Jack Buczek v. Continental Casualty Insurance Company; Transportation Insurance Company

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Nos. 02-2847, 02-4063
JACK BUCZEK; MARIE BUCZEK;
MICHAEL NEILL; SANDY NEILL,
an Unincorporated Association
t/a MEADOWS CONDOMINIUM
ASSOCIATION;
MEADOWS CONDOMINIUM
ASSOCIATION
v.
CONTINENTAL CASUALTY
INSURANCE COMPANY;
TRANSPORTATION INSURANCE
COMPANY,
Appellant
On Appeal from the United States
District Court for the
District of New Jersey
(Dist. Ct. No. 00-cv-04274)
District Judge: Honorable Joseph E.
Irenas
Argued December 9, 2003
Before: AMBRO, FUENTES, and
CHERTOFF, Circuit Judges.
(Filed: August 6, 2004)
GERARD J. JACKSON, ESQ. (Argued)
1260 Marlkress Road
P.O. Box 1820
Cherry Hill, NJ 08034
Counsel for Appellees
SHEILA A. HAREN, ESQ. (Argued)
MONICA E. O'NEILL, ESQ.
Post & Schell, P.C.
1600 John F. Kennedy Blvd, 13th Floor
Four Penn Center
Philadelphia, PA 19103
Counsel for Appellant
OPINION
CHERTOFF, Circuit Judge.
Appellees Jack and Marie Buczek
and Michael and Sandy Neill are the sole
and exclusive members of an
unincorporated condominium association
known as “Meadows Condominium
Association” (“Owners”). The Owners
commenced the underlying contract action
against Transportation Insurance
Company (“Transportation”) and
Continental Casualty Insurance Company
(“Continental”)1 in the United States
District Court for the District of New
Jersey on August 31, 2000. The Owners
sued the two insurance companies
following the denial of their condominium
1 Continental Insurance Company is
not an appellant in this matter. The
Owners have not appealed the District
Court’s decision to dismiss all claims
against Continental.

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insurance claim, and they asserted claims
for breach of contract and breach of the
duty of good faith dealing. At the
conclusion of the proceedings, the District
Court entered a judgment in favor of the
Owners and against Transportation in the
amount of $103,634.00. Over a series of
amended orders, the District Court also
granted costs and prejudgment interest to
the Owners. For the reasons set out
below, we will reverse the orders of the
District Court and vacate the judgment
entered in favor of the Owners.
I.
The Buczeks, citizens of the
Commonwealth of Pennsylvania, and the
Neills, citizens of the State of New Jersey;
purchased in 1986 a three-story, two-unit
s t r u c t u r e k n o w n a s M e a d o ws
Condominium located in Wildwood, New
Jersey. At the time of their condominium
purchase, the Owners obtained from
Transportation, an Illinois corporation, an
all-risk policy of insurance (“the Policy”)
to cover the Condominium Association.
“All-risks insurance is a special type of
insurance extending to risks not usually
contemplated, and generally allows
recovery for all fortuitous losses, unless
the policy contains a specific exclusion
expressly excluding the loss from
coverage.” Jane Massey Draper,
Annotation, Coverage Under All-Risk
Insurance, 30 A.L.R. 5th 170 (2004).
Built on filled marshland, the
condominium building is located on an
inlet and was supported by thirty-four
wooden pilings, which extended from
approximately three to four feet above
grade to approximately forty feet into the
ground. As the District Court established
and the record clearly reflects, the pilings
served as the foundation for the house.
About November 1, 1998, the Owners
noticed that their structure was swaying in
high winds. They investigated the
problem in the Spring of 1999 and found
visible discoloration on the surface level
of the pilings that supported the building.
A general contractor, exterminator, and
engineer were retained to investigate the
situation further.
On April 5, 1999, the structure was
jacked up approximately one foot, and two
longitudinal steel beams were inserted
under the building for support. Local
code enforcement officials deemed the
temporary foundation to be unsatisfactory
and dangerous and required that the
building be secured and anchored to
another temporary or permanent
foundation.
The Owners decided to replace the
rotted portions of the existing pilings with
concrete beams over the piles, building up
a foundation wall from the concrete beams
to the house. The Owners claim that the
replacement costs were approximately
$103,634.00. On April 22, 1999, the
Owners submitted a Notice of Loss to
Transportation. The Owners described the
loss as follows: “supports [of] building
rotted and wood boring beetles took over”
and that the loss occurred on or about
November 1, 1998. App. 254a.
On May 22, 1999, Irving

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Fruchtman, an engineer retained by the
Owners, inspected the property and
discovered that the pilings had rotted from
just below the water surface level to
approximately one foot below grade.
Wood samples from the pilings were
analyzed, and it was determined that
wood-destroying fungi and anaerobic
bacteria were present in the pilings in
addition to brown rot or decay.
Transportation’s own investigation yielded
similar findings. Transportation issued a
written denial of the Owners’ claim on
October 6, 1999, noting, “[s]ince the
pilings are the cause of the loss, and not
covered property under the policy, [the
company] must respectfully deny any
voluntary assistance or payment for this
loss.” App. 257a.
On August 31, 2000, the Owners
filed the underlying contract action in
District Court. Following a three-day jury
trial, the District Court decided the matter
on motions pursuant to Rules 50(a)(1) and
50(a)(2) of the Federal Rules of Civil
Procedure. On March 1, 2002, the Court
entered judgment against Transportation
in the amount of $103,634.00. The Court
subsequently granted the Owners’ request
for pre-judgment interest on the contract
obligation and amended the judgment to
$117,197.49, reflecting interest in the
amount of $13,563.49. On June 17, 2002,
the District Court entered an order
denying Transportation’s post-trial
motions. On October 15, 2002, the
District Court awarded costs of $1,778.71
to the Owners.
This appeal consolidates four
appeals timely filed by Transportation
contesting the District Court’s March 1,
2002 judgment; the May 31, 2002
amended judgment; the June 17, 2002
order denying Appellant’s post-trial
motions; and the October 16, 2002 order
awarding costs. This Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Transportation appeals the District
Court’s conclusion that the Owners were
entitled to coverage under the Policy and
argues that this Court should rule that it is
entitled to judgment as a matter of law. In
the alternative, Transportation argues that
it is entitled to a new trial because the
District Court “remov[ed] numerous
critical factual issues from the jury” and
improperly took judicial notice of an issue
of importance in this case. Appellant’s Br.
at 9. Finally, Transportation claims that it
is entitled to a remittitur because the
District Court granted damages not
recoverable under the Policy.
We exercise plenary review over
the District Court’s decision to grant the
Owners’ motions for judgment as a matter
of law. Goodman v. Penn. Tpk. Comm’n,
293 F.3d 655, 664-65 (3d Cir. 2002). “In
reviewing the grant of a judgment as a
matter of law under Fed. R. Civ. P. 50
following a jury verdict, we must view the
evidence in the light most favorable to the
non-moving party, and determine whether
the record contains the ‘minimum
quantum of evidence from which a jury
might reasonably afford relief.’” Glenn
Distribs. Corp. v. Carlisle Plastics, Inc.,

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297 F.3d 294, 299 (3d Cir. 2002) (quoting
Parkway Garage, Inc. v. City of
Philadelphia, 5 F.3d 685, 691 (3d Cir.
1993)).
The parties agree that New Jersey
law applies to this case, as do we.
Determination of the proper coverage of
an insurance contract is a question of law.
Atlantic Mut. Ins. Co. v. Palisades Safety
and Ins. Ass’n., 837 A.2d 1096, 1098
(N.J. Super. Ct. App. Div. 2003).2 An
insurance policy should be interpreted
according to its plain meaning. Benjamin
Moore & Co. v. Aetna Cas. & Sur. Co.,
843 A.2d 1094, 1103 (N.J. 2004) (internal
citations omitted). Where the express
language of the policy is clear and
unambiguous, “the court is bound to
enforce the policy as it is written.” Royal
Ins. Co. v. Rutgers Cas. Ins. Co., 638 A.2d
924, 927 (N.J. Super. Ct. App. Div. 1994)
(quoting Flynn v. Hartford Fire Ins. Co.,
370 A.2d 61, 63 (N.J. Super. Ct. App.
Div. 1977)). However, in the absence of
any ambiguity, courts should not write for
the insured a better policy of insurance
than the one purchased. Vassiliu v.
Daimler Chrysler Corp., 839 A.2d 863,
867 (N.J. 2004). A genuine ambiguity
exists “where the phrasing of the policy is
so confusing that the average policyholder
cannot make out the boundaries of
coverage.” Lee v. Gen. Accident Ins. Co.,
767 A.2d 985, 987 (N.J. Super. Ct. App.
Div. 2001). When the terms of coverage
are ambiguous, “that doubt is ordinarily
resolved in favor of the insured.” Moore,
843 A.2d at 1103.
A.
The “Condominium Association
Coverage Form” sets out the terms of
coverage for “Covered Property.” In
pertinent part, the Policy provides:
A. COVERAGE
We will pay for direct
physical loss of or damage
to Covered Property at the
premises described in the
Declarations caused by or
resulting from any Covered
Cause of Loss.
1. Covered Property
Covered Property, as used
2 We review the District Court’s
interpretation of state law de novo. Wiley
v. State Farm Fire & Cas. Co., 995 F.2d
457, 459 (3d Cir. 1993). In adjudicating a
case under state law, we are not free to
impose our own view of what state law
should be; rather, we are to apply existing
state law as interpreted by the state’s
highest court in an effort to predict how
that court would decide the precise legal
issues before us. Kowalsky v. Long
Beach Township, 72 F.3d 385, 388 (3d
Cir. 1995). In the absence of such
guidance, we must look to decisions of
state intermediate appellate courts, of
federal courts interpreting that state's law,
and of other state supreme courts that have
addressed the issue. Wiley, 995 F.2d at
459-60.

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5
in this Coverage Part, means
the type of property
described in this section
A.1., and limited in A.2.,
Property Not Covered, if a
Limit of Insurance is shown
in the Declarations for that
type of property.
a. Building, meaning the
building or structure
d e s c r i b e d i n t h e
Declarations, including:
(1) Completed additions;
(2) Fixtures, outside of individual
units, including outdoor fixtures;
(3) Permanently installed:
(a) Machinery and
(b) Equipment;
***
2. Property Not
Covered
Covered Property does not
include:
***
f. The cost of excavations,
grading, back filling or
filling;
g. Foundations of buildings,
structures, machinery or
boilers if their foundations
are below:
(1) The lowest
basement floor; or
(2) The surface of
the ground if there is
no basement.
***
j. Bulkheads, pilings, piers,
wharves or docks;
***
3. Covered Causes of Loss
See applicable Causes of
Loss Form as shown in the
Declarations.
App. 201-03a.
The “Causes of Loss– Special
Form” details the types of “Covered
C a u s e s o f L oss” covered by
Transportation. It provides:
A. C O V E R E D
CAUSES OF LOSS
When Special is shown in
the Declarations, Covered
Causes of Loss means
RISKS O F D I R E CT
PHYSICAL LOSS unless
the loss is:
1. Excluded in Section B.,
Exclusions; or
2. Limited in Section C.,
Limitations; that follow.
B. EXCLUSIONS
***
2. We will not pay for
loss or damage
c a u s e d b y o r
resulting from any of
the following:
***
d.
(1) Wear and tear;
(2) Rust, corrosion, fungus,
decay, deterioration, hidden
or latent defect or any

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quality in property that
causes it to damage or
destroy itself . . .
App. 216-17a.
In a decision issued from the bench
following the conclusion of the Owners’
and Transportation’s cases, the District
Court established that the Owners’ claims
would not be covered under the terms of
the General Insurance Policy. App. 780a.
To the extent that the Owners argue
otherwise and claim that the pilings are
insured as “Covered Property,” we
disagree. As the District Court’s opinion
and the record establish, the pilings served
as the foundation for the building, and the
language of the Policy clearly excludes
both foundations and “pilings” as
“Covered Property.”
The District Court concluded
nevertheless that coverage was warranted
under the Section D “Additional Coverage
– Collapse” provision of the Policy (the
“Collapse Clause”). Transportation
disputes this ruling.
The Additional Coverage clause
reads:
3. A D D I T I O N A L
C O V E R A G E –
COLLAPSE
The term Covered Cause of Loss
includes the Additional Coverage -
Collapse as described and limited
in D.1 through D.5 below.
1. We will pay for direct
physical loss or damage to
Covered Property caused by
collapse of a building or any
part of a building insured
under this Coverage Form,
if the collapse is caused by
one or more of the
following:
***
b. H i d d e n
decay;
c. Hidden insect
o r vermi n
damage;
***
App. 221a.
Since the pilings were damaged by
hidden decay, the applicability of this
clause turns on whether there was damage
to the Covered Property— i.e., the
building— caused by “collapse.” The
word “collapse,” as used in insurance
policies, has been litigated for many years.
See Annotation, What Constitutes
“Collapse” of a Building Within Coverage
of Property Insurance Policy, 71 A.L.R.
3d 1072 (1976). As this Court discussed
in Ercolani v. Excelsior Insurance Co.,
830 F.2d 31 (3d Cir. 1987), courts have
not uniformly agreed on what constitutes
the collapse of a building under the
collapse coverage of a casualty insurance
policy. Id. at 34.
Some courts have adopted a
“narrow” interpretation, requiring
coverage only where a building has fallen
down or caved in. See id. However, as
the District Court noted, New Jersey
follows an alternative approach, i.e., the

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“majority rule.” Our opinion in Ercolani
predicted, “New Jersey courts would . . .
read the collapse peril as covering serious
impairment of structural integrity making
the wall no longer capable of supporting
the house’s superstructure.” Id. at 34.3 In
Fantis Foods, Inc. v. North River
Insurance Co., 753 A.2d 176, 183 (N.J.
Super. Ct. App. Div. 2000), the New
Jersey Appellate Division echoed our
holding in Ercolani and decided that the
definition of collapse “must be taken to
cover any serious impairment of structural
integrity that connotes imminent collapse
threatening the preservation of the
building as a structure or the health and
safety of occupants and passers-by.”
Fantis, 753 A.2d at 183 (emphasis added).
After mulling the parameters of
what would be considered “imminent,” the
District Judge made two pivotal findings.
First, he accepted testimony that ninety
mile-per-hour winds would cause the
building to collapse, and second, he took
judicial notice that ninety mile-per-hour
winds sometimes hit the New Jersey shore.
App. 767-68a. The District Judge
concluded, “I’m holding that even a risk
that might be a one in ten, or one in twenty
year risk, is still a very serious and
imminent risk. The fact the event may or
may not occur in any given point in time
doesn’t mean the risk is not imminent.”
Id. In short, the District Court concluded
that the house’s vulnerability to ninety
mile-per-hour winds, which may occur
once in twenty years, constituted
“imminent collapse.”
We disagree with the District
Court’s definition of “imminent collapse.”
Certainly our decision in Ercolani made it
clear that a house need not be in a pile of
rubble before it is deemed “collapsed.”
However, even if we assume that a ninety
mile-per-hour wind might occur once
every ten or twenty years, that is still not
an “imminent” risk.4
3 At the time of our decision in
Ercolani, the New Jersey courts had yet to
determine which interpretation of
“collapse” would be the determinate rule,
leaving this Court to predict how the New
Jersey Supreme Court would rule. 830
F.3d at 34.
4 We do note, however, that “[a]
judicially noticed fact must be one not
subject to reasonable dispute in that it is
either (1) generally known within the
territorial jurisdiction of the trial court or
(2) capable of accurate and ready
determination by resort to sources whose
accuracy cannot re as on ab ly b e
questioned.” Fed. R. Evid. 201(b).
Indeed, on this appeal, the Owners’ own
evidence, an Army Corps of Engineers
survey, cited only two instances in the last
sixty-eight years where winds at Atlantic
City reached ninety miles-per-hour. Other
government data seems to suggest no
storms in the Jersey shore in the past
century achieved winds of ninety miles-
per-hour. National Climate Data Center,
National Oceanic and Atmospheric
Administration, 1899-1 996 U.S .

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“Imminent” is defined as “ready to
take place: near at hand,” Webster’s Third
New International Dictionary 1130 (1st
ed. 1966), and “likely to occur at any
moment: impending,” The Random House
Dictionary of the English Language 957
(2d ed. 1987). As one court has observed,
“imminent” means collapse “likely to
happen without delay.” See Ocean Winds
Council of Co-Owners v. Auto-Owner Ins.
Co., 565 S.E.2d 306, 308 (S.C. 2002); see
also Doheny West Homeowners Ass’n v.
Am. Guarantee & Liab. Ins. Co., 70
Cal.Rptr.2d 260, 264 (Cal. App. 2
Dist.,1997) (“‘likely to happen without
delay’” (quoting Webster's New World
Dictionary (3d college ed. 1991))).
The District Court’s findings on the
“imminent” threat to the structural
integrity of the condominium contrast with
the findings of imminence relied upon by
this Court in Ercolani and by the New
Jersey Appellate Division in Fantis. Here,
the District Court noted, “[there was] no
observable damage [to the house]. . . .
[D]rywall wasn’t flying apart. Flashing
wasn’t coming apart. The walls weren’t
bulging or cracking which sometimes
happen when a house becomes out of
whack, did not exist.” App. 765a.
However, in Ercolani, the policyholder
“heard loud moaning and shrieking noises
emanating from the south basement wall,
noticed a crack in it, and observed it move
and bulge inward.” 830 F.2d at 33.
Likewise, in Fantis Foods, the masonry
consultant who inspected the damaged
property noted, “‘[t]he main cause of the
parapet walls [sic] displacement and
imminent collapse is hidden decay of steel
beams and lintels which are located or
behind the brick masonry walls’” and that
the “‘[n]orth wall parapet has the
emergency condition.’” Fantis, 753 A.2d
at 180.
In short, the District Court’s
interpretation of “imminent” wrenched it
from any reasonable definition of the
word.5
Landfalling Major Hurricanes– GIF Maps,
available at
http://lwf.ncdc.noaa.gov/img/climate/sev
ereweather/2hur9996.gif (last visited July
8, 2004). This kind of disputed fact is not
one that is appropriate for judicial notice.
5 We need not consider whether our
decision would be different if there was
evidence in the record that a common gust
of wind would knock the structure down.
The Owners chose to offer evidence only
as to the effect of ninety mile-per-hour
winds on the house. The District Court
tried in vain to probe whether the house
was threatened with collapse by less
powerful winds. App. 304-05a. But as
Judge Irenas explained, “[Fructman]
didn’t say . . . it would collapse on its
own. I tried to get him to say that. I
asked, would a lesser [sic] wind, [e.g.,] a
forty [or] thirty [mile-per-hour wind], . . .
[would] make the thing fall. His answer
was, I only did calculations for ninety
miles-an-hour. Nothing [Transportation’s
expert] Honig[] said [was] anything

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B.
The Owners also argue that
Transportation was responsible for the
renovation costs because the Owners were
obliged to renovate under their duty to
minimize losses and mitigate damages.6
By way of analogy, they point to the so-
called “Sue and Labor” insurance clauses,
which oblige insurance companies to
reimburse expenses to insured parties who
spend money to avert harm to covered
property and to mitigate damages.
Two provisions in the Policy
appear to resemble traditional “Sue and
Labor” provisions found in other “all-risk”
insurance policies: the “Preservation of
Property” and “Duties in the Event of Loss
or Damage” provisions.
The Preservation clause provides:
b. Preservation of Property
If it is necessary for you to
move Covered Property
different.” App. 786a. Having chosen to
try the case on the theory that the house
was vulnerable to the rare threat of a
ninety mile-per-hour wind, the Owners are
bound to accept the consequence of our
determination that such a threat is not
imminent and cannot serve to support a
finding of “collapse.”
6 The Owners also cite Harr v.
Allstate Insurance Co., 255 A.2d 208 (N.J.
1969), for the propo sition that
Transportation should be estopped from
denying coverage because the Owners
relied on the language of the “Duties”
clause articulated in the Policy and copied
in a letter sent by the Company that was
dated April 30, 1999. The Owners’
reliance on Harr is misplaced. In that
case, the New Jersey Supreme Court
provided that equitable estoppel was
available in “appropriate circumstances.”
Id. at 219.
These decisions all proceed
on the thesis that where an
insurer or its agent
misrepresents, even though
innocently, the coverage of
an insurance contract, or the
exclusions therefrom, to an
insured before or at the
inception of the contract,
and the insured reasonably
relies thereupon to his
ultimate detriment, the
insurer is estopped to deny
coverage after a loss on a
risk or from a peril actually
not covered by the terms of
the policy.
Id. That case is clearly distinguishable
from the matter at hand. The District
C o u rt f o u n d n o e v i d e n c e o f
misrepresentation regarding the coverage
of insurance policy, as evidenced by its
rejection of the bad faith claim against
Transportation. See App. 798-99a.

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from the described premises
to preserve it from loss or
damage by a Covered Cause
of Loss, we will pay for any
direct physical loss or
damage to that property:
(1) While it is being
moved or while
temporarily stored at
another location; and
(2) Only if the loss or
d a m a g e o c c u r s
within 30 days after
the property is first
moved.
App. 204a (emphasis added).
The District Court indicated that it
relied on the Preservation of Property
Clause in concluding that the Owners
were entitled to coverage. The Court
explained, “I think that there is [sic]
mutual obligations, obligations on the part
of the insured to do that, preserve the
property and obligations for them to pay
for it. The insured did it.” App. 793a.
The Preservation Clause provides
coverage only in instances where a
“Covered Cause of Loss” is implicated.
But absent a finding of “collapse” under
the Collapse Clause, the Owners do not
have a “Covered Cause of Loss.”7
The Owners also refer to the
language of the “Duties in the Event of
Loss or Damage” Clause in the Policy.
This Clause provides:
3. Duties in the Event
of Loss or Damage
a. You must see that
the following are
done in the event of
loss or damage to
Covered Property:
***
(4) Take all reasonable
steps to protect the
Covered Property
from further damage.
. . . However, we will
not pay for any
subsequent loss or
damage resulting
from a cause of loss
that is not a Covered
Cause of Loss.
App. 208a (emphasis added).
Once again, the language clearly
provides that loss or damage resulting
from a cause of loss that is not a “Covered
Cause of Loss” is excluded from
coverage. Id. As we articulated in our
discussion of the Preservation Clause, the
Owners have not established a “Covered
Cause of Loss” that would warrant
coverage under the Policy.
The Owners finally cite Broadwell
7 Absent a “Covered Cause of
Loss,” we find no need to delve into the
issues of what constitutes something
“being moved” to another location or what
items constitute “Covered Property” under the Policy.

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Realty Services, Inc. v. Fidelity and
Casualty Company of New York, 528
A.2d 76 (N.J. Super. Ct. App. Div. 1987),
for the proposition that an insured has a
common law duty to prevent harm to the
property and that an insurer has a
corresponding obligation to reimburse the
insured for out-of-pocket expenditures for
these efforts. This case, however, is
clearly distinguishable.
First, the policy at issue in
Broadwell was a general liability policy,
not an “all-risk” policy purchased by the
Owners. “General liability policies are not
‘all-risk’ policies . . . . They provide an
insured with indemnification for damages
up to policy limits for which the insured
becomes liable as a result of tort liability
to a third party.” Standard Const. Co., Inc.
v. Maryland Cas. Co., 359 F.3d 846, 852-
53 (6th Cir. 2004) (internal citations
omitted); see also Lenning v. Commercial
Union Ins. Co., 260 F.3d 574, 584 (6th
Cir. 2001) (emphasis omitted). The issue
in Broadwell was whether the insurer had
to reimburse the insured for steps taken to
prevent damages to a third party which
were covered under the policy.
Significantly, the Broadwell court denied
coverage for the preventive measures
taken by the insured because the liability
policy excluded the insured’s property
from coverage. 528 A.2d at 528.
Simply put, the insurer’s obligation
to reimburse for acts taken to preserve or
protect Covered Property does not extend
to require reimbursement for prevention of
damage to property that is excluded from
coverage or for a circumstance that is not
a covered cause of loss. As we observed
in GTE Corp. v. Allendale Mut. Ins. Co.,
addressing “Sue and Labor” clauses, “an
alternative interpretation would permit [an
insured party] to recover for
improvements and measures taken to
address a host of uninsured risks.” 372
F.3d 598, 618 (3d Cir. 2004).
Accordingly, we will vacate the
judgment (as amended) of the District
Court, vacate the awards of prejudgment
interest and costs, and remand for
judgment to be entered in favor of
Transportation Insurance Company.

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