Opinion
DOCKET NO. A-0756-11T3
02-20-2013
CARMEN DENTE, Plaintiff, v. DAVID V. SEIDENBERG, Defendant-Appellant. BAY STATE INSURANCE COMPANY, Plaintiff-Respondent, v. LAURETTE SEIDENBERG, DAVID W. SEIDENBERG, Defendants-Appellants, and CARMEN DENTE, Defendant.
Marlo J. Hittman, attorney for appellants. Winter & Winkler, P.C., attorneys for respondent (Jason S. Winkler on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-0062-07 and L-3292-07.
Marlo J. Hittman, attorney for appellants.
Winter & Winkler, P.C., attorneys for respondent (Jason S. Winkler on the brief). PER CURIAM
David Vincent Seidenberg (David) and his parents appeal from the September 30, 2008 order granting summary judgment to Bay State Insurance Company (Bay State) on its declaratory judgment action wherein Bay State sought a determination that it was not obligated to defend or indemnify David for injuries he inflicted upon Carmen Dente (Carmen) in a fight at a movie theater. Having reviewed the record, we agree that the case was ripe for summary judgment, and we conclude that the motion judge correctly applied the law to the undisputed facts.
In this opinion, David and his parents (David William Seidenberg and Laurette Seidenberg) are collectively referred to as "the Seidenbergs."
I
The following facts are derived from the motion record. Carmen and David were classmates in their senior year at Raritan High School. Both were seventeen years old. They had been friends but this changed at the start of their senior year when David began dating Carmen's ex-girlfriend.
On the night of November 14, 2006, Carmen and David coincidentally attended the same movie. While in the theater, the two exchanged words, but no physical altercation took place. After the movie ended, David started the altercation in the parking lot with a shove and some inciting words. Carmen took a swing at David and David admittedly grabbed Carmen, head butted him, body slammed him to the ground, and then began punching him in the face. As a result of the altercation, Carmen sustained a broken nose.
On January 4, 2007, Carmen filed a complaint in the Law Division against David seeking damages and alleged both negligent assault and intentional assault. At that point, David's parents notified their homeowners insurance carrier, Bay State, of the lawsuit since David, as a resident of their home, was insured under their policy.
On July 12, 2007, Bay State filed an action for declaratory judgment against the Seidenbergs, asserting that it had no duty to defend or indemnify in this case because the injury claim resulted from an intentional act, an exception to coverage under the insurance policy. Specifically, the Bay State policy contains an exclusion for injuries which are expected or intended by an insured. In relevant part, the policy excludes personal liability coverage for injuries:
a. With respect to all "insureds" which is expected or intended by one or more "insureds" even if the 'bodily injury' or "property damage";
(1) Is of a different kind, quality or degree than expected or intended; or
(2) Is sustained by a different person or entity than expected or intended.
Based on this exclusion, Bay State successfully moved for summary judgment in 2008. Carmen and David ultimately settled their case for $10,000 on July 26, 2011. This appeal followed. The Seidenbergs argue summary judgment should not have been awarded in favor of Bay State because there were disputed issues of material fact; specifically, they dispute the motion judge's characterization of the incident as "a case of pursuit and attack, not negligent self-defense[,]" and in the determination that David acted with an intent to injure.
While we agree with the motion judge that this was not a case of negligent self-defense and that David acted with an intent to injure, we do not view the record as clearly establishing that this was a case of "pursuit and attack." However, "we review orders and not, strictly speaking, reasons that support them. We have held, in other contexts, that a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005).
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II
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is 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." R. 4:46-2(c). Although the court views the evidence "in the light most favorable to the non-moving party[,]" where there exists a "single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)).
On appeal, this court reviews a grant of summary judgment de novo, applying the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Additionally, a trial judge's legal conclusions on a summary judgment motion, "'are not entitled to any special deference[,]' and, hence, an 'issue of law [is] subject to de novo plenary appellate review[.]'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).
We initially note that it is the insured who bears the burden of showing that a claim falls within the coverage of the insurance policy. Reliance Ins. Co. v. Armstrong World Indus., Inc., 292 N.J. Super. 365, 377 (App. Div. 1996). "The carrier, however, bears the burden of establishing that any matter falls within the exclusionary provisions of the policy." Ibid.
Insurance policies are typically contracts of adhesion, "subject to special rules of interpretation." Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 537 (1990). Specifically, where an ambiguity exists in the language of an insurance policy, that ambiguity is resolved in favor of the insured. Cruz-Mendez v. ISU/Ins. Servs., 156 N.J. 556, 571 (1999); Lundy v. Aetna Cas. & Sur. Co., 92 N.J. 550, 559 (1983) ("Where the policy language supports two meanings, one favorable to the insurer and the other to the insured, the interpretation favoring coverage should be applied."). But when not ambiguous, insurance policies are interpreted according to their plain and ordinary meaning. Longobardi, supra, 121 N.J. at 537.
In Voorhees v. Preferred Mutual Insurance Company, 128 N.J. 165, 183 (1992), we recognized that the accidental nature of an occurrence is determined by analyzing "whether the alleged wrongdoer intended or expected to cause an injury." Thus, a "covered accident" includes the unintended consequences of an intentional act, but not an injury that is, itself, intended. Id. at 182. Foolhardy or reckless acts are not automatically excluded from coverage. Id. at 184.
Our courts have adopted the proximate cause test for determining coverage:
"Where a peril specifically insured against sets other causes in motion which, in an unbroken sequence and connection between the act and final loss, produced the result for which recovery is sought, the insured peril is regarded as the proximate cause of the entire loss. It is not necessarily the last act in a chain of events which is, therefore, regarded as the proximate cause, but the efficient or predominant cause which sets into motion the chain of events producing the loss. An incidental peril outside the policy, contributing to the risk insured against, will not defeat recovery . . . In other words, it has been held that recovery may be allowed where the insured risk was the last step in the chain of causation set in motion by an uninsured peril, or where the insured risk itself set into operation a chain of causation in which the last step may have been an excepted risk."
[DEB Assocs. v. Greater N.Y. Mut. Ins. Co., 407 N.J. Super. 287, 300 (App. Div.), certif. denied, 200 N.J. 473 (2009) (quoting Franklin Packaging Co. v. California Union Ins. Co., 171 N.J. Super. 188 (App. Div. 1979), certif. denied, 84 N.J. 434 (1980)) (ellipsis in original).]
III
While the Seidenbergs never elucidate how the policy's coverage exclusion for intentional injuries is ambiguous, they nevertheless contend the terms regarding "intentional injury" must be construed narrowly and in favor of the insured. The Seidenbergs argue that for the exclusion for expected or intended injuries to apply, the court would have to find that David had the specific intent to injure Carmen's nose, as opposed to other parts of his body.
We find this argument meritless. Because we do not find Bay State's policy's exclusion for expected or intentional bodily injuries ambiguous, the Seidenbergs are not entitled to a favorable interpretation for terms regarding "intentional injury." The insurance policy expressly excludes coverage for bodily injuries which are expected or intended even if the specific bodily injury incurred is of a different kind, quality, or degree than expected or intended.
The Seidenbergs claim, that the record does not support a determination that Carmen's injury was expected or intended, is refuted by the testimony David provided at his deposition, where the following colloquies occurred:
Q. You were hitting him pretty hard?
A. Yes.
Q. So you would have expected to have injured him; right?
A. Yes.
Q. When you threw these punches, you did so intentionally?
A. Yes.
Q. With the intention of punching Carmen . . . on both sides of his face?
A. Yes.
Q. And were these punches to both sides of Carmen's face with the intention of injuring his face?
A. Yes.
. . . .
Q. Did there come a point in time in which you propelled your knee into [Carmen's] face?
A. Yes.
. . . .
Q. So before this [was] over, you propelled your knee into [Carmen's] face four times?
A. About that.
. . . .
Q. . . . Did you propel your right knee into [Carmen's] face intentionally?
A. Yes.
Q. Do you know that kneeing someone in the face can injure them?
A. Yes.
Q. When you propelled your knee intentionally into [Carmen's] face, did you intend to injure him?
A. Yes.
David clearly admitted that the blows to Carmen's face were done with an intent to injure his face. Moreover, even if it could be argued that some of the blows were not administered with an intent to injure, a result such as a broken nose is certainly an expected result from the volitional act of striking someone in the face with a fist and a knee.
The Bay State policy expressly excludes coverage for bodily injuries that are expected or intended even if the specific bodily injury incurred is of a different kind, quality, or degree than expected or intended. The trial court correctly awarded Bay State summary judgment because the record contained no disputed issues of material fact regarding David's intent to injure Carmen. David admitted in his deposition that he threw punches with an intent to cause injury to Carmen's face. David also admitted that he kneed Carmen in the face with the intent to injure him.
These facts are not analogous to the type of circumstances contemplated in Prudential Property & Casualty Insurance Company v. Karlinski, 251 N.J. Super. 457, 465-66 (App. Div. 1991). This was not a "one-on-one basketball or hockey match-up[]" or a "king-of-the-hill assault[]" where "there is no intent to cause more than passing discomfort." Id. at 465 n.3. In this case, Bay State disclaimed coverage because the injury sustained by Carmen was not an accident, but instead was the result David expected and intended. The evidence overwhelmingly illustrates that David intended to cause injury to Carmen and that a broken nose was an injury that was not unexpected.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION