide

personal financial documents was a material breach of the contract

that    materially   diluted       the   insurance   company's   ability    to

investigate the claim.         Accordingly, we affirmed the summary

judgment dismissing the claim.

       In this case, there is no dispute that plaintiffs did not

promptly respond to the insurance company's requests for documents

including information about vacancies.           However, the trial court

made    no   findings   on   the    issue    whether   plaintiffs'   failure

materially diluted the insurance company's ability to investigate

the claim.    Nor has defendant articulated in its brief or at oral

argument how its rights were materially diluted by the admittedly

long delay in obtaining the documents it sought.             Instead, both

the court and defendant rely solely on the fact that plaintiffs

did not cooperate in the initial investigation of the claim.                We

find it troubling that the carrier waited so long to invoke the

non-cooperation clause as a basis for dismissal.           This lawsuit has

                                         9                           A-1527-16T3
been pending since July 6, 2015.             After plaintiffs provided

interrogatory     answers,    Cumberland     Mutual   consented    to    the

reinstatement of plaintiff's complaint.          At the request of the

parties, the court extended discovery for ninety days to September

20,   2016.     Depositions   have    been   conducted    and   presumably,

substantial legal fees have been incurred.               It was not until

October 5, 2016 that Cumberland Mutual filed its motion for summary

judgment.     It appears discovery has yielded sufficient information

enabling Cumberland Mutual to argue that certain exclusions under
                     1
the policy apply.

      In the absence of any findings by the trial court that

Cumberland Mutual's rights were materially diluted by plaintiffs'

delay in producing documentation to verify the losses, we are

constrained to reverse and remand for further proceedings.

      Reversed and remanded.     We do not retain jurisdiction.




1
 Cumberland Mutual's alternate grounds for summary judgment based
on policy exclusions are preserved on remand as they were not
addressed by the trial court.

                                     10                             A-1527-16T3
