                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-3434-14T1

MICHAEL ABBOUD,

     Plaintiff-Appellant,                        APPROVED FOR PUBLICATION

v.                                                     JUNE 21, 2017

                                                     APPELLATE DIVISION
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,

     Defendant-Respondent.
___________________________________

           Argued December 20, 2016 – Decided              June 21, 2017

           Before Judges Ostrer, Leone and Vernoia.

           On appeal from the Superior Court of New
           Jersey,   Law  Division, Monmouth County,
           Docket No. L-680-14.

           Lawrence R. Lonergan argued the cause for
           appellant.

           Andrew L. Indeck argued the cause for
           respondent    (Weber    Gallagher    Simpson
           Stapleton Fires & Newby, LLP, attorneys; Mr.
           Indeck, of counsel and on the brief; Jane S.
           Kelsey, on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.

     In    this    insurance    coverage        dispute,     we   interpret     an

"insured   vs.    insured"   exclusion     in    a   directors    and     officers

(D&O) liability policy.        Generally speaking, such exclusions bar
coverage for claims by one insured director or officer against

another.      Plaintiff       Michael     Abboud     sought    indemnity       and    a

defense in connection with counterclaims made against him by

fellow officers of Monarch Medical PET Services, LLC (Monarch).

Defendant National Union Fire Insurance Company of Pittsburgh,

Pa., eventually denied coverage based on the insured vs. insured

exclusion.        Abboud filed a declaratory judgment action against

National Union, which ended in summary judgment dismissal and

the present appeal.

       We discern no ambiguity in the exclusion, and find no basis

for Abboud's argument that a showing of collusion between the

insureds is required to invoke it.              We also find no merit in his

argument    that    National    Union     should     be   barred      from    denying

coverage because it would violate his reasonable expectations.

We therefore affirm.

                                          I.

       Abboud started the underlying litigation by suing: Monarch;

four   of   its    members    and    managers    —   Patrick    Collins,       Andrew

Kreamer Rooke, Sr., Gary Moyers and William McCue; and a non-

member officer, Andrew Kreamer Rooke, Jr. (collectively, "the

defendants").        Abboud    was    a   forty-percent       owner    of    Monarch,




                                          2                                  A-3434-14T1
which operates and leases PET/CT1 equipment.               He alleged the four

member-managers    tried      to   remove    him    from   Monarch's      board   of

managers and his position as its chief executive officer.                         In

his verified complaint, Abboud alleged the defendants engaged in

oppressive acts and breached their fiduciary duty and the firm's

operating agreement.       He sought: reinstatement, salary and other

employment benefits; an injunction restraining                   the defendants

from interfering with his access to the premises, its computers

and its employees; as well as attorneys' fees and expenses.

     The    verified    complaint     did     not   address   the    defendants'

asserted reasons for their actions, but we gather they concerned

Monarch's involvement with two other companies, Monarch Medical

Imaging Equipment, Inc. (Monarch Imaging) — a corporation that

Abboud and Collins owned — and Monarch Medical Technologies, LLC

(Monarch Technologies) — a wholly owned subsidiary of Monarch

Imaging.     We infer this from Abboud's complaint, which sought to

justify certain payments Monarch made to Monarch Imaging and the

existence    of   other    agreements        between   Monarch      and    Monarch

Technologies.

     In their responsive pleading, Monarch and the individual

defendants    other    than   Collins       asserted   various    counterclaims

1
  PET/CT refers to positron emission tomography – computer
tomography.  Stedman's Medical Dictionary 468, 1468 (28th ed.
2006).



                                        3                                  A-3434-14T1
against Abboud.          They alleged Abboud engaged in self-dealing and

exploited Monarch's opportunities for his personal gain or that

of his other companies.                 Monarch independently alleged Abboud

breached     his    loyalty       and    fiduciary        duties,     and    engaged      in

intentional     interference           with   prospective       economic      advantage.

The   company      and    the    individual       counterclaimants          also   alleged

breach of the operating agreement.                   Additionally, they sought a

declaratory     judgment         that    grounds      existed       for    involuntarily

withdrawing Abboud's membership interest in the company.

       All the defendants in Abboud's underlying lawsuit sought

and    obtained      an    acknowledgement           of    partial        coverage     from

National Union, subject to a reservation of rights, under the

Employment Practices Liability (EPL) section of Monarch's multi-

coverage policy, which also included a D&O liability section.

It appears the defendants made their request in a timely manner.

National Union sent its coverage letter on March 13, 2013, a

month after Abboud filed his complaint and a month before the

filing of the answer and counterclaims.

       By contrast, Abboud did not notify National Union of the

counterclaims       against      him    until      November    20,    2013,    when      his

attorney gave "notice of claims covered" under the D&O section

of    the   policy.        The    attorney        asserted    the    notice    was     late

because Monarch and National Union had delayed responding to his




                                              4                                    A-3434-14T1
requests for information about coverage.                        National Union did not

respond to the notice.

      In   February      2014,    Abboud     filed        his    declaratory        judgment

action.      Expressly          invoking     and     quoting        the        policy's    D&O

section,    Abboud      sought     indemnity        and    defense        costs     for    the

counterclaims      in    the     underlying     lawsuit.            Referring        to   the

November 20, 2013 notice of claim, he asserted National Union

failed to respond to his purported "written claim for defense

and   indemnification."             He     argued     that        its     failure     barred

National    Union       from     denying     coverage           based     on    waiver     and

estoppel principles.

      In its answer, National Union denied its policy provided

indemnity    or     defense       costs     coverage        for     the        counterclaims

against Abboud.          Limited paper discovery followed.                          National

Union objected to many of Abboud's discovery demands, including

requests     for        claim     processing         documents            and      for     the

identification of an employee familiar with the policy's D&O

section.     Shortly thereafter, National Union filed its summary

judgment    motion.        Although        Abboud's        attorney        asserted       that

National Union's discovery responses were deficient, he did not

formally seek to compel further discovery.

      In support of its summary judgment motion, National Union

contended    the    insured       vs.     insured    exclusion          within      the    D&O




                                            5                                       A-3434-14T1
section precluded coverage.                In opposition, Abboud argued the

exclusion applied only if there was collusion, and whether there

was such collusion presented a genuine issue of material fact.

He also contended enforcing the exclusion would frustrate his

reasonable    expectations.           He   based      his    estoppel    argument    on

National Union's failure to respond to the November 2013 notice.

He also argued National Union's motion was premature because

discovery remained pending.

      In granting the motion, Judge Katie A. Gummer found that

the insured vs. insured exclusion plainly barred Abboud's claim

for   coverage.        The    court    rejected       Abboud's    arguments      about

collusion and reasonable expectations.                      Also, estoppel did not

apply   because     Abboud     failed      to    demonstrate      any    reliance    on

National     Union's      inaction.             The   judge     rejected      Abboud's

prematurity argument because he failed to identify the discovery

that would create a dispute over material facts.

      On appeal, Abboud renews the arguments he presented to the

trial court.        He adds that the court should have sua sponte

found coverage under the policy's EPL section.

                                           II.

      We   review    de      novo   the    trial      court's    grant   of   summary

judgment, applying the same standard as the trial court.                       Templo

Fuente de Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,




                                            6                                 A-3434-14T1
Pa.,   224   N.J.   189,   199   (2016).     The   movant    is   entitled   to

summary judgment if the record shows "there is no genuine issue

as to any material fact challenged and . . . the moving party is

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

(quoting R. 4:46-2(c)).          Interpretation of an insurance policy

also   presents     a   legal    question,   which   we     review   de   novo.

Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic

Med. & Physical Therapy, 210 N.J. 597, 605 (2012).

       The Templo Fuente Court reviewed the rules of construction

that apply to insurance policies:

             If the plain language of the policy is
             unambiguous, we will not engage in a
             strained    construction   to   support  the
             imposition of liability or write a better
             policy   for   the   insured  than   the one
             purchased.

                  When the provision at issue is subject
             to more than one reasonable interpretation,
             it is ambiguous, and the court may look to
             extrinsic    evidence    as   an    aid   to
             interpretation.     Only where there is a
             genuine   ambiguity,   that is,   where  the
             phrasing of the policy is so confusing that
             the average policyholder cannot make out the
             boundaries of coverage, should the reviewing
             court read the policy in favor of the
             insured.     When construing an ambiguous
             clause in an insurance policy, courts should
             consider whether clearer draftsmanship by
             the insurer would have put the matter beyond
             reasonable question.

             [Templo Fuente, supra, 224 N.J. at 200
             (internal quotation marks and citations
             omitted).]



                                      7                               A-3434-14T1
Consistent     with     these     rules,     our       courts   will     enforce

exclusionary clauses if "specific, plain, clear, prominent, and

not contrary to public policy," notwithstanding that exclusions

generally "must be narrowly construed," and the insurer bears

the burden to demonstrate they apply.                 Flomerfelt v. Cardiello,

202   N.J.    432,    441-42    (2010)   (internal       quotation   marks     and

citations omitted).

      We look first to the policy language, which we conclude

plainly      and     unambiguously       bars      coverage     because        the

counterclaims against Abboud fall within its insured vs. insured

exclusion.     We begin with the language of the relevant provision

defining the D&O coverage before turning to the exclusion.

      As D&O Coverage, National Union agreed to

             pay the Loss of an Individual Insured of the
             Company arising from a Claim made against
             such Individual Insured for any Wrongful Act
             of such Individual Insured, except when and
             to   the   extent  that    the  Company  has
             indemnified such Individual Insured.     The
             Insurer   shall,  in   accordance  with  and
             subject to Clause 7 of this D&O Coverage
             Section, advance Defense Costs of such Claim
             prior to its final disposition.

Except for "Company," which is defined to mean Monarch in the

policy's     "General   Terms"    section,      the    highlighted     terms   are

separately defined within the D&O section.                  These definitions

establish the coverage's scope.




                                         8                               A-3434-14T1
     An     "Individual       Insured"       includes       an       "Executive"        or

"Employee    of    a   Company."      The     two       categories         are   mutually

exclusive.        An   "Executive"    refers       to    "any    past,       present     or

future duly elected or appointed director, officer, management

committee member or member of the Board of Managers . . . ."

"Employee"    explicitly      excludes       Executives,        as    the    definition

states it means "any past, present, or future employee, other

than an Executive of a Company . . . ."                   A "Wrongful Act" by an

"Executive or Employee of a Company" means "any breach of duty,

neglect, error, misstatement, misleading statement, omission or

act . . . in their respective capacities as such, or any matter

claimed against . . . [them] solely by reason of his or her

status as an Executive or Employee of a Company . . . ."

     The     insured    vs.    insured       exclusion      is       one    of   several

exclusions in the D&O section for which the insurer "shall not

be liable to make any payment for Loss in connection with any

Claim made against the Insured."              The exclusion disallows claims

depending on which party raises them; specifically, it excludes

any claim "which is brought by or on behalf of a Company or

Individual    Insured,     other     than     an    Employee         of    the    Company

. . . ."2


2
  The insured vs. insured exclusion has various exceptions that
do not apply here.



                                         9                                       A-3434-14T1
    There      is   nothing   ambiguous,   convoluted,     or   opaque   about

this exclusion when interpreted in accord with the definitional

provisions.     The exclusion disallows coverage when the claim is

raised    by   either    an   executive     of   the   company      (i.e.,    an

"Individual Insured" who is not an "Employee") or the company

itself.      Its application here is equally clear.               The claims

raised against Abboud were brought by Monarch and five of its

executives     (whose   status   within    the   company   Abboud    does    not

contest).      Therefore, the insured vs. insured exclusion bars

these claims.

    Abboud seeks to avoid the plain import of the exclusion on

two grounds.        First, he contends it violates his reasonable

expectations.       Second, he contends the exclusion applies only in

cases of collusion between the individual insureds, about which

there remains an issue of fact.       We are unpersuaded.

    Our courts "have recognized the importance of construing

contracts of insurance to reflect the reasonable expectations of

the insured in the face of ambiguous language and phrasing, and

in exceptional circumstances, when the literal meaning of the

policy is plain."         Doto v. Russo, 140 N.J. 544, 556 (1995)

(citation omitted); see also Pizzulo v. N.J. Mfrs. Ins. Co., 196

N.J. 251, 271 (2008) ("Indeed, in some circumstances, we have

recognized that it might be appropriate to permit an insured's




                                     10                               A-3434-14T1
reasonable     expectation        to     overcome      the      plain   meaning       of   a

policy."); Werner Indus. v. First State Ins. Co., 112 N.J. 30,

35-36 (1988) ("At times, even an unambiguous contract has been

interpreted contrary to its plain meaning so as to fulfill the

reasonable expectations of the insured . . . .").

       These exceptional circumstances are narrowly confined.                           The

"reasonable expectations" doctrine applies to policy forms that

have the characteristics of an adhesion contract.                             See, e.g.,

Doto, supra, 140 N.J. at 556.              Courts are more inclined to apply

the doctrine in cases of personal lines of insurance obtained by

an    unsophisticated        consumer.          See,   e.g.,     Oxford      Realty   Grp.

Cedar v. Travelers Excess & Surplus Lines Co., ___ N.J. ___, ___

(2017) (slip op. at 15-16); Werner Indus., supra, 112 N.J. at

38; see also Nunn v. Franklin Mut. Ins. Co., 274 N.J. Super.

543, 550 (App. Div. 1994).               Yet, the doctrine has been applied

to    commercial     lines,     as     well.      See,    e.g.,    Nav-Its,      Inc.      v.

Selective Ins. Co. of Am., 183 N.J. 110, 123-24 (2005) (applying

the    doctrine    to    a     pollution       exclusion     clause     of   a   building

contractor's comprehensive general liability insurance policy);

Sparks    v.   St.      Paul    Ins.    Co.,     100     N.J.    325,   338-39     (1985)

(applying doctrine to a legal malpractice policy).

       Courts may vindicate the insured's reasonable expectations

over the policy's literal meaning "if the text appears overly




                                           11                                    A-3434-14T1
technical        or    contains      hidden       pitfalls,    cannot       be    understood

without employing subtle or legalistic distinctions, is obscured

by   fine    print,       or     requires        strenuous    study    to     comprehend."

Zacarias     v.       Allstate       Ins.    Co.,      168    N.J.    590,       601     (2001)

(citations            omitted)       (rejecting          "reasonable         expectations"

argument because the policy language was "not so confusing that

the average policyholder cannot make out the boundaries of the

coverage," nor was an "entangled and professional interpretation

of an insurance underwriter . . . pitted against that of an

average purchaser of insurance" (internal quotation marks and

citation omitted)).

      The expectations of coverage must be real.                                 See Werner

Indus.,     supra,        112     N.J.      at    39    (remanding      for      a     factual

determination whether the insured, through its broker, conveyed

an intent contrary to the policy's unambiguous language); Di

Orio v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 270 (1979) (declining

to deviate from policy language where "as a factual matter the

record      is    barren        of    any     suggestion       that     the       [insureds]

'expected' that they had primary or excess coverage").                                       The

expectations must also be "objectively reasonable."                              See, e.g.,

Templo Fuente, supra, 224 N.J. at 210.

      In    assessing          whether      the       expectations     are       objectively

reasonable, a court will consider communications regarding the




                                                 12                                    A-3434-14T1
coverage between the insured or its broker and the insurer or

its agent that relate to the insured's expectations.                                   See, e.g.,

Doto, supra, 140 N.J. at 557-58.                          A court must also consider

whether      the        scope    of   coverage       is    so    narrow       that     it    "would

largely nullify the insurance" and defeat the purpose for which

it    was    obtained.            See    Sparks,      supra,        100       N.J.     at     337-39

(internal quotation marks and citation omitted).                                    For example,

the     Court       in       Sparks     concluded         that     a        claims-made        legal

malpractice             policy    that     excluded            claims        arising        out    of

occurrences preceding the policy period "d[id] not accord with

the   objectively            reasonable    expectations            of       the    purchasers      of

professional liability insurance."                        Id. at 340.             Additionally, a

court       must    consider          whether    policies          with       "unrealistically

narrow coverage" cause "broad injury to the public at large[,]"

which may preclude enforcement on public policy grounds.                                     Id. at

340-41.

       Applying these principles, we discern no basis to set aside

the   insured       vs.       insured    exclusion         based       on    Abboud's       alleged

expectations            of    coverage.         The       policy       provides        commercial

insurance to a presumably sophisticated consumer.                                  The public at

large    has       no    identified      interest         in    finding       coverage.           The

policy language is straightforward, as discussed above, and is

"not so confusing that the average policyholder cannot make out




                                                13                                          A-3434-14T1
the boundaries of the coverage."                  Zacarias, supra, 168 N.J. at

601 (internal quotation marks and citation omitted).                         The record

is also devoid of competent evidence of Abboud's expectations of

coverage or proof that such expectations would be objectively

reasonable, given that D&O insurance typically covers liability

for third-party claims, see Biltmore Assocs., LLC v. Twin City

Fire    Ins.   Co.,    572    F.3d    663,    668   (9th      Cir.   2009)    (stating,

"[t]he reasonable expectations of the parties [to a D&O policy]

were that they were protecting against claims by outsiders, not

intra-company         claims"),       and    enforcement        of    the     exclusion

nonetheless leaves broad D&O coverage.                       In sum, the policy's

plain    language      need   not     be    tailored    to    conform    to    Abboud's

alleged expectations.

       We also reject Abboud's contention that proof of collusion

is a prerequisite to applying the insured vs. insured exclusion.

As our courts have not expressly addressed the question, Abboud

relies on several decisions from other jurisdictions adopting

this view,3 and there are others.                 See 3-22 New Appleman Law of

Liability      Insurance      §      22.06(2)(c)       n.30     (2017)      (collecting

cases).     However, the contrary view is both more persuasive and

more consistent with our rules of construction.


3
   The   cases  Abboud   cites  were   not                    formally       published;
consequently, we will not address them.



                                             14                                A-3434-14T1
    The     insured   vs.   insured   exclusion    was,    reportedly,      the

insurance industry's "reaction to several lawsuits in the mid-

1980s in which insured corporations sued their own directors to

recoup operational losses caused by improvident or unauthorized

actions."    Biltmore Assocs., supra, 572 F.3d at 668; see also

Appleman,    supra,   §   22.06(2)(c).     These       suits   thus   extended

liability coverage to intra-company claims and transformed the

nature of the insurance; specifically, they "turned liability

insurance into casualty insurance, because the company would be

able to collect from the insurance company for its own mistakes,

since it acts through its directors and officers."                    Biltmore

Assocs., supra, 572 F.3d at 669.

    Although    the   specific   formulation      of    this   exclusion    may

vary from policy to policy, its purpose was not simply to bar

collusive claims — as Abboud implies.       Instead, it was intended:

            to exclude coverage both of collusive suits
            — such as suits in which a corporation sues
            its officers or directors in an effort to
            recoup the consequences of their business
            mistakes, thus turning liability insurance
            into business-loss insurance — and of suits
            arising out of those particularly bitter
            disputes that erupt when members of a
            corporate, as of a personal, family have a
            falling out and fall to quarreling.

            [Level 3 Commc'ns, Inc. v. Fed. Ins. Co.,
            168 F.3d 956, 958 (7th Cir. 1999) (emphasis
            added) (citations omitted).]




                                      15                              A-3434-14T1
See   also     Biltmore     Assocs.,     supra,       572    F.3d     at    669       ("The

exclusion protects of course against collusion, and also against

the risk of selling liability insurance for what amounts to a

fidelity bond."); Appleman, supra, § 22.06(c).

      The question is whether this history requires us to deviate

from the exclusion's plain language by requiring an insurer to

prove collusion as Abboud contends.                   We think not.             As Judge

Posner concluded in Level 3 Communications, the argument that

collusion must be proved "confus[es] a rule with its rationale

. . . ."       Supra, 168 F.3d at 958.              The drafters were free to

develop a standard that assumed some risk of over-inclusiveness

— that is, to include claims that did not involve collusion or

corporate family spats — to achieve the benefit of simplicity

and ease of enforcement.               After all, "[a] standard, like 'no

coverage for collusive suits or lovers' quarrels,' [would be]

contoured exactly to [the exclusion's historical] purpose, but

it    cannot     be    applied    without      a    potentially       costly,         time-

consuming,       and    uncertain      inquiry      into     the     nature      of     the

underlying dispute sought to be covered."                   Ibid.

      In   any     event,    it   is   clear       from    the   face      of   Abboud's

verified complaint, and the counterclaims, that what we have is

one   of   those       "particularly    bitter      disputes        that    erupt     when

members of a corporate . . . family have a falling out . . . ."




                                         16                                      A-3434-14T1
Ibid.     Although there is no evidence of collusion, enforcing the

insured vs. insured exclusion here nonetheless satisfies one of

the primary historical goals of the exclusion.4

     In sum, guided by our rules of construction that place

dispositive weight on the plain language of a provision that is

neither    ambiguous,    convoluted      nor     opaque,    we   reject   Abboud's

proposed    gloss   on   the   insured     vs.    insured    exclusion's     plain

language.     We are in good company.              See, e.g., Sphinx Int'l,

Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 412 F.3d

1224, 1229-30 (11th Cir. 2005) (applying Florida law); Level 3

Commc'ns, supra, 168 F.3d at 958; Foster v. Ky. Hous. Corp., 850

F. Supp.     558, 561 (E.D. Ky. 1994); Durant v. James, 189 So. 3d

993, 996 (Fla. Dist. Ct. App.), review denied, No. SC16-1004,

2016 Fla. LEXIS 1989 (Sept. 7, 2016); Robinson v. Rockhill Ins.

Co., 139 So. 3d 1031 (La. Ct. App. 2014).5


4
  At least one insurer has drafted an insured vs. insured
exclusion that expressly provides that it applies regardless of
whether the claim is collusive.   See Westchester Fire Ins. Co.
v. Wallerich, 563 F.3d 707, 710 (8th Cir. 2009).           That
development lends no support to Abboud's argument, but merely
reflects an insurer's effort to avoid the headaches such an
argument creates.
5
  We note, happily, that this case does not require us to address
other knotty issues involving the scope of insured vs. insured
exclusions.    Questions have arisen when some claimants are
insureds and others are not, see, e.g., Miller v. St. Paul
Mercury Ins. Co., 683 F.3d 871 (7th Cir. 2012); and when claims
are brought in the context of bankruptcy or other insolvency-
                                                      (continued)


                                      17                                  A-3434-14T1
                                         III.

      Abboud's     remaining         arguments       lack     sufficient    merit    to

warrant     extended     discussion.           R.    2:11-3(e)(1)(E).         Abboud's

estoppel argument falls short because he has failed to show any

detrimental      reliance       on   National       Union's    alleged     unjustified

delay in denying coverage.               See Knorr v. Smeal, 178 N.J. 169,

178 (2003) (noting that estoppel requires a showing that the

adversary    "engaged      in    conduct,         either    intentionally    or   under

circumstances that induced reliance, and that plaintiffs acted

or   changed     their    position      to     their    detriment");     Greenberg     &

Covitz v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 312 N.J.

Super. 251, 265 (App. Div. 1998) ("[D]etrimental reliance by the

insured is a prerequisite to finding that coverage has been

expanded by estoppel."), modified on other grounds, 161 N.J. 143

(1999).

      His    argument     that       summary      judgment    was   premature     fails

because     he   does    not    identify     what      discovery    he   needs.     See


(continued)
related proceedings, see, e.g., W Holding Co. v. AIG Ins. Co.,
748 F.3d 377, 385-86 (1st Cir. 2014) (discussing split in case
law on whether insured vs. insured exclusion applies to Federal
Deposit Insurance Corporation); Appleman, supra, § 22.06(2)(c)
(noting the issue of the "Insured vs. Insured exclusion in the
bankruptcy context . . . is becoming less significant as more
D&O   policies  contain   exclusions  for   claims  'brought  or
maintained by or on behalf of a bankruptcy or insolvency
trustee, examiner, receiver or similar official'."); see also 9A
Couch on Insurance 3d § 131:36 n.1 (2015) (collecting cases).



                                             18                               A-3434-14T1
Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App.

Div. 2007) ("A party opposing summary judgment on the ground

that    more     discovery      is   needed    must    specify   what   further

discovery is required, rather than simply asserting a generic

contention that discovery is incomplete.").

       Finally, we decline to reach Abboud's claim that he was

entitled to coverage under the policy's EPL section (although

there appears to be little that is employment-related in the

counterclaims         against   Abboud).      Abboud   invoked   only   the   D&O

section in his notice of claim, in his declaratory judgment

complaint, in discovery, and in argument before the trial court.

See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)

(stating       that    "appellate    courts     will   decline    to    consider

questions or issues not properly presented to the trial court

when an opportunity for such a presentation is available unless

the questions . . . go to the jurisdiction of the trial court or

concern matters of great public interest" (internal quotation

marks and citation omitted)).

       Affirmed.




                                        19                              A-3434-14T1
