Marcia Santana v. Wawa

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0544-25 MARCIA SANTANA, Plaintiff-Respondent, v. WAWA, Defendant-Respondent, and BEAR BROOK COMMONS ASSOCIATES, LLC c/o HELLER GR, Defendant-Appellant. ____________________________ WAWA, INC., Plaintiff-Respondent, v. BEAR BROOK COMMONS ASSOCIATES, LLC, Defendant-Appellant, and THE HANOVER INSURANCE GROUP, Defendant-Respondent. ____________________________ Submitted September 17, 2026 – Decided September 30, 2026 Before Judges Mawla and Chase. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4297-22 and L-4432-23. Finazzo Cossolini O'Leary Meola & Hager LLC, attorneys for appellant (Jeremiah L. O'Leary and Brendan M. Wengerter, on the briefs). Rubine + Cha, LLC, attorneys for respondent Wawa, Inc. (Seth B. Rubine, on the brief). PER CURIAM In this indemnification action, Bear Brook Commons Associates LLC (BBCA) appeals from a June 4, 2025 order denying its summary judgment motion and granting the cross-summary judgment motion of its tenant, Wawa, Inc. BBCA also appeals from an August 27, 2025 final judgment determining the amount of indemnification. We reverse both orders. A-0544-25 2 I. On August 27, 2021, Marcia Santana allegedly fell and sustained injuries on a "hazardous and defective cobblestone" area outside a Wawa store in Marlboro. BBCA owns the property, which contains several commercial tenants, including Wawa. BBCA and Wawa have maintained a landlord-tenant relationship for more than thirty years. On August 31, 1992, they entered a lease defining their respective rights and obligations. Section 1 of the lease states the leased premises are part of a larger property owned and controlled by BBCA, referred to as the "entire premises." That section further defines the "[c]ommon [a]rea" as all portions of the entire premises not exclusively occupied by or leased to a tenant, including landscaped areas, parking areas, streets, driveways, aisles, sidewalks, malls, and related improvements. Section 16, titled "Maintenance by Landlord," requires BBCA, at its own expense, to make "all repairs, structural or otherwise to the exterior of the building in which the [l]eased [p]remises are located," including repairs to "streets, curbs, sidewalks, passageways and other [c]ommon [a]rea." Section 16 also provides that: A-0544-25 3 [BBCA] shall indemnify and hold [Wawa] harmless from all claims, damages or causes of action for damages and related expenses, arising out of or brought on account of injury to any person or persons or property or loss of life resulting from a failure on the part of [BBCA] to properly construct and maintain the entire premises and to make repairs for which [BBCA] is responsible. [(emphasis added).] Section 18, titled "Indemnity," provides that BBCA, during the lease term, shall indemnify and hold Wawa harmless from "any and all claims and demand whether for injury to person or loss of life or damage to property not arising from [Wawa]'s negligence, but arising out of the acts or omissions of [BBCA] or arising out of the use of the [c]ommon [a]rea." Under the lease rider, once Wawa opened for business, it agreed to pay BBCA its proportionate share of common area maintenance (CAM) costs each calendar year. Christopher Hricko, the Director of Construction and Maintenance for the real estate management company managing the property, testified that in August 2021, the landlord remained responsible for CAM items such as parking lots and sidewalks. He did not recall Wawa ever making repairs to the sidewalks. Hricko supervised a team that included property and project manager Joe Forys. According to Hricko, Forys visited the property two or three times each week to monitor its overall condition, address maintenance requests, oversee A-0544-25 4 contractors, and check for potentially hazardous defects. When shown a photograph of the sidewalk where Santana fell, Hricko acknowledged the area depicted was part of the common area. He also testified that, before the accident, BBCA had received no communication from Wawa requesting repairs in that area. Seth Harrington, BBCA's Director of Leasing, likewise testified the parking lots and sidewalks adjacent to the storefronts were shared by customers and employees and therefore constituted common areas. He also acknowledged the photograph of the accident location showed a sidewalk along the side of the Wawa store that formed part of the common area. After the accident, Santana sued both Wawa and BBCA (Santana Action). Wawa answered the complaint and asserted a crossclaim against BBCA for indemnification, including attorney's fees. BBCA answered and asserted a crossclaim against Wawa for contribution. Wawa then tendered its defense and indemnity demand to BBCA and BBCA's insurance company, Massachusetts Bay Insurance Company (Mass Bay), citing the lease provisions governing the common area. In that tender, Wawa noted Santana had provided photographs showing a purported defect in A-0544-25 5 the curb by the parking lot. BBCA and Mass Bay declined to defend or indemnify Wawa. Wawa then filed a separate declaratory action against BBCA and the Hanover Insurance Group,1 asserting breach of contract and bad faith (second action). The court consolidated that action with the Santana action. Mass Bay later extended a settlement offer to Santana that included a release of Wawa but did not include any contribution toward Wawa's indemnification claim. Wawa rejected the offer and countered with a demand that Mass Bay also pay approximately $16,000 in attorney's fees that Wawa had incurred in defending the Santana action. Mass Bay rejected the counteroffer and proceeded to settle with Santana on behalf of BBCA for $175,000. Thereafter, Santana and Wawa settled separately, with Santana releasing her claims against Wawa for $1,000. BBCA, Wawa, and Mass Bay later moved for summary judgment in the second action. Wawa then dismissed its claims against Mass Bay, leaving only its claim against BBCA for reimbursement of the attorney's fees it incurred in defending the Santana action. 1 The correct carrier is Mass Bay. A-0544-25 6 On June 4, 2025, after oral argument, the trial court denied BBCA's motion for summary judgment and granted Wawa's cross-motion. The court concluded the term "related expenses" in the lease included attorney's fees and found no dispute Santana fell in a common area that BBCA was responsible for maintaining. The court denied BBCA's motion for reconsideration. The court then conducted a bench trial limited to the amount of counsel fees due as indemnification. On August 27, 2025, the court entered final judgment against BBCA in the amount of $14,930.01. II. "We review a grant of summary judgment de novo, applying the same standard that governed the trial court's determination." Padilla v. Young Il An, 257 N.J. 540 , 547 (2024). Summary judgment is proper if, viewing the evidence in a light most favorable to the non-moving party, the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Friedman v. Martinez, 242 N.J. 449 , 471-72 (2020) (quoting R. 4:46-2(c)). In addition, "contract interpretation is a question of law we review de novo." Del. River Joint Toll Bridge Comm'n v. George Harms Constr. Co., 258 N.J. 286 , 303 (2024). "Accordingly, we pay no special deference to the trial A-0544-25 7 court's interpretation and look at the contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). III. This appeal turns on contract interpretation. The dispositive question is whether the "related expenses" in Section 16 of the lease requires BBCA to reimburse Wawa for the attorney's fees Wawa incurred defending the Santana action. We conclude it does not. "The plain language of the contract is the cornerstone of [a court 's] interpretive inquiry." Extech Bldg. Materials, Inc. v. E&N Constr. Inc., 262 N.J. 271 , 280 (2025) (alteration in original) (quoting Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595 , 616 (2020)). In construing an indemnification provision, as with any other contract term, the court's objective is to determine the parties' intent. Kieffer, 205 N.J. at 223 (citing Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)). "[U]nambiguous contracts will be enforced as written unless they are illegal or otherwise violate public policy." Extech Bldg. Materials, Inc., 262 N.J. at 280 (quoting Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)). The "court's task [i]s 'not to rewrite a contract for the parties better than or different from the one they wrote for themselves. '" Globe A-0544-25 8 Motor Co. v. Igdalev, 225 N.J. 469, 483 (2016) (quoting Kieffer, 205 N.J. at 223 ). Ordinarily, courts construe indemnification provisions under ordinary principles of contract interpretation. Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 191-92 (1986). But indemnity clauses differ from other contract provisions in one important respect: if the provision is ambiguous, courts construe it strictly against the indemnitee. Kieffer, 205 N.J. at 223 (citing Mantilla, 167 N.J. at 272 ); Englert v. Home Depot, 389 N.J. Super. 44, 57 (App. Div. 2006) (citing Ramos, 103 N.J. at 191 ). A contract is ambiguous if its language is susceptible to at least two reasonable interpretations. Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 282 (D.N.J. 1992)); see also Motil v. Wausau Underwriters Ins. Co., 478 N.J. Super. 328 , 337 (App. Div. 2024). Two settled principles also guide our analysis. First, "a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms. " Mantilla, 167 N.J. at 272 -73 (quoting Ramos, 103 N.J. at 191 ); see also Azurak v. Corporate Prop. Invs., 175 N.J. 110 (2003). Second, under the American A-0544-25 9 Rule, absent statutory authority, a recognized exception, or express contractual language, each party bears its own attorney's fees. Kieffer, 205 N.J. at 224 ; see also Boyle v. Huff, 257 N.J. 468 , 478-79 (2024). With those principles in mind, we turn to the lease. Section 16 requires BBCA to indemnify and hold Wawa harmless from "all claims, damages or causes of action for damages and related expenses" arising from BBCA's failure to construct and maintain the premises properly and to make repairs for which BBCA is responsible. Section 18 requires BBCA to indemnify Wawa against claims for personal injury, loss of life, or property damage "not arising from [Wawa]'s negligence," but arising out of BBCA's acts or omissions or the use of the common area. Neither provision expressly mentions attorney's fees, counsel fees, or defense costs. Instead, Wawa relies on the phrase "related expenses" in Section 16. At most, the phrase supports two reasonable interpretations: it may include attorney's fees, or it may refer more generally to other expenses related to a claim, such as expert fees. Because both readings are reasonable, the phrase is ambiguous. We therefore must construe it against Wawa, the indemnitee. Kieffer, 205 N.J. at 223 . A-0544-25 10 Other provisions of the lease reinforce that conclusion. Sections 27 and 28 expressly refer to "reasonable counsel fees" as a recoverable item. Those provisions show the parties knew how to provide specifically for attorney's fees when they intended to do so. Their omission of comparable language from Sections 16 and 18 is significant. We may not supply fee-shifting language the parties chose not to include. Globe Motor Co., 225 N.J. at 483 . Our conclusion is also consistent with Mantilla. There, the Court considered whether an indemnitee could recover defense costs under an indemnification clause that did not expressly provide for them. 167 N.J. at 270 . It held the clause did not require the indemnitor to reimburse defense costs incurred in defending against claims of the indemnitee's own negligence. Id. at 273 . Citing to Central Motor Parts Corporation v. E.I. duPont deNemours & Company, 251 N.J. Super. 5, 10 (App. Div. 1991), the Court applied the "default rule" that "an indemnitee who has defended against allegations of its independent fault may not recover its [defense] costs." Mantilla, 167 N.J. at 270, 272 . The Mantilla Court recognized an "after-the-fact" exception. Under that approach, an indemnitee may recover defense costs if it tendered its defense at the outset of the litigation and is later adjudicated free from active wrongdoing. A-0544-25 11 Id. at 273 . But that exception does not apply here. Wawa defended against allegations of its own fault in the Santana action, and the case settled before any adjudication of fault. Wawa, therefore, was never adjudicated free from liability. In sum, the lease does not expressly require BBCA to reimburse Wawa's attorney's fees, and the phrase "related expenses" is too ambiguous to overcome the American Rule or the rules governing indemnification provisions. Because Wawa defended against claims of its own independent fault and was never adjudicated free from wrongdoing, it may not recover defense costs under either the default rule or the after-the-fact approach described in Mantilla. To the extent we have not addressed any of the parties' other arguments, it is because they lack sufficient merit to be discussed in a written opinion. R. 2:11-3(e)(1)(E). Reversed and remanded for the court to enter an order granting summary judgment to BBCA. We do not retain jurisdiction. A-0544-25 12