|April 21, 2014|
Previously published on April 14, 2014
On March 18, 2014, the Appellate Division upheld the trial court’s decision in Ross v. State Farm Fire & Casualty, et al., which dismissed Plaintiff’s claims against homeowner defendants for trespass and nuisance and claims against the homeowner defendants’ insurers for bad faith that arose from a leaking underground storage tank.
The per curium decision of the court noted that summary judgment as to the nuisance and trespass claims was appropriate. Specifically, the court noted that in order to establish a nuisance or trespass, one must establish an unreasonable interference with the use and enjoyment of land by meeting the factors set forth in the Restatement (Second) of Torts § 822 (1979). In applying the Restatement to Plaintiffs’ claims, the trial court found that no reasonable juror could conclude that the homeowner defendants were negligent in maintaining the underground storage tank and that the migration of oil was not caused by an intentional or negligent act. The Appellate court agreed.
With regard to the insurer defendants, the Appellate Division agreed with the comprehensive written statement of reasons by Judge Bauman that noted there was no basis as a matter of law for Plaintiffs to assert a direct claim alleging breach of the covenant of good faith and fair dealing against the homeowners’ insurers, absent a fiduciary duty or special relationship.
Jacob S. Grouser, Partner in the firm, argued the cause for one of the homeowner defendants’ insurers before the Appellate Division and attorney Daniel R. Kuszmerski appeared before the trial court.