NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2767-13T1

CYPRESS POINT CONDOMINIUM ASSOCIATION, INC., APPROVED FOR PUBLICATION

Plaintiff-Appellant/ July 9, 2015 Cross-Respondent, APPELLATE DIVISION v.

ADRIA TOWERS, L.L.C.; D. LOUREIRO MASONRY CONTRACTOR; DEAN MARCHETTO ASSOCIATES, P.C.; PEREIRA CONSTRUCTION, L.L.C.; AMERICAN ARCHITECTURAL RESTORATION; METRO HOMES, L.L.C.; COMMERCE CONSTRUCTION MANAGEMENT, L.L.C.; WATERFRONT MANAGEMENT SYSTEMS, L.L.C.; NCF GLAZING & ERECTING, INC.; and MDNA FRAMING, INC.,

Defendants,

and

WEATHER-TITE,

Defendant/Third-Party Plaintiff,

v.

PEREIRA CONSTRUCTION, L.L.C., and AMERICAN ARCHITECTURAL RESTORATION,

Third-Party Defendants,

and EVANSTON INSURANCE COMPANY,

Defendant/Third-Party Plaintiff-Respondent/ Cross-Appellant,

and

NATIONAL INDEMNITY COMPANY,

Third-Party Defendant,

and

CRUM & FORSTER SPECIALTY INSURANCE COMPANY,

Third-Party Defendant- Respondent/Cross-Appellant.

____________________________________________

Argued May 27, 2015 – Decided July 9, 2015

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 2260-11.

Mark M. Wiechnik argued the cause for appellants/cross-respondents Cypress Point Condominium Association, Inc., (Ansell Grimm & Aaron, P.C., attorneys; Mr. Wiechnik and Breanne M. DeRaps, on the brief).

Elliott Abrutyn argued the cause for respondent/cross-appellant Evanston Insurance Company (Morgan Melhuish Abrutyn, attorneys; Mr. Abrutyn, of counsel; Mr. Abrutyn and Thomas G. Rantas, on the brief).

John S. Favate argued the cause for respondent/cross-appellant Crum & Forster Specialty Insurance Company (Hardin, Kundla,

2 A-2767-13T1 McKeon & Poletto, P.A., attorneys; George R. Hardin and Arthur A. Povelones, Jr., of counsel; Mr. Hardin, Mr. Povelones, and Brian C. Alfson, on the brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

Plaintiff, a condominium association, brought claims

against the association's developer, Adria Towers, L.L.C. (the

"developer"), the developer's insurers, Evanston Insurance

Company ("Evanston") and Crum & Forster Specialty Insurance

Company ("Crum & Forster") (collectively the "insurers"), and

various subcontractors (the "subcontractors"). The developer

served as the general contractor on the condominium project and

hired the subcontractors who performed all the construction

work. Plaintiff sought coverage from the insurers under the

developer's commercial general liability ("CGL") insurance

policies for consequential damages caused by the subcontractors'

defective work.1

The judge determined that there was no "property damage" or

"occurrence" as required by the policy to trigger coverage,

granted summary judgment to Evanston, and dismissed the

complaint against Crum & Forster as moot. Plaintiff appeals

1 The insurers' policies contain the same pertinent language. We therefore refer to the policies hereinafter in the singular (the "policy"). Plaintiff's standing to bring this lawsuit is not contested on appeal.

3 A-2767-13T1 from a January 31, 2014 order denying reconsideration of the

order granting summary judgment to Evanston. The insurers

cross-appeal from various orders contending that if we reverse

on plaintiff's appeal, then we should address their arguments

raised, but not considered, by the judge.2

We review the denial of a motion for reconsideration to

determine whether the trial court abused its discretionary

authority. Cummings v. Bahr,

(App.

Div. 1996). When reviewing an order granting summary judgment,

we apply the same standards that the trial court applied when

ruling on the motion. Oyola v. Xing Lan Liu,

(App. Div.), certif. denied,

(2013).

The sole question in this appeal is whether consequential

damages to the common areas of the condominium complex and to

the unit owners' property, caused by the subcontractors'

defective work, constitute "property damage" and an "occurrence"

under the policy. We consider this issue by interpreting the

plain language of the policy, which follows the Insurance

2 Evanston cross-appeals from orders dated March 16, 2012 (granting plaintiff's motion to assert a direct claim against Evanston); November 8, 2013 (granting summary judgment to Evanston); December 12, 2013 (dismissing Crum & Forster's third- party complaint against Evanston); and January 31, 2014 (denying plaintiff's motion for reconsideration). Crum & Forster cross- appeals from the December 12, 2013 order dismissing as moot plaintiff's claims against it.

4 A-2767-13T1 Services Office, Inc.'s ("ISO") 1986 standard CGL form (the

"1986 ISO form"). Applying the relevant standards, we reverse

the order denying reconsideration, set aside the orders

dismissing plaintiff's complaint, and remand with instructions

to consider the insurers' alternate contentions that plaintiff's

claims are otherwise excluded under the policy.

We hold that the unintended and unexpected consequential

damages caused by the subcontractors' defective work constitute

"property damage" and an "occurrence" under the policy. We base

this holding in part on the developer's reasonable expectation

that, for insurance risk purposes, the subcontractors' faulty

workmanship is to be treated differently than the work of a

general contractor. We reach that conclusion by viewing the

policy as a whole and distinguishing Weedo v. Stone-E-Brick,

Inc.,

(1979), and Firemen's Insurance Co. of Newark

v. National Union Fire Insurance Co.,

(App.

Div. 2006), two opinions construing ISO's 1973 standard CGL form

(the "1973 ISO form").

I.

We view the facts in the light most favorable to plaintiff,

as we must do at this stage. Brill v. Guardian Life Ins. Co. of

Am.,

(1995).

5 A-2767-13T1 The subcontractors failed to properly install the roof,

flashing, gutters and leaders, brick and EIFS facade, windows,

doors, and sealants (the "faulty workmanship"). The faulty

workmanship amounted to what has typically been considered in

the construction industry as defective work. In the insurance

industry, such replacement costs are usually regarded as a cost

of doing business and are considered a "business risk." See

Heldor Indus. v. Atl. Mut. Inc. Co.,

(App. Div. 1988) (stating that "the insured assumes the risk of

necessary replacement or repair . . . as a part of the cost of

doing business"). Plaintiff has not argued that the replacement

costs constitute "property damage" and an "occurrence" under the

policy.

According to plaintiff, the faulty workmanship also caused

consequential damages to the "common areas and unit owners'

property [including] damage to steel supports, exterior

sheathing and interior sheathing and sheetrock, insulation and

other interior areas of the building, both visible and

latent[.]" Some unit owners experienced "water infiltration at

the interior window jambs and sills[,]" and "roof leaks." Other

unit owners "experienced significant damage to the interior of

their units, including exterior wall sheathing, wall cavity

6 A-2767-13T1 insulation, insulation sheetrock, wall finishes, wood flooring,

and trim."

In relation to sharing the cost of risks as a matter of

insurance underwriting, consequential damages flowing from

defective work are vastly different than the costs associated

with replacing the defective work. See Hartford Ins. Grp. v.

Marson Constr. Corp.,

(App. Div.

1982) (holding that defective work causing damage to other

property is not a business risk), certif. denied,

(1983); Newark Ins. Co. v. Acupac Packaging, Inc.,

(App. Div. 2000) (noting that damage to

third-party property is a tort liability and not a business risk

or work performance issue).

On appeal, plaintiff raises two principal arguments.

First, plaintiff contends that under a plain reading of the

language in the policy, the consequential damages constitute

"property damage" and an "occurrence." Plaintiff asserts that

we must conduct this initial threshold analysis. If a

determination is made that "property damage" and an "occurrence"

exist, plaintiff concedes that the insurers would be free to

argue, on remand, that plaintiff's claims are otherwise excluded

under the terms of the policy.

7 A-2767-13T1 Second, plaintiff argues that the judge erroneously placed

substantial reliance on the holdings in Weedo and Firemen's to

determine whether there existed "property damage" and an

"occurrence." Plaintiff maintains that those cases are

distinguishable because they (1) involved only replacement costs

flowing from a business risk rather than consequential damages

caused by defective work; and (2) interpreted different policy

language.

II.

We begin by addressing plaintiff's first contention, that

there exists "property damage" and an "occurrence" under the

plain language of the policy. The following well-settled

principles inform our analysis of the policy's terms.

A court's interpretation of an insurance contract is a

determination of law. Sealed Air Corp. v. Royal Indem. Co.,

(App. Div.), certif. denied,

(2008). We afford no special deference to a trial court's

interpretation of the law and the legal consequences that flow

from the established facts. Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,

(1995). Accordingly, we

review a trial court's interpretation of an insurance policy de

novo. Sealed Air, supra,

.

8 A-2767-13T1 An insurance policy must be construed "as a whole and

effect given to every part thereof." Herbert L. Farkas Co. v.

N.Y. Fire Ins. Co.,

(1950); Arrow Indus.

Carriers, Inc. v. Cont'l Ins. Co. of N.J.,

(App. Div. 1989) (noting that our "responsibility is to

give effect to the whole policy, not just one part of it").

When interpreting insurance contracts, we begin by first

examining the plain language of the policy. Pizzullo v. N.J.

Mfrs. Ins. Co.,

(2008). If the terms are

clear, then we give them their plain and ordinary meaning.

Construction of the insurance policy must be "consistent

with the insured's reasonable expectations." Sealed Air, supra,

(internal citation and quotation marks

omitted).

Here, the language of the policy follows the 1986 ISO form.

The policy provides the terms for coverage in Section I, A.1,

with certain words defined in Section V. These sections provide

in pertinent part:

SECTION I – COVERAGES

COVERAGE A. BODILY INJURY & PROPERTY DAMAGE LIABILITY

1. Insuring Agreement.

a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of . . .

9 A-2767-13T1 "property damage" to which this insurance [policy] applies.

. . . .

b. This insurance applies to . . . "property damage" only if:

(1) The . . . "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and (2) The . . . "property damage" occurs during the policy period.3

. . . .

SECTION V – DEFINITIONS

. . . .

13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

. . . .

16. "Property damage" means:

a. Physical injury to tangible property, including all resulting loss of use of that property . . .; or

b. Loss of use of tangible property that is not physically injured.

3 The parties do not dispute that the alleged "property damage" occurred within the "coverage territory" and policy period.

10 A-2767-13T1 Although the policy does not define the term "accident," our

Supreme Court has held that "the accidental nature of an

occurrence is determined by analyzing whether the alleged

wrongdoer intended or expected to cause an injury." Voorhees v.

Preferred Mut. Ins. Co.,

(1992).

Section I, A.1 is followed by Section I, A.2, which

provides separate language excluding various claims. Thus,

before reaching the policy's exclusions, the insuring agreement

requires that there be an initial determination of whether there

is "property damage" and an "occurrence." Construing the

language in Section I, A.1, we conclude that the consequential

damages here amount to "property damage" and an "occurrence."

As to whether there exists "property damage," the

consequential damages clearly constitute "physical injury to

tangible property." The faulty workmanship damaged "the common

areas and unit owners' property[.]" The interior structures,

including the drywall, insulation, wall finishes, and wood

flooring, were damaged by water infiltration from the faulty

workmanship. As a result, the consequential damages constitute

"property damage" as defined under the policy.

As to whether there exists an "occurrence," the

consequential damages amount to an unexpected and unintended

"continuous or repeated exposure to substantially the same

11 A-2767-13T1 general harmful conditions." The insurers do not contend, and

we cannot reasonably believe, that the subcontractors either

expected or intended for their faulty workmanship to cause

"physical injury to tangible property." Thus, the consequential

damages constitute an "occurrence" as defined in the policy.

III.

Turning to plaintiff's second argument, we conclude that in

granting summary judgment, the trial judge erroneously applied

the holdings in Weedo and Firemen's. Those cases are

distinguishable because they (1) involved only replacement costs

flowing from a business risk, rather than consequential damages

caused by defective work; and (2) interpreted different language

than the policy language in this appeal.

A.

In Weedo, the Court did not resolve whether consequential

damages resulting from subcontractors' faulty workmanship

constituted "property damage" or an "occurrence." Rather, the

Court focused only on issues related to insurance coverage. The

insurer conceded that "but for the exclusions in the policy,

coverage would obtain."

-38 n.2.

Implicit in this concession, therefore, is the tacit admission

that there was an "occurrence" and "property damage."

12 A-2767-13T1 The Weedo Court, in interpreting the 1973 ISO form, held

that there was no insurance coverage for "faulty workmanship

. . . where the damages claimed [were solely] the cost of

correcting the work itself."

. The Court considered

such business-risk damages to be uninsurable.

.

Here, unlike in Weedo, the consequential damages are not

defective-work damages. In other words, the consequential

damages are distinct from the cost of correcting the work

itself. Thus, the holding in Weedo is not dispositive on the

issue presented in this appeal.

In Firemen's, we also interpreted the 1973 ISO form. We

concluded that there was no "property damage" or "occurrence,"

and thus no insurance coverage, for damages that were solely

related to replacing sub-standard firewalls because the damages

were a business risk, not consequential damages. Firemen's,

supra,

. We noted in Firemen's, unlike

here, that there were no allegations of damages to the "rest of

the building," and we followed Weedo indicating that the

replacement of the defective work — a business risk — was

uninsurable.

.

Even though Firemen's did not involve consequential

damages, we acknowledged that "the risk of . . . [consequential]

damage to property caused by faulty workmanship," like here, is

13 A-2767-13T1 a different type of risk than the cost of doing business.

(internal citations and quotation marks omitted). We

stated that

[u]nlike business risks . . . where the tradesman commonly absorbs the cost attendant upon the repair of his faulty work, the accidental injury to property or persons substantially caused by his unworkmanlike performance exposes the contractor to almost limitless liabilities. While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting.

[Ibid. (emphasis added) (quoting

) (internal quotation marks omitted).]

Thus, this case falls within the caveat that Weedo and

Firemen's expressly recognized, and accords with our prior

holdings in Hartford Insurance, supra,

-

59, and Newark Insurance, supra,

. We

emphasize that the consequential damages here are not the cost

of replacing the defective work — that is the improperly

installed roof, flashing, gutters and leaders, brick and EIFS

facade, windows, doors, and sealants. Those costs are

considered a business risk associated with faulty workmanship.

Rather, the consequential damages are those additional damages

14 A-2767-13T1 to the common areas of the condominium building and the unit

owners' property. The consequential damages are therefore not

the cost of correcting the defective work, such as the cost of

replacing the stucco in the Weedo case or replacing the

firewalls as in Firemen's, but rather the cost of curing the

"property damage" arising from the subcontractors' faulty

workmanship.

B.

There are also two critical differences between the 1973

ISO form considered in Firemen's and the 1986 ISO form in this

case. These differences provide additional support for our

conclusion that the trial court's reliance on the holding in

Firemen's is misguided.

First, "occurrence" is defined differently. The 1973 ISO

form defines "occurrence" as "'an accident . . . which results

in . . . property damage neither expected nor intended from the

standpoint of the insured.'" Firemen's, supra,

. Here, the policy defines "occurrence" as "an accident,

including continuous or repeated exposure to substantially the

same general harmful conditions." "Property damage," therefore,

is not directly included in the policy's definition of

"occurrence," and Firemen's is consequently not squarely on

point.

15 A-2767-13T1 Second and most importantly, the 1986 ISO form includes a

significant exception to an exclusion not contained in the 1973

ISO form. Due to this exception, we conclude that for insurance

risk purposes, consequential damages caused by a subcontractor's

faulty workmanship are considered differently than property

damage caused by a general contractor's work.

Pertinent to our conclusion that reliance on Firemen's is

misplaced, the policy contains the following exclusionary

language that did not appear in the policy we considered in

Firemen's:

2. Exclusions.

This insurance does not apply to:

. . . .

l. Damage to Your Work [the "Your Work" Exclusion]4

"Property damage" to "your work" arising out of it or any part of it . . . .

This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. [The "subcontractor's exception"].

[(Emphasis added).]

4 The "Your Work" exclusion is premised on the concept of the contractor's business risk.

16 A-2767-13T1 The policy defines "Your Work" as:

a. Work or operations performed by you or on your behalf; and

b. Materials, parts or equipment furnished in connection with such work or operations.

Although we need not resolve whether plaintiff's property

damage claims are excluded under the policy, the addition of the

subcontractor's exception is of critical importance when

determining whether the subcontractors' faulty workmanship

causing consequential damages amounts to "property damage" and

an "occurrence" under the policy. The subcontractor's exception

did not appear in ISO forms before 1986. Commentators have

observed that ISO added the subcontractor's exception because

the insurance and policyholder communities agreed that the CGL policy should provide coverage for defective construction claims so long as the allegedly defective work had been performed by a subcontractor rather than the policyholder itself. This resulted both because of the demands of the policyholder community (which wanted this sort of coverage) and the view of insurers that the CGL was a more attractive product that could be better sold if it contained this coverage.

[Christopher C. French, Construction Defects: Are They "Occurrences"?,

, 8-9 (2011) (citing Jeffery W. Stempel, Stempel on Insurance Contracts § 14.13d at 14-224.8 (3d ed. supp. 2007)).]

ISO also provided guidance regarding the subcontractor's

exception by making clear that the policy "'cover[ed] damage

17 A-2767-13T1 caused by faulty workmanship to other parts of work in progress;

and damage to, or caused by, a subcontractor's work after the

insured's operations are completed.'" U.S. Fire Ins. Co. v.

J.S.U.B., Inc.,

(Fla. 2007) (alteration in

original) (emphasis added) (quoting ISO Circular, Commercial

General Liability Program Instructions Pamphlet, No. GL-86-204

(July 15, 1986)).

As a practical matter, it is very difficult for a general

contractor to control the quality of a subcontractor's work. If

the parties to the insurance contract did not intend a

subcontractor's faulty workmanship causing consequential damages

to constitute "property damage" and an "occurrence," as those

terms are defined in the policy, then it begs the question as to

why there is a subcontractor's exception.

The absence of such an exception in the 1973 ISO form is

important because in defining "property damage" to effectuate

insurance coverage, we previously rejected any attempt to

separate a subcontractor's faulty workmanship from that of a

general contractor. In Firemen's, supra, we recognized that

cases interpreting the 1973 ISO form "equate[d] subcontractors

with general contractors for the purposes of determining whether

there was 'property damage[.]'"

. But

here, the policy includes the subcontractor's exception. Thus,

18 A-2767-13T1 as a matter of an insurance underwriting risk, the exception

treats consequential damages caused from faulty workmanship by

subcontractors differently than damage caused by the work of

general contractors.

Even though we were not required to consider whether there

was an "occurrence" in Firemen's because we had concluded that

there was no "property damage," we noted that "the majority rule

[at that time was] that faulty workmanship [did] not constitute

an 'occurrence.'"

. We made that statement, however,

analyzing the 1973 ISO form in a case involving only damages

related to a business risk.

In Firemen's, we cited out-of-state case law involving the

pre-1986 ISO form, which provided that "'[t]he completed product

is to be viewed as a whole, not as a grouping of component

parts.'"

at 446 (quoting Knutson Constr. Co. v. St. Paul

Fire & Marine Ins. Co.,

(Minn. 1986)).

But once again, we were construing a different insurance policy

and equating, for insurance underwriting risk purposes, the work

of subcontractors with that of general contractors. Here, the

trial court's treatment of the subcontractors' work and the

developer's completed product "as a whole," ignores the import

and purpose of the subcontractor's exception.

19 A-2767-13T1 Thus, looking at the policy in its entirety, the developer

would reasonably expect that consequential damages caused by the

subcontractors' faulty workmanship constituted "property damage"

and an "occurrence." This reasonable expectation is supported

by applying the definitions of "property damage" and

"occurrence" together with the subcontractor's exception and its

purpose.

IV.

We also find persuasive that "the majority rule [currently]

is that construction defects [causing consequential damages]

constitute 'occurrences[.]'" Construction Defects, supra, 47

Gonz. L. Rev. at 24-26. The leading case decided by the Florida

Supreme Court, United States Fire Insurance Co., supra, held

that under the same policy language as here, consequential

damage caused by defective work constituted "property damage"

and an "occurrence" under the policy.

.

The Court concluded that

faulty workmanship that is neither intended nor expected . . . can constitute an "accident" and thus an "occurrence" under a post-1986 standard form CGL policy. We further conclude that physical injury to the completed project that occurs as a result of the defective work can constitute "property damage" as defined in a CGL policy.

[Id. at 891.]

20 A-2767-13T1 It is notable that the Florida Supreme Court distinguished the

holding in Weedo by stating that Weedo "involved the issue of

whether there was coverage for the contractor's own defective

work, [and] was dependent on the policy language of pre-1986 CGL

policies, including the relevant insuring provisions and

applicable exclusions."

.

Other courts have also reached the same conclusion. The

United States Court of Appeals for the Fourth Circuit, applying

Maryland law, found that under the same policy language as here,

liability coverage existed "for the cost to remedy unexpected

and unintended [consequential] property damage to the

contractor's otherwise non-defective work-product caused by the

subcontractor's defective workmanship." French v. Assurance Co.

of Am.,

, 706 (4th Cir. 2006); see also Construction

Defects, supra, 47 Gonz. L. Rev. at 25-27, n.78-92 (listing

cases that reached similar holdings from the Supreme Courts of

Georgia, Texas, Kansas, Indiana, Minnesota, Alaska, Mississippi,

South Carolina, South Dakota, Tennessee, and Wisconsin).

The judge in this case found persuasive the reasoning

expressed by the Third Circuit in an unpublished and non-

precedential case, Pennsylvania National Mutual Casualty

Insurance Co. v. Parkshore Development Corp.,

(3d Cir. 2010). The Third Circuit remarked that we concluded in

21 A-2767-13T1 Firemen's that "faulty workmanship[,] whether performed by a

contractor or subcontractor[,] which causes damage to the

general contractor's work[,] is not an 'occurrence.'"

. In Firemen's, however, we interpreted the 1973 ISO form,

which omitted any reference to the subcontractor's exception to

the "Your Work" exclusion. As a result, any such reliance on

Firemen's is respectfully misplaced.

V.

Interpreting "occurrence" under the policy to include

unexpected and unintended consequential damages caused by the

subcontractors' faulty workmanship will not convert the policy

into a performance bond. See United States Fire, supra,

. A performance bond guarantees the completion of a

construction contract if a contractor defaults, and unlike an

insurance policy, it benefits the project owner rather than the

contractor. Ribeira & Lourenco Concrete Constr. v. Jackson

Health Care Assoc.,

(App. Div.

1992). A surety, unlike a liability insurer, is also entitled

to indemnification from the contractor. Montefusco Excavating &

Contractor Co. v. Cnty. of Middlesex,

(1980).

Moreover, although we express no opinion as to the weight

of any potential cross-claim against the subcontractors or their

insurance companies, we note that the policy contains an

22 A-2767-13T1 endorsement requiring that the subcontractors name the developer

as an additional insured on the subcontractors' insurance

policies, and the endorsement requires the subcontractors to

maintain CGL insurance in an amount of at least "equal" to the

insurance provided in the policy. As a result, such purported

added insurance protections further prevent the policy from

acting solely like a performance bond by arguably shifting the

insurers' indemnification obligations to the subcontractors and

their insurance companies.

VI.

Finally, concluding that plaintiff met the definitions of

"property damage" and "occurrence" under the policy does not

automatically mean that insurance coverage exists. We do not

reach the question of whether plaintiff is entitled to insurance

coverage under the policy. The insurers contended before the

judge that even if there were "property damage" and an

"occurrence" under the policy, plaintiff's claims would

otherwise be excluded. The judge never reached those issues,

and we decline to do so here.

It is well-established that we "may exercise such original

jurisdiction as is necessary to complete the determination of

any matter on review." R. 2:10-5. However, original

jurisdiction should be exercised with "great frugality" and not

23 A-2767-13T1 when there is a need to "weigh[] evidence anew" or "mak[e]

independent factual findings[.]" State v. Micelli,

(2013) (alterations in original) (citations and

internal quotation marks omitted). The Micelli Court cautioned

against what the insurers are now urging us to do.

Although we decline to exercise original jurisdiction and

address the issues raised by the insurers in their cross-

appeals, the insurers may argue, as plaintiff concedes, on

remand that the exclusions in the policy preclude coverage.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

24 A-2767-13T1