                        NOT FOR PUBLICATION WITHOUT THE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-2814-16T1

QING CHEN,

        Plaintiff-Appellant,

v.

STATE FARM FIRE AND
CASUALTY COMPANY,

     Defendant-Respondent.
_____________________________

              Argued March 20, 2018 – Decided July 31, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No. L-
              2007-15.

              Daniel W. Ballard argued the cause for
              appellant (Zenstein Ballard, PC, attorneys;
              Daniel W. Ballard, on the brief).

              William H. Hofmann argued the cause for
              respondent (Bennett, Bricklin & Saltzburg,
              LLC, attorneys; William H. Hofmann, on the
              brief).


PER CURIAM

        Qing Chen appeals the Law Division's order granting summary

judgment to her insurer, State Farm Fire and Casualty Company,
dismissing her complaint seeking additional compensation for fire

damage to her rental property (the property).             The motion court

determined that because Chen had remediation work done at the

property   prior   to   State    Farm's   inspection,   she   breached   the

insurance policy by preventing State Farm from assessing the full

extent of the fire damage and, therefore, was not entitled to more

than the $37,907.02 that State Farm had paid her.               Because we

conclude a jury must resolve the material dispute regarding the

ability of State Farm to determine the scope of the property's

fire damage and the amount of compensation Chen was entitled to

receive under the insurance policy, we reverse and remand for

trial.

     The record reveals the following.          A fire at a neighboring

row home caused damage to the property from its flames, smoke, and

the water used by firemen to extinguish it.             Under the terms of

the policy, Chen was to:

           c. prepare an inventory of damaged personal
           property[1] showing in detail the quality,
           description, actual cash value and amount of
           loss.    Attach to the inventory all bills,
           receipts    and   related   documents    that
           substantiate the figures in the inventory;

           d. as often      as     [State   Farm]   reasonably
           require:


1
  Neither party argues whether this provision applies to the real
property or personal property contained within the premises.

                                      2                            A-2814-16T1
           (1) exhibit the damaged property;

           (2) provide [State Farm] with records and
           documents we request and permit us to make
           copies; and

           (3) submit to examinations                   under    oath   and
           subscribe the same.

Two days after the fire, a public adjuster company hired by Chen

to assist her in assessing her damages informed State Farm of the

fire and consequential property damage.                       Prior to State Farm's

claim specialist's inspection of the property to evaluate the

property's damage, he told the public adjuster's representative

to complete only minor repairs and necessary work – debris removal,

water extraction, and the use of drying equipment – to prevent

further damage to the property, but not to perform remediation

work.   However, when the claim specialist inspected the property

six days after the fire, he found that a remediation company hired

by Chen had completely gutted areas of the property to the wood-

framing studs.       State Farm later advised Chen that, despite the

public adjuster's replacement value of $80,312.07 to restore the

property   to    its      original   condition,          it    would    only   pay    her

$37,907.02      on   an    actual    cost       basis    (replacement      cost      less

depreciation) for the property damage and remediation work; thus,

the respective estimates differed in both the scope of necessary

repairs and the costs of the repairs.                    State Farm asserted that


                                            3                                   A-2814-16T1
due to the limited inspection its claim specialist was able to

conduct after Chen had extensive remediation work done on the

property, it could not assess the extent of the damage caused by

the fire.   In addition, State Farm maintained Chen did not supply

sufficient proof that she expended funds to cover the remediation

costs.

      Unsatisfied with the $37,907.02 she was paid, Chen filed suit

alleging State Farm breached the insurance policy and demanded

additional compensation for damage to the property.              Following

discovery and unsuccessful arbitration, State Farm was granted

summary judgment; the motion court dismissed Chen's suit with

prejudice   because    it   found   that   she   failed   to   satisfy   her

evidentiary burden as to damages because she had remediation work

done on the property prior to State Farm's inspection. Chen

appealed.

      In examining the summary judgment under review, we apply the

same Brill2 standard that bound the motion court.              Townsend v.

Pierre, 221 N.J. 36, 59 (2015); W.J.A. v. D.A., 210 N.J. 229, 237

(2012).   This standard requires that we examine the record in the

light most favorable to the opponents of the successful summary

judgment motion.      Brill, 142 N.J. at 540.      A motion court should



2
    Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

                                     4                              A-2814-16T1
grant summary judgment when the record reveals "no genuine issue

as to any material fact" and "the moving party is entitled to a

judgment or order as a matter of law."     R. 4:46-2(c).     We accord

no deference to the trial court's legal conclusions.       Nicholas v.

Mynster, 213 N.J. 463, 478 (2013) (citations omitted).         Summary

judgment should be denied when determination of material disputed

facts depends primarily on credibility evaluations.        Petersen v.

Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).

     Guided by these principles, we conclude summary judgment

should not have been granted because there is a material dispute

regarding the damage to Chen's property.   Chen argues she complied

with the insurance policy's terms that required her to mitigate

damages to the property after the fire by having a remediation

company clean up and make repairs to the property to prevent

further damage.   Yet, she maintains that under State Farm's policy

interpretation, "[t]he provision requiring mitigation of damage

is in direct conflict with [her] obligation to exhibit the damage

after a loss."    Nevertheless, she argues the photos of the pre-

remediation fire damage she gave to the claims specialist complied

with the policy requirements that she document the property's fire

damage, which contrary to State Farm's contention, enabled it to

determine the scope of the property's damage.      By disregarding

these proofs, Chen argues the court violated the summary judgment

                                 5                             A-2814-16T1
standard by determining the claims specialist's conclusion – not

presented in the form of a certification and without any indication

of the scope of his investigation – that the remediation prevented

an assessment of the fire damage was credible, and it did not view

the evidence of her photos in the light most favorable to her.

      We take no issue with the court's pronouncement in its oral

decision that, in accordance with the insurance policy, Chen "had

a duty to exhibit" the damaged portion of her property to State

Farm so that it "could make a reasoned analysis of" the damage.

Interpretation of the insurance policy is a question of law to be

decided by the court.    See Polarome Int'l, Inc. v. Greenwich Ins.

Co., 404 N.J. Super. 241, 260 (App. Div. 2008).              The court,

however, exceeded its authority by dismissing Chen's complaint

when it found that she failed "to satisfy her evidentiary burden."

In   reaching   this   finding,   the   court   accepted   State    Farm's

determination that it could not assess the fire damage prior to

the property's remediation over Chen's contention that the photos

taken after the fire and prior to remediation evidenced the

insurer's responsibility under the policy.       Weighing the parties'

credibility is the duty of the jury as the fact-finder at trial,

and is beyond the court's purview in deciding summary judgment.

State Farm's contention that it is entitled to summary judgment

because the jury would be "forced to speculate as to . . . [Chen's]

                                    6                              A-2814-16T1
potential [fire] damages" is misplaced.   This contention goes to

the strength of the insurer's defense, not to deciding summary

judgment.   The same can be said for its argument that Chen failed

to produce evidence "of executed contractor contracts, copies of

cancelled checks, signed proposals, receipts or other documents

supporting or establishing her right to damages" in excess of

$80,000.    At trial, the jury should determine the amount of

compensation, if any, that Chen is entitled to receive for fire

damage to the property under her State Farm insurance policy.

    Reversed and remanded for trial.




                                 7                         A-2814-16T1
