Atlantic Concrete Cutting, Inc. v. Zurich American Insurance Company

NOT FOR PUBLICATION WITHOUT THE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-3358-22

A-3393-22

ATLANTIC CONCRETE CUTTING,

INC., and EVANSTON INSURANCE

COMPANY,

Plaintiffs-Appellants,

v.

ZURICH AMERICAN INSURANCE

COMPANY, AMERICAN GUARANTEE

AND LIABILITY INSURANCE

COMPANY, ALLIANT INSURANCE

SERVICES, INC. and TRAVELERS

INDEMNITY COMPANY OF AMERICA,

Defendants-Respondents.

___________________________________

ATLANTIC CONCRETE CUTTING,

INC., and EVANSTON INSURANCE

COMPANY,

Plaintiffs-Respondents,

v.

ZURICH AMERICAN INSURANCE

COMPANY and AMERICAN

GUARANTEE AND LIABILITY

INSURANCE COMPANY, and ALLIANT

INSURANCE SERVICES, INC.,

Defendants-Respondents,

and

TRAVELERS INDEMNITY COMPANY

OF AMERICA,

Defendant-Appellant.

___________________________________

Argued April 29, 2025 – Decided March 31, 2026

Before Judges Gooden Brown and Smith.

On appeal from the Superior Court of New Jersey, Law

Division, Burlington County, Docket No. L-0742-19.

Jonathan A. Cass argued the cause for Atlantic

Concrete Cutting, Inc., appellant in A-3358-22 and

respondent in A-3393-22 (Cohen, Seglias, Pallas,

Greenhall & Furman, PC, attorneys; Johnathan A. Cass,

on the joint briefs).

Edward M. Koch argued the cause for Evanston

Insurance Company, appellant in A-3358-22 and

respondent in A-3393-22 (White and Williams LLP,

attorneys; Edward M. Koch and Matthew M.

LaMonaca, on the joint briefs).

Frank E. Borowsky, Jr., argued the cause for Travelers

Indemnity Company of America, appellant in A-3393-

22 and respondent in A-3358-22 (Borowsky &

Borowsky, LLC, attorneys; Frank E. Borowsky, Jr., on

the briefs).

A-3358-22

2

Patrick A. Florentino argued the cause for respondents

Zurich American Insurance Company and American

Guarantee and Liability Insurance Company (Coughlin

Midlige & Garland, LLP, attorneys; Karen H. Moriarty

and Patrick A. Florentino, on the briefs).

Matthew S. Marrone argued the cause for respondent

Alliant Insurance Services, Inc. (Goldberg Segalla

LLP, attorneys; Matthew S. Marrone, on the briefs).

The opinion of the court was delivered by

GOODEN BROWN, P.J.A.D.

This appeal arises from a coverage dispute under a commercial "wrap-up

insurance" program for injuries sustained in a construction site accident. "Wrap-

up insurance" is a program of sweeping blanket insurance coverage that protects

the owner, contractors, and tier subcontractors on a large construction project.

3 Hinshaw & Culbertson LLP & Kristina Alexander, California Insurance Law

& Practice § 37.03 (2026). It is often referred to as a contractor-controlled

insurance program (CCIP) or an owner-controlled insurance program (OCIP),

depending on who has secured the coverage, and "can include general liability,

builder's risk, workers' compensation, professional liability, excess, umbrella [,]

and other specialized coverages." Ibid. Wrap-up insurance may reduce the

overall cost of insurance on a project when compared to each participant

A-3358-22

3

procuring its own insurance, and guarantees that all construction participants are

insured, even those with insurability problems. Ibid.

In this appeal, the general contractor, Tutor Perini Building Corp. and

Tutor Perini Corp. (collectively Tutor), was hired to construct a hotel in

Philadelphia. Tutor retained subcontractor C. Abbonizio Contractors, Inc.

(Abbonizio) to perform demolition of existing structures, excavation support,

and underpinning. The contract included a term mandating Abbonizio's

enrollment in a CCIP encompassing three insurance policies: a commercial

general liability (CGL) policy and a workers' compensation policy issued by

defendant Zurich American Company (Zurich), and an excess liability policy

issued by defendant American Guarantee & Liability Insurance Company

(AGLIC) (collectively Zurich unless individually named). The CCIP was

managed and administered by defendant Alliant Insurance Services, Inc.

(Alliant). Although Abbonizio was required to facilitate enrollment in the CCIP

for its tier subcontractors, Tutor alone had the authority to designate and approve

which tier subcontractors were CCIP eligible. The tier subcontractors had to

apply to enroll in the program and then be accepted by Tutor to receive coverage

under the three CCIP policies.

A-3358-22

4

In late June 2015, Abbonizio subcontracted portions of its work to

plaintiff Atlantic Concrete Cutting, Inc. (Atlantic), whose first proposal

included Atlantic's cost for its own insurance. In early July 2015, Tutor sent an

email to Abbonizio, with copy to Atlantic, advising Abbonizio to facilitate

Atlantic's CCIP enrollment and obtain a revised second proposal from Atlantic

deducting its added insurance costs in light of the CCIP policies. Atlantic

complied. Atlantic then sent its CCIP enrollment forms to Alliant and received

a preprinted welcome letter signifying its CCIP enrollment as well as a separate

certificate of insurance (COI) identifying the three CCIP policies.

Within hours, Tutor emailed Alliant declaring that Atlantic was ineligible

and not permitted to enroll in the CCIP. Over the next few days, emails were

exchanged between Tutor, Abbonizio, Alliant, and Atlantic indicating Atlantic

had been enrolled in the CCIP policy in error because it was ineligible for CCIP

enrollment since the scope of its work was demolition. Abbonizio forwarded

emails to Atlantic from Tutor stating that before working on the project, Atlantic

needed to revise its second proposal by adding back the costs of its own

insurance. Atlantic complied and, without objection, submitted a third proposal

and a COI showing its own CGL, excess, and workers' compensation policies.

A-3358-22

5

Months later, in December 2015, Adam Hood, another subcontractor's

employee, was injured on the site and sued Atlantic and others. Zurich and

AGLIC denied Atlantic's request for defense and indemnification under the

CCIP policies. Consequently, Atlantic and its own umbrella/excess insurer,

plaintiff Evanston Insurance Company (Evanston) (collectively plaintiffs unless

individually named), filed suit against Zurich, AGLIC, and Alliant, seeking

declaratory judgment of CCIP coverage and indemnification of the costs and

settlement expenses plaintiffs paid Hood. The Travelers Indemnity Company of

America (Travelers), although named as a defendant, was substantively aligned

with plaintiffs, as it was Atlantic's CGL insurer. Travelers, along with Evanston,

defended Atlantic in the Hood lawsuit and paid the settlement.

All parties moved for summary judgment. The trial judge denied

plaintiffs' and Travelers's motions, but granted Zurich's, AGLIC's, and Alliant's

motions, dismissing the matter with prejudice. Plaintiffs and Travelers

separately appealed, plaintiffs in A-3358-22 and Travelers in A-3393-22. In

their appeals, they contend there were genuine issues of material fact as to

whether Atlantic continued to be enrolled in the CCIP when Hood's accident

occurred. They also assert the judge misapplied the law. We consolidate the

appeals for purposes of issuing a single opinion and affirm.

A-3358-22

6

I.

A. The Construction Project and Parties.

We glean these facts from the motion record. In 2015, Tutor served as the

general contractor for the construction of the W/Element Hotel, a proposed fifty-

two-story hotel located at 1441 Chestnut Street in downtown Philadelphia.

Tutor is an Arizona corporation. By subcontract agreement issued on April 16,

2015, and signed by both parties the first week in June 2015, Tutor retained

subcontractor Abbonizio, a New Jersey corporation, to perform

"[e]arthwork/support of excavation (SOE) and [u]nderpinning [work]" at the

site. The subcontract agreement described the scope of work but was "not

intended to be all-inclusive or . . . limit[ing]."

The scope of work involved demolishing the existing foundations and

installing new structural support before erection of the new building.

Specifically, the agreement's "Exhibit 'A,'" entitled "SCOPE OF WORK:

Earthwork/SOE/Underpinning Work," stated:

A. GENERAL STANDARD ITEMS TO THE SCOPE

OF WORK:

....

2. [The s]ubcontractor acknowledges that the

[c]ontractor has procured a . . . [CCIP] for this [p]roject.

Prior to the commencement of any work on this

[p]roject, [the s]ubcontractor agrees to submit all

A-3358-22

7

necessary enrollment forms in order to be accepted into

the CCIP and to adhere to all rules, requirements and

regulations of the CCIP, all as more fully set forth in

the CCIP Insurance Procedures Manual and Schedule

"B." Notwithstanding the CCIP [p]rogram, [the

s]ubcontractor shall nevertheless be required to

maintain certain coverages as specified in Schedule "B"

and the CCIP Insurance Procedures Manual. [The

s]ubcontractor represents it has familiarized itself with

these provisions and shall fully comply therewith. Th[e

s]ubcontractor certifies that the [s]ubcontract sum

stated herein does not include costs for insurance

coverages provided under the CCIP.

....

B. SCOPE OF WORK TRADE RELATED ITEMS:

1. Provide all work including labor, material,

accessories, equipment and supervision necessary to

complete the [e]arthwork, [SOE], and [u]nderpinning

. . . as more specifically defined in the following

Specification Sections:

. . . Selective Demolition

....

2. Site [d]emolition as indicated on the contract

documents including but not limited to asphalt [and]

concrete walks, curbs, fence, walls, bollards, lights

[and] foundations, inlets, signage, wheel stops, street

trees, guard rails, bike racks, and banner poles.

[(Emphasis added).]

A-3358-22

8

B. CCIP Structure and Insurance Requirements.

A crucial amendment to the subcontract agreement, entitled "Attachment

3," established and detailed the CCIP and its insurance requirements.

Attachment 3 also named Alliant as "CCIP Administrator" for the project and

stated in pertinent part:

1. Contractor Controlled Insurance Program: Tutor[,]

. . . also referred to herein as "Contractor," shall

implement a [CCIP] . . . for the [p]roject. The CCIP is

more fully described in the insurance manual . . . for the

[p]roject, which is incorporated herein by this reference

as a [c]ontract [d]ocument. Tutor . . . , has designated

Alliant . . . as the CCIP Administrator ("CCIP

Administrator") for the [p]roject. The CCIP will

include [w]orkers' [c]ompensation and [e]mployer's

[l]iability insurance, [CGL] insurance, and [e]xcess

[l]iability insurance, as summarily described below, in

connection with the [p]roject. The insurance provided

under the CCIP shall be referred to herein as "CCIP

Coverages."

2. Eligible and Enrolled Parties: Parties eligible to

enroll in the CCIP are the Contractor, and

[s]ubcontractors performing a portion of the [w]ork on

the [p]roject site ("Eligible Parties"). Upon enrollment,

an Eligible Party shall become an "Enrolled Party."

3. Excluded Parties: Parties that are not eligible to

enroll in the CCIP, and who are excluded from the

CCIP, are:

(a) Hazardous materials remediation,

removal and/or transport companies and

their consultants;

A-3358-22

9

(b) Architects, surveyors, engineers, and

soil testing engineers, and their

consultants;

(c) Vendors, suppliers, fabricators,

material dealers, truckers, haulers, drivers

and others who merely transport, pick up,

deliver, or carry materials, personnel, parts

or equipment, or any other items or persons

to or from the [p]roject site;

(d) Any [s]ubcontractor of any tier that

does not perform any actual labor on the

[p]roject site;

(e) Any other party or entity not

specifically identified herein, that is

excluded by Tutor . . . in its sole discretion,

even if such party or entity is otherwise

eligible.

4. Summary of CCIP Coverages: The policies shall be

the primary source of information regarding the

coverage afforded by the CCIP. The CCIP [c]overages

shall apply only to those operations of each Enrolled

Party performed at the [p]roject site in connection with

the [w]ork, and only to Enrolled Parties that are eligible

for the CCIP. CCIP [c]overages shall not apply to

ineligible parties, even if they are erroneously enrolled

in the CCIP.

[(Fourth, fifth, and seventh emphasis added) (emphasis

omitted).]

Attachment 3 also obligated Abbonizio to, among other things: (1)

"incorporate by reference the insurance requirements set out in . . . Attachment

A-3358-22

10

3, into all of its lower tier subcontract agreements"; (2) "ensure that all of its

lower tier [s]ubcontractors who are Eligible Parties enroll in the CCIP prior to

their commencement of construction activities at the [p]roject"; and (3) "provide

to each of its [s]ubcontractors of every tier a copy of . . . Attachment 3 and the

[i]nsurance [m]anual."

Attachment 3 further stated that Abbonizio "shall acknowledge, and

require all of its [s]ubcontractors of every tier to acknowledge in writing, that

Tutor . . . and the CCIP Administrator are not agents, partners or guarantors of

any CCIP insurer," and that Tutor "may, for any reason, modify the CCIP

[c]overages, discontinue the CCIP, or request that any [s]ubcontractor of any

tier withdraw from the CCIP upon thirty . . . days['] written notice."

As to "Cost of Work," Attachment 3 stated that "[e]ligible

[s]ubcontractors (and each of its lower tier [s]ubcontractors) shall exclude from

their bids all costs of insurance coverage provided under the CCIP (Cost of CCIP

Coverages)." The "Cost of CCIP Coverages" was defined in Attachment 3 "as

the amount of [a s]ubcontractor's reduction in insurance costs due to eligibility

for the CCIP, and includes reduction in insurance premiums." By contrast,

Attachment 3 stated that "Excluded Parties" had to provide all of their own

insurance coverages for "both on-site and off-site activities," which included,

A-3358-22

11

but was not limited to, workers' compensation insurance, CGL insurance, and

umbrella/excess liability insurance. Excluded parties were required to deliver

to Alliant the certificates of insurance evidencing those coverages prior to

commencing work on the project.

Finally, Attachment 3 contained an "Order of Precedence" provision

stating:

In the event of a conflict between the provisions of this

Schedule, the [i]nsurance [m]anual, and the provisions

of the CCIP . . . policies, the terms of the CCIP . . .

[p]olicies shall govern, then the provisions of this

Attachment 3, then the provisions of the [i]nsurance

[m]anual.

A CCIP Insurance Procedures Manual dated April 16, 2015 (CCIP

Manual), was made part of the Tutor-Abbonizio subcontract agreement and

expressly identified as one of the "Contract Documents." The CCIP Manual

reiterated the conflict precedence order, stating in its introduction:

The guidelines in this manual are to be used for

informational purposes only. Any conflict between this

document and any contract or subcontract, the contract

or subcontract will govern. Any conflict between this

manual and the actual CCIP policies, the policies will

govern. Please refer to Attachment 3 for the order of

precedence.

[(Emphasis omitted).]

A-3358-22

12

The CCIP Manual also stated its purpose was to describe the CCIP,

identify the various parties' responsibilities, provide a basic description of the

CCIP operation, describe audit and administration procedures, and provide

answers to basic questions about the CCIP. The CCIP Manual did not provide

"coverage interpretations," "complete information about [the] insurance policies

affording coverage," or "answers to specific claims questions."

The CCIP Manual's "Overview" in Section 1.1 stated:

Tutor . . . (Sponsor) has elected to use a [CCIP] . . . for

the 1441 Chestnut Street [p]roject . . . . Under such a

program, the Sponsor purchases certain insurance

policies for protection of some (but not all) of the

insurable risks that exist on a construction project. The

insurance purchased by the Sponsor will be endorsed to

extend coverage of the policy to any enrolled

[s]ubcontractors. . . .

Each bidder is required to exclude from their

bid/subcontract price its Cost of CCIP Coverages.

The CCIP provides the following insurance for all

[s]ubcontractors, regardless of tier, who are eligible and

approved for participation in the insurance program:

• Commercial General

• Workers' Compensation and Employer's Liability

• Excess Liability

Certain [s]ubcontractors are ineligible for this program.

These parties are identified in the Definitions, Section

3.0 of this manual.

A-3358-22

13

The Sponsor will pay all insurance premiums for the

CCIP coverage listed above. Eligible and enrolled

subcontractors should notify their insurer(s) of this

program and delete from their insurance program

charges and coverages for the on-site activities of this

[p]roject that are covered under the CCIP.

Alliant, the CCIP . . . Administrator, will be

administering the program on . . . behalf of the Sponsor.

[(Emphasis omitted and added).]

The CCIP Manual in Section 5.2, entitled "Enrollment," declared

"[e]nrollment into the CCIP is required but not automatic." It provided:

Eligible [s]ubcontractors must complete the enrollment

form online . . . and participate in the enrollment

process for the CCIP coverage to apply. Access to the

project site will not be permitted until the enrollment is

complete.

Section 3.0, entitled "PROJECT DEFINITIONS," listed the following

definitions applicable to the project and the CCIP Manual's descriptions of

coverage:

[COI]:

A [d]ocument providing evidence of the existence of

coverage for a particular insurance policy or policies.

....

Contract:

A written agreement between the Sponsor and the

[s]ubcontractor for specific work and also includes an

A-3358-22

14

agreement between a [s]ubcontractor and any tier of

[s]ubcontractor.

....

Enrolled:

Eligible [s]ubcontractors and [s]ub-[s]ubcontractors

that have submitted all necessary enrollment forms and

documents, and have been accepted into the CCIP as

evidenced by a [COI]. Also described in this manual as

a [p]articipating [s]ubcontractor.

Ineligible:

Applies to [s]ubcontractors of any tier who are

excluded from participation in the CCIP, including

those involved in loading, transporting, and unloading

materials, personnel, parts, or equipment, or any other

items to, from or within the [s]ite.

Insured:

The Sponsor, [p]articipating [s]ubcontractors, and any

other party so named in the insurance policy.

....

Sponsor:

Tutor . . . .

[(Boldface and italicization omitted).]

The CCIP Manual's Sections 4.0, entitled "INSURANCE COVERAGE,"

and 4.1, entitled "Covered Parties," stated in part, that

[a s]ubcontractor or [s]ub-[s]ubcontractor shall not be

deemed to be a [p]articipating [s]ubcontractor and shall

not be permitted to work on the project until enrolled in

the CCIP by the [p]rogram [a]dministrator. Enrollment

A-3358-22

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will be established only upon issuance by the [p]rogram

[a]dministrator of a CCIP [COI] to the [p]articipating

[s]ubcontractor.

[(Emphasis omitted).]

According to the CCIP Manual's Section 4.2, entitled "Parties Not

Covered," the parties that were not covered by the CCIP included "all vendors,

suppliers, truckers, material dealers, any contractors performing abatement or

otherwise working with hazardous materials, and delivery services companies,

regardless of contract size." These "[n]onparticipating [s]ubcontractors" of any

tier would "not be permitted to work on the [p]roject" until they provided Alliant

proof of their own certificates of insurance and endorsements. In addition, the

CCIP Manual expressly stated: "Tutor . . . has the right to include or exclude

ANY SUBCONTRACTOR of ANY tier from participating in the CCIP at their

sole discretion."

Additionally, in Section 4.3, entitled "Evidence of CCIP Coverage," the

CCIP Manual read:

Each [p]articipating [s]ubcontractor will be issued a

[w]orkers' [c]ompensation policy, including

[e]mployer's [l]iability coverage. The CCIP [p]rogram

[a]dministrator will also provide a [COI] evidencing

[g]eneral [l]iability, and [e]xcess [l]iability insurance to

each [p]articipating [s]ubcontractor, each of whom will

be a named insured on the policy. Other documentation

including forms, posting notices, if any, will be

A-3358-22

16

furnished to each [p]articipating [s]ubcontractor. A

complete copy of the [p]olicy will be furnished to an

authorized representative of each [p]articipating

[s]ubcontractor upon written request.

[(Emphasis omitted).]

As for CCIP termination or modification, the CCIP Manual stated in

Section 4.4, entitled "CCIP Termination or Modification":

The Sponsor reserves the right to terminate or modify

the CCIP or any portion thereof. If the Sponsor

exercises this right, subcontractors will be provided

with at least [thirty] days['] notice of cancellation. At

its option, Sponsor may procure alternate coverage or

may require the [s]ubcontractors to procure and

maintain alternate insurance coverage. Sponsor shall

identify the details and limits of such alternate

insurance coverage to [c]ontractor with its written

notice of CCIP [t]ermination. The form, limits of

liability and cost of such insurance and the insurer

issuing such insurance to [s]ubcontractors will be

subject to Sponsor's approval.

Should coverage be cancelled by the insurer, [thirty]

days['] written notice will be provided per the contract.

Initially, Zurich provided an insurance binder to Tutor for its proposed

CCIP policies, which was entitled, "Zurich in North America [CCIP]

Confirmation of bound program." The binder began by stating:

This binder expires on . . . 02/28/2014. This is a binder

for insurance. This is not an insurance policy. Any

coverage description shown may be an abbreviated title

and does not indicate in-force coverage. Only the

A-3358-22

17

policy itself provides coverage. This binder is not a

part of and is not incorporated into the insurance policy.

If there is any conflict between the coverage

descriptions shown in this proposal and the actual

insurance policy, the insurance policy prevails. The

insurance policy supersedes this binder.

....

Zurich has prepared this binder in response to your

submission requesting insurance coverage for specific

lines of business. This binder is based on all of the lines

of insurance in your submission. In the event you

subsequently request a proposal for lines of business

that differs from a prior submission, Zurich reserves the

right to review and revise the terms and pricing of this

binder.

One of the binder's sections, entitled "COMMENTS/RESTRICTIONS/

QUOTE SUBJECT TO," provided in part:

Enrollment in the Workers' Compensation program

automatically enrolls the subcontractor in the General

Liability portion of the program. If a subcontractor is

not enrolled in the Workers' Compensation program

there will be no coverage provided under the General

Liability program until such time as that subcontractor

is specifically approved and endorsed onto the General

Liability policy by the Zurich underwriter.

Another section of the binder, entitled "Schedule of Named Insureds ,"

provided, in part:

UNLESS OTHERWISE ENDORSED ON THIS

POLICY, NO COVERAGE WILL BE PROVIDED TO

VENDORS, SUPPLIERS, MATERIAL DEALERS,

A-3358-22

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ABATEMENT CONTRACTORS, TEMPORARY

LABOR SERVICES, DEMOLITION, OR OTHER

HAZARDOUS WASTE REMOVAL

CONTRACTORS WHO VISIT, MAKE DELIVERIES

TO OR WORK TEMPORARILY AT THE PROJECT

SITE(S).

[(Emphasis added).]

Zurich issued CGL Policy No. GLO 5819877-00 to Tutor, effective

December 23, 2013 to December 23, 2018, with policy limits of $2 million for

each occurrence and $4 million in the general aggregate. Tutor was listed as the

"Named Insured" on the "COMMON POLICY DECLARATIONS" and

"COVERAGE PART DECLARATIONS," and Alliant was listed as "Producer."

Notably, the CGL policy contained a "Sole Agent for Insureds"

endorsement, which provided:

SOLE AGENT FOR INSUREDS

THIS ENDORSEMENT MODIFIES INSURANCE

PROVIDED UNDER THE:

COMMERCIAL GENERAL LIABILITY

COVERAGE PART

IT IS AGREED THAT THIS POLICY IS ISSUED AT

THE DIRECTION OF THE FIRST NAMED

INSURED, WHICH SHALL BE SOLELY

RESPONSIBLE FOR THE PAYMENT OF

PREMIUMS AND LOSSES UNDER THE

DEDUCTIBLE AMOUNT AS OUTLINED IN THE

POLICY AND SHALL HAVE OTHER POLICY

A-3358-22

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RIGHTS TO ACT ON BEHALF OF INSUREDS. THE

INSUREDS HAVE ASSIGNED TO THE FIRST

NAMED INSURED:

1. THE RIGHTS, TITLE, AND

INTEREST TO RECEIVE ANY AND

ALL RETURN OF PREMIUM,

DIVIDENDS, DISCOUNTS OR OTHER

ADJUSTMENTS; AND

2. THE RIGHT TO REQUEST

CANCELLATION OF THE POLICY;

AND

3. AUTHORIZATION TO ACT ON

THEIR BEHALF AS RESPECTS [sic]

CHANGES TO ANY PROVISIONS OF

THIS INSURANCE POLICY.

WE CONSENT TO SUCH ASSIGNMENT OF

RIGHTS, TITLE AND INTEREST.

OTHER TERMS

ALL OTHER TERMS AND CONDITIONS OF THE

POLICY NOT CHANGED BY THE PROVISIONS OF

THIS ENDORSEMENT CONTINUE TO APPLY AS

CURRENTLY WRITTEN.

It was undisputed that Tutor, which paid the policy premiums, was the First

Named Insured under this Sole Agent for Insureds endorsement.

Zurich's CGL policy also had a "Joint Defense – Wrap Up" endorsement,

which provided:

A-3358-22

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JOINT DEFENSE – WRAP UP

THIS ENDORSEMENT MODIFIES INSURANCE

PROVIDED UNDER THE:

COMMERCIAL GENERAL LIABILITY

COVERAGE PART

THE FOLLOWING IS ADDED TO SECTION IV –

COMMERCIAL GENERAL LIABILITY

CONDITIONS:

7. SEPARATION OF INSUREDS PART B. IS

REPLACED WITH THE FOLLOWING:

B. SEPARATELY TO EACH INSURED

AGAINST WHOM CLAIM IS MADE OR

"SUIT" IS BROUGHT, HOWEVER;

(1) ABSENT AN ACTUAL CONFLICT

OF INTEREST BETWEEN TWO

INSUREDS, WE SHALL HAVE THE

RIGHT TO RETAIN ONE COUNSEL TO

DEFEND ALL SUCH INSUREDS IN A

JOINT DEFENSE.

AN ACTUAL CONFLICT OF INTEREST

SHALL BE DEEMED TO EXIST ONLY

WHEN THE FOLLOWING

CIRCUMSTANCES EXIST:

(A)[] AN INSURED AGAINST

WHOM CLAIM IS MADE OR "SUIT" IS

BROUGHT PERFORMED WORK OR

FURNISHED MATERIALS, PARTS OR

EQUIPMENT IN CONNECTION WITH

SUCH WORK ON A SPECIFIC

PORTION OF THE CONSTRUCTION

A-3358-22

21

PROJECT ON WHICH ANY OTHER

INSURED ALSO PERFORMED WORK

OR FURNISHED MATERIALS, PARTS

OR EQUIPMENT IN CONNECTION

WITH THAT SAME SPECIFIC

PORTION OF THE CONSTRUCTION

PROJECT; AND

(B)[] AN APPORTIONMENT OF

RESPONSIBILITY WILL OCCUR

BETWEEN THE INSUREDS FOR

"BODILY INJURY" OR "PROPERTY

DAMAGE" ALLEGED TO HAVE BEEN

CONCURRENTLY, JOINTLY OR

CONSECUTIVELY CAUSED IN

CONNECTION WITH THAT SAME

SPECIFIC PORTION OF THE

CONSTRUCTION PROJECT.

(2) AN ACTUAL CONFLICT OF

INTEREST MAY BE WAIVED BY THE

INSURED IN WRITING.

Zurich's CGL policy also contained an endorsement entitled "COMMON

POLICY CONDITIONS," which stated:

A. Cancellation

1. The first Named Insured shown in the Declarations

may cancel this policy by mailing or delivering to us

advance written notice of cancellation.

2. We may cancel this policy by mailing or delivering

to the first Named Insured written notice of cancellation

at least:

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a. [ten] days before the effective date of

cancellation if we cancel for nonpayment

of premium; or

b. [thirty] days before the effective date of

cancellation if we cancel for any other

reason.

3. We will mail or deliver our notice to the first Named

Insured's last mailing address known to us.

4. Notice of cancellation will state the effective date of

cancellation. The policy period will end on that date.

5. If this policy is cancelled, we will send the first

Named Insured any premium refund due. If we cancel,

the refund will be pro rata. If the first Named Insured

cancels, the refund may be less than pro rata. The

cancellation will be effective even if we have not made

or offered a refund.

6. If notice is mailed, proof of mailing will be sufficient

proof of notice.

[(Boldface omitted).]

The policy also had an endorsement entitled, "Earlier Notice of Cancellation or

Non-Renewal," which raised the number of days required for a notice of

cancellation "[f]or any statutorily permitted reason for cancellation other than

nonpayment of premium" to ninety days.

Another COMMON POLICY CONDITION, "Changes," read:

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23

B. Changes

This policy contains all the agreements between you

and us concerning the insurance afforded. The first

Named Insured shown in the Declarations is authorized

to make changes in the terms of this policy with our

consent. This policy's terms can be amended or waived

only by endorsement issued by us and made a part of

this policy.

[(Boldface omitted).]

Zurich's CGL policy also had an endorsement entitled, "Named Insured –

[CCIP]," that provided:

THIS ENDORSEMENT CHANGES THE POLICY.

PLEASE READ IT CAREFULLY.

This endorsement modifies insurance provided under

the:

Commercial General Liability Coverage Part

A. The following is added to Section II–Who Is An

Insured:

1. Subject to Paragraph 2[] below, a

contractor of any tier, including the person

or organization designated in the

Declarations of this policy will qualify as a

Named Insured, if such contractor:

a. Is enrolled in the [CCIP] for

which this policy is provided;

and

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24

b. Performs operations at a

"designated project[."]

2. Unless added by separate endorsement,

the following are not an insured under this

policy:

a. Vendors, suppliers, material

dealers, abatement

contractors, blasting

contractors, delivery persons,

haulers, hazardous waste

removal contractors;

b. Any person or organization

that manufactures or fabricates

products or components

outside the "designated

project" that does not also

install the product or

component at the "designated

project"; or

c. Any contractor or other

person or organization that

does not have dedicated

payroll for employees on-site

at the "designated project[."]

B. For purposes of this endorsement, "designated

project" is defined in the Limitation of Coverage to

Designated Project(s) endorsement (U-GL-1305)

attached to this Coverage Part.

All other terms and conditions of this policy remain

unchanged.

[(Emphasis added).]

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25

An endorsement entitled, "Additional Insured – Automatic – Owners,

Lessees Or Contractors – Products-Completed Operations Liability

Amendment," stated:

This endorsement modifies insurance provided under

the:

Commercial General Liability Coverage Part

A. Section II – Who is An Insured is amended to

include as an insured any person or organization who

you are required to add as an additional insured on this

policy under a written contract or written agreement.

However, if you have entered into a construction

contract or construction agreement with an additional

insured person or organization, the insurance afforded

to such additional insured only applies to the extent

permitted by law.

[(Boldface omitted).]

In addition to these endorsements, Zurich's CCIP CGL policy contained

endorsements that modified, among other items, the common policies for

cancellation and nonrenewal for multi-state risks in California, Louisiana,

Florida, and Texas, and an endorsement for railroad contracts. The policy and

its related CCIP policies covered multiple projects in various states over the

course of five years.

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26

AGLIC issued a "Straight Excess Liability Policy," No. SXS 5819649-00,

to Tutor effective December 23, 2013, to December 23, 2018, with policy limits

of $25 million per occurrence. The policy also included endorsements for

cancellation and nonrenewal for policies in California.

C. Atlantic's CCIP Enrollment and Exclusion.

On June 24, 2015, emails were exchanged between Anne Lorenz, Tutor's

health risk manager, and her boss, Michelle Luster, about Abbonizio's work at

the W/Element Hotel. Lorenz wrote: "Abbonizio is enrolled in the CCIP for

their earthwork. Please confirm that you agree that a separate subcontract will

have to be issued for the demolition work here designating them as an excluded

party for this work." Luster responded, "Agreed. Based on the scope of work I

read, this would be an excluded scope."

On June 26, 2015, Atlantic submitted its first proposal for concrete cutting

services to Tutor, Proposal 106439 (Proposal One), with a contract price of

$22,900. Proposal One described two types of proposed work: (1) one day for

"[h]and sawing, chipping, and breaking" pockets of "concrete slab to expose

steel reinforcement" (one person at $1,900 per day); and (2) six days for "[two]

union laborers" "to complete wall sawing, hand sawing, chipping, and breaking

150' concrete wall at property line" at the adjacent Ritz Hotel property, to

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27

include "'shaving' of vertical wall at 'high' spots to create clean edge at property

line limits and flush cut wall sawing concrete slab overhang to match vertical

wall limits." Jeffrey Boggs, Atlantic's project manager, explained that an

encroaching retaining wall belonging to the next-door Ritz Hotel had been

uncovered during excavation and needed to be removed.

On July 9, 2015, Jim Brown, Tutor's General Superintendent, sent an

email to Peter Abbonizio and Boggs, advising Abbonizio to enroll Atlantic in

the CCIP and have Atlantic revise its proposal, deducting the costs of its own

insurance. On July 21, 2015, Abbonizio sent an email to Atlantic, requesting

a status update on the revised proposal and providing Atlantic with the CCIP

paperwork, including copies of Attachment 3 and the CCIP Manual. Later

the same day, Atlantic sent Abbonizio its second proposal, Proposal 106846

(Proposal Two), with a contract price of $22,200, describing work identical to

Proposal One, but reducing the prices charged per day by $100 for each job.

In a July 28, 2015 email, Abbonizio sent a "Notice of Subcontractor

Award (Form F)" to Atlantic and Alliant to begin Atlantic's CCIP enrollment

process. The bottom of Form F stated in a pre-printed note:

Please Note: It is the responsibility of the [c]ontractor

awarding [the s]ubcontract to ensure that their tier

sub(s) fill out, maintain, and file all necessary Wrap-up

Enrollment forms and insurance documentation with

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28

the Wrap-up Administrator. No hired tier sub may

commence work until they are properly enrolled into

the Wrap-up program, as evidenced by a [COI]

provided by the Wrap-up Administrator.

[(Emphasis omitted).]

The next day, July 29, 2015, Abbonizio issued to Atlantic a purchase order

corresponding to the work and amount listed in the second proposal, which

stated:

Description: SAW CUTTING

Scope: Daily rates for [s]aw cutting to expose steel

reinforcement and breaking 150' concrete wall at

property line of Ritz will include all union labor,

equipment and materials to complete.

The purchase order generally described the three types of work to be performed

by Atlantic as: (1) "Hand sawing, chipping [and] breaking [five] pockets x

concrete slab to expose steel reinforcement"; (2) unspecified down time; and (3)

shaving of the vertical wall "high" spots "to create [a] clean edge at [the]

property line of [the] Ritz" and "flush cut wall sawing concrete slab overhang to

match vertical wall limits."

The same day, July 29, 2015, Nancy Dimacale, an Atlantic employee,

submitted to Alliant a "Contractor Enrollment Form (Form A)," which described

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29

Atlantic's proposed work as "[c]oncrete construction." The form did not

reference demolition. The bottom of Form A stated in a pre-printed note:

Note: Tutor . . . reserves the right to determine who

participates in the Wrap-Up Insurance Program. I agree

that the following insurance charges will be added to

my base bid if I am excluded from the Wrap-Up.

As required, Dimacale also prepared an "Alliant Insurance Cost

Worksheet (Form B)," which described the proposed work under Workers'

Compensation Classification Code 0654, a classification for "Concrete

Const[ruction] NOC." Form B further detailed Atlantic's gross contract value

as $24,590, which included its insurance costs added to a net contract value of

$22,200.

In response, in a correspondence dated July 30, 2015, Dennis McGowan,

Alliant's Program Administrator, sent Dimacale an auto-generated "Welcome

Letter" with an attached COI confirming Atlantic's CCIP enrollment. The

Welcome Letter stated:

You may start work on site no earlier than: 08/03/2015.

Your enrollment into the [CCIP] for your work

performed under [c]ontract [n]umber 1441-103-04 has

been completed. The attached insurance certificate is

provided to evidence your coverage for Workers'

Compensation, General Liability, and Excess/Umbrella

while working at the 1441 Chestnut project site . . . .

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30

The COI, dated July 30, 2015, identified Alliant as "producer," Atlantic

as "insured" and "certificate holder," and Zurich and AGLIC as "insurer(s)

affording coverage." The certificate also identified the three CCIP policies with

the same policy numbers as Tutor's master policies. The COI further stated in

pre-printed language:

THIS CERTIFICATE IS ISSUED AS A MATTER OF

INFORMATION ONLY AND CONFERS NO

RIGHTS UPON THE CERTIFICATE HOLDER.

THIS CERTIFICATE DOES NOT AFFIRMATIVELY

OR NEGATIVELY AMEND, EXTEND OR ALTER

THE COVERAGE AFFORDED BY THE POLICIES

BELOW. THIS [COI] DOES NOT CONSTITUTE A

CONTRACT BETWEEN THE ISSUING

INSURER(S), AUTHORIZED REPRESENTATIVE

OR PRODUCER, AND THE CERTIFICATE

HOLDER.

....

THIS IS TO CERTIFY THAT THE POLICIES OF

INSURANCE LISTED BELOW HAVE BEEN

ISSUED TO THE INSURED NAMED ABOVE FOR

THE POLICY PERIOD INDICATED.

NOTWITHSTANDING ANY REQUIREMENT,

TERM OR CONDITION OF ANY CONTRACT OR

OTHER DOCUMENT WITH RESPECT TO WHICH

THIS CERTIFICATE MAY BE ISSUED OR MAY

PERTAIN, THE INSURANCE AFFORDED BY THE

POLICIES DESCRIBED HEREIN IS SUBJECT TO

ALL THE TERMS, EXCLUSIONS AND

CONDITIONS OF SUCH POLICIES. LIMITS

SHOWN MAY HAVE BEEN REDUCED BY PAID

CLAIMS.

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31

Under the certificate's section entitled, "DESCRIPTION OF

OPERATIONS/LOCATIONS/VEHICLES," was printed:

Coverage is limited to work performed at the Tutor . . .

1441 Chestnut . . . under contract 1441-103-04. The

[g]eneral and [u]mbrella limits and aggregates are

shared by all enrolled contractors on this project. An

individual [w]orkers['] [c]omp[ensation] [p]olicy will

be issued in the name of the enrolled contractor.

[(Emphasis added).]

The certificate also provided an additional pre-printed cancellation requirement

as follows:

SHOULD ANY OF THE ABOVE[-]DESCRIBED

POLICIES BE CANCELLED BEFORE THE

EXPIRATION DATE THEREOF, NOTICE WILL BE

DELIVERED IN ACCORDANCE WITH THE

POLICY PROVISIONS.

Soon after receiving McGowan's email and attachments, Tutor's Lorenz

emailed several people, including Atlantic's Boggs, Benjamin Faust, Alliant's

CCIP Program Manager, and Peter Abbonizio, clarifying that Atlantic was not

permitted to enroll in the CCIP. Lorenz's email stated:

[I]f the Atlantic . . . work referred to below is the Ritz

work then please note that since it involves structural

demolition, Atlantic will not be able to enroll into the

CCIP for that work. We cannot enroll subcontractors

into the CCIP who are performing structural

demolition.

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32

Thereafter, in an August 3, 2015 email, Dennis Mickeleit, Tutor's

construction site manager, emailed Alliant's Faust that because Atlantic "is

performing structural demo on the job, they shouldn't be enrolled ." On the

same day, Tutor's Mickeleit also emailed Abbonizio and provided additional

documents related to the project requirements for the proposed work at the

property line with the neighboring Ritz Hotel. "Exhibit []A[] . . . Scope of

Work" addressed the work on the "Ritz Retaining Wall/One Story Structure/Dog

Walk (trespass) Work," describing the work to be completed as "110 [linear feet]

saw cutting as directed by [c]ontractor's superintendent" and "provide [four to

six] test locations (chip out concrete structure to locate steel rebar) in accordance

with Thornton Thomasetti['s] inspection services report[]."

Exhibit A further stated in Paragraph A.2. that "Subcontractor

[Abbonizio] acknowledges that for the work of this [s]ubcontract, it is an

excluded party under the . . . [CCIP] for this [p]roject," and was required to

submit a COI providing its own insurance coverage "prior to the commencement

of any work under this [s]ubcontract." Paragraph B.6. stated "Subcontractor

[Abbonizio] acknowledges that Atlantic . . . is also an excluded party under the

CCIP," which must "comply with all insurance requirements set forth in the

CCIP [] Manual and Schedule 'B' as an excluded party."

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33

Shortly after receiving Mickeleit's email and attachments, Peter

Abbonizio forwarded them to Atlantic's Boggs, stating: "I just got this from

[Tutor], you need to revise your [second] proposal and add for the insurance.

Also[,] please make sure the insurance is in place before we start any work."

Two days later, on August 5, 2015, Boggs emailed Peter Abbonizio, copying

Michelle Morris, Atlantic's Controller, and submitted a third proposal, Proposal

107127 (Proposal Three), with a contract price of $22,900. Proposal Three

essentially reverted back to the details of Proposal One by describing the same

work and adding back Atlantic's insurance costs. In his email to Abbonizio , in

which Morris was copied, Boggs said, "Attached is the updated proposal to

reflect the change in CCIP status. I will confirm with my office that we have a

COI to you for the work."

Later that same day, Atlantic's Morris responded to Boggs's email,

copying Dimacale, and stating: "I am confused. Are we switching to a CCIP or

they are (sic) removing us from it?" Moments later, Morris followed up with

another email to Boggs, copied to Dimacale, stating, "Now I see that there is NO

CCIP." In the same email, Morris requested Dimacale "to take care of [it]" and

"if we filled out the CCIP forms, disregard and issue them a certificate and let

[T.C. Irons, Atlantic's insurance broker] know that it has switched please. Very

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34

important." Boggs immediately responded to Morris in an email copying

Dimacale, stating: "The owners are excluding all structural foundation

demolition work from their CCIP, which applies to our work this time ." A few

moments later, Boggs sent a separate email to Morris, copying Dimacale,

explaining, "For clarification, eventually I anticipate work on this project that

will be covered by the CCIP. It is just this contract with . . . Abbonizio that has

been excluded."

On August 10, 2015, Atlantic's Dimacale sent an email to Alliant's

McGowan, confirming: "Our work was excluded from the [project], please

make any adjustments accordingly." Minutes later, McGowan sent an email to

Jim Napoli, Tutor's preconstruction manager, asking Tutor to confirm that

Atlantic had been "excluded" from the CCIP. Shortly thereafter, in an email

between Tutor and Alliant, Tutor's Mickeleit confirmed that Atlantic was

excluded from the CCIP because "they are structural demo (sic) and therefore

not enrolled."

On the same date, McGowan sent an email to the Zurich Construction

Wrap Up Team with the subject line "RE: Tutor Perini Corporation/1441

Chestnut/Atlantic Concrete Cutting, Inc./08.01.2015." In the email, McGowan

told the Team, "Please cancel effective 08/01/2015." McGowan's email was in

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35

reply to an earlier email that originally confirmed Atlantic's CCIP enrollment,

effective August 1, 2015. As a result, Zurich prepared a Cancellation

Endorsement, un-enrolling Atlantic from the CCIP workers' compensation

policy effective August 1, 2015. Zurich sent a copy of the Cancellation

Endorsement to the Pennsylvania Compensation Ratings Bureau on August 17,

2015. No copy was ever forwarded to Atlantic.

Based on these events, Alliant updated the "Enrollment Status Report[s]"

it maintained and sent weekly to Tutor, covering the period July 28, 2015, to

January 5, 2016. Specifically, in the August 10, 2015 report, Atlantic was listed

as "enrolled," but then was listed as "excluded" in the August 13, 2015 report

and all the reports thereafter, including the report dated December 15, 2015,

which covered the date of the Hood accident.

On August 11, 2015, Joe Artale, Abbonizio's CFO, sent an email to

Atlantic's Dimacale advising:

Atlantic . . . must correct their [COI] for Tutor . . . and

[Abbonizio]. You can mimic the attached certificate or

have your insurance carrier review the CCIP [M]anual

for the insurance requirements for contracts not covered

under the CCIP.

The following day, August 12, 2015, Dimacale emailed Artale a copy of

Atlantic's COI showing its three policies: (1) a CGL policy issued by Charter

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36

Oak Fire Insurance Company,1 effective January 28, 2015, to January 28, 2016;

(2) a commercial excess/umbrella liability policy issued by Evanston on

February 6, 2015, effective January 28, 2015, to January 28, 2016; and (3) a

workers' compensation and employers liability policy issued by Travelers.

Kelli Hopkins, Atlantic's Human Resources and Payroll Coordinator,

emailed Atlantic's insurance broker, T.C. Irons, on August 27, 2015, with

"another COI request." Hopkins had been provided with certain COI

requirements by Abbonizio, including the document identified as "Schedule 'A'

to . . . [Abbonizio] Subcontract (Accompanying CCIP . . . Manual from Tutor

. . .) [CCIP] and Insurance Requirements 1441 Chestnut W/Element Hotel

Philadelphia, Pennsylvania."

On September 4, 2015, Kelsey Johnson, an accounting assistant at

Atlantic, communicated with Alliant's McGowan advising:

I am working on submitting payroll/OCIP (sic) for our

contract with . . . Abbonizio on the 1441 Chestnut

Street-W Hotel job, however it looks as though a COI

is needed. I know a notice was sent to one of our other

employees, Nancy Dimacale, however she no longer

works here anymore so I would like to get all caught

up. The contract is excluded from our enrolled

contracts so I am unable to submit—please let me know

1

The COI states that Atlantic's CGL provider was Charter Oak Fire Insurance

Company. However, the parties do not dispute that the CGL policy was issued

by Travelers and effective February 5, 2015.

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37

what is needed so [that] I can submit this month's

payroll.

McGowan responded later that day, advising that Atlantic's COI was

"compliant," and that "[n]o payroll [was] required for 'excluded' contractors."

On the same date, Johnson separately emailed Tina Hughes, Abbonizio's

payroll administrator, to let her know she was "in touch with someone from

OCIP (sic) [Alliant] – our contract is excluded from being able to upload payroll

for some reason." Johnson followed up on September 8, 2015, advising Hughes

she "had gotten word about there being no OCIP (sic) required for this job [] (as

per the other email [she] had sent)." Later, Johnson responded to Hughes's

insistence that "it is a CCIP job" by advising that there was no CCIP reporting

required because on the Alliant portal the Abbonizio-Atlantic "contract comes

up as 'excluded'" and according to McGowan's communications, "no payroll is

required for excluded contracts."

After receiving an email from Abbonizio, Johnson emailed Morris on

September 23, 2015, requesting assistance with certain reports required for the

project and advising, "I had found out that this isn't an OCIP (sic) reporting job

either." On September 25, 2015, Morris received a letter from an unnamed

sender at Abbonizio, referencing "Job Number 2014.003 W/Element Hotel," and

stating without further explanation:

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38

Please find enclosed all [c]ontract [e]xhibits for the

above referenced [p]roject.

Atlantic . . . , is CCIP [a]pproved. For the above

referenced [p]roject.

If you have any questions or concerns, do not hesitate

to contact our office.

Morris confirmed in her deposition that Atlantic had worked on the project

under other proposals and purchase work orders after July and August 2015.

She explained that Atlantic did not have "a typical subcontract" with Abbonizio.

Rather, they used proposals and purchase orders to contract for the work.

D. The Accident and Subsequent Insurance Requirements.

On December 11, 2015, Adam Hood, an employee of another project

subcontractor, Moretrench American Corp., was assisting with the installation

of a large 5,850-pound steel beam when the beam swung from a track hoe

operated by an Abbonizio employee and injured him. Just prior to the beam's

falling, Atlantic's owner, Nancy Walker, had approached the track hoe to greet

the operator. When the operator extended his hand to greet her, he accidentally

struck the controls causing the beam to swing and fall on Hood, crushing his

legs and trapping him between the beam and the ground.

Atlantic's Boggs testified in his deposition that on December 11, 2015,

Atlantic's "employees were wire sawing a[n existing] concrete structure" on a

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39

different corner of the property from its prior work on the Ritz Hotel retaining

wall, and that Art Swindell was Atlantic's wire saw operator on that day. The

record includes an invoice for additional job tickets between Abbonizio and

Atlantic for work during multiple days in December 2015, including the day of

the Hood accident. According to those invoices, the December 11 work

comprised of wire sawing.

In March 2017, Hood and his wife, Lori Hood, filed a civil action for

personal injuries and punitive damages in the Philadelphia County Court of

Common Pleas, Law Division, captioned Adam Hood and Lori Hood v. Tutor

Perini Building Corp., Tutor Perini Corp., C. Abbonizio Contractors, Inc. and

Atlantic Concrete Cutting, Inc., No. 170301763. The complaint alleged Hood

was injured due to Atlantic's negligence, among other things. In August 2018,

Zurich disclaimed defense or indemnification coverage for Atlantic under the

CCIP policies. Consequently, Atlantic's direct liability insurer, Travelers,

defended Atlantic. The Hood lawsuit settled in November 2019 for a

confidential sum. Travelers paid its primary limits of $1 million, and Evanston

made a payment of $350,000 under its excess/umbrella policy.

Prior to the settlement, on April 8, 2019, Atlantic and Evanston filed a

five-count complaint against Zurich, AGLIC, Alliant, and Travelers alleging

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40

breach of contract against Zurich (count one), claims of promissory estoppel

against Zurich and Alliant (counts two and three), and negligent

misrepresentation and professional negligence against Alliant (count four). In

count five, plaintiffs requested declaratory judgment against Zurich, AGLIC,

and Travelers regarding Atlantic's right to defense and indemnity from Zurich

and AGLIC as "an enrolled CCIP [insured] subcontractor," as well as

reimbursement of counsel fees and costs incurred in this suit and the underlying

Hood litigation. The complaint stated Travelers was "named as a nominal

[d]efendant," but "has a similar interest in obtaining declaratory relief against

Zurich and [AGLIC] as it has expended substantial sums for the defense and

indemnification of . . . Atlantic[] in the Hood litigation."

Defendants filed answers, counterclaims, and crossclaims. On February

10, 2023, following discovery, the parties filed motions and cross-motions for

summary judgment. After conducting oral argument, the judge denied plaintiffs'

and Travelers's motions for summary judgment. However, the judge granted

Zurich's and AGLIC's motions for summary judgment in a May 26, 2023 order.

After initially reserving decision, the judge granted Alliant's motion for

summary judgment in a June 1, 2023 order, effectively dismissing the entire

complaint and all related claims with prejudice. On July 25, 2023, the judge

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41

issued a written supplemental statement of reasons supporting his oral statement

of reasons placed on the record on May 26, 2023. These appeals followed.

II.

Our analysis begins with some established principles regarding our

standard of review. "[W]e review the trial court's grant of summary judgment

de novo under the same standard as the trial court." Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That

standard is well-settled.

[I]f the evidence of record—the pleadings, depositions,

answers to interrogatories, and affidavits—"together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

issue to the trier of fact," then the trial court must deny

the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995). On the other

hand, when no genuine issue of material fact is at issue

and the moving party is entitled to a judgment as a

matter of law, summary judgment must be granted. R.

4:46-2(c); see Brill, 142 N.J. at 540.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,

366 (2016) (citations reformatted).]

"An issue of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Grande v. Saint Clare's

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42

Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38

(2014)). "A party opposing a motion for summary judgment may not rely on

unsupported assertions in their pleadings or in their opposition to defeat the

motion" but must instead "come forward with affirmative proof that 'the facts

are not as the movant alleges.'" Zelnick v. Morristown-Beard Sch., 445 N.J.

Super. 250, 260 (Law Div. 2015) (quoting Spiotta v. William H. Wilson, Inc.,

72 N.J. Super. 572, 581 (App. Div. 1962)).

Where there is no material fact in dispute, "we must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). "We

review issues of law de novo and accord no deference to the trial judge's [legal]

conclusions . . . ." MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super.

307, 312 (App. Div. 2018).

Stated differently, summary judgment "should be granted, in particular,

'after adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

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43

Catrett, 477 U.S. 317, 322 (1986)). As such, we must consider the essential

elements of the causes of action alleged as well as the request for declaratory

relief.

The causes of action at issue in these appeals are breach of contract,

promissory estoppel, and negligence. For a breach of contract claim,

[o]ur law imposes on a plaintiff the burden to prove

four elements: first, that "[t]he parties entered into a

contract containing certain terms"; second, that

"plaintiff[s] did what the contract required [them] to

do"; third, that "defendant[s] did not do what the

contract required [them] to do[,]" defined as a "breach

of the contract"; and fourth, that "defendant[s'] breach,

or failure to do what the contract required, caused a loss

to the plaintiff[s]." Model Jury Charges (Civil), 4.10A,

"The Contract Claim—Generally" (approved May

1998).

[Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)

(all but first alteration in original) (citation

reformatted).]

A promissory estoppel claim "is made up of four elements: (1) a clear and

definite promise; (2) made with the expectation that the promisee will rely on it;

(3) reasonable reliance; and (4) definite and substantial detriment." Toll Bros.,

Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008) (citing

Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 499 (App. Div. 2003)).

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44

Turning to negligence, "[i]n order to sustain a common law cause of action

in negligence, a plaintiff must prove four core elements: '(1) [a] duty of care,

(2) [a] breach of [that] duty, (3) proximate cause, and (4) actual damages. '"

Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008) (all but first alteration in

original) (quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). In the context

of insurance intermediaries, because "[a]n insurance producer acts in a fiduciary

capacity in the conduct of his or her insurance business," N.J.A.C. 11:17A-4.10,

"[t]he fiduciary relationship gives rise to a duty owed by the broker to the client

'to exercise good faith and reasonable skill in advising insureds.'" Aden v.

Fortsh, 169 N.J. 64, 79 (2001) (quoting Weinisch v. Sawyer, 123 N.J. 333, 340

(1991)).

We apply these settled principles to the judge's grant of summary

judgment in favor of defendants and dismissal of plaintiffs' and Travelers's

breach of contract, promissory estoppel, and negligence claims.

III.

A. Whether Atlantic Was Enrolled in the CCIP at the Time of the Accident.

Plaintiffs and Travelers (collectively, appellants) contend the judge erred

by finding Atlantic was not enrolled in the CCIP and, therefore, not covered by

the CCIP policies at the time of the Hood accident in December 2015. They

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argue there are genuine issues of material fact with respect to that finding

sufficient to overturn the judge's grant of summary judgment to Zurich and

AGLIC. We disagree.

In granting summary judgment dismissal of the declaratory judgment

complaint, the judge analyzed the undisputed facts and applied the governing

legal principles. In his oral statement of reasons, 2 the judge found "the facts

here are largely undisputed by the parties." According to the judge, "the dispute

here is what is the operation of law for these undisputed facts." The judge

initially "focus[ed] on the contractual relationships." In so doing, the judge

found Atlantic had "not demonstrated a contractual relationship" with the CCIP

insurers, Zurich and AGLIC. Rather, it was "clear on the record" that Atlantic's

"contractual relationship was a subcontract with Abbonizio," which was

"expressly subject to the terms and conditions of a CCIP" established in the

contract between Abbonizio and Tutor.

The judge explained the CCIP "gave the contractor[,] Tutor[,] . . . the sole

ability to determine who was enrolled in it and who was not enrolled in it. In

2

Prior to oral argument on May 26, 2023, the judge issued a tentative oral

decision on the record which was incorporated into the May 26 and June 1, 2023

orders, and memorialized in the July 25, 2023 supplemental statement of

reasons.

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46

other words, what risks [were] underwritten as a part of that program and what

risks [were] not underwritten as a part of that program." That role "was not

delegable or delegated on Abbonizio and . . . Atlantic was bound by that."

Further, according to the judge, Atlantic "[n]ever appl[ied] or pa[id] a premium

to Zurich or AGLIC" and, therefore, "had no relationship with them." Because

Atlantic had no contractual relationship with the CCIP insurers, the judge

concluded Zurich and AGLIC had "no duty" to send any notice of cancellation

to Atlantic.

Next, the judge found plaintiffs' "entire case" was "based on [an]

enrollment where they got a [COI], a document that says" "[b]y its very terms"

"it does not create a contractual relationship" and is "not enforceable." The

judge stated "there is a difference between cancellation and nonenrollment," and

there was "no question" Atlantic knew its CCIP policies "were canceled," as

"[t]hey never had the coverage to begin with . . . because of the work they were

doing." Stated differently, "they were never intended to be a risk that was

underwritten by the CCIP."

The judge explained Atlantic was "involved in . . . [what] is considered

demolition work, . . . this concrete cutting, [so] they can't participate in the

CCIP" because "demolition work was not included." The judge noted

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demolition work is "a lot more dangerous" and "is a type of risk that the

contractor might not want to include and the contractor has that prerogative ."

Further, Atlantic "was on site on the day of the accident . . . [and] was involved

in causing [the accident] . . . . That's undisputed." Consequently, the judge

found Atlantic "would not have been allowed to step foot on the premises unless

they had gotten their own insurance," which they procured.

In his later written "supplemental" statement of reasons, the judge noted

"[n]either the parties nor the [c]ourt could locate any relevant published New

Jersey cases interpreting wrap-up insurance programs, whether contractor- or

owner-controlled." As evident from the record, the judge described a CCIP or

OCIP as "an agreement in a large, multi-party construction project in which the

general contractor or project owner provides an insurance program to various

participants in the construction project covering a variety of risks relating to the

project as set forth in the plan documents."3

3

The judge also quoted definitions from leading insurance treatises. See Hille

& Vespole, New Appleman New Jersey Insurance Law § 4.36 (2023); 3 Hinshaw

& Culbertson LLP & Kristina Alexander, California Insurance Law & Practice

§ 37.03 (2023). In addition, the judge noted our Legislature has mentioned

wrap-up insurance coverage in New Jersey's Educational Facilities Construction

and Financing Act, N.J.S.A. 18A:7G-1 to -48. See L. 2000, c. 72, § 71 (July

18, 2000), amended by L. 2007, c. 137, § 43 (Aug. 6, 2007).

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At the outset, the judge found it "undisputed" that the CCIP did not insure

all of the insurable risks that existed at the project, and that Tutor was the "First

Named Insured" under the sole agent endorsement in Zurich's CCIP CGL policy.

Also, based on the documents and deposition testimony produced, the judge

determined Atlantic had been erroneously enrolled in the CCIP as of August 1,

2015, and it was "clear that the cancellation of Atlantic's CCIP coverage was

effective ab initio." He concluded "as of August 5, 2015, all parties involved in

the CCIP—including Atlantic—undoubtedly knew and understood that Atlantic

was not enrolled in the CCIP."

The judge also found other events confirmed Atlantic's disenrollment

from the CCIP. First, the "undisputed documents and testimony leave no doubt

that months before the [Hood] [a]ccident, Atlantic was aware, confirmed to

others on numerous occasions, and raised no objection to the fact[] that it was

not enrolled in the CCIP." Second, Atlantic had "procured its own direct general

liability insurance to cover its work at the [p]roject through its primary carrier,

Travelers, and its excess carrier, Evanston." Third, and most importantly, "[a]t

no point did Atlantic ever attempt to re-enroll in the CCIP." Thus, the judge

concluded it was "undisputed" that well before the Hood accident, "Atlantic

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knew and understood in early August 2015 that it was not enrolled in the CCIP

for the [p]roject."

Next, the judge found "[t]he documentation and eyewitness testimony

regarding Atlantic's work on the date of the [Hood] [a]ccident all unequivocally

demonstrate that Atlantic was engaged in demolition work on the [p]roject–work

that was clearly excluded from coverage under the CCIP." Finally, according to

the judge, "[t]he parties agreed that New Jersey law applie[d] to the claims

against Zurich," notwithstanding Alliant's motion in limine, later dismissed,

asserting that Pennsylvania law applied to the action.

With those findings and conclusions as a backdrop, the judge then

addressed the complaint's breach of contract and promissory estoppel claims.

Rejecting the breach of contract claim, the judge reasoned summary judgment

was appropriate because "no contract existed between Atlantic and either Zurich

or AGLIC at the time of the [a]ccident." In support, the judge determined: (1)

Tutor had the sole right to remove contractors from the CCIP; (2) Atlantic was

notified that it had been disenrolled from the CCIP, acknowledged it was

disenrolled, and did not thereafter object; and (3) the CCIP-related documents

explicitly barred Atlantic's enrollment and confirmed that its enrollment was

subject to Tutor's sole discretion.

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Considering the CCIP-related documents, citing Certain Underwriters v.

Illinois National Insurance Co., 99 F. Supp. 3d 400, 407 (S.D.N.Y. 2015), the

judge explained CCIP documentation was relevant to determine whether a

project subcontractor, such as Atlantic, was permitted and/or required to enroll

in a wrap-up insurance program. In Certain Underwriters, the court held that

the specific language of the OCIP manual in that case disproved any

interpretation that the OCIP coverage was primary and exclusive "by permitting

covered contractors and subcontractors to obtain other insurance for on-site risks

at their own expense and by excluding certain parties entirely from OCIP." Ibid.

Upon reviewing the CCIP-related documents here, the judge found they

"made it clear that there would be no coverage for subcontractors performing

demolition work, such as Atlantic, and, in any event, enrollment was subject to

Tutor['s] . . . sole discretion." The judge explained:

The CCIP Contract's definition of "Excluded

Parties" includes: "e. Any other party or entity not

specifically identified herein, that is excluded by Tutor

. . . in its sole discretion, even if such party or entity is

otherwise eligible."

Additionally, the CCIP Manual, Section 4.2

Parties Not Covered, states "Tutor . . . has the right to

include or exclude ANY SUBCONTRACTOR for

ANY tier from participating in the CCIP at their sole

discretion."

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....

Also, the section of the CCIP [b]inder entitled

"Schedule of Named Insureds" identifies types of work

not eligible for enrollment. It states in relevant part that

"NO COVERAGE WILL BE PROVIDED TO . . .

DEMOLITION . . . AT THE PROJECT SITE(S)."

Based on the demolition work Atlantic was contracted

to perform and did perform at the [p]roject, including

its work on the very day of the [a]ccident, Atlantic was

ineligible for coverage under the CCIP.

Finally, Exhibit A – Scope of Work, included as

part of the Project Requirements, notes in Entry B.6.

that "Subcontractor acknowledges that Atlantic . . . is

also an excluded party under the CCIP[,]" and must

"comply with all insurance requirements set forth in the

CCIP Insurance [] Manual and Schedule 'B' as an

excluded party."

[(Third and fourth omission in original) (fourth and

fifth alteration in original).]

After determining the CCIP-related documents gave Tutor the sole right

to have any subcontractor or sub-subcontractor removed or excluded from the

CCIP, the judge concluded "to the extent Atlantic was an insured under the CCIP

[p]olicies for a very short window of time, Tutor . . . had the exclusive right, and

exercised the right, to have Atlantic [dis]enrolled from the CCIP." He found

"the language of the Sole Agent Endorsement is clear and unambiguous on its

face," and all of the CCIP-related documents, including the CCIP contract and

CCIP Manual, "made it clear that Tutor . . . had sole authority to unilaterally

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52

include, not include, or remove subcontractors such as Atlantic from enrollment

in the CCIP and cancel such subcontractor's enrollment in the CCIP." The judge

continued, "the parties acted in conformity with this language, further

demonstrating its clarity."

The judge then considered the fact that Kathleen Kelly, Zurich's corporate

designee, had confirmed in her deposition testimony that the sole agent

endorsement authorized Tutor "as the only entity allowed to [dis]enroll a

subcontractor from the CCIP therefore cancelling insurance coverage with

respect to that entity." That is, Kelly had

likened it to a policyholder adding or removing vehicles

to an automobile policy during the year: the policy

remains in effect, only the scheduled vehicles change.

Similarly, Tutor['s] . . . CCIP for the [p]roject remained

in effect throughout the [p]roject, with Tutor . . . adding

contractors and/or subcontractors as appropriate,

depending upon their work and involvement in the

[p]roject.

Critically, the judge also found:

Atlantic is a sophisticated party that has performed

demolition work for major development projects, such

as the W Hotel in Philadelphia—where the plaintiff in

the Hood action was injured—as well as the Hudson

Yards revitalization project in New York City. Its

statements and conduct demonstrate that it understood

that the general contractor, Tutor . . . , had the right to

include and exclude certain subcontractors and certain

work from inclusion in the CCIP. The relevant

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53

communications made clear that demolition work was

not included under the CCIP, and the undisputed facts

demonstrate that Atlantic was engaged to perform, and

actually was performing, demolition work at the time

of the [a]ccident. The erroneous forwarding of CCIP

documents to Atlantic was immediately corrected by

Tutor . . . and acknowledged by all parties, including

Atlantic. Atlantic promptly obtained its own insurance

coverage as a prerequisite to starting its work on the

[p]roject. Based upon an objective, "reasonable

expectations" standard, the record here, interpreted in

the light most favorable to Atlantic, does not support a

finding that Atlantic was confused, misle[]d, or trapped

as an "unguarded consumer."

[(Quoting Zacarias v. Allstate Ins. Co., 168 N.J. 590,

604 (2001)).]

Thus, the judge held "Atlantic is not entitled to the favorable contract

interpretation that contra proferentum provides."

After recounting the chronology of events, the judge concluded the

undisputed facts demonstrated that Atlantic was notified of its disenrollment

from the CCIP, acknowledged it was disenrolled, and did not thereafter object.

Critical to the judge was the fact that in response to Abbonizio's request to revise

the prior proposal, Atlantic did not object to its disenrolled status and provided

Abbonizio with Proposal Three, adding back insurance costs for Atlantic's work

because of its exclusion from the CCIP. The judge explained:

On August 5, 2015, . . . Boggs told . . . Morris . . . that

"the owners are excluding all structural foundation

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demolition work from their CCIP[.]" . . . Boggs

clarified seconds later for . . . Morris'[s] and . . .

Dimacale's benefit that "this contract with . . .

Abbonizio that has been excluded." Additionally, on

August 11, 2015, Abbonizio's CFO advised . . .

Dimacale that "Atlantic . . . must correct their [COI]"

and "review the CCIP manual for the insurance

requirements for contracts not covered under the

CCIP." And on September 4, 2015, Dennis McGowan

of Alliant notified Atlantic[,] "No payroll is required

for 'excluded' contractors." If that were not enough, on

September 23, 2015, . . . Johnson confirmed to . . .

Morris that, with regard to the [p]roject, "this isn't an

OCIP reporting job either."

Next, the judge found Atlantic was promptly disenrolled from the CCIP.

He explained that Zurich had prepared a cancellation endorsement removing

coverage for Atlantic under the CCIP, and Alliant's Enrollment Status Reports

showed Atlantic was "excluded" and, therefore, disenrolled, beginning with the

August 17, 2015 report4 and all reports thereafter, including the time of the

accident. Furthermore, in addition to revising its proposal for the third time to

add back the cost of obtaining its own coverage, the judge found "various

Atlantic employees throughout the company acknowledged in writing no less

than nine times that its work at the [p]roject was not covered by the CCIP,"

4

The judge’s supplemental statement of reasons indicates Atlantic’s exclusion

was first reflected in the August 17, 2015 report. However, the record provided

indicates Atlantic was first listed as “excluded” in the August 11, 2015 report.

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including Morris, Boggs, Dimacale, and Johnson. Critically, the judge found

"Atlantic never attempted to re-enroll in the CCIP at any point for any other

work." Thus, the judge found the undisputed facts demonstrated that "Atlantic

was not enrolled in the CCIP at the time of the [Hood a]ccident, that it

understood and acknowledged the [dis]enrollment, and that it obtained the

necessary insurance at its own expense from its own carriers, Travelers and

Evanston[,] as a prerequisite to its work on the [p]roject."

In dismissing Atlantic's breach of contract and declaratory judgment

claims, the judge concluded:

It is undisputed that Atlantic had been erroneously

enrolled in the CCIP and was immediately [dis]enrolled,

that Atlantic understood that it had been erroneously

enrolled and immediately [dis]enrolled from the CCIP,

and that Atlantic acknowledged the [dis]enrollment and

did not object to it. Moreover, the relevant CCIP

documents explicitly precluded enrollment of

contractors or subcontractors performing demolition

work; therefore, . . . Atlantic was not permitted to enroll

in the CCIP and was well aware of that fact. Further,

even assuming arguendo that a contract could be found,

there could be no breach of contract because Atlantic

expressly authorized Tutor . . . to request cancellation

and/or changes to the CCIP [p]olicies. Finally, Atlantic

sustained no damages as it was fully defended and

indemnified in the Hood [l]awsuit by its own insurers,

Travelers and Evanston.

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In rejecting the promissory estoppel claim, the judge reasoned it "is not

supported by the facts or law because Zurich and AGLIC made no promises to

Atlantic, and Atlantic's purported reliance was unreasonable." In that regard,

the judge found Atlantic had failed to show facts demonstrating it actually relied

on enrollment in the CCIP to its detriment. Instead, the judge found Atlantic

understood it was not enrolled in the CCIP and obtained its own insurance for

its work on the project.

The judge found "no evidence of a clear and definite promise between

Atlantic and Zurich prior to the [Hood a]ccident. Therefore, there could be no

expectation of reliance on such a promise." Further, "any reliance upon the

Welcome Letter from Alliant confirming enrollment in the CCIP would have

clearly been unreasonable because Atlantic was immediately notified it was

being [dis]enrolled from, and was ineligible for, the CCIP later on the same day

it received the Welcome Letter, and on numerous times thereafter." As a result,

Atlantic submitted Proposal Three, which included its own insurance expense,

in order to work on the project consistent with the requirements established by

Tutor and, when the Hood lawsuit was filed, Atlantic immediately tendered its

request for defense and indemnity to its direct carriers, Travelers and Evanston,

not to Zurich and AGLIC. Finally, the judge determined Atlantic sustained no

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damage for a promissory estoppel claim. According to the judge, Atlantic did

not change its position resulting in "'definite and substantial detriment' because

Atlantic knew it was not enrolled in the CCIP, it continued its work on the

[p]roject[] and continued to be afforded coverage by Travelers and Evanston."

On appeal, plaintiffs argue the judge erred because: (1) Atlantic was

enrolled in and covered by the CCIP at the time of the Hood accident, as

evidenced by its receipt of the COI, the plain language in the CCIP and other

documents, and the deposition testimony; and (2) demolition work was not

grounds for a denial of enrollment and insurance coverage under the CCIP.

Similarly, Travelers contends the judge erred: (1) by improperly allowing

Zurich's delegation to third parties, Tutor, Alliant and/or Abbonizio, of its non-

delegable cancellation notice obligations; and (2) by ignoring inferential

extrinsic evidence that does not support its conclusions.

Based on our de novo review, we agree with the judge's decision. We are

satisfied the CCIP documents and the exchanged communications present no

genuine issue of material fact and result in the unavoidable conclusion that

Atlantic was not an enrolled subcontractor in Tutor's CCIP at the time of the

Hood accident. "[I]t is only genuine issues of fact and not simply issues created

by self-contradictions of an opposing party that are intended to preclude resort

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to the device of summary judgment." Mosior v. Ins. Co. of N. Am., 193 N.J.

Super. 190, 195 (App. Div. 1984) (quoting Holifield v. Cities Serv. Tanker

Corp., 421 F. Supp. 131, 136 (E.D. La. 1976), aff'd, 552 F.2d 367 (5th Cir.

1977)). "Material facts are those that have some bearing on the claims being

advanced." Korostynski v. State, Div. of Gaming Enf't, 266 N.J. Super. 549,

555 (App. Div. 1993). "[D]isputes on minor points do not" defeat a motion for

summary judgment. Gilbert v. Stewart, 247 N.J. 421, 442 (2021) (citing J.H. v.

R&M Tagliareni, LLC, 239 N.J. 198, 210 (2019)).

"[A] 'genuine issue as to any material fact' requires more than just

disputing 'facts which are immaterial or of an insubstantial nature, a mere

scintilla, [f]anciful, frivolous, gauzy[,] or merely suspicious.'" In re Registrant

R.S., 258 N.J. 58, 78-79 (2024) (second alteration in original) (quoting Brill,

142 N.J. at 529). Facts "that are irrelevant or unnecessary will not be counted."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although we

generally view the facts with all legitimate inferences therefrom favoring the

non-moving party, "the presence of cross-motions for summary judgment may

tend to muddy that clear mandate." Penn Nat'l Ins. Co. v. Costa, 198 N.J. 229,

232 n.1 (2009). However, where the facts are undisputed, as here, it "obviate[s]

any need to apply any presumptions favoring the non-moving party." Ibid.

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More importantly, summary judgment must be granted where the facts are so

"one-sided that one party must prevail as a matter of law." Brill, 142 N.J. at 540

(quoting Anderson, 477 U.S. at 251-52).

Here, the record unequivocally establishes that Tutor was the First Named

Insured and had the sole discretion to have any tier subcontractor, including

Atlantic, enrolled, disenrolled, or excluded from the CCIP at any time as an

ineligible party. Furthermore, the relevant CCIP documents are clear that the

CCIP will not apply to ineligible parties, even if they happened to be erroneously

enrolled. Significantly, Atlantic received copies of these documents and was

aware of the CCIP requirements and conditions.

Specifically, pursuant to Zurich's CGL policy's Sole Agent Endorsement,

as the judge correctly found, Tutor was undisputedly the First Named Insured as

it was the Named Insured on the declarations pages and paid the policy

premiums. See Araya v. Farm Fam. Cas. Ins. Co., 353 N.J. Super. 203, 209

(App. Div. 2002) (recognizing "the singular importance of the Declarations Page

as the best indicator of what an insured's reasonable expectations should be")

(citing Lehrhoff v. Aetna Cas. & Sur. Co., 271 N.J. Super. 340, 346-47 (App.

Div. 1994)). Any suggestion that Atlantic was the first named insured is

therefore misguided.

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Second, Attachment 3, an amendment to the Tutor-Abbonizio subcontract,

defined excluded parties as "[a]ny other party or entity not specifically identified

herein, that is excluded by Tutor . . . or its parent entity in its sole discretion,

even if such party or entity is otherwise eligible."

Third, the CCIP Manual also listed various subcontractors who would not

be covered, and expressly stated that Tutor "has the right to include or exclude

ANY SUBCONTRACTOR of ANY tier from participating in the CCIP at their

sole discretion."

Fourth, Attachment 3 and the CCIP Manual both contained an order of

precedence, ordering that if any ambiguity existed, the terms of the policies shall

govern, then Attachment 3, and then the CCIP Manual. Significantly,

Attachment 3 declared the CCIP provided insurance for all subcontractors for

any tier "who are eligible and approved for participation." (Emphasis added).

Those subcontractors not approved or excluded by Tutor were required to

procure their own insurance coverage and deliver to Alliant the COI evidencing

the coverage prior to commencing work on the project. Critically, Attachment

3 also stated "CCIP Coverages shall not apply to ineligible parties, even if they

are erroneously enrolled in the CCIP." Further, Attachment 3 required

Abbonizio to send its subcontractors of any tier a copy of that document and the

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CCIP Manual, which Morris, Atlantic's controller, admitted receiving on July

21, 2015, prior to Atlantic beginning any work on the project.

Turning to the exchange of communications between the parties, the

record establishes that within hours of Atlantic's receipt of documents indicating

it was enrolled in the CCIP, it received successive emails stating it had been

enrolled in error, was ineligible, and was excluded from the CCIP. Thereafter,

as requested and without protest, Atlantic presented a third proposal to

Abbonizio adding back its own costs for insurance coverage and later sent a

copy of the COI evidencing those policies. By August 12, 2015, all parties,

including Atlantic, knew Atlantic was not enrolled in the CCIP. Atlantic never

objected to its disenrollment or requested CCIP enrollment anytime in the future.

To support its argument, Atlantic relies on the Welcome Letter and the

CCIP COI it received from Alliant on July 30, 2015, identifying all three CCIP

policies with periods from August 3, 2015, to December 23, 2018. However,

Atlantic and Alliant received an email that same day from Tutor's Lorenz stating

Atlantic was not permitted to enroll because its work involved structural

demolition. Thereafter, after a torrent of emails, Atlantic sent Abbonizio

Proposal Three adding back the costs for its own insurance coverage. In its

accompanying email, Atlantic stated, "Attached is the updated proposal to

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reflect the change in CCIP status. I will confirm with my office that we have a

COI to you for the work." Subsequently, Atlantic sent Abbonizio a compliant

COI with its own policies.

The record is abundantly clear that Tutor had the sole discretion to have

any tier subcontractor enrolled or excluded from the CCIP at any time as an

ineligible party, and that the CCIP would not apply to ineligible parties, even if

they happened to be erroneously enrolled. Further, it is clear Atlantic was

immediately informed and understood it was ineligible and disenrolled from the

CCIP. Atlantic never objected or requested future CCIP enrollment,

immediately amended its proposal by adding the cost of its own coverage, as

requested, and sent a COI showing its own coverage from Travelers and

Evanston as a prerequisite to commencing work on the project.

We acknowledge the Welcome Letter stated: "Your enrollment into the

[CCIP] for your work performed under Contract Number 1441-103-04 has been

completed. The attached insurance certificate is provided to evidence your

coverage for Workers' Compensation, General Liability, and Excess/Umbrella

while working at the 1441 Chestnut project site." We further acknowledge the

certificate named Atlantic as "insured" and Zurich and AGLIC as "insurer(s)

affording coverage."

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The CCIP Manual defines a COI as "[a d]ocument providing evidence of

the existence of coverage for a particular insurance policy or policies."

However, a COI does not create coverage as it "does not of itself create any

contractual relationship between the [recipient] and the insurer." Wells v.

Wilbur B. Driver Co., 121 N.J. Super. 185, 197 (Law. Div. 1972) (citing Kloidt

v. Metro. Life Ins. Co., 18 N.J. Misc. 661 (Sup. Ct. 1939)). It is not an insurance

policy.

Moreover, the Certificates of Insurance Act, N.J.S.A. 17:29A-54 to -62,

defines a COI in N.J.S.A. 17:29A-55 as "a document or instrument, regardless

of how titled or described, that is prepared or issued by an insurer or insurance

producer as evidence of property or casualty insurance coverage." N.J.S.A.

17:29A-57 further states:

A [COI] shall not be considered a policy of insurance

and shall not affirmatively or negatively amend, extend,

or alter the coverage afforded by the policy to which

the [COI] makes reference. A [COI] shall not confer to

any person new or additional rights beyond what the

referenced policy of insurance expressly provides.

[(Emphasis added).]

Here, any reliance on the Welcome Letter and the COI as evidence of

Atlantic's continued enrollment is misplaced. Even if Atlantic was enrolled at

one point, the plain language in the CCIP documents, including its related

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insurance policies, unequivocally establish that Tutor had the sole discretion to

reject any tier subcontractor's CCIP application as an ineligible party . The

documents make it clear that the CCIP will not apply to ineligible parties, even

if they happened to be erroneously enrolled.

Next, plaintiffs argue that an internal email from Tutor dated July 31,

2015, confirmed Atlantic's CCIP enrollment was complete, and that even Randi

Vogt, Zurich's Customer Service Team Leader, concluded in her deposition that

Atlantic was enrolled when she looked at the Enrollment Status Reports and

Wrap-Up list Alliant maintained and sent weekly to Tutor.

Any reliance on the CCIP Enrollment Status Reports and Wrap-Up list as

evidence of Atlantic's enrollment is misplaced. The CCIP documents require

CCIP subcontractors to be eligible and approved. The documents state the CCIP

will not apply to ineligible parties, even if erroneously enrolled. It is undisputed

that Tutor did not approve Atlantic's enrollment and thereafter excluded it from

CCIP participation. Further, all CCIP Enrollment Status Reports from August

11, 2015, show Atlantic as "excluded." The CCIP specifically states that "[a]ny

contractor . . . that does not have dedicated payroll for employees on-site" is not

an insured "[u]nless added by separate endorsement." Atlantic was never added

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by separate endorsement and never submitted any dedicated payroll for its

employees at the project.

Plaintiffs also argue the plain language in the CCIP documents, which

they contend should be construed in an insured's favor and against the insurer,

supports Atlantic's continued CCIP enrollment through December 2015. They

point to the language ignored by the judge in Zurich's CCIP policy's "Named

Insured – [CCIP] Endorsement," which defines "named insureds" as contractors

"enrolled" in the CCIP and performing at a "designated project." They also refer

to the CCIP Manual, which defines "enrolled" contractors as "[e]ligible

[s]ubcontractors and [s]ub-[s]ubcontractors that have submitted all necessary

enrollment forms and documents, and have been accepted into the CCIP as

evidenced by a [COI]," and excludes only "vendors, suppliers, truckers, material

dealers, any contractors performing abatement or otherwise working with

hazardous materials, and delivery services companies."

Our courts generally construe any ambiguity in an insurance policy in

favor of the insured under the doctrine of contra proferentem. Oxford Realty

Grp. Cedar v. Travelers Excess & Surplus Lines Co., 229 N.J. 196, 208 (2017).

"Sophisticated commercial insureds, however, do not receive the benefit of

having contractual ambiguities construed against the insurer." Ibid. "Contra

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proferentem is a consumer-protective doctrine 'only available in situations

where the parties have unequal bargaining power. If both parties are equally

. . . sophisticated, contra proferentem is inappropriate." Ibid. (quoting Pacifico

v. Pacifico, 190 N.J. 258, 268 (2007)).

Guided by these principles, we agree with the judge's assertion that any

application of the doctrine of contra proferentem is inappropriate here.

Furthermore, the language relied on by plaintiffs creates no ambiguity or

conflict, as it must be read together with the other CCIP documents.

Contract interpretation is a question of law reviewed de novo. Kieffer v.

Best Buy, 205 N.J. 213, 222 (2011); see, e.g., Rodriguez v. Shelbourne Spring,

LLC, 259 N.J. 385, 395 (2024) ("We interpret the insurance policy terms de

novo."); Motil v. Wausau Underwriters Ins. Co., 478 N.J. Super. 328, 336 (App.

Div.) ("It is well-settled that we review a court's interpretation of an insurance

contract de novo."), leave to appeal denied, 258 N.J. 155 (2024). The document

must be read "as a whole in a fair and common sense manner." Hardy ex rel.

Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009).

"It is well-settled that '[c]ourts enforce contracts based on the intent of the

parties, the express terms of the contract, surrounding circumstances and the

underlying purpose of the contract.'" In re Cnty. of Atlantic, 230 N.J. 237, 254

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(2017) (alteration in original) (quoting Manahawkin Convalescent v. O'Neill,

217 N.J. 99, 118 (2014)) (internal quotation marks omitted). "[W]here [an]

agreement is evidenced by more than one writing, all of them are to be read

together and construed as one contract, and all the writings executed at the same

time and relating to the same subject-matter are admissible in evidence."

Lawrence v. Tandy & Allen, Inc., 14 N.J. 1, 7 (1953) (quoting Gould v.

Magnolia Metal Co., 69 N.E. 896, 898 (Ill. 1904)).

"A writing is interpreted as a whole and all writings forming part of the

same transaction are interpreted together." Nester v. O'Donnell, 301 N.J. Super.

198, 210 (App. Div. 1997) (quoting Barco Urb. Renewal Corp. v. Hous. Auth.,

674 F.2d 1001, 1009 (3d Cir. 1982)). "[W]here several writings are made as

part of one transaction, relating to the same subject matter, they may be read

together as one instrument, and the recitals in one may be explained, amplified

or limited by reference to the other — the one draws contractual sustenance from

the other." Schlossman's, Inc. v. Radcliffe, 3 N.J. 430, 435 (1950).

Attachment 3 to the Tutor-Abbonizio subcontract makes the CCIP Manual

a "Contract Document" and states that the CCIP "will include" the three

insurance policies. It also states that "CCIP Coverages shall not apply to

ineligible parties, even if they are erroneously enrolled in the CCIP," and gives

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Tutor "sole discretion" to exclude any tier subcontractor from the CCIP "even if

such party or entity is otherwise eligible."

The CCIP Manual further states that the CCIP provides insurance for all

subcontractors, "who are eligible and approved for participation," and that Tutor

"has the right to include or exclude ANY SUBCONTRACTOR of ANY tier from

participating in the CCIP at their sole discretion." (Emphasis omitted). Reading

those documents together with the policy recitals cited by plaintiffs, and

considering that Atlantic knew it was disenrolled, excluded, and ineligible, we

conclude plaintiffs' argument that Atlantic was continuously enrolled through

December 2015 is baseless.

Plaintiffs assert Abbonizio's recognition of Atlantic's CCIP enrollment in

a letter dated September 25, 2015, is critical. The letter acknowledged that

"Atlantic . . . is CCIP [a]pproved. For the above referenced [W/Element Hotel]

Project (sic)." Plaintiffs claim there is no documentary evidence showing

Atlantic was notified of any disenrollment from the CCIP after the September

25 date.

The September 25, 2015 letter was unsigned and seemingly sent by

Abbonizio. Because Abbonizio had no authority to enroll or disenroll any

subcontractor, the letter could not have meant that Atlantic was enrolled in the

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CCIP. Based on the undisputed evidence, only Tutor had the authority to enroll,

disenroll, and exclude any tier subcontractor in the CCIP, and Tutor

unquestionably excluded Atlantic and deemed it ineligible well before

September 25, 2015. Atlantic accepted that decision without objection. Thus,

the September 25 letter from Abbonizio is neither material nor sufficiently

substantial in nature to avoid summary judgment.

Plaintiffs argue the judge erred by finding demolition work was grounds

for a denial of CCIP eligibility and coverage under the CCIP policies. They

claim the facts unequivocally prove Atlantic's "Work description: Concrete

cutting," as described on its contractor enrollment form, is not demolition. They

further refer to the deposition testimonies of Atlantic's Boggs and Swindell. In

support of their argument, they point to Boggs's testimony that although "saw

cutting would be considered incidental demolition work," Atlantic only

performed concrete cutting.5 They also rebut Swindell's testimony that he was

"cutting with a[n] electric wire saw to demo[lish] concrete north face – wall

north face (sic)" on the day of the Hood accident by asserting it was for "higher

5

In the same deposition, Boggs explained that Atlantic also performed saw

cutting work by stating: "I mean, that's what Atlantic . . . does. They saw cut

concrete."

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contractors" to designate whether Atlantic's saw cutting constituted demolition

work or another category of work for insurance purposes. 6

Plaintiffs further argue there was no explicit coverage exclusion for

demolition work in the CCIP policies or the CCIP Manual. They point out the

only exclusion for demolition is found in a CCIP binder submitted to Alliant,

which expired in February 2014 and was replaced with the CCIP policies. Next,

plaintiffs claim that while Atlantic's initial work in early August could be

considered demolition, it understood that any subsequent jobs at the site would

be enrolled in the CCIP. They rely on various emails, including ones from

Tutor's Lorenz, who wanted to keep all of Atlantic's work "separate," and from

Boggs, who said on August 5, 2015, that he "anticipate[d] work on this project

. . . will be covered by the CCIP. It is just this contract with . . . Abbonizio that

ha[d] been excluded." They argue that in fact, Atlantic was not performing

6

In her deposition, Morris testified Atlantic "cut[s] concrete and asphalt and

even steel . . . . And [Atlantic] do[es] wire sawing, wall sawing . . . and seal and

slab sawing on the roadways. [Atlantic] do[es] green sawing . . . on freshly

poured concrete. And core drilling . . . so that you can run the wire through

whatever you're cutting." She also testified Atlantic does not determine whether

its work would be considered demolition or covered under the CCIP, and instead

"[i]t would be something that the contractor would tell [them]." Boggs testified,

"Swindell[] was . . . the only employee doing concrete cutting on the day of the

accident." Swindell, Atlantic's laborer, was deposed in the Hood lawsuit and

confirmed Boggs's testimony.

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ineligible demolition on the day of Hood's accident, and they rely on

documentary evidence describing the work that day as "core drilling" and "wire

sawing." Critical to their argument is Abbonizio's letter to Atlantic dated

September 25, 2015, which they argue established that despite any prior

excluded work, Atlantic remained "CCIP [a]pproved" going forward and was

entitled to rely on this guarantee.

We acknowledge the record shows Atlantic had anticipated conducting

other work on the project after its July proposals. Atlantic's Morris confirmed

Atlantic was working on the project under subsequent proposals and purchase

work orders. She explained that Atlantic did not have "a typical subcontract"

with Abbonizio and instead they used proposals and purchase orders to contract

for the work. In fact, the record includes an invoice for additional job tickets

between Abbonizio and Atlantic for work during multiple days in December

2015.

Nevertheless, we reject plaintiffs' contention the judge erred by finding

demolition work was grounds for a denial of coverage under the CCIP policies.

The record contains no CCIP enrollment request or CCIP enrollment documents

for the work referenced in those later invoices or any related communications

between Atlantic and Tutor, Abbonizio, Alliant or the CCIP insurers

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establishing Atlantic was enrolled in the CCIP. Rather, Atlantic never objected

after Tutor disenrolled Atlantic and found its work ineligible in the summer of

2015.

As the judge correctly found, Tutor had sole discretion to exclude or

include any subcontractor of any tier at any time and for any reason. Attachment

3 to the Tutor-Abbonizio subcontract gave Tutor "sole discretion" to exclude

any tier subcontractor from the CCIP "even if such party or entity is otherwise

eligible." The CCIP Manual further states Tutor "has the right to include or

exclude ANY SUBCONTRACTOR of ANY tier from participating in the CCIP

at their sole discretion." (Emphasis omitted). Therefore, plaintiffs' arguments

fail.

B. Notice Requirements and Applicability of Insurance Cancellation Laws.

Because it is undisputed that Zurich and AGLIC never advised Atlantic of

the coverage cancellation or termination of the CCIP CGL and excess policies ,

Travelers contends the judge erred by improperly indulging Zurich's delegation

of its non-delegable notice obligations. Travelers asserts Atlantic was still

covered by those policies at the time of the Hood accident because notice

obligations for coverage cancellation rest on the insurer, not on Tutor, Alliant,

or Abbonizio.

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In support, Travelers cites Barbara Corp. v. Bob Maneely Ins. Agency,

197 N.J. Super. 339 (App. Div. 1984). There, we held notice of renewal

obligations for a fire policy were not delegable and rested on "the insurer, not

the broker or agent," and if the insurer failed to meet its obligations, then the

policy is deemed automatically renewed. Id. at 346. However, Barbara is

inapposite. "The point of Barbara is that an insured has the right to expect

receipt of a notice from his insurance company regarding the imminent

expiration of his casualty insurance so that he can protect himself and avoid a

lapse in coverage." Insinga v. Hegedus, 231 N.J. Super. 562, 566 (App. Div.

1989). The Barbara court "did not intend to hold that if the broker did send an

effective, proper[,] and timely notice, the insurer would be deprived of the

benefit itself." Ibid. "[T]he nondelegability to which we referred in Barbara is

a nondelegability of responsibility for performance, not nondelegability of the

performance itself." Ibid.

Here, even if Zurich could not delegate its responsibility under the policies

and/or regulations for notifying Atlantic of its CCIP coverage cancellation, the

email exchanges between Tutor, Alliant, Abbonizio, and Atlantic informing

Atlantic of its CCIP ineligibility and disenrollment were sufficient to notify

Atlantic it was not covered by the CCIP policies. When notified of CCIP

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ineligibility and disenrollment, without objection, Atlantic submitted its third

proposal adding in the costs of its own insurance and acknowledged in the

accompanying email "the change in CCIP status."

Travelers contends the judge erred because the evidence he relied upon as

showing Atlantic had notice and knowledge that its CCIP policies were

cancelled or terminated does not support that conclusion in light of other

conflicting evidence in the record. According to Travelers, even if the email

exchanges in the summer of 2015 put Atlantic on "substituted notice" that it was

no longer enrolled in the CCIP, those communications do not support, as a

matter of law, the judge's final decisions denying Travelers's summary judgment

motion and granting Zurich's and AGLIC's motions.

Specifically, Travelers asserts despite the emails canceling Atlantic's

CCIP workers' compensation policy, Atlantic did not know its CCIP liability

and excess policies were also automatically cancelled when it was disenrolled.

According to Travelers, the following facts show that Atlantic was still enrolled

in Zurich's CCIP CGL policy and AGLIC's CCIP excess policy at the time of

the Hood accident: (1) Abbonizio's September 25, 2015 communication

confirming that Atlantic is "CCIP [a]pproved" for later work on the project; (2)

deposition testimony from Atlantic's representatives that they believed Atlantic

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was covered for this subsequent work; (3) deposition testimony that CCIP

disenrollments are a rarity and that Tutor did not have any formal disenrollment

process; and (4) testimony that contractors were occasionally enrolled for some

work, but not for other work on the same project.

Travelers further asserts the lack of certain evidence demonstrates

Atlantic had no knowledge that its CCIP liability policies had been cancelled.

It argues, for example, there is no language in Zurich's policy that links the

availability of coverage to an insured's status under the CCIP's workers'

compensation policy. This conclusion, Travelers argues, is compounded by the

fact that: (1) even though Zurich sent a notice of cancellation of Atlantic's

workers' compensation policy to the Pennsylvania Workers Compensation

Bureau, it never sent a copy of that endorsement to Atlantic despite knowing

Atlantic's address; and (2) after initially determining that it could not decline

Atlantic's tender of coverage under the CGL policy for the Hood lawsuit, Zurich

thereafter took over one year to disclaim coverage to Atlantic. In addition,

Travelers claims the judge erred by relying on the fact that Atlantic obtained its

Travelers and Evanston policies after its enrollment was cancelled, when the

actual fact is that both policies had been issued to Atlantic at least six months

before it even applied for CCIP enrollment.

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We reject Travelers's arguments. It is undisputed Atlantic had received

Attachment 3 and the CCIP Manual from Abbonizio, and both documents

declared that the CCIP for participating subcontractors consisted of the three

insurance policies. Thus, when Atlantic received the emails stating i t was

ineligible for any CCIP enrollment, Atlantic had to have known it was also not

entitled to coverage under any of the CCIP policies. Zurich's Kelly testified

once a subcontractor was enrolled in one CCIP policy, it was automatically

enrolled in the other CCIP policies, and the same held true for cancellations.

More importantly, when told it was ineligible for CCIP enrollment and

needed to obtain its own coverages before working on the project, Atlantic

amended its second proposal to add the costs of its own insurance, which

included a CGL policy from Travelers and an excess policy from Evanston.

Atlantic then stated in its accompanying email, "Attached is the updated

proposal to reflect the change in CCIP status," and later sent a COI showing its

own policies. Although there were subsequent job invoices in the record, there

is no evidence Atlantic ever requested or was offered CCIP enrollment for that

work. Thus, the evidence cited by Travelers presents no genuine issue of

material fact disavowing Atlantic's knowledge that it was not entitled to CCIP

insurance coverage at any time.

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Travelers asserts any reliance on the actual CCIP-related documents is

misplaced as they are immaterial and unrelated to Zurich's obligations. It argues

neither the Named Insured endorsement nor any of the enumerated exclusions

in Zurich's CGL policy mention "demolition" or "demolition operations" as an

exclusion to the CCIP or its insurance policies, and any reliance on the binder's

exclusion for demolition work is misplaced as binders are only effective until

the formal policy of insurance is issued.

"A 'binder' is a temporary policy of insurance, in force until it expires,

either by its own terms, by replacement by a permanent policy of insurance, or

rejection." Miney v. Baum, 170 N.J. Super. 282, 286 (Law Div. 1979); see

N.J.S.A. 17:22-6.41(f) (a "'binder' . . . means temporary evidence of insurance,

to be replaced by a policy or [COI]").

We acknowledge that reliance on the demolition exclusion in the binder

is legally incorrect. However, the binder is not relevant to whether Atlantic's

work was, in fact, demolition or why Tutor found that type of work and Atlantic

ineligible for the CCIP. Attachment 3 to the Tutor-Abbonizio subcontract gave

Tutor "sole discretion" to exclude any tier subcontractor from the CCIP "even if

such party or entity is otherwise eligible," and the CCIP Manual states Tutor

"has the right to include or exclude ANY SUBCONTRACTOR of ANY tier from

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participating in the CCIP at their sole discretion." (Emphasis omitted). Both

documents, together with the CCIP policies, must be read together and construed

as one contract. They are part of the same transaction and may be explained by

reference to the other. Lawrence, 14 N.J. at 7; Schlossman's, Inc., 3 N.J. at 435;

Nester, 301 N.J. Super. at 210.

Nevertheless, Travelers argues if one was to rely on the language in the

CCIP documents, then Zurich also becomes subject to the formal cancellation

notice requirements in those documents, along with the regulatory and public

policy mandates that prohibit mid-term policy cancellations once coverage is

established via receipt of a COI. Thus, because Zurich failed to follow those

requirements and provide specific and clear notice of coverage termination,

Atlantic was still enrolled in Zurich's CCIP CGL policy and AGLIC's CCIP

excess policy at the time of the Hood accident.

Notwithstanding the evidence that Zurich and AGLIC provided Atlantic

no specific and clear notice of the CCIP policy cancellations, we are satisfied

Atlantic's undisputed knowledge that the policies had been cancelled because of

its ineligibility for CCIP enrollment warrants affirming the judge's grant of

Zurich's and AGLIC's summary judgment motions.

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Appellants contend the judge erred by finding that New Jersey's statutes,

regulations, and general common law policy of enforcing formal cancellation

notice requirements to protect insureds do not apply to CCIPs or to Atlantic.

They argue because Atlantic received no formal notice of coverage cancellation

from Zurich, its CCIP CGL and excess policies were not properly cancelled, and

therefore Atlantic was still covered under those policies at the time of Hood's

accident.

The "legal duties owed by an insurer can arise by express contractual

provision, by statute, or by court-made common law." 3 Jordan R. Plitt et al.,

Couch on Insurance, § 40:7 (3d ed. updated Dec. 2025). "Cancellation is a term

ordinarily applicable to the procedure by which a policy already issued and in

force is terminated . . . ." Lopez v. N.J. Auto. Full Ins. Underwriting Ass'n, 239

N.J. Super. 13, 19 (App. Div. 1990).

N.J.S.A. 17:29C-1 provides "insurance companies organized under the

laws of this State or organized to do business in this State . . . shall include

provisions in policies of insurance . . . whereby [thirty] days' written notice shall

be given . . . to the insured[] of the cancellation of any such policy." N.J.S.A.

17:29C-1 also gives the Commissioner of the Department of Banking and

Insurance statutory authority to promulgate rules and regulations regarding

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insurance cancellation notices. Piermount Iron Works, Inc. v. Evanston Ins. Co.,

197 N.J. 432, 439-40 (2009).

Under that authority, the Commissioner adopted N.J.A.C. 11:1-5.2(a),

which requires "[a]ll fire and casualty policies of insurance, except accident and

health policies," to "provide for the issuing company to give . . . [t]hirty days'

written notice to the insured of the cancellation of any policy." The

Commissioner also adopted N.J.A.C. 11:1-20.2, governing cancellation notice

requirements in all commercial insurance policies and stating:

No cancellation, other than a cancellation based

upon nonpayment of premium or for moral hazard . . .

shall be valid unless notice is mailed or delivered by the

insurer to the insured, and to any person entitled to

notice under the policy, not more than 120 days nor less

than 30 days prior to the effective date of such

cancellation except, however, that failure to send such

notice to any designated mortgagee or loss payee shall

invalidate the cancellation only as to the mortgagee's or

loss payee's interest.

[N.J.A.C. 11:1-20.2(d).]

Under N.J.A.C. 11:1-20.2(g), "[n]o . . . cancellation shall be valid unless

the notice contains the standard or reason upon which the termination is

premised and specifies in detail the factual basis upon which the insurer relies."

N.J.A.C. 11:1-20.2(i) provides, "No . . . cancellation shall be valid unless notice

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thereof is sent . . . [b]y certified mail . . . or . . . first class mail," and the insurer

retains the requisite proof of mailing.

N.J.A.C. 11:1-20.3 governs policy provisions relating to cancellation, and

states all commercial insurance policies must contain the following mandatory

boilerplate language that advises insureds of the requirements for notification in

connection with cancellation of an insurance policy:

Pursuant to New Jersey law, this policy cannot be

cancelled . . . for any underwriting reason or guideline

which is arbitrary, capricious[,] or unfairly

discriminatory or without adequate prior notice to the

insured. The underwriting reasons or guidelines that an

insurer can use to cancel . . . this policy are maintained

by the insurer in writing and will be furnished to the

insured and/or the insured's lawful representative upon

written request.

[N.J.A.C. 11:1-20.3(a).]

N.J.A.C. 11:1-20.3(a) also requires including a statement that states: "This

provision shall not apply to any policy that has been in effect for less than [sixty]

days at the time notice of cancellation is mailed or delivered, unless the policy

is a renewal policy."

N.J.A.C. 11:1-20.4(d) provides "[i]n addition to the approved guidelines

set forth in [N.J.A.C. 11:1-20.4](b)[,] . . . an insurer may use other guidelines

for cancellation . . . provided such guidelines are not arbitrary, capricious [,] or

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unfairly discriminatory." Significantly, the scope of section 11:1-20 is set forth

in N.J.A.C. 11:1-20.1(c), which reads, "Policies may provide terms more

favorable to policyholders than are required by these rules. The rights provided

by these rules are in addition to and do not prejudice any other rights

policyholders may have at common law, or under statutes and regulations."

The regulation further provides:

This subchapter shall apply to all commercial

insurance policies that are in force, issued, or renewed

by companies licensed to do business in this State

except workers' compensation insurance, employers

liability, fidelity, surety, performance and forgery

bonds, ocean marine and aviation insurance, and

accident and health insurance and any policy written by

a surplus lines insurer. With the exception of N.J.A.C.

11:1-20.3 and 11:1-20.4(d), this subchapter shall not be

applicable to multi-state location risks or policies

subject to retrospective rating plans.

[N.J.A.C. 11:1-20.1(a) (emphasis added).]

In In re N.J.A.C. 11:1-20, 208 N.J. Super. 182, 186 (App. Div. 1986), we

explained the regulations were designed "to curb what the [C]ommissioner

conceived as abuses by insurance companies, including midterm policy

cancellations, blanket nonrenewals, cancellations of entire lines of insurance

and midterm premium increases without adequate reasons or notice to the

insureds." Similarly, in Piermount, 197 N.J. at 440, wherein the insurer had

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failed to provide a written nonrenewal notice, our Supreme Court recognized

both "New Jersey's strong policy in favor of protecting insurance consumers"

and the "clear intention [in the Commissioner's regulations] to combat unfair

cancellations and the prevalence of nonrenewals in the commercial and

homeowner's insurance markets." The Court explained that "[n]otice allows the

consumer to take protective action. It gives the insured 'the opportunity to guard

against the peril of noncoverage, a peril which . . . can arise out of

miscommunication among brokers, agents, insureds[,] and carriers.'" Id. at 441

(omission in original) (quoting Echevarias v. Lopez, 240 N.J. Super. 104, 108

(App. Div. 1990)).

Here, the judge rejected the arguments that the CCIP policies provided

coverage to Atlantic for the Hood lawsuit because Zurich, AGLIC and/or Alliant

had not complied with any cancellation notice requirements. In his oral

decision, the judge found because Atlantic had no contractual relationship with

Zurich and AGLIC, they had "no duty" to send any cancellation notice to

Atlantic. Because Atlantic had obtained its own insurance coverage before

working on the project, the judge also found "no relevance to the notice

provision," concluding that none of the cases or regulations governing a policy

cancellation notice applied here.

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In his written decision, the judge reiterated those findings. Because Tutor

was the only entity authorized to disenroll a subcontractor from the CCIP,

thereby cancelling insurance coverage for that subcontractor, the judge agreed

with Zurich's Kelly. She had likened the relationship between Tutor and

Atlantic to a policyholder adding or removing vehicles to an automobile policy

during the year: the policy remains in effect, only the scheduled vehicles

change. The judge further determined "the plain language of the unambiguous

statutes and regulations reveals they do not apply to the circumstances at issue

or to a CCIP."

He explained plaintiffs' arguments

miss[] the point because the CCIP [p]olicies were never

cancelled (or nonrenewed). Rather, the Zurich [p]olicy

and AGLIC [p]olicy remained in effect for the [p]roject

for all other entities that were permitted to enroll under

the CCIP, and they continued to apply to Tutor['s] . . .

other projects insured under the CCIP. Thus, these

administrative codes are inapplicable. Atlantic was

[dis]enrolled less than [twenty-four] hours after the

erroneous enrollment based on the request of Tutor[,]

. . . which had the absolute and sole authority to make

such a request under the relevant policy terms.

Specifically, with regard to N.J.A.C. 11:1-5.2(a), the judge determined the

arguments "ignore the plain language and clear intent of the Code, which is that

Subchapter 5 applies to property policies under the Fair Access to Insurance

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Requirements Plan (the []FAIR Plan[]) implemented pursuant to" N.J.S.A.

17:37A-1. The judge explained the FAIR Plan was "created by the insurance

industry as a means to make property insurance more readily available to people

who have difficulty obtaining coverage from voluntary market insurers because

their property is considered [']high risk.'" (Quoting About NJUIA, NJIUA,

https://portal.njiua.org/Home/About (last visited July 25, 2023)). That Plan

"'insures homes, mobile homes, rental units, most commercial buildings[,] and

business property' by providing 'basic property coverage,' but does not provide

theft or personal liability coverage." (Quoting NJDOBI, Off. of Prop. and

Casualty, https://www.nj.gov/dobi/division_insurance/propcas.htm#fair (last

visited July 25, 2023)).

Accordingly, the judge concluded N.J.A.C. 11:1-5.2(a) and the FAIR Plan

have "no applicability to CCIP, OCIP[,] or Wrap-Up programs . . . and to do so

would contradict the parties' carefully crafted and unambiguous contractual

terms, which are designed to provide cost-effective and efficient insurance

coverage to complex construction projects involving multiple phases of work

and numerous subcontractors."

Regarding the requirements in N.J.A.C. 11:1-20.2(d), the judge found

their applicability "even more tenuous." He explained that "[n]ot only is it

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unclear whether this section creates a private cause of action, but N.J.A.C. []

11:1-20.1, which details the scope of Subchapter 20, plainly states it does not

apply here." He explained:

Not only does this Code section not apply because the

CCIP contained a worker's compensation component, it

also does not apply because the CCIP covered . . .

[Tutor] projects located throughout the country at the

time of the [a]ccident in Pennsylvania, including

several projects in California and Louisiana. Thus, the

plain language of N.J.A.C. [] 11:1-20.2 makes clear that

its requirements do not apply to an insurance program

covering multi-state location risks such as the CCIP

here.

Appellants argue CCIP policies are subject to the same requirements as

all other insurance policies in New Jersey, and once Atlantic became a Named

Insured under the CCIP by virtue of receiving the COI from Alliant, however

brief or erroneous, Tutor's contractual right to control the CCIP became

immaterial to Zurich's notice obligations to its insureds. They further argue

Atlantic's CCIP coverage was not a multi-state location risk under the

regulations because Atlantic itself was a single-location New Jersey company

doing certain work on a single project, even if that project was in Pennsylvania.

Additionally, appellants contend our courts favor a strong public policy

favoring the reasonable expectations of insureds and, therefore, require

appropriate notice of insurance policy changes in all contexts for the fairness

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and protection of insureds. Plaintiffs, specifically, assert the lack of a formal

cancellation notice can give rise to a legitimate concern that there is no recourse

for insured subcontractors if higher-tiered contractors or CCIP insurers could

capriciously cancel their insurance. Quoting Miller v. Reis, 189 N.J. Super. 437,

444 (App. Div. 1983), plaintiffs insist our courts resist "implied cancellation,"

as "insurance policies are complex contracts of adhesion, prepared by the insurer

and not subject to negotiation." According to appellants, the judge therefore

erred by viewing the case from Tutor's contractual perspective instead of

Zurich's insurance cancellation obligations.

We agree with the judge's finding that the cancellation regulations

imposing formal timing, mailing, and record retention requirements on insurers

do not apply to a CCIP with multiple-state risks, as here. N.J.A.C. 11:1-20.1(a)

(emphasis added) states: "With the exception of N.J.A.C. 11:1-20.3 and 11:1-

20.4(d), this subchapter shall not be applicable to multi-state location risks."

However, N.J.A.C. 11:1-20.3 provides all commercial insurance policies must

contain boilerplate language advising insureds of the requirements for

notification in connection with the cancellation of an insurance policy, and

N.J.A.C. 11:1-20.4(d) reads "an insurer may use other guidelines for

cancellation . . . provided such guidelines are not arbitrary, capricious or unfairly

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discriminatory." See DKM Residential Props. Corp. v. Twp. of Montgomery,

182 N.J. 296, 307 (2005) ("When interpreting a statute or regulation, we

endeavor to give meaning to all words and to avoid an interpretation that reduces

specific language to mere surplusage.").

Regulatory inapplicability does not vitiate an insurer's obligation to

provide notice of coverage changes, which still must be clearly and specifically

conveyed even in the absence of the formal mailing and record retention

provisions of the regulation. See Skeete v. Dorvius, 184 N.J. 5, 8 (2005). In

fact, "the question whether a party is insured at all may be a separate matter

susceptible of resolution by reference to any relevant matter such as an

underlying contract . . . which clarifies the intendments of the parties in

apportioning responsibility and providing for insurance coverage." Pennsville

Shopping Ctr. Corp. v. Am. Motorists Ins. Co., 315 N.J. Super. 519, 523 (App.

Div. 1998) (considering terms of tenant's lease when interpreting ambiguous

provisions of tenant's insurance policy).

Here, Zurich's CCIP CGL policy set a ninety-day notice requirement

"[f]or any statutorily permitted reason for cancellation," while the CCIP Manual

set a thirty-day notice requirement. The COI also contained a cancellation

requirement in a pre-printed statement that read: "Should any of the above

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described policies be cancelled before the expiration date thereof, notice will be

delivered in accordance with the policy provisions." In addition, Attachment 3

stated Tutor "may, for any reason, . . . request that any [s]ubcontractor of any

tier withdraw from the CCIP upon thirty . . . days written notice."

It is undisputed that Atlantic was given no formal notice of the

cancellation or coverage change of the CCIP policies as required by these CCIP

documents. Thus, we disagree with the judge's finding that Zurich's failure to

provide any notice of CCIP coverage change did not violate the requirements in

the CCIP documents. However, our courts have not required compliance with

cancellation requirements in a contract or regulation where the insured admits

receipt of the cancellation notice. Pawlick v. N.J. Auto. Full Ins. Underwriting

Ass'n, 284 N.J. Super. 629, 634 (App. Div. 1995).

Here, it is undisputed that by the time of Hood's accident, Atlantic knew

it was ineligible but had been erroneously enrolled in the CCIP, and that the

related CCIP policies had been cancelled. Atlantic had received Attachment 3

from Abbonizio, informing it that eligibility for the CCIP included coverage

under the three policies. Further, Atlantic's actions demonstrate it knew it was

no longer covered under the CCIP policies. Hence, we reject appellants'

arguments and affirm the judge's ultimate finding that Atlantic was not covered

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under the CCIP policies at the time of the Hood accident and was aware of its

uncovered status.

C. Negligence Claims Against Alliant.

Plaintiffs contend the judge erred by failing to find Alliant was liable to

provide coverage to Atlantic due to its own negligence as Atlantic's insurance

broker and fiduciary, even if Atlantic was not enrolled in the CCIP at the time

of the Hood accident.

In his supplemental decision, the judge rejected plaintiffs' claims that

Alliant was negligent in failing to procure coverage for Atlantic, stating "there

is no theory under which Alliant can be held responsible for the money Travelers

and Evanston spent to defend and settle the Hood [l]awsuit." Addressing

causation, the judge found "it is undisputed factually that Alliant played no role

in excluding Atlantic from the CCIP." Relying on the fact that "[Tutor] had the

absolute and sole discretion to include and exclude subcontractors and sub-

subcontractors – including Atlantic – from the CCIP," the judge found "no facts

of record from which a jury could find that Alliant affirmatively or, by virtue of

its inaction, caused Atlantic to be [dis]enrolled from the CCIP."

The judge also found that because Atlantic had sufficient insurance

coverage from Travelers and Evanson, Atlantic could not "prove damages." In

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that regard, the judge rejected plaintiffs' newly minted argument that Atlantic

had suffered damages of increased insurance premiums and newly incurred

counsel fees from having to retain its own counsel to secure its insurers'

coverage for the Hood lawsuit. The judge found Atlantic failed to produce any

credible evidence to support those "last[-]minute allegations" and had provided

no expert testimony as required.

Plaintiffs argue the judge erred because Alliant, in its role as CCIP

program administrator, was responsible for ensuring that all subcontractors were

properly enrolled in the CCIP, thus making Alliant an insurance broker and

fiduciary of each subcontractor, including Atlantic. Accordingly, absent a

formal notice of cancellation from Zurich or Alliant, plaintiffs contend Atlantic

was entitled to reasonably rely on the documentation it received from Alliant

confirming its CCIP enrollment and coverage. As a result, plaintiffs assert

Alliant is liable for Atlantic's defense and indemnification in the Hood lawsuit.

We reject plaintiffs' arguments and agree with the judge that there is no

factual or legal support for a claim of negligence against Alliant. Indeed,

plaintiffs cannot prove causation or damages to support a negligence claim. 7

7

Based on our conclusion, we need not consider plaintiffs' expert report

submitted to support their argument that Alliant breached its fiduciary duties

owed to Atlantic.

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Atlantic cannot prove it suffered losses because its own insurers defended it in

the Hood lawsuit and paid the settlement. Further, it is undisputed Alliant

played no role in excluding Atlantic from the CCIP. According to Attachment

3 and the CCIP Manual, Alliant was Tutor's CCIP administrator for the project

and, therefore, only Tutor's agent. It was Tutor, not Alliant, that had sole

discretion in excluding any tier subcontractor from the CCIP at any time as an

ineligible party, and it was undisputed the CCIP would not apply to ineligible

parties, even if they happened to be erroneously enrolled.

Based on our decision, we need not consider appellants' remaining

arguments, some of which lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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