MICHAEL O'CONNOR VS. ZOHRA, LLC (L-3951-16, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1242-19

MICHAEL O'CONNOR and

ASLIHAN O'CONNOR,

Plaintiffs-Respondents,

v.

ZOHRA, L.L.C.,

Defendant-Appellant,

and

ZOHRA, L.L.C.,

Defendant/Third Party

Plaintiff-Appellant,

v.

MEHMET EMIN TEKIN, SILK

CITY AUTO MALL, ACCEPTANCE

INDEMNITY INSURANCE

COMPANY, SCHUMACHER

INSURANCE AGENCY, and

REGENCY INSURANCE

BROKERAGE SERVICES, INC.,

Third-Party Defendants/

Respondents.

________________________________

Argued April 12, 2021- Decided May 3, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Docket No. L-3951-16.

Kevin E. Wolff argued the cause for appellant Zohra,

L.L.C. (Kinney Lisovicz Reilly & Wolff, PC, attorneys;

Kevin E. Wolff and Kathleen J. Devlin, of counsel and

on the briefs).

Paul M. DiGasbarro argued the cause for Third-Party

Defendant-Respondent Acceptance Indemnity

Insurance Company (Pomeroy Heller & Ley, LLC,

attorneys; Karen E. Heller and Paul M. DiGasbarro, on

the brief).

Joseph Ross argued the cause for Third-Party

Defendant-Respondent Schumacher Insurance Agency

(Lydecker Diaz, attorneys; Lee Patten and Joseph Ross,

of counsel and on the brief).

PER CURIAM

Michael O'Connor (plaintiff) was injured when during the course of his

employment a garage gate fell on him as he attempted to close it. The gate was

located on property owned by defendant Zohra, LLC, (the Landlord or Zohra),

which Zohra leased to third-party defendant Mehmet Emin Tekin (Mehmet

Tekin or Tenant). Plaintiff settled his personal injury case and is not involved

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in this appeal. Third-party defendant Silk City Auto Mall (Silk City), a used car

dealership, employed plaintiff. Mehmet Tekin and his son, Yasin Tekin, are

shareholders of Silk City.

This appeal involves Zohra, Mehmet Tekin, third-party defendant

Acceptance Indemnity Insurance Company (Acceptance), and third-party

defendant Schumacher Insurance Agency (Schumacher). Zohra alleged that

Acceptance failed to name it as an additional insured and otherwise provide

insurance coverage to Zohra for plaintiff's accident. Zohra also alleged

Schumacher deviated from accepted standards in the insurance-agency industry

by failing to review the lease between Zohra and Mehmet Tekin, and then

procure necessary insurance to Zohra for plaintiff's accident.

After conducting a bench trial, a judge entered an October 9, 2019

judgment in Zohra's favor concluding that Mehmet Tekin was solely responsible

for plaintiff's accident. In addition to listing the October 9, 2019 judgment in

its Notice of Appeal, Zohra appeals from four interlocutory orders. Three are

dated May 6, 2019: (1) denying in part Zohra's motion for summary judgment;1

1

Without specifically briefing arguments challenging this order, it appears from the

Case Information Statement and Notice of Appeal that Zohra contends the judge

erred by summarily denying its claim for contractual indemnification. We affirm

this order because genuine issues of material fact precluded summary judgment on

this issue, as explained by the judge.

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3

(2) granting summary judgment to Schumacher Insurance Agency

(Schumacher); and (3) granting summary judgment to Acceptance. The fourth

order, dated May 31, 2019, denied in part Zohra's reconsideration motion.

We affirm all orders under review.

I.

In support of Zohra's motion for summary judgment, Zohra argued the

Lease required Tenant to maintain the gate that caused plaintiff's accident, that

Zohra was entitled to contractual indemnification from Mehmet Tekin pursuant

to the Lease, that Zohra was entitled to insurance coverage from Mehmet Tekin

pursuant to the Lease and that it should not be liable for plaintiff's unpaid

medical bills because the employer failed to secure workmen's compensation

insurance. The judge granted the motion in part and denied the motion in part.

The judge concluded that Mehmet Tekin failed to obtain general liability

insurance coverage pursuant to the Lease, and instead procured a limited Garage

Policy which disclaimed coverage for plaintiff's injuries, because they would

otherwise be covered by workmen's compensation insurance. The judge found

that Mehmet Tekin was responsible for Zohra's costs to defend plaintiff's

allegations, but denied Zohra's request for indemnification.

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In support of Schumacher's motion for summary judgment, Schumacher

argued that Zohra's sole claim against it was that Schumacher breached accepted

standards by failing to produce the insurance which Silk City had requested, and

that if it had done so, Zohra would be afforded coverage under that insurance

policy. It further argued that the report of Zohra's broker liability expert (Luu

Report) constituted a net opinion. The judge granted Schumacher's motion and

issued a written statement of reasons. The judge concluded that the Luu Report

was inadmissible net opinion and that, regardless of the actions of Schumacher's

employee, Zohra was not entitled to insurance coverage under the policy

because of the employee exclusion in the Acceptance policy.

In support of Acceptance's cross-motion for summary judgment,

Acceptance argued the employee exclusion precluded coverage to Zohra for

plaintiff's injuries. The judge granted Acceptance's motion and issued a written

statement of reasons. The judge determined that at the time of the accident,

plaintiff was an employee of Silk City, the insured under the Acceptance policy,

squarely triggering the employee exclusion and precluding coverage to Zohra

for plaintiff's injuries.

Zohra filed a motion for reconsideration arguing the judge incorrectly held

that the employee exclusion barred its insurance coverage claim. Zohra also

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argued the judge incorrectly held that Mehmet Tekin was not compelled to

provide insurance coverage to Zohra under the Lease. The judge concluded that

the employee exclusion precluded coverage because Zohra was not an additional

insured on the Acceptance policy. But the judge determined that, consistent

with his order that Mehmet Tekin pay defense costs, Mehmet Tekin was

otherwise obligated under the lease to provide $1,000,000 in insurance coverage

to Zohra.

On appeal Zohra raises the following points for this court's consideration:

POINT I

THE STANDARD OF APPELLATE REVIEW OF A

GRANT OF SUMMARY JUDGMENT IS DE NOVO

AND AN ABUSE OF DISCRETION STANDARD IS

APPLIED WHEN REVIEWING A TRIAL [JUDGE'S]

DECISION AS TO EXPERT TESTIMONY[.]

POINT II

THE MOTION [JUDGE] ERRED IN GRANTING

SUMMARY JUDGMENT TO SCHUMACHER[.]

A. THE MOTION [JUDGE] ERRED IN

FINDING THE LUU REPORT WAS NET

OPINION[.]

B. IF SCHUMACHER REVIEWED THE

LEASE AND MADE SURE ZOHRA WAS

IDENTIFIED AS AN ADDITIONAL INSURED

IN THE ACCEPTANCE POLICY, ZOHRA

WOULD BE ENTITLED TO COVERAGE

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BECAUSE THE EMPLOYEE EXCLUSION

DOES NOT APPLY TO ZOHRA[.]

POINT III

THE MOTION [JUDGE] ERRED IN FINDING THAT

THE ACCEPTANCE POLICY DOES NOT PROVIDE

COVERAGE TO ZOHRA[.]

A. THE MOTION [JUDGE] ERRED IN

FINDING THAT THE EMPLOYEE

EXCLUSION APPLIED TO ZOHRA[.] (Raised

Below).

B. ZOHRA WAS AN INTENDED THIRD-

PARTY BENEFICIARY UNDER THE

ACCEPTANCE POLICY[.] (Raised Below).

C. THE ACCEPTANCE POLICY PROVIDES

COVERAGE FOR GARAGE OPERATIONS

THROUGHOUT THE UNITED STATES OF

AMERICA[.] (Raised Below But Not Decided).

II.

We begin by addressing Zohra's contention that the judge abused his

discretion by finding the Luu Report, authored by Gwenyth P. Luu of JGS

Insurance, constituted a net opinion. Zohra argues that this ruling erroneously

led to summary judgment in Schumacher's favor. Zohra maintains the Luu

Report demonstrates Schumacher breached accepted standards in the insurance

agency field by failing to review the Lease, and had it done so, Schumacher

would have realized that Zohra was entitled to additional insured coverage.

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We review a ruling on a summary judgment motion under the same

standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment

is appropriate "if the pleadings, depositions, answers to interrogatories an d

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). We "must accept

as true all the evidence which supports the position of the party defending

against the motion and must accord him [or her] the benefit of all legitimate

inferences which can be deduced therefrom[.]" Brill, 142 N.J. at 535 (first

alteration in original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).

"When . . . a trial [judge] is 'confronted with an evidence determination

precedent to ruling on a summary judgment motion,' it 'squarely must address

the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)

(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85

(2010)). "[Our] review of the trial [judge]'s decisions proceeds in the same

sequence, with the evidentiary issue resolved first, followed by the summary

judgment determination of the trial [judge]." Ibid.

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The admission or exclusion of expert testimony is within the trial judge's

sound discretion. Id. at 52 (citing State v. Berry, 140 N.J. 280, 293 (1995)).

"Absent a clear abuse of discretion, an appellate court will not interfere with the

exercise of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198,

247 (App. Div. 2014) (quoting Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App.

Div. 2013)). An abuse of discretion occurs when a decision is "made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002) (citation omitted).

N.J.R.E. 702 governs the admissibility of expert testimony and states that:

"[i]f scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise." The rule imposes three

requirements:

(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror; (2)

the field testified to must be at a state of the art such

that an expert's testimony could be sufficiently reliable;

and (3) the witness must have sufficient expertise to

offer the intended testimony.

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[Pierre, 211 N.J. at 53 (quoting Creanga v. Jardal, 185

N.J. 345, 355 (2005)).]

Additionally, N.J.R.E. 703 mandates that expert opinions be grounded in

"facts or data derived from (1) the expert's personal observations, or (2) evidence

admitted at the trial, or (3) data relied upon by the expert which is not necessarily

admissible in evidence but which is the type of data normally relied upon by

experts." Ibid. (quoting Polzo v. County of Essex, 196 N.J. 569, 583 (2008)).

"It is well-established that the trial [judge] 'must ensure that [a] proffered

expert does not offer a mere net opinion.'" Satec, Inc. v. Hanover Ins. Grp., Inc.,

450 N.J. Super. 319, 330 (App. Div. 2017) (second alteration in original)

(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).

"Such an opinion is inadmissible and 'insufficient to satisfy a plaintiff's burden

on a motion for summary judgment.'" Ibid. (quoting Arroyo v. Durling Realty,

LLC, 433 N.J. Super. 238, 244 (App. Div. 2013)).

The net opinion rule "forbids the admission into evidence of an expert's

conclusions that are not supported by factual evidence or other data." State v.

Townsend, 186 N.J. 473, 494 (2006). A conclusion "based merely on unfounded

speculation and unquantified possibilities" is inadmissible. Pierre, 221 N.J. at

55 (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). The

rule requires that an expert provide "'the why and wherefore' that supports the

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opinion, 'rather than a mere conclusion.'" Borough of Saddle River v. 66 E.

Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper, 207 N.J.

at 372)).

Moreover, the expert may not base his or her opinion solely on his or her

own subjective standard. Pomerantz Paper, 207 N.J. at 373 (stating "if an expert

cannot offer objective support for his . . . opinions, but testifies only to a view

about a standard that is 'personal,' it fails because it is a mere net opinion"). In

other words, experts must "be able to identify the factual bases for their

conclusions, explain their methodology, and demonstrate that both the factual

bases and the methodology are reliable." Pierre, 221 N.J. at 55 (quoting

Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). However, experts may

base their opinions on their personal experience and training. See Townsend,

186 N.J. at 493; see also Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App.

Div. 2002) (emphasizing that "[e]vidential support for an expert opinion is not

limited to treatises or any type of documentary support, but may include what

the witness has learned from personal experience").

The Luu Report—three short paragraphs—is just over two pages and

includes a single attachment. In a conclusory fashion, Luu opined that "based

on [her] training, education and experience" and review of the listed documents

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that "there exists within a reasonable degree of probability that the care, skill,

or knowledge exercised and/or exhibited by Schumacher . . . [i]n securing

appropriate [i]nsurance coverage" for Zohra as a third-party beneficiary "fell

below the professional standards of due care." She opined that this included the

failure to review the lease between Mehmet Tekin and Zohra to verify the correct

name of the landlord, the insurance obligations of the tenant/insured, and the

locations and addresses of the tenant/insured's business. Specifically,

Schumacher failed to verify the name of the landlord "despite being aware that

there were likely requirements in the lease regarding insurance requirements;"

consider if the minimum coverage amounts were sufficient for a used car dealer;

and verify that an inspection of Silk City was performed by Acceptance that

would have confirmed the locations and addresses of the insured's business. In

her report, Luu opined that it is common practice for professional insurance

agents to use a "new/renewal business checklist" to ensure full comprehension

of their client's operations and interest of legal entities to be named on the policy.

Luu attached an example of the above referenced checklist, titled "New Business

Submission Checklist," to her report. The report sets forth a checklist aimed to

assist insurance agents in getting their accounts to the "top of [their]

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[u]nderwriter's pile." She did not reference or attach any specific insurance

industry standards of care, treatises, or sources.

The judge concluded that the Luu report was net opinion and inadmissible

to establish a theory of liability as to Schumacher. With respect to the report,

the judge stated:

A review of [the Luu Report] with regard to

Schumacher, demonstrates a lack of factual support in

reaching the conclusions contained in the report. In

contrast[,] the Ahart Report, prepared for Schumacher,

contains numerous citations and specific references to

the documentary record and footnotes referencing other

bases for [Ahart's] analyses. [Ahart] explains that

case[] law is part of what various sources such as trade

associations and educational programs teach producers

and describes how is understanding of Rider v. Lynch,

[42 N.J. 465 (1974)] . . . informs his expert opinion that

Schumacher fulfilled its duties. [Ahart] further notes

the consistency of his opinion with The Chartered

Property and Casualty Underwriter [(CPCU)]

designation program. [Ahart's] analysis of [the Luu]

[R]eport concluded that it attempted to impose a higher

duty than is appropriate for a producer such as

Schumacher. His review of the Luu Report, the

discovery record, and professional standards defined by

CPCU concludes that the Luu Report[] attempts,

without citation to authority, to impose duties on

Schumacher "beyond those of a customary producer"

and "more appropriate to duties of a fee[-]based risk

manager."

Luu did not cite to any part of the documentary record to support her

conclusions. Zohra cites to no authority —and indeed none exists —for its

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proposition that simply listing the documents provided to Luu for review

satisfies its evidentiary burden. Luu's report merely references a "New Business

Submission Checklist," which does not set forth any insurance industry standard

at all. It does not explain how the omission of any of the included items falls

below the standard of care, or leads to any result at all, except not being "on top

of [an] Underwriter's pile."

Zohra characterizes the judge's analysis as one that improperly focuses on

stylistic differences between the Luu Report and the Ahart (or Schumacher)

Report. That is not the case. The judge's reference to the Ahart report and his

comparison of the two reports was focused on substance, not style, and properly

highlighted that the Luu Report was a net opinion. The Ahart Report, unlike the

Luu Report, cited treatises and industry sources such as the CPCU. The judge

recognized that Luu's opinion is based on her personal experience, which

amounts to an inadmissible net opinion.

Notwithstanding the net opinion issue, and regardless of the actions or

inaction of Schumacher or its employees in preparing the lease, the employee

exclusion in the Acceptance policy precluded coverage for Zohra on plaintiff's

claim.

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III.

We reject Zohra's contention that the judge erred by granting summary

judgment to Acceptance and by denying Zohra's reconsideration motion. Zohra

argues the judge erred by relying on the employee exclusion to grant summary

judgment to Acceptance. Zohra asserts it is a third-party beneficiary of the

Acceptance policy, and that the Acceptance policy provides coverage for Garage

Operations.

A.

"The interpretation of an insurance contract is a question of law which we

decide [de novo] independently of a trial [judge's] conclusions." Polarome Int'l,

Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 259-60 (App. Div. 2008). The

trial judge's "interpretation of the law and legal consequences that flow from

established facts are [therefore] not entitled to any specifical deference."

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

An insurance policy must be read as a whole, Hardy ex rel. Dowdell v.

Abdul-Matin, 198 N.J. 95, 103 (2009), and will be enforced as written when its

terms are clear, Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 525

(2012). "In assessing the meaning of provisions in an insurance contract, [we]

first look to the plain meaning of the language at issue." Oxford Realty Grp.

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Cedar v. Travelers Excess & Surplus Lines Co., 229 N.J. 196, 207 (2017) (citing

Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)).

"The words of an insurance policy should be given their ordinary meaning, and

in the absence an of ambiguity, [this court] should not engage in a strained

construction to support the imposition of liability." Longobardi v. Chubb Ins.

Co. of N.J., 121 N.J. 530, 537 (1990). "If the language is clear, that is the end

of the inquiry." Oxford, 229 N.J. at 207 (quoting Chubb, 195 N.J. at 238).

"An insurance policy is not ambiguous merely because two conflicting

interpretations of it are suggested by the litigants." Ibid. (citations and internal

quotation marks omitted). However, if a policy provision is ambiguous, we will

construe the provision in favor of the insured, considering the insured's

reasonable expectations. Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72,

82 (2008).

"Exclusions in insurance policies are presumptively valid and enforceable

'if they are specific, plain, clear, prominent, and not contrary to public policy."'

Wear v. Selective Ins., 455 N.J. Super. 440, 454 (App. Div. 2018) (quoting

Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010)). Typically, exclusions are

construed narrowly. Ibid. However, we will "not . . . disregard the 'clear import

and intent' of a policy's exclusion," ibid. (quoting Flomerfelt, 202 N.J. at 442),

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and will not enforce even a "conspicuous, plain and clear" exclusion if it

"misleads," Sosa v. Massachusetts Bay Ins., 458 N.J. Super. 639, 652 (App. Div.

2019) (quoting Gerhardt v. Cont'l Ins., 48 N.J. 291, 298 (1966)).

The employee exclusion of the Acceptance policy provides that no

coverage will be provided for:

4. Employee Indemnification and Employer's

Liability

"Bodily injury" to:

a. An "employee" of the "insured" arising out of and in

the course of:

(1) Employment by the "insured"; or

(2) Performing the duties related to the conduct

of the "insured's business[.]"

The exclusion is clear and unambiguous, and we will therefore construe

and enforce it narrowly and in accordance with its plain meaning, which is to

preclude coverage for bodily injury to employees of the insured. It is undisputed

that "the insured" on the Acceptance policy is Silk City. It is also undisputed

that, at the time of the accident, Silk City employed plaintiff. Plaintiff was

closing a security gate in the course of his employment with Silk City and in

furtherance of Silk City's business. The Acceptance policy contains an

exclusion that applies in this very situation, which the judge emphasized when

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he stated that there is no liability coverage under the policy for bodily injury to

an employee of the insured "arising out of and in the course of" plaintiff's

employment by Silk City or performing duties related to the conduct of Silk

City's used car business.

Zohra nevertheless requests this court consider and apply a line of cases

which differentiate between named insureds (the insured) and undisputed

additional insureds (an insured) on a policy for purposes of interpreting the

exclusion provision. See Gabriele v. Lyndhurst Residential Cmty., LLC, 426

N.J. Super. 96, 100 (App. Div. 2012) (holding that a coverage exclusion for

bodily injury for an "employee of any insured" precluded coverage for an

additional named insured for a claim by the estate of a worker who sustained

injuries when a pallet fell on him a work site); American Wrecking Corp. v.

Burlington Ins. Co., 400 N.J. Super. 276, 279 (App. Div. 2008) (holding that a

coverage exclusion for personal injury to an "employee of any insured" clearly

barred coverage for the claims of workers who sustained injuries during

demolition work at a worksite).

In both cases, this court held that there was no liability coverage owed to

entities that were undisputed additional insureds. To reiterate, the only

additional insured named on the policy before us is Mohammed Mustamand.

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Moreover, the employee exclusions at issue in those cases were broader

(applying to employees of "any insured") and did not indicate specifically that

they applied only to employees of "the insured" like the exclusion at issue here

does. The Acceptance policy's exclusion specifically extends to apply to "any

obligation to share damages with or repay someone else who must pay damages

because of the injury."

The judge generally agreed with Zohra's argument about the employee

exclusion applying to "the insured" rather than "an insured." The judge denied

Zohra's motion for reconsideration, however, because Zohra was not identified

as an additional insured on the Acceptance policy. This is true. Zohra therefore

cannot argue that it is entitled to coverage as "an insured" when it is not even

identified as an additional insured on the Acceptance policy.

Even if Zohra were properly identified as an additional insured on the

policy —which is not the case—the employee exclusion would apply to Zohra,

and coverage could not be afforded. Schumacher argues that even if Zohra were

listed as an additional insured under the policy, it would not be afforded

coverage because an entity listed as an "Owner of Garage Premises" is only

considered "an insured" with regard to "liability arising out of ownership,

maintenance, and use" by the lessee, which was Mehmet Tekin here. Under the

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Lease, the Owner of Garage Premises is only considered "an insured" with

regard to "liability arising out of the ownership, maintenance and use of that part

of the described premises which is leased to you." The Acceptance policy

defines "you" as the named insured. Here, the named insured in the subject

policy is "Eminoglu Used Car Dealer Ltd. d/b/a Silk City Auto Mall." The

premises were not leased to Silk City, but to Mehmet Tekin in his individual

capacity. As such, the additional insureds, if any, would not be afforded

coverage for liability incurred at any of the relevant properties, which were

leased to Mehmet Tekin, rather than Silk City.

Moreover, even if it were an undisputed additional insured, Zohra still

would not be entitled to coverage under the Acceptance policy because

plaintiff's accident occurred on a property distinct from the covered premises

listed on the Acceptance policy endorsement.

B.

We likewise conclude that the Garage Coverage provision of the

Acceptance Policy did not entitle Zohra to coverage. Zohra argues that it is

entitled to coverage because the coverage territory of the Acceptance policy is

the entire United States. Acceptance argues that coverage is restricted to the

premises listed on the policy, which was distinct from the premises where the

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accident took place. Although this issue was argued, the judge did not address

it as an additional basis upon which to grant summary judgment in favor of

Acceptance.

"An insurance policy is a contract that will be enforced as written when

its terms are clear in order that the expectations of the parties will be fulfilled. "

Flomerfelt, 202 N.J. at 441 (citing Kampf v. Franklin Life Ins. Co., 22 N.J. 36

(1960)). When an "endorsement modifies, qualifies or restricts the terms of the

original policy, the . . . endorsement controls." Gabriele, 426 N.J. Super. at 104-

05 (internal quotation marks omitted) (quoting 2 G. Couch, Couch on Insurance,

§ 21.22 (2d ed. 2010); see also 4 Eric Mills Holmes, Appleman on Insurance, §

20.1 (2d ed. 1998) (explaining that "[i]f any irreconcilable conflict exists

between provisions of the policy and provisions of an endorsement, then the

latter must control."). Applying this principle, the endorsement limiti ng

coverage to 290 Pennsylvania Avenue reflects the intention of the Acceptance

policy.

The Garage Coverage Form of the Acceptance policy defines "Garage

Operations – Other than Covered Autos" that occur in "Coverage Territory" as

follows:

[O]wnership, maintenance or use of locations for

garage business and that portion of the road or other

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accesses that adjoin these locations. "Garage

operations" includes ownership, maintenance or use of

the "autos" indicated in Section I of this Coverage Form

as covered "autos." "Garage operations" also include

all operations necessary or incidental to garage

business.

The Garage Coverage Form defines "Coverage Territory" as the entire United

States of America. However, the "Owners of Garage Premises" endorsement to

the Acceptance policy, which controls here, specifically limits coverage for any

such additional insureds to the listed premises, which were specifically

denotated as 290 Pennsylvania Avenue. It is undisputed that an accident

involving the security gate occurred at a separate location; 232-242 Railway

Avenue, which is not covered.

To the extent we have not addressed Zohra's remaining arguments, we

conclude that they are without merit to warrant attention in a written decision .

R. 2:11-3(e)(1)(E).

Affirmed.

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