BARBARA HEIKEN and KENNETH GOLDMAN, Plaintiffs–Appellants/ Cross–Respondents, v. JOSEPH RICIGLIANO, ESQ., SERVPRO INDUSTRIES, INC., SERVPRO OF NW BERGEN & EAST ROCKLAND COUNTIES, THOMAS FREEMAN and GIGLIO AGENCY, Defendants–Respondents/ Cross–Appellants.
DOCKET NO. A–4203–10T3
-- August 29, 2013
Richard S. Mazawey argued the cause for appellants/cross-respondents (Mr. Mazawey, attorney; Mr. Mazawey and Celestino A. Labombarda, on the briefs).Susan A. Lawless argued the cause for respondents/cross-appellants Servpro of NW Bergen & Southern and Eastern Rockland Counties (Purcell, Mulcahy, O'Neill & Hawkins, L.L.C., attorneys; Ms. Lawless, of counsel; Katherine Lyons, on the briefs).Brian Gallagher argued the cause for respondents/cross-appellants Thomas Freeman and the Giglio Agency (Margolis Edelstein, attorneys; Colleen M. Ready, on the brief).
Plaintiffs, Barbara Heiken and Kenneth Goldman, appeal from the order that dismissed with prejudice following a Lopez 1 hearing their complaint against defendants Servpro Industries, Inc.2 , Servpro of Northwest Bergen and East Rockland Counties, Thomas Freeman and the Giglio Agency.3 Servpro cross-appeals, arguing that in the event of a remand, Heiken and Goldman's attorney-client privilege as to Ricigliano should be deemed waived. Freeman and the Giglio Agency also cross-appeal from certain rulings the trial court made “against [their] position[s] concerning issues they raised concerning the Lopez hearing.” Having considered plaintiffs' arguments in light of the record and controlling law, we affirm.
We derive the following facts from the Lopez hearing. In 2000, plaintiffs lived together in a condominium duplex in Mahwah. In February, the eave in their roof leaked and water damaged a wall and carpet in their bedroom. Heiken called her insurance agent, Thomas Freeman, who told her to call Servpro to remediate the damage caused by the leak. Servpro responded and the matter was resolved uneventfully.
Five months later, in July 2000, the condominium was severely damaged by water that poured out of a broken washer hose. Heiken was away in Connecticut when she received a 10:00 p.m. call from Goldman, who had remained in the condominium. He told her water was running through the lights and smoke detectors, and that a significant amount of water had accumulated throughout the unit. Heiken drove home to find the entire condominium filled with water. She estimated that approximately eight inches of water filled the unit. Paintings had been “blown off walls” and were floating in water. Oriental rugs that were one hundred years old were completely under water. Antique furniture sat in eight-inch-deep water. In short, the condominium was a disaster.
Servpro responded and removed the standing water, but plaintiffs were unable to agree with their insurance company, Chubb, on the extent of the water damage to their home and the cost to repair that damage. Due to the disagreement, plaintiffs hired defendant Joseph Ricigliano, who filed a declaratory judgment action on October 30, 2000.
In the complaint, among other allegations, plaintiffs claimed to “have been residing in an unsafe, unhealthy condition based upon the extensive damage to their residence.” While the lawsuit was pending, Ricigliano wrote to the court on November 17, 2000, in an effort to persuade the court to take emergent action in response to an order to show cause he had filed. In the letter, Ricigliano asserted:
While I cannot certify that the conditions pose a risk to my client's [sic] lives, the mold, continually grows back on the walls from the extensive damage, certainly poses an extensive health risk and therefore, I am seeking that this matter be allowed to proceed as an Order to Show Cause.
The previous month, Heiken had begun to experience symptoms she characterized as “bizarre.” During a trip to Costa Rica, her ankles swelled. Following that trip, the symptoms became more severe as they persisted throughout 2001. The symptoms included chronic itching in her legs, rhinitis, a stuffy nose, a sore throat, nausea, vomiting, and headaches. She began consulting with doctors early in 2001. In August 2001, a physician in Manhattan diagnosed her condition as a reaction to mold. By that time, however, plaintiffs had settled the lawsuit against Chubb. In February 2001, plaintiffs had received $57,650 “in full payment for making [a] Release” of their insurance company, Chubb, the condominium association's insurance company, and the condominium association's managing agent.
Long after the settlement, Heiken continued to receive medical treatment for her symptoms. After contacting Dr. Adrienne Buffaloe for an appointment, and before her August 1, 2001 consultation with Dr. Buffaloe, Heiken completed an “Environmental Survey.” Heiken reported in the survey that following the flood in her townhouse, she actually saw mold. She also reported that there was a mold smell everywhere and that the house had a characteristic odor of “mold/mildew.” Contrary to those statements that she had actually seen mold, Heiken testified at the Lopez hearing that she had never seen mold in her residence. She said she reported the mold on the survey at the suggestion of the person who had sent her to Dr. Buffaloe.
Following the August 1, 2001 consultation, Dr. Buffaloe recommended that Heiken undergo “skin testing and desensitization (allergy shots) for molds.” He also recommended that Heiken test the home for mold. On the same day, Dr. Buffaloe wrote to Dr. Ronald Ruden and explained that “Barbara Heiken Goldman has been exposed to toxigenic mold from the flooding of her home on July 27, 2000. She exhibits a constellation of symptoms consistent with mold contamination.” Three months later, on November 5, 2001, Heiken completed an “Allergy & Environmental History Questionnaire” for Dr. Joseph Wojcik, Diplomate in Allergy, Asthma & Immunology. In that questionnaire, Heiken reported that she seemed to be allergic to mold, and that mold odors were present in the closet of her bedroom and in the living or family room. During her testimony at the Lopez hearing, Heiken testified that she reported the mold odors on Dr. Wojcik's form at the suggestion of the person who had referred her to Dr. Wojcik.
When plaintiff formally consulted with Dr. Wojcik on December 17, 2001, he recommended that she test for mold in the four most frequently used rooms in her home, including the basement. Dr. Wojcik suggested that if Heiken chose to remain in her home, she would have to have extensive work done to clean up the environment and remove the mold. Dr. Wojcik recommended that she consult with an expert and identified Wayne Tusa as one such expert.
Plaintiffs retained Tusa, a principal of Environmental Risk and Loss Control, Inc., who completed a mold evaluation of their condominium on May 6, 2003. In a letter to Heiken dated June 12, 2003, Tusa reported:
In this case, it is clear the washer hose failure resulted in substantial flooding on most of the second floor and throughout the first floor. Unfortunately[,] most of the construction materials that were wetted as a consequence of the flooding where not thoroughly dried out or removed within 24 to 48 hours—at which point mold growth typically begins. While no mold sampling was done in the interim between the leak and this mold evaluation, it is almost certain that the presence of large quantities of wet construction materials resulted in substantive mold growth, not only in visible locations, such as your closets, but in inaccessible locations behind walls, above ceilings, below floors, etc. While most of the wetted construction materials appear to have substantively dried out since the flooding, it appears that mold growth which is still present in inaccessible locations is resulting in significantly above background levels of viable and total mold spores in indoor air. Unfortunately, these elevated mold exposures appear to be the most likely cause of your physical and medical symptoms.
Tusa recommended as a “prudent mitigation approach ․ removing and replacing all substantively wetted or cosmetically damaged construction materials.” He included as materials that should be removed “the floors and bottom twenty [-]four inches of the walls in all of the affected rooms on the second floor and all of the ceilings, floors and walls on the first floor.” He also recommended testing all adjacent surfaces and other remedial measures.
Goldman testified at the Lopez hearing that he moved into the condominium in the summer of 1998 and purchased it on February 8, 1999. He knew that Heiken had maintained a renter's insurance policy issued by Chubb and placed through defendant Giglio Agency. When Goldman purchased the condominium, he spoke with a Giglio agent in order to obtain homeowner's coverage.
According to Goldman, he told Giglio that he
wanted complete coverage for my structure, for all my personal belongings, all of [Heiken's] belongings, [and] wanted everything covered similar to what [he] had when [he] had [his] own home before [his] divorce, and similar to coverage that [he] had in two condo units ․ that [he] had
․ at the time as an investment.
Chubb issued a policy to Goldman with a one-year term beginning October 1, 1999, and ending October 1, 2000. Defendants Thomas Freeman and Giglio were the producers. The policy was renewed yearly. In 2007, Goldman learned that “he didn't have the coverage that [he] had requested.” The policy did not include insurance for structural damage.4
When the washing machine hose burst in July 2000, Goldman stayed at home that night and the next day. From that point on, Heiken worked to have the condominium cleaned, because Goldman had to return to work. Goldman was working forty-five to fifty hours each week. He did not accompany Heiken when she consulted with her doctors, and did not participate in answering any of the questionnaires that she completed.
Goldman confirmed that between 2000 and 2003, Heiken was exhausted and often had difficulty breathing, walking, and sleeping. He also testified that he did not know the condominium had been permanently damaged until he received the report from Tusa. He had furnished no information to Tusa, and had never met him.
Goldman did not know that any of Heiken's doctors had recommended that they test their home for mold. He was unaware that she had arranged her testing until she told him that Tusa was coming to do an analysis. Goldman did not review the Tusa report line by line. Instead, he depended on Heiken's “judgment of what the report showed and the conclusions of the report.”
Goldman denied ever seeing anything on the surface of the condominium walls that he understood to be mold. He never saw mildew, and, though the unit smelled “musty or mildewy” for approximately three weeks or one month after the hose burst, he smelled nothing after that.
Goldman explained that from the time the water flooded the condo in 2000, through the time he received Tusa's report, he was working crazy hours, arriving in his office at seven-thirty in the morning and working to eight or nine at night. When he drove home, he was usually ready for bed. For those reasons, he “didn't honestly pay that much attention to what was going on in the house, except for what [Heiken] told [him].”
When cross-examined about his knowledge of his homeowner's policy, Goldman acknowledged he knew what coverage was stated in coverage summary sheets he received each year. And when he looked at the policy it appeared to him that the coverage the agent said would be in the policy was there “based on the liability coverage and the standard coverage.” Goldman further acknowledged that the “coverage summary” pages he received with the policy showed no coverage for “dwelling”; $75,000 “Standard Coverage Replacement Cost” for contents; and $68,000 of “Additions and Alterations Coverage for [the] Residence[.]” Following his receipt of the first declarations sheet in October 1999, Goldman never called the insurance agent to discuss coverage. Goldman explained that he had called the agent “earlier and [the agent had] sent me a confirmation of what my coverage was.”
When questioned about Ricigliano's September 17, 2000 letter to the court, in which Ricigliano represented that the mold was continually growing back on the walls, Goldman asserted that Ricigliano's statement was not true.
Unlike Heiken, Goldman suffered no symptoms following the flooding of the residence, and missed no work after the flood. According to Goldman, Heiken stopped working “[p]robably about 2001 to 2002, I would say 2002 she stopped working.”
Servpro attempted to call Ricigliano as a witness at the Lopez hearing, but was prevented from conducting a detailed examination due to plaintiffs' and Ricigliano's invocation of the attorney-client privilege, which the court upheld.
The subject lawsuit began on July 10, 2007, when plaintiffs filed a legal malpractice action against Ricigliano, alleging that when he filed the complaint in 2000 he “failed to observe and plead toxic mold that had developed in the premises ․ and thereafter, undersold and prematurely settled the property damage claim․” Plaintiffs further alleged that Ricigliano had never mentioned to them a potential cause of action “for either the mold contamination or the ‘Sick House Syndrome,’ damage or injury.” Plaintiffs included in their complaint fictitious persons and entities, designated as “John Does” and “ABC Corporation[s],” who were allegedly negligent in “failing to live up to the standard of a reasonable attorney.”
On September 12, 2008, plaintiffs amended their complaint and named Servpro and Giglio as additional defendants.5 They allege that when Servpro removed the water from the interior of their home, its employees negligently failed to inspect the drywall and sheetrock for evidence of mold, and breached its contract by failing to remediate mold. Plaintiffs also alleged that Freeman and Giglio negligently failed to issue a policy with limits that covered the type of catastrophic loss sustained by them when their home was flooded.
Plaintiffs settled with Ricigliano in October 2008 for $16,000 6 . Thereafter, Freeman and Giglio filed a summary judgment motion seeking to dismiss the complaint because it had not been filed within the six-year statute of limitations for property damage, N.J.S.A. 2A:14–1. The trial court denied the motion on June 3, 2009. Construing the motion record in “a light most favorable to plaintiffs,” the court determined that the statute of limitations on their claim against Giglio did not begin to run until they actually discovered toxic mold in 2003, around the time they received the Tusa report. Servpro did not participate in the motion.7
Servpro answered the amended complaint on July 18, 2009, and filed a summary judgment motion in November 2009, arguing that the complaint was barred by both the statute of limitations and the entire controversy doctrine; and that the court rules concerning fictitious entities and the relation back of amended complaints did not apply to its statute-of-limitations defense. Freeman and Giglio cross-moved for summary judgment. The trial court denied the motions on December 4, 2009 “for the reasons as set forth upon the record.” 8
Servpro filed a motion for reconsideration. On January 11, 2010, the court denied the motion “subject to a Lopez hearing[.]” The court conducted the Lopez hearing in March 2010.
Following the Lopez hearing, the court concluded that as the result of her consultation with Drs. Buffaloe and Wojcik, Heiken knew in August 2001 and again in November 2001 of the mold in her home and the need for its remediation. Applying an objective standard, the court concluded “a reasonable person would have been aware of the mold on August 21, 2001[;] that the statute of limitations began to run as of that date[,]” and that “the statute of limitation is August 21, 2007[.]” The court granted summary judgment to the remaining defendants. Plaintiffs filed a motion for reconsideration, which the court denied nearly a year later on March 21, 2011. Plaintiffs have appealed and defendants have cross-appealed.
THE TRIAL COURT ERRED IN IMPUTING THE DUTY TO INVESTIGATE FOR MOLD THAT IT FORMULATED FOR BARBARA HEIKEN ONTO KENNETH GOLDMAN.
THE TRIAL COURT ERRED WHEN IT DISMISSED THE THOMAS, FREEMAN, GIGLIO AGENCY AS THERE IS NO CORRELATION BETWEEN THE APPELLANTS' DUTIES TO INVESTIGATE FOR MOLD AND THEIR LATER DISCOVERY OF THEIR INSURANCE AGENCY'S PROFESSIONAL LIABILITY.
THE TRIAL COURT ERRED IN HOLDING THE LOPEZ HEARING ESPECIALLY IN VIEW OF ITS MULTIPLE DENIALS OF SUMMARY JUDGMENT GROUNDED UPON THE SAME BODY OF EVIDENCE.
An appellate court's review of a trial court's fact-finding is limited. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483–84 (1974). “The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.” Cesare v. Cesare, 154 N.J. 394, 411–12 (1998). Deference is particularly appropriate where “the evidence is largely testimonial and involves questions of credibility.” Id. at 412 (internal quotation marks and citation omitted). Indeed, we do not disturb the “factual findings and legal conclusions of the trial judge unless ․ they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Fagliarone v. Twp. of No. Bergen, 78 N.J.Super. 154, 155 (App.Div.), certif. denied, 40 N.J. 221 (1963).
We first address plaintiffs' argument that the trial court erred by deciding to conduct a Lopez hearing. Plaintiffs maintain that by deciding to conduct the Lopez hearing after denying defendants' summary judgment motions without a hearing, the court gave defendants “yet another bite at the apple.” Plaintiffs argue that the purpose of a Lopez hearing is to resolve credibility issues concerning the statute of limitations. They maintain that the trial court decided to conduct a Lopez hearing based solely on “the correspondence from two of the physicians Ms. Heiken saw.” Plaintiffs maintain that the medical reports had no bearing on their credibility, were not new evidence, and therefore did not provide an adequate basis for the court to reverse its previous position and conduct a Lopez hearing.
Plaintiffs' argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E). We add only the following comments. Trial courts have “the inherent power to be exercised in [their] sound discretion, to review, revise, reconsider and modify [their] interlocutory orders at any time prior to the entry of final judgment.” Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App.Div.1987), certif. denied, 110 N.J. 96 (1988). Consequently, “where a litigation has not terminated, an interlocutory order is always subject to revision where the judge believes it would be just to do so.” Lombardi v. Masso, 207 N.J. 517, 536 (2011).
Plaintiffs next argue the trial court erred by imputing a duty to investigate the mold to Goldman, beginning August 1, 2001, when Heiken consulted with Dr. Buffaloe after having completed the survey in which she acknowledged the presence of mold in the condominium.9 The argument is based on three propositions: first, as a matter of law, Heiken was not Goldman's agent; second, the court erroneously concluded that Heiken had a duty to investigate the mold beginning in August 2001; third, Goldman was unaware of Heiken's discussions with her doctors concerning mold. We are unpersuaded by these arguments.
We begin by recounting the facts needed to provide the appropriate context for plaintiff's argument. Plaintiffs filed their amended complaint against Servpro, Freeman, and Giglio on September 12, 2008. Lawsuits for “tortious injury to real or personal property ․ or for recovery upon a contractual claim or liability ․ shall be commenced with 6 years next after the cause of any such action shall have accrued.” N.J.S.A. 2A:14–1. Plaintiffs' claims were therefore barred if their cause of action accrued before September 12, 2002. The trial court determined that, at least as to Heiken, the cause of action accrued in August and November 2001. Plaintiffs contend that the court's ruling is wrong. We disagree.
Generally, a cause of action accrues for purposes of the statute of limitations “when any wrongful act or omission resulting in an injury, however slight, for which the law provides a remedy, occurs.” Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). In typical cases of “tortious conduct resulting in an injury, the date of accrual will be the date of the incident on which the negligent act or omission took place.” Id. at 117.
The only exception to that well established notion of accrual is the case where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 144–45 (1988) (recognizing applicability of discovery rule); Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987) (noting that discovery rule “tolls the statute until the victim discovers both the injury and the facts suggesting that a third party may be responsible[ ]”); Lopez [, supra, 62 N.J. at 274] (“[I]t seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless[ ]”).
The statute of limitations may be tolled if the discovery rule applies. The statute is only tolled, however, until the time when “a reasonable person, in plaintiff's circumstances, would have been aware of [a defendant's] fault in order to bar her from invoking the discovery rule.” Kendall v. Hoffman–La Roche, Inc., 209 N.J. 173, 192 (2012). As the Supreme Court explained in Kendall:
To be sure, legal and medical certainty are not required for a claim to accrue. See Lapka v. Porter Hayden Co., 162 N.J. 545, 555–56 (2000). Thus, a plaintiff need not be informed by an attorney that a viable cause of action exists, Burd v. NJ Telephone Co., 76 N.J. 284, 291, (1978), nor does a plaintiff need to understand the legal significance of the facts. See Lynch [v. Rubacky, 85 N.J. 65, 73 (1981) ]. Likewise, a plaintiff may not delay his filing until he obtains an expert to support his cause of action. Brizak v. Needle, 239 N.J.Super. 415, 429 (App.Div.), certif. denied, 122 N.J. 164 (1990). In cases in which fault is not self-evident at the time of injury, a plaintiff need only have “reasonable medical information” that connects an injury with fault to be considered to have the requisite knowledge for the claim to accrue. Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 435 (1987).
[Id. at 193–94.]
In their amended complaint, plaintiffs allege that Servpro failed to “remediate the onset of mold in the drywall and sheet rock of [their] condo when Servpro responded to the flood of July 27, 2000.” Plaintiffs claim they did not “discover” that Servpro had failed to remediate “the onset of mold” until they received the Tusa report in 2003. The trial court's finding to the contrary – that the cause of action accrued in August and November 2001 – is amply supported by credible evidence in the record.
Heiken consulted with Dr. Buffaloe in August and with Dr. Wojcik in November. Before consulting with the doctors, she stated in questionnaires that she had seen mold in her condominium, there was a mold smell everywhere, and that the condominium had a characteristic odor of mold or mildew. She also reported that she seemed to be allergic to mold, and that mold odors were present in her bedroom closet and in her family room. Dr. Buffaloe recommended that she undergo skin testing and receive allergy shots for mold, and that she test her home for mold. Similarly, when Heiken consulted with Dr. Wojcik in December 2001, he recommended that she have the home tested for mold and that, if she decided to remain in her home, she have extensive work done to remove the mold.
Although at trial Heiken denied the validity of the statements she had made in the medical forms, the trial court rejected her testimony and found her not to be credible. Those findings were supported by adequate, substantial, credible evidence and are therefore binding on appeal. Rova Farms, supra, 65 N.J. at 484.
The trial court's binding findings of fact established that Heiken not only had reasonable medical information that her illness was caused by mold, but also knew that mold had formed throughout several areas in her home. Considering her allegation that Servpro had a duty in July 2000 to “remediate the onset of mold,” by August 2001 she had considerable evidence that the mold had not been remediated, it was recurring, and it was not only making the home unlivable but it was also damaging her health. In other words, her cause of action against Servpro had accrued, as the trial court correctly found.
Plaintiffs also argue that the trial court improperly imputed Heiken's knowledge to Goldman, and that Goldman had no knowledge either of Heiken's answers to the medical questionnaires or her conversations with her doctors.
In Sears Mortgage Corp. v. Rose, 134 N.J. 326, 337 (1993), our Supreme Court ruled that an agency relationship “is created when one party consents to have another act on its behalf, with the principal controlling and directing the acts of the agent.”
There need not be an agreement between parties specifying an agency relationship; rather, the law will look at their conduct and not to their intent or their words as between themselves but to their factual relation. Implied authority may be inferred from the nature or extent of the function to be performed, the general course of conducting the business, or from particular circumstances in the case. Even if a person is not an actual agent, he or she may be an agent by virtue of apparent authority based on manifestations of that authority by the principal. Of particular importance is whether a third party has relied on the agent's apparent authority to act for a principal. Moreover, direct control of principal over agent is not absolutely necessary; a court must examine the totality of the circumstances to determine whether an agency relationship existed even though the principal did not have direct control over the agent.
[Id. at 337–38 (internal quotation marks and citations omitted).]
Under the “imputation doctrine,” it is presumed that “the agent has discharged his duty to disclose to his principal all material information which the agent obtained through the courts of his agency.” NCP Litig. Trust v. KPMG, 399 N.J.Super. 606, 630 (Law Div.2007). A principal cannot “avoid responsibility through ignorance[.]” NCP Litig. Trust v. KPMG, 187 N.J. 353, 367 (2006).
Considering plaintiffs' relationship and conduct, we cannot conclude the trial court erred by finding that Goldman impliedly authorized Heiken to deal with all aspects of the condominium's mold problem. The testimony of Heiken and Goldman at the Lopez hearing convincingly established that Goldman deferred to Heiken on virtually every decision concerning the clean-up following the July 2000 flood. On the night of the flood, when Goldman called Heiken, Heiken drove from Connecticut to the condominium. Heiken signed Servpro's “Certificate of Satisfaction” following the clean-up and Goldman has never denied that she had the authority to do so. Heiken ultimately retained Tusa, who her doctors had recommended, to perform mold testing in the home. Those considerations supported the trial court's finding that Heiken acted as Goldman's agent, and that Heiken's knowledge of the condition of the condominium was therefore imputable to Goldman.
But independent of agency principles; and even accepting Goldman's testimony that due to his work schedule he was unaware of what was going on with Heiken, her illness, and her doctors; his claim against Servpro is barred by the statute of limitations for a reason that he has overlooked: the discovery rule is grounded on an objective standard.
The “discovery rule” is an equitable principle by which the accrual of a cause of action is delayed “until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an actionable claim.” Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)). Whether a potential plaintiff exercised due diligence in discovering the injury is determined under an objective standard. Lapka v. Porter Hayden Co., 162 N.J. 545, 555–56 (2000) (holding that “[w]e impute discovery if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim; medical or legal certainty is not required”); Burd v. N.J. Tel. Co., 76 N.J. 284, 291–92 (1978) (the “discovery principle modifies the conventional limitations rule only to the extent of postponing the commencement of accrual of the cause of action until plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action,” not until plaintiff learns the state of the law affording relief).
Applying those principles to the factual findings of the trial court, we conclude that Goldman, by the exercise of reasonable diligence and intelligence, should have discovered by the end of 2001 that he had an actionable claim against Servpro, Ricigliano, or both of them.10 Heiken became ill after her return from a trip to Costa Rica near the end of 2000. Her symptoms continued and became increasingly severe throughout the following year. By the time she saw Drs. Buffaloe and Wojcik, she believed that her symptoms were caused by mold, as evidenced by the questionnaires she filled out. Both doctors confirmed her suspicions, diagnosed her symptoms as mold-related, and strongly recommended that she have the condominium tested for mold. Dr. Wojcik told her that if she wanted to remain in the condominium, she would have to have considerable mold remediation performed.
By the exercise of reasonable diligence and intelligence, Goldman should have discovered not only the existence, but the severity of the mold problem in his condominium. His life partner had been ill for nearly a year when she consulted with two specialists in New York. Even if Goldman were unaware of the information Heiken provided in the medical questionnaires, he would have become aware of the doctors' diagnoses of Heiken's condition had he simply asked her what they said and what they recommended. It is inconceivable that, with little inquiry, Goldman would not have learned the doctors were telling Heiken there was a pressing need to test the condominium for mold and to remediate it.
To invoke the discovery rule to toll the statute of limitations, Goldman was required to exercise reasonable diligence. Instead, he either ignored, or inexplicably omitted to ask Heiken, what the doctors were saying about the cause of Heiken's health problems. Under either case, Goldman's conduct was anything but an objective exercise of reasonable diligence. For that reason, he was not entitled to invoke the discovery rule to toll the six-year statute of limitations on his property damage and contractual claims.
Lastly, plaintiffs contend that the court's determination that their claim against Servpro was statutorily barred “bears no impact on the applicable statute of limitations with respect to [Freeman and] Giglio.” They argue that they were unaware their insurance policy was deficient until after they filed their lawsuit against Ricigliano in July 2007. Specifically, plaintiffs assert that until they filed the lawsuit against Ricigliano, they did not know that their insurance “agent had wrongly negotiated for a ‘contents only’ policy without any provision for interior structural damage.”
Freeman and Giglio counter that they are entitled to the same discovery date as Servpro, if not earlier, because Goldman had read the declarations page of the Chubb policy before July 2000, when the flooding occurred. Freeman and Giglio also point out that plaintiffs actually settled a claim against Chubb early in 2001, and should have been aware of the insurance policy coverages and limits then.
The trial court concluded that as of August 2001, Goldman was aware of his insurance coverage because he had read the declarations page at least as far back as 2001. The court found that Goldman understood the policy terms: “That's the coverage from Chubb, ․ which Mr. Goldman acknowledges that he was aware of, and that talks about coverage in 1999. And I think the point be made, nothing's changed, you know your coverage at that time, you knew who your agent was at that time. No secrets. No surprises here.”
The factual determinations made by the trial court – that Goldman was aware of the coverages and limits of the policy—are supported by substantial credible evidence in the record. We have no basis for disturbing those findings.
In view of our disposition of plaintiffs' appeal, there is no reason to address the cross-appeals, which we dismiss as moot.
1. FN1. Lopez v. Swyer, 62 N.J. 267, 275 (1973).
2. FN2. On September 25, 2009, plaintiffs voluntarily dismissed their complaint against Servpro Industries, Inc., with prejudice. Accordingly, throughout this opinion, we refer to Servpro of NW Bergen & East Rockland Counties as “Servpro.”
3. FN3. Plaintiffs settled their claim against Joseph Ricigliano, Esquire.
4. FN4. In 2007, Heiken and Goldman sued Ricigliano for negligently representing them in their 2000 lawsuit. Goldman learned during that lawsuit that the Chubb insurance policy did not provide coverage for structural damage to the condominium.
5. FN5. The amended complaint is dated August 18, 2008.
6. FN6. Although the record is not entirely clear, it appears that plaintiffs' amended complaint was dismissed in its entirety following the settlement with Ricigliano. It is also unclear from the record when and how the amended complaint was reinstated.
7. FN7. In its brief, Servpro represents that it was not served with a copy of the motion because plaintiff's attorney did not know Servpro had counsel.
8. FN8. The parties have not provided the transcript of the hearing.
9. FN9. The trial court stated that “discovery should have started on August 21, 2011․” The trial judge apparently misspoke, unless the date is a transcription error, because it is clear from the context of the court's opinion that the court found the statute of limitations should have begun to run no later than August 1, 2001.
10. FN10. Plaintiffs' arguments concerning defendants Freeman and Giglio are addressed in Section III, infra.