A New Jersey appeals court has affirmed a $12 million judgment for Wakefern Food Corp., the corporate entity made up of owners of ShopRite and other grocery stores, in an action against an insurance broker over losses it sustained during Superstorm Sandy.

The Appellate Division in Wakefern Food v. BWD Group rejected appeals from both sides—from Wakefern, challenging rulings molding the verdict and rejecting attorney fees, and from broker BWD Group, seeking to upend the verdict.

"On October 29, 2012, Sandy made landfall in New Jersey, with devastating results,"  Appellate  Division Judges Jose Fuentes, Jessica Mayer and Catherine Enright ruled in the per curiam decision Wednesday. "Approximately 150 Wakefern stores suffered losses, but only a few suffered structural damages. Many stores lost all their merchandise."

Wakefern, based in Keasbey and made up of stores in several states, "submitted an official claim … for $55.4 million," and its carrier, Lexington Insurance Co., "compensated Wakefern for approximately $27 million of the claim but declined to pay roughly $24 million of the claim because of" a named-storm deductible in the policy, the panel said, referring to it as the "NSD" provision.

According to the decision, Wakefern for more than 50 years did business with BWD Group and another broker, the Associated Agencies Inc.

Following losses sustained during Hurricane Irene in 2011 and an October snowstorm that year, Wakefern set about to reexamine its coverage in the face of raised deductibles and premiums. Ultimately presented with two choices—renewing coverage with its present insurer, Affiliated Factory Mutual, or going with Lexington—Wakefern chose Lexington, the decision said.

According to the court, although Affiliated Factory Mutual's coverage cost more, it "had no NSD, and losses as a result of a storm would have been considered 'business interruption' losses."

Wakefern settled its claims against Lexington and one broker, Associated Agencies. The terms of those settlements are confidential, according to Wakefern's counsel, Sherilyn Pastor of McCarter & English in Newark.

Claims against BWD—breach of contract, breach of fiduciary duty and professional negligence, based on allegations that the broker failed to sufficiently advise Wakefern about its coverage options—proceeded to trial.

The 2018 trial went on for five weeks before Middlesex County Superior Court Judge Andrea Carter, Pastor noted.

The jury, instructed to apportion fault but not damages, found that Associated Agencies was 30% responsible and BWD was 70% responsible, and awarded $15.65 million to Wakefern, according to the decision.

The trial judge, based on the jury's apportionment of some fault to Associated Agencies, molded the verdict to $10.96 million and added $1.11 million in prejudgment interest, for a total of more than $12 million.

BWD Group's motions for judgment notwithstanding the verdict or a new trial were denied. Wakefern's motion for attorney fees and costs also was denied, with the exception of $199.41 in taxed costs that were ordered reimbursed.

Both sides cross-appealed, and the Appellate Division on Wednesday affirmed.

BWD Group's argument for upending the verdict "ignores Wakefern's main contention, i.e., that the availability of a better policy was not adequately explored by Wakefern's executives … because the information BWD supplied was incomplete," the panel said. "Moreover, BWD never accurately explained the ramifications of the NSD. Therefore, before they bound the Lexington policy, Wakefern's representatives did not understand the application of the NSD would result in a deductible of $24 million."

The court cast aside BWD Group's contention that Wakefern's expert failed to demonstrate proximate causation.

It also rejected claims that Wakefern's counsel made improper remarks to jurors during  summation. BWD Group "contends counsel for Wakefern did exactly what the judge told her she could not do inasmuch as she essentially said that Affiliated [Factory Mutual] would have paid on the Sandy-related claim differently than Lexington.

"However, the record  demonstrates comments made by Wakefern's counsel were neither highly prejudicial nor harmful. Further, Wakefern's counsel essentially summarized a document that was in evidence when she described the terms of Affiliated's renewal offer in September 2012," the panel said.

Addressing Wakefern's contention that the trial judge wrongly reduced the verdict, the panel was "satisfied a plain reading of the judge's instructions confirms the jury was directed to arrive at a total amount of damages without regard to apportionment. The fact that the judge stated the jury should assess damages caused by 'defendant' is of no moment because BWD was the only party left in the case after Associated and Lexington settled."

As for attorney fees and costs, the panel said an award was discretionary, and found no abuse of discretion. The state Supreme Court in its 2005 decision in In re Estate of Vayda "discussed New Jersey's limited exceptions to the American Rule and reiterated that fees are only permitted in malpractice and breach of fiduciary duty actions when the lawsuit is brought against a negligent attorney, and not for other professionals," the panel noted.

The panel also rejected Wakefern's appeal of certain evidentiary rulings at trial.

According to an email from Pastor, "Post-judgment interest will run from September 2018. It will bring the amount due to about $12.7 [million]."

Counsel to BWD Group, Bruce Greenberg of Lite DePalma Greenberg in Newark, couldn't be reached for comment on the decision.