                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5526-15T1
                                               A-0033-16T1
THERESA WEAR and RICHARD
WEAR,

     Plaintiffs/Intervenors-
     Appellants,                      APPROVED FOR PUBLICATION

v.                                         July 20, 2018

                                         APPELLATE DIVISION
SELECTIVE INSURANCE COMPANY,

     Defendant-Respondent.
________________________________

WOODBURY MEDICAL CENTER
ASSOCIATES, LLP,

     Plaintiff-Respondent,

v.

SELECTIVE INSURANCE COMPANY,

     Defendant-Appellant.
________________________________

         Argued April 18, 2018 – Decided July 20, 2018

         Before Judges Koblitz, Manahan and Suter.

         On appeal from Superior Court of New Jersey,
         Law Division, Gloucester County, Docket No.
         L-1583-13.

         Bruce H. Zamost argued the cause for
         appellants Theresa Wear and Richard Wear (in
         A-5526-15) and respondents (in A-0033-16)
         (Helmer, Conley & Kasselman, PA, attorneys;
         Bruce H. Zamost, of counsel and on the
         brief).
           Richard J. Mirra argued the cause for
           respondent Selective Insurance (in A-5526-
           15) and appellant in (A-0033-16) (Hoagland,
           Longo,   Moran,   Dunst   &  Doukas,   LLP,
           attorneys; Richard J. Mirra, of counsel and
           on the briefs; John C. Simons, on the
           briefs).

           Mitchell H. Kizner argued the cause for
           respondent     Woodbury  Medical   Center
           Associates, LLP (Flaster Greenberg, PC,
           attorneys; Mitchell H. Kizner, of counsel
           and on the brief).

    The opinion of the court was delivered by

MANAHAN, J.A.D.

    The        instant     case    presents       another        example    of    the

complexities sometimes involved with the resolution of insurance

coverage       disputes    based   upon       exceptions    to    coverage.       The

principal issue is whether exclusionary language in a policy

issued    to    Woodbury    Medical   Center       Associates,      LLP    (Woodbury

Medical) by Selective Insurance Company (Selective) precluded

coverage for an environmental personal injury claim by Theresa

Wear and a per quod claim by Richard Wear (collectively the

Wears).

    Having considered the record in light of controlling law,

we affirm in part and reverse in part.




                                          2                                 A-5526-15T1
                                    I.

    Woodbury Medical is the owner of an office building in

Woodbury, New Jersey.       Theresa Wear worked in the building as a

registered nurse (RN) for Underwood Medical Center.             She claimed

to suffer injuries due to exposure to alleged toxic conditions

in the building.       In their complaint against Woodbury Medical,

the Wears averred that Theresa was injured due to "exposure to

mold and the HVAC [(heating, ventilation and air conditioning)]

filter fragments from when the HVAC system was activated in the

basement    of   the   property."   The   Wears      further   averred   that

Woodbury Medical had a duty to keep the premises safe from: "1)

hazardous toxic condition[s]; 2) dangerous air pollutants; 3)

aspergillus      fungus/mold   hazards;   and   4)    other    environmental

dangers."

    Selective issued a commercial umbrella and business owners

insurance policy (the policy) to Woodbury Medical, which was in

effect at the time of the Wears' claim.               The policy provided

Woodbury Medical with "protection for business liability for any

bodily injury 'to which this insurance applies.'"                The policy

included a fungi or bacteria exclusion:

            A. The following exclusion is added to
            Paragraph B.1., Exclusions – Application To
            Business Liability Coverage:




                                    3                               A-5526-15T1
    q. Fungi or Bacteria

    (1) "Bodily injury[,"] "property
    damage"      or    "personal      and
    advertising injury" which would
    not have occurred, in whole or in
    part, but for the actual, alleged
    or    threatened    inhalation    of,
    ingestion     of,    contact    with,
    exposure to, existence of, or
    presence    of,   any    "fungi"   or
    bacteria on or within a building
    or    structure,     including    its
    contents, regardless of whether
    any other cause, event, material
    or product contributed concurrently
    or in any sequence to such injury
    or damage.

    (2) Any loss, cost or expenses
    arising   out   of   the    abating,
    testing for, monitoring, cleaning
    up,      removing,       containing,
    treating,              detoxifying,
    neutralizing,     remediating     or
    disposing   of,   or  in   any   way
    responding to, or assessing the
    effects of, "fungi" or bacteria,
    by an insured or by any other
    person or entity.

    . . . .

B.   The following definition is added [to]
Paragraph F. Liability And Medical Expenses
Definitions:

    1. "Fungi" means any type or form
    of   fungus,  including   mold  or
    mildew and any mycotoxins, spores,
    scents or by-products produced or
    release [sic] by fungi.

[(Emphasis added).]




                      4                       A-5526-15T1
      Woodbury Medical notified Selective of the Wears' claim in

May 2011.      In August 2012, after conducting an investigation,

Selective issued a denial of coverage letter referencing the

exclusionary language in the policy.            The letter stated that the

"policy in effect for Woodbury does not provide coverage for any

and all bodily injuries alleged by Theresa Wear arising out of

her   exposure      to   mold,   mildew,    fungi   or    bacteria      or    medical

expenses" as they were, among other unrelated reasons, "excluded

by virtue of Fungi or Bacteria Exclusion Endorsement Forms . . .

contained      in   the    policies."        Selective         did    not    issue    a

reservation of rights letter as it took the position that the

anti-concurrent and anti-sequential language in the exclusion

precluded coverage even if there were other causes which may

have contributed to the injury.

      Woodbury Medical instituted an action against Selective,

later amended, seeking a declaration that Selective was required

to    defend    and      indemnify   Woodbury       Medical      in    the     Wears'

litigation.           Woodbury    Medical    moved       for     partial      summary

judgment.      Selective filed a cross-motion for summary judgment

maintaining there was no coverage for the claims.

      On January 9, 2015, the judge granted Woodbury Medical's

motion for partial summary judgment and ordered that Selective

immediately fund Woodbury Medical's defense in the underlying




                                        5                                    A-5526-15T1
action,    reimburse        Woodbury        Medical    for   expenses   it    already

incurred      in    the    defense     of    the   Wears'    litigation,      and    pay

attorneys' fees incurred by Woodbury Medical in the declaratory

judgment action.1           In a separate order, also dated January 9,

2015,   the    judge      denied     Selective's        cross-motion    for   summary

judgment.          On January 22, 2015, in a supplemental order, the

judge   clarified         that   the   January     9,    2015   order   was    "to   be

considered an interlocutory order applying ONLY to the defense

obligations of Selective . . . ."                     The supplemental order also

provided that the trial in the declaratory judgment action was

to be adjourned until a resolution was reached in the Wears'

litigation.

    In reaching the determination on Selective's obligation to

defend, the judge stated:

                   The [c]ourt certainly reviewed the
              factual basis as alleged by Ms. Ware, [sic]
              who claims that she suffered bodily injury
              as a result of exposure to hazardous
              conditions.

                   I   acknowledge   that   there   is   an
              allegation that relates to the mold, but I
              am   in   agreement  with   the   plaintiff's

1
    On July 17, 2015, the judge awarded $177,550 to Woodbury
Medical for reimbursement of past counsel fees and costs for the
time period of March 3, 2013 through April 2015, pursuant to the
January 9, 2015 order.      The judge also awarded $83,635 to
Woodbury Medical for reimbursement of past counsel fees and
costs for the declaratory judgment action.




                                              6                               A-5526-15T1
          counsel.   There   also  definitely   is   an
          allegation that pertains to the fibers from
          the filter, the air conditioning system, or
          the filter fragments. It is an environmental
          hazard that is claimed. It is something
          besides the mold issue, the [c]ourt finds.

               I understand your arguments.    But I do
          find that there has been an indication of
          other environmental damages and based on the
          case law, I find that there is a duty to
          defend in this instance. I have examined the
          complaint.   I  have  reviewed   the    policy
          limitations.   But if there are any doubts,
          they are to be resolved in favor of the
          insured.

               Based   on  the cases   as  cited  by
          plaintiff's counsel, I do find that the
          insurance company is required to defend in
          this instance.

               [D]efendant does owe the plaintiff the
          duty   in   the  underlying   lawsuit. It's
          appropriate here because there is another
          cause for Ms. Ware’s [sic] injuries.

    Selective     moved   for   leave    to   appeal,    which     we   denied.

Selective then moved before the Law Division to stay the order

compelling   it   to   fund   Woodbury   Medical's      defense,    which     was

denied.      Thereafter,      Woodbury    Medical       moved    to     enforce

litigant's rights and Selective cross-moved for reconsideration

of both the order requiring Selective to provide a defense and

the order denying a stay.        The judge granted Woodbury Medical's

motion to enforce litigant's rights and ordered Selective to pay

Woodbury Medical counsel fees for its defense in the Wears'




                                     7                                  A-5526-15T1
litigation within thirty days.                 Selective again moved for leave

to appeal, which we denied.2

        By    agreement   of    the    parties,       the    Wears'    litigation   was

submitted to arbitration.              At the conclusion of the testimonial

hearing, the arbitrator rendered a one-page written award in

favor of the Wears for $300,000.                 The arbitrator noted that the

award was for a "claim by RN for workplace exposure to toxic

aspergillus mold."

        After the rendering of the award, the Wears and Woodbury

    Medical entered into a consent order amicably resolving the

    Wears' litigation.         The consent order contained the following

    essential terms.      A judgment would be entered in favor of the

    Wears    against   Woodbury       Medical    in    the    amount    of   $300,000.

    Woodbury Medical would assign its coverage rights to the Wears,

    who then bore the burden of proceeding against Selective "with

    respect    to   Selective's        obligation       to     indemnify     [Woodbury

    Medical] for the claims brought and judgment obtained . . .

    under liability insurance policies issued by Selective."                        The

    Wears would "never . . . execute upon [Woodbury Medical] or its

    assets, or those of its past, present and future principals

    . . . in order to collect the [j]udgment, or . . . in any other


2
   Selective did not comply with the order mandating payment of
counsel fees, nor has it done so to date.



                                           8                                  A-5526-15T1
way     seek    payment        of    the    [j]udgment   or    any    other   sum      from

[Woodbury Medical] . . . ."                   The Wears relinquished all claims

against Woodbury Medical whether or not they were successful

against Selective.             The order stated:         "[N]o injury was suffered

by [the Wears] as a result of exposure to mold at premises owned

by [Woodbury Medical]."

      The       Wears        moved    to     intervene   as    plaintiffs         in    the

declaratory action.              Among other arguments, the Wears asserted

Selective was obligated to pay the $300,000 judgment premised

upon our Supreme Court's holding in Griggs v. Bertram, 88 N.J.

347 (1982) and premised upon principles of equitable estoppel

due to Selective's bad faith and wrongful refusal to defend.

      The motion to intervene was granted by order on June 26,

2015.     The        order     limited      intervention      to     "coverage     and/or

indemnification under the policy of insurance issued to Woodbury

Medical     .    .    .   ."        The    order   provided   that    the   Wears      were

substituted for Woodbury Medical for the purpose of asserting

indemnification only and not to assert claims for "bad faith" or

failure to defend against Selective.

      In support of their motion, the Wears provided an expert

report by Robert J. Laumbach, who opined that mold was not a

cause of Theresa's injuries.                  Selective moved to bar the expert

report      and       for      summary       judgment    dismissing         the    Wears'




                                               9                                  A-5526-15T1
intervention.              Selective       argued      the     consent      order      was

unenforceable based upon Griggs.

       By   order     of    December      23,       2015,    the    judge   denied     all

motions.      In her attached statement of reasons, the judge found

a Griggs analysis was triggered as Selective wrongfully denied

Woodbury Medical a defense by continuously failing to comply

with the January 9, 2015 order.                     The judge further noted that

the    "Griggs     analysis       is    triggered      regardless      of   whether     an

insurer ultimately prevails on the question of coverage pursuant

to Passaic Valley."3          The judge held that the issue of bad faith

pertaining       to   the    settlement         remained     open     "pending    future

discovery and/or future [m]otion practice."                        Regarding the issue

of the expert's report, the judge held the Wears' expert was not

barred      from   testifying          since    "[t]he      present    action,    though

related to the underlying Wear matter, is a separate, distinct

case with a separate discovery period."

       On January 20, 2016, Selective filed a motion to settle the

form of the December 23, 2015 orders and to determine the scope

of    the   hearing    to    be   conducted.          The    Wears    cross-moved      for

partial summary judgment under the reasonableness prong of the

Griggs analysis.            Thereafter, by consent order dated February


3
   Passaic Valley Sewerage Comm'rs v. St. Paul Fire & Marine Ins.
Co., 206 N.J. 596 (2011).



                                               10                                A-5526-15T1
26,   2016,   the   Wears      and   Selective      settled    the    terms   of    the

December 23, 2015 orders.               The consent order provided that the

monetary settlement between Woodbury Medical and the Wears based

upon the arbitration award satisfied the reasonableness prong

under Griggs.       The consent order further provided that the sole

issue in contest was whether the settlement between Woodbury

Medical and the Wears was made in good faith.                        The good faith

issue was to be determined by the judge on the papers submitted.

      After argument and after considering the record and papers,

the judge issued an oral opinion in which she held that the

Wears did not meet the second prong of the Griggs settlement

enforcement analysis.           The judge found a lack of good faith as

"there [has] been a total effort made by the Wears and Woodbury

Medical to force this issue to be covered by Selective because

they knew of the mold exclusion . . . ."                      As such, the judge

found the settlement "which places a 100 percent liability on

Selective,"    to    be    a    sham    and    concluded      the    settlement     was

unenforceable       against      Selective.           The   oral      decision      was

memorialized    in    an       order.         The   order   also     dismissed      the

intervenor complaint with prejudice.4


4
    The judge also granted Woodbury Medical's motion without
prejudice for an amendment of the July 2015 order regarding the
counsel fees owed by Selective.   The judge added fees incurred
by Woodbury Medical for the medical expert provided to the Wears
                                                     (continued)


                                          11                                  A-5526-15T1
        The   Wears   filed   a   motion   for       a   new   trial    and   judgment

    notwithstanding    the    verdict.5        The   motion     was    denied     in   an

    August 2016 order.       The Wears filed an appeal.               Selective filed

    a separate appeal of numerous orders concerning its duty to

    defend and to pay counsel fees as well as the denial of stays.6

    We granted Selective's motion to consolidate the appeals.

        On appeal, Selective raises the following points:7

                                     POINT I

              THE TRIAL COURT ERRED IN GRANTING PARTIAL
              SUMMARY JUDGMENT REQUIRING SELECTIVE TO
              DEFEND WMCA DESPITE THE CLEAR EXCLUSION OF
              COVERAGE FOR INJURIES CAUSED BY MOLD, IN
              WHOLE OR IN PART, REGARDLESS OF WHETHER ANY
              OTHER CAUSE CONTRIBUTED CONCURRENTLY OR IN
              ANY SEQUENCE TO THE ALLEGED INJURIES.

                                    POINT II

              THE TRIAL COURT MISCONSTRUED FLOMERFELT V.
              CARDIELLO, 202 N.J. 432 (2010) WHICH DOES
              NOT APPLY TO THE FACTS OF THIS CASE.



(continued)
to the total sum of fees owed by Selective for the declaratory
action.
5
     We note that there was no trial on any of the issues.
6
   Selective's notice of appeal recites thirteen discrete orders
including two orders of the Appellate Division denying leave to
appeal.
7
    Although the Wears' appeal was filed prior to Selective's
appeal, we address Selective's points on appeal first for
clarity.




                                          12                                    A-5526-15T1
                      POINT III

    THE TRIAL COURT ORDERS TO COMPEL SELECTIVE
    TO   ASSUME  [WOODBURY   MEDICAL]'S  DEFENSE
    DESPITE THE CONFLICT OF INTEREST BETWEEN
    SELECTIVE AND [WOODBURY MEDICAL] AND DESPITE
    THE FACT THAT THE COVERAGE ISSUE WOULD NOT
    BE RESOLVED IN THE UNDERLING [SIC] ACTION
    WAS ERROR.

On appeal, the Wears raise the following points:

                       POINT I

    THE LAW OF THE CASE DOCTRINE WAS VIOLATED
    WHEN THE TRIAL JUDGE MADE AN ENTIRELY
    CONTRADICTORY RULING ON THE KEY ISSUE,
    WHETHER THE SETTLEMENT WAS ONE OF GOOD FAITH
    OR BAD FAITH, BASED ON IDENTICAL EVIDENCE.
    ON [DECEMBER 23, 2015], THE TRIAL COURT
    RULED THAT BAD FAITH WAS ABSENT, IN ITS
    ADJUDICATION OF WHETHER JUDICIAL ESTOPPEL
    WAS APPLICABLE TO PLAINTIFFS' ADOPTION OF
    ONE CAUSATION THEORY OVER ANOTHER.      FOUR
    MONTHS LATER, ON [APRIL 1, 2016], THE TRIAL
    COURT HELD THAT THE SETTLEMENT CONSTITUTED A
    BAD FAITH SHAM. WHEN A JUDGE DECIDES NOT TO
    FOLLOW THE LAW OF THE CASE DOCTRINE,
    DECISIONAL LAW REQUIRES THAT THE JUDGE
    EXPLAIN THE REASONS FOR THAT DEPARTURE AND
    THE SUBSTANTIALLY DIFFERENT EVIDENCE THAT
    WAS NOT PREVIOUSLY AVAILABLE.     [R.] 1:6-
    2(F).    SISLER V. GANNETT CO., 222 N.J.
    SUPER. 153 [] (APP. DIV. 1987), CERTIF.
    DENIED, 110 N.J. 304 [] (1988).    THE TRIAL
    COURT FAILED TO DO SO HERE AND IN DOING SO
    WRONGLY DECLINED TO ENFORCE THIS GRIGGS
    SETTLEMENT AGAINST SELECTIVE.

                       POINT II

    THE LAW OF THE CASE DOCTRINE WAS VIOLATED
    WHEN THE TRIAL JUDGE MADE AN ENTIRELY
    CONTRADICTORY RULING ON THE KEY ISSUE,
    WHETHER THE SETTLEMENT WAS ONE OF GOOD FAITH
    OR BAD FAITH, BASED ON IDENTICAL EVIDENCE.



                          13                       A-5526-15T1
ON [DECEMBER 23, 2015], THE TRIAL COURT
RULED THAT THE SETTLEMENT WAS, PRIMA FACIE,
THE PRODUCT OF GOOD FAITH.      FOUR MONTHS
LATER, ON [APRIL 1, 2016], THE TRIAL COURT
HELD THAT THE SETTLEMENT CONSTITUTED A BAD
FAITH SHAM.    WHEN A JUDGE DECIDES NOT TO
FOLLOW THE LAW OF THE CASE DOCTRINE,
DECISIONAL LAW REQUIRES THAT THE JUDGE
EXPLAIN THE REASONS FOR THAT DEPARTURE AND
THE SUBSTANTIALLY DIFFERENT EVIDENCE THAT
WAS NOT PREVIOUSLY AVAILABLE.     [R.] 1:6-
2(F).    SISLER V. GANNETT CO., 222 N.J.
SUPER. 153 [] (APP. DIV. 1987), CERTIF.
DENIED, 110 N.J. 304 [] (1988).   THE TRIAL
COURT FAILED TO DO SO HERE AND IN DOING SO
WRONGLY DECLINED TO ENFORCE THIS GRIGGS
SETTLEMENT AGAINST SELECTIVE.

                 POINT III

IT WAS SELECTIVE'S BURDEN TO PROVE THAT THE
SETTLEMENT WAS A BAD FAITH SHAM.   HOWEVER,
THE TRIAL COURT WRONGLY SHIFTED THAT BURDEN
TO THE WEARS TO PROVE THAT THE SETTLEMENT
WAS NOT A SHAM, A BURDEN-SHIFTING WHICH
VISITED A MISCARRIAGE OF JUSTICE UPON THE
WEARS.

                  POINT IV

THE UNIVERSE OF EVIDENCE PRESENTED BY THE
PARTIES   WAS    IDENTICAL   THROUGHOUT   THE
CONTRADICTORY   TRIAL    COURT   RULINGS   OF
[DECEMBER 23, 2015] ON THE ONE HAND AND THE
RULINGS OF [APRIL 1, 2016] AND [AUGUST 12,
2016] ON THE OTHER.       SELECTIVE CHOSE TO
REFRAIN FROM OBTAINING AN EXPERT WITNESS ON
THE GOOD FAITH ISSUE, DESPITE AN EXTENSION
OF TIME TO DO SO.        EACH OF SELECTIVE'S
ARGUMENTS THAT THE SETTLEMENT WAS AN UTTER
SHAM WERE ANALYZED AND REJECTED BY THE TRIAL
COURT ON [DECEMBER 23, 2015] AND NOTHING WAS
PRESENTED TO REBUT THE COMPREHENSIVE EXPERT
CONCLUSIONS OF PLAINTIFFS' OCCUPATIONAL AND
ENVIRONMENTAL   MEDICINE/INDUSTRIAL   HYGIENE




                     14                         A-5526-15T1
                 EXPERT,      ROBERT      J.    LAUMBACH,      M.D.,    M.P.H.,
                 C.I.H.

                                               POINT V

                 THE TRIAL COURT COMMITTED REVERSIBLE ERROR
                 IN ITS [AUGUST 12, 2016] AND [APRIL 1, 2016]
                 RULINGS   BECAUSE   THOSE  RULINGS   WRONGLY
                 DISREGARDED PARAGRAPH 1 OF THE CONSENT ORDER
                 OF [FEBRUARY 26, 2016].

                                                 II.

       We    commence         by    addressing        Selective's      argument      that   the

judge erred in granting partial summary judgment to Woodbury

Medical in holding Selective had a duty to defend.                                  Selective

argues       "[t]here         was    no    allegation         that   [Theresa]       suffered

divisible injuries due to separate and discrete etiologies or

that     exposure        to     mold      was    not     a    principal    cause      of    her

symptoms."          As     such,     the       policy's      exclusion,   which      included

anti-concurrent and anti-sequential language, barred coverage.

Woodbury Medical argues in reply that Selective had a duty to

defend      as    the    Wears       alleged       alternative       causes     of    injury,

separate and apart from mold.

       The    judge's         determination        that      Selective    had   a    duty     to

defend was decided by the grant of summary judgment.                                Thus, the

judge's conclusions and interpretation of the record are not

entitled to our deference.                  We apply the same standard the judge

applied in ruling on summary judgment.                         W.J.A. v. D.A., 210 N.J.

229, 237 (2012).



                                                 15                                   A-5526-15T1
       At the outset, we agree with the judge that, when disputes

arise between the insured and insurer, the duty of an insurer to

defend is generally determined by a side-by-side comparison of

the     policy     and     the complaint,             and    is    triggered      when      the

comparison demonstrates that if the complaint's allegations were

sustained, an insurer would be required to pay the judgment.

Sears Roebuck & Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

340 N.J. Super. 223, 241-42 (App. Div. 2001); see also Danek v.

Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953).                            "In making that

comparison, it is the nature of the claim asserted, rather than

the     specific    details        of     the        incident     or   the      litigation's

possible      outcome,       that       governs        the     insurer's        obligation."

Flomerfelt, 202 N.J. at 444 (citation omitted).

       The interpretation of an insurance policy upon established

facts    is   a    question        of    law     for     the      court    to    determine.

Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App.

Div.    2004).       "Generally,          '[w]hen        interpreting        an    insurance

policy,    courts        should    give    the        policy's     words     "their    plain,

ordinary meaning."'"              Nav-Its, Inc. v. Selective Ins. Co., 183

N.J. 110, 118 (2005) (quoting President v. Jenkins, 180 N.J.

550, 562 (2004)).           "An insurance policy is a contract that will

be enforced as written when its terms are clear in order that

the expectations of the parties will be fulfilled."                              Flomerfelt,




                                                16                                    A-5526-15T1
202 N.J. at 441 (citing Kampf v. Franklin Life Ins. Co., 33 N.J.

36, 43 (1960)).

      As this court held in New Jersey Manufacturers Insurance

Co. v. Vizcaino, in permitting the dispute of uncovered claims,

courts protect both parties by ensuring that the insurer does

not   incur   responsibility        for    uncovered   claims      and   that    the

insured is entitled to both defense and indemnity if the dispute

is resolved in its favor.           392 N.J. Super. 366, 370 (App. Div.

2007).     In line with those principles, exclusions in insurance

policies are presumptively valid and enforceable "if they are

'specific, plain, clear, prominent, and not contrary to public

policy.'"     Flomerfelt, 202 N.J. at 441 (quoting Princeton Ins.

Co. v. Chunmuang, 151 N.J. 80, 95 (1997)).               In contrast, courts

will find "a genuine ambiguity to arise where the phrasing of

the policy is so confusing that the average policyholder cannot

make out the boundaries of coverage."                Weedo v. Stone-E-Brick,

Inc., 81 N.J. 233, 247 (1979).

      Generally, exclusions are narrowly construed.                  Flomerfelt,

202 N.J. at 442.        The insurer has the burden of bringing the

case within the exclusion.                Am. Motorists Ins. Co. v. L-C-A

Sales Co., 155 N.J. 29, 41 (1998).                  Courts must be careful,

however, "not to disregard the 'clear import and intent' of a

policy's    exclusion   .   .   .    ."        Flomerfelt,   202    N.J.   at    442




                                          17                               A-5526-15T1
(quoting Westchester Fire Ins. Co. v. Cont'l Ins. Cos., 126 N.J.

Super. 29, 41 (App. Div. 1973)).             Far-fetched interpretations of

a   policy   exclusion      are   insufficient       to   create        an   ambiguity

requiring    coverage.       Stafford     v.    T.H.E.    Ins.     Co.,      309    N.J.

Super. 97, 105 (App. Div. 1998).

      In a situation where "two or more identifiable causes — one

a covered event and one excluded — may contribute to a single

property loss," there is coverage absent an anti-concurrent or

anti-sequential clause in the policy.                 See Simonetti, 372 N.J.

Super. at 431 (citing Assurance Co. of Am., Inc. v. Jay-Mar,

Inc., 38 F. Supp. 2d 349, 352-54 (D.N.J. 1999)).                    As noted, the

policy at issue contains within the exclusion language an anti-

concurrent and anti-sequential clause and excludes coverage from

any   loss    or   damage   "regardless        of   whether   any       other    cause,

event, material or product contributed concurrently or in any

sequence to such injury or damage."                   We do not consider the

exclusion language to be ambiguous.                   A fair reading of the

exclusion is that, despite other potential causes, mold must be

excluded as a causative factor in order for                      there to be a

covered loss.

      The    judge   concluded     that      Selective    owed      a    defense       to

Woodbury Medical while acknowledging that mold was averred in

the complaint as a causative factor.                 The judge found that the




                                        18                                      A-5526-15T1
complaint      averred    other       "environmental"       hazards      as   causative

factors     thus     requiring        a    defense.         However,      other     than

referencing those allegations, the judge did not analyze whether

the     anti-concurrent         and       anti-sequential        language      in     the

exclusion       would    bar    coverage         or,   at   a   minimum,      raise     a

substantial question as to the existence of coverage.

       Succinctly, in the absence of a comparison of the complaint

with     the     exclusion's         anti-concurrent          and      anti-sequential

language, we conclude that the issue of coverage was not of such

clarity at this stage of the action to require Selective to

defend.        In reaching our conclusion, we are informed by the

following.

       Neither     the duty     to     defend nor       the     duty    to    indemnify

"exists except with respect to occurrences for which the policy

provides coverage."            Hartford Accident & Indem. Co. v. Aetna

Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984).                        Here, the judge

cited Flomerfelt as authority, which provides that:

            in circumstances in which the underlying
            coverage question cannot be decided from the
            face of the complaint, the insurer is
            obligated to provide a defense until all
            potentially covered claims are resolved, but
            the resolution may be through adjudication
            of the complaint or in a separate proceeding
            between insured and insurer either before or
            after    that     decision    is    reached.

            [202 N.J. at 447.]




                                            19                                 A-5526-15T1
       There are two exceptions to this general rule.

             The insurer need not provide the defense at
             the outset if the allegations include claims
             that are not covered by the policy as well
             as claims that are covered or if the
             question of coverage is not, by its nature,
             capable of determination in the underlying
             action   against    the   insured.   In   those
             situations, the insurer's obligation to
             defend becomes an obligation to reimburse
             for defense costs to the extent that the
             defense is later determined to have been
             attributable to the covered claims and, if
             coverage   is    not    determinable   in   the
             underlying action, it is later determined
             that there was in fact coverage.

             [Muralo Co., Inc. v. Employers Ins. of
             Wausau, 334 N.J. Super. 282, 289-90 (App.
             Div. 2000).]

In short, "[i]f an insurer believes that the evidence indicates

that   the   claim      is   not   covered,     the   insurer    is   not    always

required     to    provide     a   defense."      Polarome      Int'l,   Inc.       v.

Greenwich Ins. Co., 404 N.J. Super. 241, 274 (App. Div. 2008);

see Passaic Valley, 206 N.J. at 615-18 (explaining that Burd v.

Sussex Mut. Ins., 56 N.J. 383, 393-95 (1970) permits an insurer

to   fulfill      its   defense    obligations    by   reserving      rights       and

disputing coverage, thereby translating its obligation into one

for reimbursement if it is later adjudged that the claims were

within   the      policy     covenant   to    pay); see   also Grand        Cove    II

Condo. Ass'n, Inc. v. Ginsberg, 291 N.J. Super. 58, 73-75 (App.

Div. 1996) (discussing problems that can arise with respect to




                                         20                                 A-5526-15T1
the   duty    to   defend   and   conversion    of   that    duty   to   one    of

reimbursement).

      "Although the duty to defend is broader than the duty to

pay, the duty 'is not broader in the sense that it extends to

claims not covered by the covenant to pay.'"                Grand Cove II, 291

N.J. Super. at 72 (quoting Horesh v. State Farm Fire & Cas. Co.,

265 N.J. Super. 32, 38 (App. Div. 1993)).              Therefore, "[i]f an

excluded claim is made, the insurer has no duty to undertake the

expense and effort to defeat it, however frivolous it may appear

to be."      Ibid. (quoting Horesh, 265 N.J. Super. at 39).

      Grand    Cove   II    addressed   an   alternative     to   the    duty   to

defend, "the duty to reimburse."

                  Where a conflict exists between an
             insurer and its insured by virtue of the
             insurer's duty to defend mutually-exclusive
             covered and non-covered claims against the
             insured, the duty to defend is translated
             into a duty to reimburse the insured for the
             cost of defending the underlying action if
             it should ultimately be determined, based on
             the disposition of that action, that the
             insured   was   entitled  to   a   defense.
             [Burd, 56 N.J. at 390.]

                  Similarly, where an insurer did                 not
             undertake defense of the case at                     the
             inception of the litigation, the duty                 to
             defend may be converted into a duty                   to
             reimburse.    [SL  Indus.,  Inc. v.                  Am.
             Motorists Ins. Co., 128 N.J. 188,                    200
             (1992).]

             [Id. at 73-74 (citations omitted).]




                                        21                               A-5526-15T1
In Grand Cove II, this court found the insurance coverage issues

in the case created problems with the trial court's mandate that

the insurance company must immediately assume defense of all the

causes of action of the insured.                   Id. at 74-75.        Such issues

included, but were not limited to: the trial court's concession

that certain claims were not covered, an inherent conflict due

to   late-raised      claims,      and     the     fact    that   the    underlying

litigation   would        not    resolve     the    coverage      issues.        Ibid.

Therefore, we held the "insurers' duty to defend should have

been converted to a duty to reimburse pending the outcome of the

coverage litigation."           Id. at 76.

     Here,   through       our    comparison       of     the   averments   in    the

complaint    to     the    policy's      exclusion,        we   conclude    it    was

premature to order Selective to assume responsibility for the

defense since it was unclear, based on the anti-concurrent and

anti-sequential language in the exclusion, whether any claims

would be covered.         Therefore, as in Grand Cove II, we hold that

the duty to defend should be converted to a duty to reimburse

pending resolution of the coverage action.

                                         III.

     Given    our     determination         that     the    decision     obligating

Selective to defend was premature, it follows that the decision

holding that Griggs applied was without basis.                      The predicate




                                           22                               A-5526-15T1
for the application of Griggs is whether there was a breach of

duty by Selective by its failure to defend Woodbury Medical.

Only if Selective was determined to be in default of that duty

would it trigger indemnification.                 In Griggs, our Supreme Court

held:

                 Where an insurer wrongfully refused
            coverage and a defense to its insured, so
            that the insured is obliged to defend
            himself in an action later held to be
            covered by the policy, the insurer is liable
            for the amount of the judgment obtained
            against the insured or of the settlement
            made by him.     The only qualifications to
            this rule are that the amount paid in
            settlement   be  reasonable   and  that  the
            payment be made in good faith.

            [Griggs, 88 N.J. at 364 (citing Fireman's
            Fund Ins. Co. v. Security Ins. Co. of
            Hartford, 72 N.J. 63, 71 (1976) (quoting
            N.J. Mfrs. Indem. Ins. Co. v. U.S. Cas. Co.,
            91 N.J. Super. 404, 407-08 (App. Div.
            1966))).]

      As our Supreme Court held in Passaic Valley, a good-faith

challenge    to    coverage       is    not   a   breach    of    an    obligation     to

defend.     206 N.J. at 617.           Here, we are satisfied that Selective

was   within      its    rights    to    dispute      coverage     based    upon      the

language of the policy's exclusion.                   Vizcaino, 392 N.J. Super.

at 370.

      We are also satisfied that, in reaching its claim decision,

Selective    did        not   breach    its    duty    to   act    in    good    faith.

Fireman's Fund, 72 N.J. at 73.                 Saliently, Woodbury Medical has



                                          23                                    A-5526-15T1
not argued, as in Griggs, that there was an unreasonable delay

by   Selective      in   regard   to    its    coverage   decision        so     as    to

prejudice the defense.

     In sum, in the absence by Selective of a breach of its duty

to defend, Griggs was inapplicable.

     Having determined that the judge's decision to apply Griggs

to the enforcement of the settlement was a premature finding of

a breach of duty to defend, we vacate the orders that were the

product of that decision.              Specifically, those orders are the

consent order between Selective and the Wears dated February 26,

2016, and the order denying enforcement of the settlement.

     We     also    reverse    the     order    dismissing      the      declaratory

judgment action and remand the action for its resolution.                              In

conformance therewith, we affirm the decision to allow the Wears

to intervene in the declaratory judgment action.

     In   reaching       our   decision,       we   express   no      view     on     the

enforcement    of    the   settlement     reached     between      the    Wears       and

Woodbury Medical should there be a judicial determination of

coverage.

                                        IV.

     Finally, we turn to the judge's award of fees and costs to

Woodbury Medical, premised upon Rule 1:10-3.




                                        24                                     A-5526-15T1
       We review a trial court's order enforcing litigant's rights

pursuant to Rule 1:10-3 under an abuse of discretion standard.

Barr   v.    Barr,        418   N.J.     Super.      18,    46    (App.     Div.      2011); see

also Innes v. Carrascosa, 391 N.J. Super. 453, 498 (App. Div.

2007).      An abuse of discretion occurs when a decision was "made

without      a     rational      explanation,          inexplicably            departed      from

established        policies,        or    rested     on    an     impermissible        basis."

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).

       The decision to award counsel fees "rests within the sound

discretion of the trial court."                       Maudsley v. State, 357 N.J.

Super.      560,    590     (App.      Div.    2003).           We    afford     trial    courts

"considerable latitude in resolving fee applications . . . ."

Grow Co. v. Chokshi, 424 N.J. Super. 357, 367 (App. Div. 2012).

Such "determinations by trial courts will be disturbed only on

the rarest occasions, and then only because of a clear abuse of

discretion."         Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

444    (2001) (quoting Rendine                v.     Pantzer,         141     N.J.    292,     317

(1995)).

       We    are     satisfied         that    the     judge         exercised       appropriate

discretion         with    regard        to   the    award       of    fees    and     costs    to

Woodbury Medical for Selective's non-compliance with the court's

January 9, 2015 order.               Selective's motions to stay were denied,

both   before       the     judge      and    before       this      court,    yet     Selective




                                               25                                        A-5526-15T1
continuously refused to comply with the orders.          While Selective

was within its right to seek review of the orders with which it

disagreed, in the absence of a stay or reversal, it was not free

to ignore those orders.

    That stated, the quantum of counsel fees was based on those

incurred by Woodbury Medical in the defense of the action as of

January 9, 2015.       Since we have determined that the award for

counsel   fees   based   upon    Selective's   failure   to   defend   was

premature, Woodbury Medical's entitlement to counsel fees is

limited to those incurred in prosecuting the motion to enforce

litigant's   rights.      Upon   remand,   Woodbury   Medical   may    seek

reimbursement for those counsel fees and associated costs before

the Law Division.

    Affirmed in part.        Reversed in part.        We do not retain

jurisdiction.



    6




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