INTEGON NATIONAL INSURANCE COMPANY v. RODRIGUEZ

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

INTEGON NATIONAL INSURANCE

COMPANY,

Plaintiff, Civil Action No. 22-3280 (RK) (JBD)

v. OPINION

FRANCISCO RODRIGUEZ,

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court upon the Motion for Summary Judgment filed

by Plaintiff Integon National Insurance Company (“Plaintiff”), (ECF No. 22.) Defendant Francisco

Rodriguez (“Defendant”) filed an opposition to the Motion, (ECF Nos. 26, 28), and Plaintiff filed

a reply, (ECF No. 31). The Court has considered the parties’ submissions and resolves the matter

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, Plaintiff's Motion for Summary Judgment is DENIED.

1. BACKGROUND

This matter arises from an insurance coverage dispute following a fire, which occurred on

Defendant’s property. Plaintiff issued a homeowner’s insurance policy to Defendant (the

“Policy”), covering the Defendant’s “residence premises” at 183 Seaman St, New Brunswick, NJ

08901 (the “Premises”). (Defendant’s Insurance Policy (the “Policy”), Ex. A to Decl. of Anthony

Horan (“Horan Decl.”), ECF No. 22-4 at 1-3.) The Policy was effective for a one-year period

commencing on April 29, 2021. (id. at 3.) The Policy contained a “residence premises” provision

which required Defendant to reside at the Premises at the time of a covered incident in order to

obtain coverage. U/d. at 25.) On May 9, 2021, a fire occurred on the Premises, and Defendant

submitted a claim for coverage to Plaintiff. (Horan Decl., ECF No. 22-3, 49 5, 7; ECF No. 22-12

at 2.)! Plaintiff investigated the claim and concluded that Defendant did not reside at the Premises

at the time of the fire, and disclaimed coverage. (Horan Decl. § 19; Disclaimer Letter, Ex. G to

Horan Decl., ECF No. 22-10 at 2.)

Plaintiff filed this action against Defendant on May 31, 2022, seeking a declaratory

judgment that the Defendant did not reside at the Premises at the time of the fire, and thus, not

obligated to provide Defendant coverage under the Policy for the insurance claim submitted by

Defendant. (ECF No. 1 at 6.) On July 19, 2022, Defendant filed an answer. (ECF No. 9.)The case

proceeded through discovery, and thereafter Plaintiff filed its pending Motion for Summary

Judgment, (the “Motion”, ECF No. 22), supported by a brief, (“Pl.’s Br.”, ECF No. 22-12), a

Statement of Facts, (“Pl.’s SOF”, ECF No. 22-11), and the declaration of Anthony Horan, a general

adjuster for Plaintiff, with accompanying exhibits, (Horan Decl., ECF No. 22-3). Defendant

opposed the Motion, filing a brief, (“Def.’s Br.”, ECF No. 26), and an affidavit in opposition to

the Motion, (“Def.’s Affd.”, ECF No. 28).? Defendant did not submit any additional exhibits or a

counter-statement of facts with his opposition. Plaintiff filed a reply brief. (“PI.’s Reply Br.”, ECF

No. 31.)

' Tn Horan’s Declaration, he states that Defendant reached out to him on May 10, 2018 and that the fire

occurred at the Premises “on the prior day,” but all other references to the date of the fire, in the record and

Defendant’s briefing, cite to May 9, 2021 as the date of the fire, so the Court assumes this reference to May

10, 2018 is a typographical error. (Horan Decl. 5, 7; Pl.’s SOF 4 5, 7; Def.’s Br. at 2.)

* Instead of filing a responsive statement of facts pursuant to Local Civil Rule 56.1, Defendant filed a

“certification” that accompanied his response brief. (See generally Def.’s Affid.) This “certification” is

functionally an affidavit filed by Defendant, as it contains new factual claims by Defendant with no citations

to the record. But see Local Civ. R. 56.1(a) (requiring responsive statement of facts to contain citations “to

the affidavits and other documents submitted in connection with the motion”), Accordingly, this Court

refers to the “certification,” not as a responsive statement of facts, but as an affidavit.

The thrust of Plaintiff's summary judgment argument is that no factual dispute exists

because Defendant presents no evidence, beyond contradictory self-serving statements, to support

his claim that he resided at the Premises at the time of the fire. (P1.’s Br. at 6-7; Pl.’s Reply Br. at

2-4.) Because Defendant did not reside at the Premises on May 9, 2021, Plaintiff argues it

appropriately disclaimed coverage under the Policy and is entitled to summary judgment on the

matter. Ud.) Defendant disagrees and argues there is evidence in the record that creates a material

factual dispute as to whether he lived at the Premises when the fire occurred, thus precluding

summary judgment. (Def.’s Br. at 5.)

A. THE POLIcy

The following provisions from the Policy are relevant to the current motion. The Policy

covers damage caused by “fire or lightning” to “the dwelling on the “residence premises” shown

in the Declarations; including structures attached to the dwelling... .” (Policy at 26, 29.) In the

Policy, the “residence premises” lists “183 Seaman St, New Brunswick, NJ 08901.” Ud. at 3.)

Several subsections define what constitutes an “insured location.” At its broadest, the Policy

defines “insured location” as:

a. the “residence premises”;

b. the part of other premises, other structures and grounds used by you as a residence; and

(1) Which is shown in the Declarations; or

(2) Which is acquired by you during the policy period for your use as a residence;

c, Any premises used by you in connection with a premises described in a. or b. above;

d. Any part of a premises:

(1) Not owned by an “insured”; and

(2) Where an “insured” is temporarily residing;

e. Vacant land, other than farm land, owned by or rented to an “insured”;

f. Land owned by or rented to an “insured” on which a one, two, three or four family

dwelling is being built as a residence for an “insured”;

nM

g. Individual or family cemetery plots or burial vaults of an “insured”; or

h. Any part of a premises occasionally rented to an “insured” for other than “business” use.

(Ud. at 25.)

The policy further defines “residence premises” as:

a. The one family dwelling where you reside;

b. The two, three or four family dwelling where you reside in at least one of the family

units; or

c. That part of any other building where you reside; and which is shown as the “residence

premises” in the Declarations,

(Id. at 26.)

B. DEFENDANT’S OWNERSHIP OF AND PRESENCE AT THE PROPERTY

As noted above, following the May 9, 2021 fire at the Premises, Defendant notified

Plaintiff and requested coverage under the policy. (Pl.’s SOF §] 1-5 (citing Horan Decl. { 5).)

Thereafter, Plaintiff conducted its own investigation of the claim. U/d. §] 6.) As part of Plaintiff's

investigation, Anthony Horan, Plaintiff's general adjuster, spoke to Defendant on May 11, 2021.

(Horan Decl. { 7.) During this conversation, Defendant informed Horan that he did not reside at

the Premises and that the Premises was a “rental property, which was 100% tenant occupied.”

“After learning that he would not be entitled to coverage if he did not reside at the Premises,”

Defendant recanted his statement and said he lived on the Premises “on the second floor.” Ud. □

8; Pl.’s SOF ¥ 9.)

3 The record references on several occasions that Defendant struggled to speak and understand English and

required his son or a Spanish speaking interpreter to translate. (Def Dep. at 2:9-11, 18:16-17, 31:3-4;

Meisberger Rep. at 3; Def.’s Affid. { 6; Pl. Reply Br. at 4.) It is unclear from the record whether Defendant’s

son translated the conversation between Horan and Defendant as there is no reference in Horan’s report of

who translated; however, Plaintiff's reply brief states that Defendant’s “conversations with the

adjuster/investigator [i.e. Horan], [ | were translated by his son.” (See generally Horan Decl.; Pl. Reply Br.

at 4.)

As part of the investigation, Plaintiff retained David Meisberger, a fire investigator, to help

determine the cause and origin of the fire. (Rep. of David A. Meisberger (““Meisberger Rep.”), Ex.

B to Horan Decl., ECF No. 22-5 at 2.) Meisberger interviewed Defendant on May 12, 2021, with

Defendant’s son translating. (/d.) Defendant stated that “he resides on the first floor of the Premises

but was in the attic in the evening at the time of the fire.” (/d. at 4 (emphasis added).) The New

Brunswick Fire Department interviewed the tenants of the Premises, who said Defendant “was

listed as not living there and he happened to be in the attic at the time of the fire.” Ud. at 5; see

also New Brunswick Fire Dept. Rep. (the “Fire Dept. Rep.”); Ex C. to Horan Decl., ECF No. 22-

6 at 8 (stating that Defendant was the owner of the Premises and was at the Premises the night of

the fire.)) Lastly, the fire report listed a different address at 169 Throop Ave, New Brunswick as

Defendant’s address. (Ex. C at 18.)

Plaintiff also submitted other evidence in the record pertaining to Defendant’s residence.

Defendant’s 2019 and 2020 tax returns list the Premises as a “rental property” and a PO box as his

residence. (2019 Tax Returns, Ex. D to Horan Decl., 22-7 at 5, 8; 2020 Tax Returns, Ex. E to

Horan Decl., 22-8 at 3, 8.) Defendant’s bank statements for May 2021 list “214, Hardy Street, New

Brunswick, New Jersey” as his current residence. (Dep. Tr. Of Defendant (“Def. Dep.”), Ex. F to

Horan Decl., ECF No. 22-9 at 22: 16-19.) Defendant’s license lists the same PO box as his tax

returns for his address. (/d. at 21:2-4.)

In August 2021, Plaintiff interviewed Defendant, under oath and with a Spanish translator

present. (/d. 1, 2:9-10.) During this examination, Defendant averred that his son set up his bank

card and “‘was the one that put [the 214 Hardy Street] address.” Ud. at 22: 13-18.) Defendant further

testified he uses a PO box as his address on his taxes because “the mail gets misplaced [at the

Premises.]” (/d. at 12:5-10.) Further, Plaintiffs attorney asked Defendant how many families lived

in the attic and he responded “no one lived there.” (/d. 10:14-15.) Defendant stated that when the

fire broke out, he was “in the roof” checking papers, which he later clarified as being in the attic.

(Id, 13:15-24.) When asked where he lived on May 9, 2021, Defendant stated that he lived on the

second floor where he had his own bedroom and personal belongings. (/d. at 16:12-22.)

In his interrogatory responses dated January 1, 2023, Defendant stated that he lived in the

attic of the Premises on May 9, 2021. (Def.’s Interrog., Ex. 1 to Decl. of Amir M. Botros (“Botros

Decl.”), ECF No. 22-2 at 6.) Defendant explained that his prior inconsistent responses to

investigators as to where he lived at the Premises resulted from “interpretation issues” because he

“do[es] not speak English very well.” (Def.’s Affid. 6.)

In May 2023, Defendant filed a brief and affidavit in response to Plaintiff's Motion, stating

that he “was included in the fire report as having been in the building at the time of the fire because

[he] was in the attic of [his] residence.” (/d. { 7.) In his affidavit Defendant stated that he “lived in

the attic of [the Premises],...had a bathroom and shower in the basement,” if he got hungry, “[he]

would order food to go to [his] sister’s house to eat,” and he spends time out of the country but

travels “back to New Jersey to visit [his] family, check[s] up with [his] doctor, tenants, and

properties.” Ud. §§ 2, 3.) Defendant reiterated that any contradictory statement was “an

interpretation issue because [he does] not speak English very well.” Ud. J 6.) In Defendant’s brief,

he states that he kept his belongings in the attic. (Def. Br. at 5.)

IL. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that the Court should grant summary judgment

“Sf the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court must “view[] the facts in

the light most favorable to the party against whom summary judgment was entered.” Marino v.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986)). A “material fact” is one that “might affect the outcome of the suit under the

governing law.” Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute”

about a fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” (d.); see also In re CitxCorp., Inc. 448 F.3d 672, 677 (3d Cir. 2006) (“In order

to create a genuine issue of material fact, a [party] must provide sufficient evidence to permit a

factfinder to find in his favor at trial’).

The party moving for summary judgment has the initial burden of establishing its right to

summary judgment. See Celotex Corp., 477 U.S. at 323. To show that a material fact is not

genuinely disputed, it “must... cit{e] to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory answers, or

other materials.” Fed. R. Civ. P. 56(c)(1)(A). The moving party may also meet its burden by

“showing that the materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1)(B). Once the movant meets this threshold burden under Rule 56, the non-moving party

must present evidence to establish a genuine issue as to a material fact. See Anderson, 477 U.S. at

248; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(holding that the non-movant “must do more than simply show that there is some metaphysical

doubt as to material facts”); see also Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d

Cir. 2006) (the non-moving party “must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or oral argument.”),

“T]he mere existence of a scintilla of evidence in support of the plaintiffs position would

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. 242, 252 (1986). “In considering a motion for summary judgment, a district

court may not make credibility determinations, engage in any weighing of the evidence; instead,

the nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in

his favor.’” Marino, 358 F.3d at 247 (quoting Anderson, 477 U.S. at 255).

I. DISCUSSION

The parties’ arguments on summary judgment focus primarily on whether a genuine factual

dispute exists as to whether Defendant lived on the Premises at the time of the fire.’

Plaintiff presents three arguments for why no genuine fact dispute exists and summary

judgment should be granted. First, according to Plaintiff, its SOF should be deemed undisputed

because Defendant failed to file a responsive material statement of fact (“SOF”) pursuant to Local

Civil Rule 56.1 (“R. 56.1”). (PL’s Reply Br. at 1-2.) Because Plaintiff’s undisputed SOF states

that Defendant did not reside at the Premises, no factual dispute exists. (/d.) Second, the “residence

premises” requirement in the Policy is unambiguous and should be applied to bar Defendant’s

coverage because he did not reside at the Premises at the time of the fire. (Pl.’s Br. at 5—6.) Third,

there is insufficient record evidence to corroborate Defendant’s contradictory statements that he

lived in the attic of the Premises at the time of the fire, and thus, such contradictory statements

should be disregarded under the “sham affidavit doctrine.” Ud. at 6-7; Pl.’s Reply Br. at 3-4.)

Defendant counters that there is evidence in the record to support his claims that he lived

at the Premises when the fire occurred, creating a material factual dispute that precludes summary

‘ The parties appear to agree—as does the Court—that a factual dispute as to where Defendant lived at the

time of the fire would be material, as the applicability of the Policy hinges on whether Defendant resided

at the Premises. See (Def.’s Br. at 4; see generally Pl.’s Brief (containing no argument stating Defendant’s

residency is not material).)

judgment. (Def.’s Br. at 5.) The Court addresses each of Plaintiff's arguments in turn and finds

that, in the light most favorable to the Defendant, the record contains sufficient evidence to create

a material fact dispute that precludes summary judgment.

A. RULE 56.1 RESPONSIVE STATEMENT OF MATERIAL FACTS

Pursuant to R. 56.1, a movant for summary judgment must “furnish a statement which sets

forth material facts as to which there does not exist a genuine issue, in separately numbered

paragraphs citing to the affidavits and other documents submitted in support of the motion.” Local

Civ. R. 56.1(a). The non-moving party must then furnish a responsive statement “addressing each

paragraph of the movant’s [statement of facts], indicating agreement or disagreement, and, if not

agreed, stating each material fact in dispute and citing to the affidavits and other documents

submitted in connection with the motion.” Jd. When the non-movant fails to file a responsive

statement of facts pursuant to R. 56.1, the court may deem “‘any material fact not disputed [by the

non-movant] [ ] undisputed for purposes of the summary judgment motion.” J/d.; see also Hill v.

Algor, 85 F. Supp. 2d 391, 408 n. 26 (D.N.J. Jan. 18, 2000) (“[F]acts submitted in the statement

of material facts which remain uncontested by the opposing party are deemed admitted.”); Owens

v. Am. Hardware Mut. Ins. Co., No. 11-6663 2012 WL 6761818 at *2 (D.N.J. Dec. 31, 2021)

(“[A]s the rule makes clear, the nonmoving party must file its own Rule 56.1 statement... .”).

While failure to file a responsive statement of facts is not necessarily fatal, absent compliance with

R. 56.1, “the [c]ourt is left to sift through often voluminous submissions in search of-sometimes

in vain-the undisputed material facts.” Owens, 2012 WL 6761818, at *2—3 (D.N.J. Dec. 31, 2021).

However, the Third Circuit has cautioned against using R. 56.1 as a punishment. See

Boswell v. Eoon, 452 F. App’x 107, 112 Gd Cir. 2011) (“[E]xcus[ing] the non-movant’s failure to

strictly comply with this local rule [and] permitting the non-movant to rely on its briefing and

evidentiary submissions to dispute the movant’s purportedly undisputed material facts” because it

is “consistent with the requirement at summary judgement that federal courts view the fact in the

light most favorable to the non-moving party.”) (quoting Jakimas v. Hoffmann-La Roche. Inc., 485

F.3d 770, 777 (3d Cir, 2007)); see also Dawidoicz v. Rutgers Univ., No. 18-3285, 2022 WL

17094833, at *1 (D.N.J. Nov. 21, 2022) (stating that “failure to comply with Local Civil Rule 56.1

is not fatal in and of itself’).

Turning to Plaintiff?s argument, Plaintiff cites the Court to Callahan vy. U.S. Postal Serv.,

where the non-moving party failed to submit a responsive SOF with his opposition papers and the

court deemed the moving party’s statement of material facts undisputed for summary judgment

purposes. No. 13-3147, 2014 WL 2999066, at *2 (D.N.J. June 25, 2014). The Callahan court

concluded that the non-moving party “failed to raise any material factual dispute and [ | failed to

defeat [the moving party’s] motion for summary judgment.” /d. The Court finds the instant case

distinguishable from Callahan. Notably, the court in Callahan stated that even if the court “were

to overlook [p]laintiffs failure to file a L. Civ. R. 56.1 statement,” the court’s “decision would be

the same.” (Ud)

Unlike Callahan, here, the evidentiary record outside of Plaintiff's SOF contains sufficient

evidence to create a fact dispute. (See Def.’s Interrog. at 6; Policy at 1-3; Fire Dept. Rep. at 8)

(record evidence that Defendant owned the Premises, purchased the Policy, was present in the attic

of the Premises when the fire occurred, and Defendant testified to living in the attic of the Premises

at the time of the fire). Further, while Plaintiff argues that the only conclusion the Court can draw

from its undisputed SOF is that Defendant did not live on the premises, Plaintiff's SOF itself

includes conflicting statements about Defendant’s residency at the Premises on the night of the

fire. (Compare PI.’s SOF 4 9, 10 (“[Defendant] recanted his statement and said that he lived on

the second floor,” and during a subsequent conversation, “|Defendant] stated that he rented one of

the rooms from his tenants” at the Premises), with Rodriguez v. United Prop. & Cas. Ins. Co., No.

18-16939, 2020 WL 13830350, at *2 (D.N.J. Apr. 29, 2020) (finding no dispute of material fact

existed and granting summary judgment to defendant where defendant’s statement of facts clearly

stated that “[p]laintiff never lived on the [p]remises” and plaintiff failed to file a responsive

statement of facts (emphasis added).)

After considering Defendant’s submissions and the record evidence outside Plaintiff's

SOF, the Court finds at least some objective evidence to corroborate Defendant’s interrogatory

response that he resided in the attic of the Premises at the time of the fire. (See Def.’s Interrog. at

6; Policy at 1-3; Fire Dept. Rep. at 8.) In the light most favorable to the Defendant, the fact that

(1) he was present in the attic of the Premises at the time of the fire, (2) is the owner of the Premises

and purchased the Policy for the Premises, and (3) explained that his contradictory responses to

investigators as to where he lived was a function of his limited English language skills, is

independent record evidence that disputes Plaintiff's SOF and supports Defendant’s sworn self-

serving statement that he lived in the attic of the Premises at the time of the fire. 7d; Def.’s Affid.

For these reasons, this Court does not find Defendant’s failure to file a responsive SOF fatal,

and the Court has endeavored to look beyond Defendant’s procedural errors, finding Defendant’s

briefing and evidentiary submissions presents a fact dispute as to where Defendant resided. (/d.;

In Defendant’s response brief, he states for the first time that he “kept his personal belongings in the attic,”

(Def. Br. at 5), although no evidence in the record supports this assertion. Defendant cannot rely on factual

claims raised for the first time in his briefings and legal memoranda with no citation to the record to defeat

the Motion. See Nat’l Ass'n for Advancement of Colored People vy. Cty. of Phila. 834 F.3d 435, 440-41

(3d. Cir. 2016) (citing Berckeley Inv. Grp., Lid. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (“[D]espite

non-moving party receiving the benefit of all factual inferences in the court’s consideration on a motion for

summary judgment, the nonmoving party must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or oral argument.”).

see also Dawidoicz, 2022 WL 17094833, at *1.) Accordingly, the Court does not find Defendant’s

failure to file a responsive SOF mandates a grant of summary judgment.

B. “RESIDENCE PREMISES” REQUIREMENT IS UNAMBIGUOUS

Turning to Defendant’s second argument, under New Jersey law, “an insurance policy is a

contract that will be enforced as written when its terms are clear” such that “the expectations of

the parties will be fulfilled.” Flomerfelt v. Cardiello, 997 A.2d 991, 996 (N.J. 2010), “[T]he words

of an insurance policy are to be given their plain, ordinary meaning.” Zacarias y. Allstate Ins. Co.,

775 A.2d 1262, 1264 (N.J. 2001). Any ambiguity in the contract “is construed liberally in the

insured’s favor.” Longobardi v. Cubb Ins. Co. of N.J., 582 A.2d 1257, 1260 (N.J. 1990). However,

the absence of any ambiguity, courts should not write for the insured a better policy of

insurance than the one purchased.’” /d. “A ‘genuine ambiguity’ arises only “where the phrasing of

the policy is so confusing that the average policyholder cannot make out the boundaries of

coverage.’” Progressive Cas. Ins. Co. v. Hurley, 765 A.2d 195, 202 (N.J. 2001) (quoting Weedo

y. Stone-E-Brick, Inc., 405 A.2d 788, 795 (N.J. 1979)). “Exclusionary clauses are presumptively

valid and are enforced if they are ‘specific, plain, clear, prominent, and not contrary to public

policy.’” Flomerfelt, 977 A.2d at 996 (quoting Princeton Ins. Co. v. Chunmuang, 698 A.2d 9, 17

(N.J. 1997)). Exclusionary clauses that proscribe or limit coverage should be “narrowly construed

[with the] burden on the insurer to bring the case within the exclusion.” Am. Motorists Ins. Co. v.

L-C-A Sales Co., 713 A.2d 1007, 1012 (N.J. 1998) (quoting Princeton Ins. Co., 698 A.2d at 9).

In the instant case, the provision at issue in the Policy is the “residence premises”

requirement, which the parties agree is an exclusionary clause. (PI. Br. at 5.) The parties also agree

that the Policy requires Defendant to “reside” at the Premises at the time of the fire to qualify for

insurance coverage. (See Policy at 26.) Plaintiff argues that because the “residence premises”

requirement is unambiguous and valid, it should be enforced to bar coverage in the instant case.

(Pl. Br. at 5.) In his briefing, Defendant does not claim that the “residence premises” requirement

in the Policy is ambiguous or invalid. (See generally Def.’s Br.) Thus, the Court finds these

arguments have been waived. Woodell v. Coach, No. 22-2222, 2022 WL 17486262, at *3 (D.N.J.

Dec. 7, 2022) (“As [plaintiff] does not address these arguments in his opposition brief, any

arguments in opposition are deemed waived.” (citing Leisure Pass N. Am., LLC vy. Leisure Pass

Grp., Ltd., No. 12-3375, 2013 WL 4517841, at *4 (D.N.J. Aug. 26, 2013))). Moreover, recently,

a court in this district enforced an almost identical “residence premises” requirement to bar

coverage under an insurance policy and found that policy unambiguous. See Rodriguez, 2020 WL

13830350 at *5—6 (finding that “the Policy unambiguously states that it only applies to premises

where the insured resides.”) While the Court agrees with Plaintiff that the “residence premises”

requirement in the Policy is unambiguous, especially in light of Defendant’s failure to argue

otherwise, this does not mean Plaintiff is entitled to summary judgment. The Court must turn to

whether Defendant “resided” at the Premises.*

Whether an individual “resides” at a premises is a fact intensive inquiry. See Gibson, 730

A.2d at 1283 (“[W]hether a relative of a named insured is a resident of that insured’s household

6 Plaintiff cites to New Jersey cases where the court barred coverage under an insurance policy. (Pl.’s Br.

at 5.) However, these cases are easily distinguishable from the instant matter. In Jorio v. Simone, the court

found the contract unambiguous in excluding coverage for bodily injuries caused by an owned recreational

vehicle off the insured premises, See Jorio v. Simone, 773 A.2d 722, 724 (N.J. Super. Ct. App. Div. 2001).

The incident occurred on the public road and not on the insured premises, which was defined in the contract.

Id. Unlike Jorio, where the court found the policy unambiguous as to off-premises incidents and that the

incident occurred off premises, in the instant matter, as will be addressed further below, conflicting

evidence exists as to whether Defendant resided at the Premises. (/d.; Def.’s Interrog. at 6; Policy at 1-3;

Fire Dept. Rep. at 8). For the same reason, the instant case is also distinguished from Rodriguez where the

record was undisputed that plaintiff never lived at the residence. Compare Pl.’s SOF (which states that

“after learning he would not be entitled to coverage if he did not reside at the Premises, [Defendant] recanted

his statement and said that he lived on the second floor’’) with Rodriguez, 2020 WL 13830350, at *2 (where

defendant’s SOF states that “[p]laintiff never lived on the Premises.”’).

‘will depend on the facts of each case.’”) (quoting Sjoberg v. Rutgers Cas. Ins. Co., 615 A.2d 660,

662 (N.J. Super. Ct. App. Div. 1992)). When determining “residency,” New Jersey courts consider

‘whether the person had his/her own bedroom, kept clothing and toiletries in the home,” stored a

car at the home, received mail, spent time, or was registered and insured at the address. Sierfeld v.

Sierfeld, 997 A.2d 1028, 1034 (N.J. Super. Ct. App. Div. 2010) (citing Arents v. General Accident

Ins. Co., 655 A.2d 936, 939 (N.J. Super. Ct. App. Div. 1995); see also Gibson, 730 A.2d at 1284.’

Applying these factors to the instant case, Defendant, as the holder of the Policy was

“registered and insured at the” Premises. (See Policy at 1-3.) Further, Defendant’s interrogatories

stated that he “lived in the attic,” where he was present on the night of the fire. (Def. Interrog. { 2;

Def. Affid. { 6; Meisberger Rep. at 4.) In his affidavit, Defendant explained that the language

barrier is why he gave different answers as to where he lived on the Premises. (Def. Affid. { 6;

Def. Br. at 5.) While the remaining record evidence suggests that Defendant lived elsewhere (e.g.

he receives mail at a PO Box, his bank statements list a different address, and his tax returns and

license list a PO box as his residence), Defendant explains, under oath, why his license, tax returns,

and bank accounts use a different address than the Premises. (See Def. Dep. at 12:5—10, 22:13—

18.) Defendant also provided more detail about his living situation in the attic, claiming that he

“had a bathroom and shower in the basement,” if he got hungry, he would order food and eat at

his sister’s house, and that he spent time outside of the country but would travel back to New

Jersey to check up on his properties and family. (Def. Affid. 4 2, 3.)

The determination of whether Defendant’s explanations are to be believed is the province

of the jury. See Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (“[iJn

7 Plaintiff cites to several New York state and federal court cases to support the proposition that the

“residence premises” provision should bar coverage in the instant case. (ECF No. 22-12 at 5-6.) However,

“various state court decisions from jurisdictions other than New Jersey are not controlling on the issue of

New Jersey law for obvious reasons.” Ronson v. Talesnick, 33 F. Supp. 2d 347, 353 at n.10 (D.N.J. 1999).

determining whether [a] dispute is genuine, the court’s function is not to weigh the evidence or to

determine the truth of the matter, but only to determine whether the evidence of record is such that

a reasonable jury could return a verdict for the nonmoving party.”); see also Peterson v. Lehigh

Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982) (“when there is a disagreement about the facts

or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions

of the parties.”); see also Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 392 d Cir. 1998) (“Had

the district court been sitting as the finder of fact, we would have little trouble in affirming its

decision. However, at the summary judgment stage, the district court improperly weighed

conflicting evidence in granting the defendants’ motion... Accordingly, this court is constrained

to reverse the district court’s decision and remand for further proceedings.”); Nathanson v. Med.

Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991) “Summary judgment may not be granted... if

there is a disagreement over what inferences can be reasonably drawn from the facts even if the

facts are undisputed.’’).

Further, the Court must draw all reasonable inferences and doubts in favor of the non-

movant; the non-movant need only present “enough competent evidence” to enable a favorable

finding. First Am. Bank v. SJP Grp., Inc. Emp. Stock Ownership Tr., No. 17-3778, 2018 WL

5722252, at *3 (D.N.J. Oct. 31, 2018)(emphasis added); see also Ideal Dairy Farms, Inc. v. John

Labatt, Lid., 90 F.3d 737, 744 (3d Cir. 1996) (reversing district court’s grant of summary judgment

because “instead of allowing a jury to decide which interpretation of the facts was correct, the

district court chose . . . an interpretation that favors the movant over the non-movant”). Although

it is a close call, the Court finds there is enough competent evidence in the record, in addition to

Defendant’s self-serving statements, when viewed in the light most favorable to Defendant, to

create a genuine fact dispute. See In re Lemington Home for the Aged, 659 F.3d 282, 290 (3d Cir.

2011) (“For an issue to be genuine, ‘all that is required is that sufficient evidence supporting the

claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions

of the truth at trial.’”) (quoting Anderson, 477 U.S. at 248-49).

C. CONTRADICTORY STATEMENTS AND SHAM AFFIDAVIT DOCTRINE

Turning to Plaintiff's argument regarding the “sham affidavit doctrine,” in considering

whether a genuine dispute of material fact exists, courts may disregard a party’s contradictory

statements or affidavits. See Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) (holding

that “when, without a satisfactory explanation, a nonmovant’s affidavit contradicts earlier

deposition testimony, the district court may disregard the affidavit in determining whether a

genuine issue of material fact exists.”); see Patel v. Venerable Ins. And Annuity Co., No. 20-03226,

2021 WL 3828832 at *3, n. 3 (D.N.J. Aug. 26, 2021). Known as the sham affidavit doctrine, “a

party may not create a material issue of fact to defeat summary judgment by filing an affidavit

disputing his or her own sworn testimony without demonstrating a plausible explanation for the

conflict.” Jiminez y. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007). However, the

Third Circuit observed that “not all contradictory affidavits are necessarily shams.” /d. (citing Baer

v. Chase, 392 F.3d 609, 624 (3d Cir. 2004)). “When there is independent evidence in the record to

bolster an otherwise questionable affidavit, courts generally have refused to disregard the

affidavit.” Baer, 392 F.3d at 625. Further, when an affiant offers a “satisfactory explanation” for

the conflict between the prior deposition and the affidavit, courts will generally not disregard the

affidavit. See Hackman, 932 F.2d at 241.

Plaintiff argues that the “sole evidence cited by [Defendant] is a self-serving affidavit

submitted in opposition to this Motion” which should be disregarded as a sham because it

contradicts Defendant’s prior sworn testimony. (Pl.’s Reply Br. at 2.) The Court is not persuaded.

First, Defendant cited objective evidence from the fire report, which stated he was at the Premises

on the night of the fire. (Fire Dept. Rep. at 6.) This record evidence, along with the objective facts

that Defendant owns the Premises and purchased the Policy, support his statement that he resided

in the attic of the Premises. (See id at 6, 8.) Thus, Defendant’s affidavit does not constitute the

“sole evidence” cited by Defendant to support his contradictory statements. (See id.; Pl.’s Reply

Br. at 2.) Further, Defendant explained that a language barrier resulted in his contradictory

statements regarding where he lived on the night of the fire. (See Def.’s Affid. { 6); see also

Jiminez, 503 F.3d at 254 (holding an “affiant has the opportunity to offer a ‘satisfactory

explanation’ for the conflicting statements) (citing Hackman, 932 F.2d at 241)). In light of the

independent evidence in the record that supports Defendant’s contradictory statements and

Defendant’s explanation as to same, the Court declines to apply the sham affidavit doctrine here.

See Jiminez, 503 F.3d at 253 (noting courts are wary of applying the sham affidavit doctrine when

independent evidence exists in the record to bolster a questionable claim because it ventures into

the “weighing of the evidence” which is “impermissible at the summary judgement stage.”); see

also U.S. v. Morris, 561 F. App’x 180, 185 (3d Cir. 2014.) (“credibility determinations are reserved

for the factfinder.”)

While Defendant may fail to carry his burden at trial, the Court concludes Defendant has

presented enough evidence to withstand summary judgment and send this case to a jury.’

In its Reply Brief, Plaintiff argues for the first time that regardless of whether a factual dispute exists,

Plaintiff is still entitled to summary judgment because the Policy only covers a two-dwelling residence and

Defendant’s claim that he lived in the attic converts the Premises into a three-dwelling residence. (PI. Reply

Br. at 4-5.) However, “a party cannot raise issues for the first time in a reply brief.” Stern v. Halligan, 158

F.3d 729, 731 n. 3 (3d Cir. 1998); see also Ballas vy. Tedesco, 41 F. Supp. 2d 531, 533 n. 3 (D.N.J. 1999)

(“A moving party may not raise new issues and present new factual materials in a reply brief that it should

have raised in its initial brief.” (citing Int’? Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327

n.11 (3d Cir. 1992) (refusing to consider an issue raised for the first time in a reply brief))); see also

Hoxworth y. Blinder, Robinson & Co., Inc., 903 F.2d 186, 204-05 n. 29 (3d Cir. 1990) (same); Ballas □□□

CONCLUSION

For the reasons set forth above, Plaintiff's Motion for Summary Judgment is DENIED. An

appropriate Order will accompany this Opinion. □

ee

| □□

ROBERT KIRSCH

UNITED STATES DistTRICT JUDGE

Dated: August 2, 2024

Tedesco, 41 F. Supp. 2d 531, 533 (D.N.J. 1999) (same); D'Alessandro y. Bugler Tobacco Co., No. 05-5051,

2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (same). The Court will not address Plaintiff's argument

raised for the first time in a Reply brief and finds the existence of a material fact dispute dispositive.