June 25, 2019
In Certain Underwriters at Lloyds Subscribing to Policy PLH-0013397, as subrogee of Laura Lindsey v. Public Service Electric and Gas, A-4128-17T4, approved for publication June 17, 2019 (“Lindsey”), the Appellate Division considered the scope of available damages to homeowners who are displaced from their homes by another’s negligence. The court considered whether damages were limited to the cost of alternate shelter, or whether the homeowner could also seek additional damages based on a broader concept of “inconvenience.”
The Appellate Division adhered to and expanded upon the case of Camaraza v. Bellavia Buick Corp., 216 N.J. Super. 263, 265 (App. Div. 1987) which considered loss of use damages for owners of motor vehicles. There, the court held that motor vehicle owner’s damages were not necessarily solely limited to the rental cost of a replacement.
The Lindsey matters – which included six consolidated cases – arose from a February of 2014 winter storm, in which a high-voltage power line in Willingboro, owned by the defendant Public Service Electric and Gas (“PSE&G”), fell and ignited fires in the various plaintiffs’ homes, ultimately displacing them for ten months.
The various plaintiffs’ homeowners’ insurance carriers reimbursed them for repair costs, and for incidental expenses generated by their extended stays in motels. Their suits, however, also sought damages for the loss of use of their homes, as well as emotional distress and personal injuries – although all claims except loss of use were dismissed voluntarily.
In a bifurcated proceeding, a jury found PSE&G liable for the occurrence. One month later, PSE&G moved for summary judgment, arguing that the plaintiffs were undamaged beyond what had already been compensated by the homeowners’ insurance carriers. The trial court granted summary judgment, which was the subject of this appeal.
The court reinstated the case, holding that property owners “may be damaged by more than just repair costs when unable to make use of their property.” And so, taking a “broader view,” the court determined that the trier of fact should be permitted to consider the individual circumstances of a plaintiff, in determining the loss of use damages. Rental value of unavailable property is admissible, and is a “considerable aid in quantifying” the loss of use, that evidence “is not conclusive.” The property owner may also pursue damages that exceed the mere rental value of the property.
The court discussed the particular circumstances of the various plaintiffs, including displacement during holidays, reliance on fast food restaurants for family meals, inability to have family visits, and the various other hardships they had to endure as a result of the displacement. In sum, it ruled that “PSE&G remains free to argue that some or all of these damages may represent ‘more than fair indemnity’ or may be ‘so extravagant’ as to ‘outrun the bounds of reason,’” – but that would be up to the jury to decide. See, Brooklyn E. Dist. Terminal v. United States, 287 U.S. 170, 176 (1932).
For more information on this topic, please contact MKC&I’s Tom Emala at temala@mcgivneyandkluger.com or (973) 822-1110.