Opinion
DOCKET NO. A-2200-13T1
03-25-2015
ANDREW CANNON, Plaintiff-Appellant, v. PALISADES INSURANCE COMPANY, HIGH POINT PREFERRED INSURANCE COMPANY, Defendants-Respondents.
George J. Kenny argued the cause for appellant (Connell Foley LLP, attorneys; Mr. Kenny, of counsel and on the brief). Glenn D. Curving argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Mr. Curving, of counsel and on the brief; Peter M. Perkowski, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8275-12. George J. Kenny argued the cause for appellant (Connell Foley LLP, attorneys; Mr. Kenny, of counsel and on the brief). Glenn D. Curving argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Mr. Curving, of counsel and on the brief; Peter M. Perkowski, Jr., on the brief). PER CURIAM
This case involves a street fight between two groups of combatants, some of whom were employed as telemarketers with two local companies. Not surprisingly, the challenge to fight, the acceptance of that challenge, and negotiations over the combat site were all done telephonically.
We are asked to determine whether one of the combatants, plaintiff Andrew Cannon, who was shot during the fracas, can seek indemnification from the auto insurer of Candace Hyslop, the mother of another assailant, Kenneth Hyslop, because he drove his mother's vehicle to the melee. The motion judge granted summary judgment to the insurer. We affirm.
I.
On October 23, 2008, at approximately 7:45 p.m., Kenneth Hyslop finished his shift at a telemarketing firm in Parlin. His friend Lennox Lopez called and Hyslop agreed to meet Lopez and three other friends, Christopher Soto, John Mendoza, and Alex Musyoka. The men then drove to a convenience store in South Amboy to wait for a fifth friend, Shamir Green.
While waiting for Green, Soto received a call from someone identified only as Dom, who challenged Hyslop's group to a fight. Hyslop's group accepted the challenge but could not agree where to stage the combat. Dom's group proposed fighting near Borough Hall, but Hyslop's group rejected that location as too crowded and proposed three different locations, the Lakeview Apartments, Fielek Park, and the Skytop Gardens Complex. All three sites were rejected by Dom's group.
Lopez then took Soto's phone and spoke with Dom to attempt to work out an agreeable combat site. Dom and three others in his group, Drew, Ceasar, and Dequan, worked with a different telemarketing firm located near Ernston Road in Parlin. At 11:45 p.m., Hyslop drove his friends to a parking lot off Ernston Road and waited there for Dom's group.
Just after midnight, a gold Toyota Camry entered the parking lot and Hyslop and his group noticed that the occupants were carrying baseball bats. Hyslop and his friends were expecting a traditional fist fight and were unarmed. They hurriedly left the parking lot with the Camry in pursuit and the occupants waving bats from the car windows.
The Camry eventually ended its pursuit and Hyslop drove to the Lakeview Apartments, where Lopez, Green, and Musyoka got out and returned a short time later with an unknown person. Lopez got into the front seat of Hyslop's car, while Green, Musyoka, and the unidentified male got into a black car.
The two cars drove to the Skytop Gardens Complex while their occupants made phone calls trying to reschedule the fight. Hyslop claimed he returned to the fight because "he thought there were other individuals in the second car and with the greater number of people, they would stand a better chance against the baseball bats and the three [other people]."
As Hyslop pulled into the Skytop Gardens parking lot, he suddenly observed the gold Camry. The Camry cut off Hyslop's car and the occupants got out carrying bats. Hyslop put his car into reverse, then heard a gunshot. He looked over at Lopez and saw a short shotgun in his lap. Part of the projectile fired by Lopez struck Cannon in the head, and permanently lodged inside of his skull. Doctors later determined that it would be too dangerous to remove surgically.
Hyslop claimed that he had not seen the shotgun before Lopez fired it. Hyslop drove his group to Lopez's aunt's house. Along the way, they disposed of the shotgun by throwing it into some shrubs.
On October 25, 2008, Hyslop was arrested and charged with attempted murder, possession of a weapon, possession of a weapon for an unlawful purpose, and conspiracy to commit murder. Hyslop was later charged with riot, to which he pled guilty in 2009, and was sentenced to time served (251 days in custody) and five years' probation.
He later violated his probation and was sentenced to prison for four years.
On March 24, 2010, Cannon filed a personal injury complaint against Hyslop, Hyslop's parents, Lopez and several others. A default judgment was entered against Hyslop, Mendoza, and Lopez on January 5, 2011, in the amount of $65,000.
On November 14, 2012, Cannon filed a complaint seeking a declaratory judgment requiring Candace Hyslop's insurers, defendants Palisades Insurance Company (auto) and Highpoint Preferred Insurance Company (homeowners), to satisfy the judgment against Kenneth Hyslop. Cannon initially claimed that defendants' homeowner's and auto insurance policies issued to Hyslop's mother Candace covered her son. The Hyslops assigned their rights under their insurance policies to Cannon in May 2013.
In his brief, Cannon concedes that the homeowner's insurance policy excludes coverage under the circumstances of this case. Therefore, we do not address that policy in our opinion.
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Defendants moved for summary judgment, asserting that the incident did not fall within the auto policy's coverage, and, in the alternative, that Hyslop's actions fell under the intentional acts exclusion. A hearing was held before the Law Division on December 6, 2013, and the judge granted defendants' motion, finding:
Certainly, the description of the accident, of Hyslo[p] going back and getting reinforcements and coming back, I think
really becomes a central issue in the case. There can be no question that — that the policy does not provide coverage for intentional and willful violent acts.
In this case, there can be little doubt that Mr. Hyslo[p], when he went back to the scene with his friends, was going back there with the intention of a fight. That is absolutely not in dispute . . . .
It's clear to me that Hyslo[p] intended for people to get hurt. He was just as wrong, in the Court's opinion, as the man who pulled the trigger. When he drives back knowing that there is going to be a physical confrontation and he — and he's picked up people in that type of environment, clearly, he cannot act as if — he cannot take the position that, oh, I didn't know he had a shotgun. I didn't know it was going to be that serious. That, to me, defies common sense, particularly in this day and age where these types of young violent acts between young people are clearly escalated. It would be naïve to argue that this — that the result that occurred was beyond the contemplation of Hyslo[p] when he went and picked up reinforcements for transporting them back to the fight. He knew people would get injured. In fact, he intended — that's what he intended. He intended for people to get injured, therefore, based on that alone, this Court . . . will grant [defendants'] motion for summary judgment.
Cannon appealed and now claims that the policy should be read broadly to cover any loss resulting from liability arising out of the operation of the vehicle. He also challenges the motion judge's conclusion that Hyslop drove the car to the parking lot intending that people get hurt. Cannon suggests that Hyslop was actually attempting to get away from the other car as the shotgun was fired. Finally, Cannon claims that Hyslop's guilty plea did not constitute a basis for disclaiming coverage.
II.
A trial court shall grant summary judgment if "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). In determining whether there exists a genuine issue of material fact, the motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of material fact, an appellate court must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).
Purely legal questions, such as the interpretation of insurance contracts, are questions of law particularly suited for summary judgment. Badiali v. N.J. Mfrs. Ins. Grp., ___ N.J. ___, ___ (2015) (slip op. at 13). We review questions of law de novo and owe no deference to the trial court's legal or interpretive conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Cannon claims the motion judge admitted that there were material facts in dispute and based his determination on inadmissible and irrelevant documents. He also maintains that Hyslop's action did not cause his injury, and the intentional injury exclusion should not apply. He also notes that the elements of the crime to which Hyslop pled guilty, N.J.S.A. 2C:33-1(a)(3), do not require intent to injure.
The automobile insurance policy issued by Palisades to Candace Hyslop covered the period from March 29, 2008 to March 29, 2009 for the Ford Taurus involved in the incident. That policy provides that Palisades "will pay damages for bodily injury or property damage for which an insured becomes legally responsible because of an auto accident." Insured is defined in the policy as:
1. You or any family member for the ownership, maintenance or use of any private passenger auto . . . ;
2. Any person using your covered auto with your permission;Specifically excluded from the policy are insureds "[w]ho intentionally cause[] bodily injury or property damage[.]"
3. . . . any person . . . but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this part[.]
We are unpersuaded by Cannon's argument that there are genuine issues of material fact in dispute here. It is not contested that Cannon's group challenged Hyslop and his friends to a fight and arrived at the parking lot wielding baseball bats. It is also not disputed that, after spotting the bats, Hyslop left and later returned to the scene with the purpose of engaging in a fight with Cannon and his group. There is also no dispute that when Hyslop returned, Lopez fired a shotgun out the window of Hyslop's car, and the bullet from that shot struck and injured Cannon. Therefore, we must only decide whether the motion judge properly interpreted the auto insurance policy and the applicable law. See DepoLink, supra, 430 N.J. Super. at 333.
Initially, the insured has the burden of proving that a claim falls within the insurance policy in order to hold the insurer liable. Williams v. Bituminous Cas. Corp., 51 N.J. 146, 151 (1968). Then, the insurer has the burden of proof with respect to exclusions. Adron, Inc. v. Home Ins. Co., 292 N.J. Super. 463, 473 (App. Div. 1996).
The automobile policy provides: "We will pay damages for bodily injury or property damage for which an insured becomes legally responsible because of an auto accident." Bodily injury is defined as "bodily harm, sickness or disease, including death that results." The policy does not define either auto accident or accident.
Cannon's injury was not caused by an "auto accident" as required by the insurance policy. The injury did not arise out of the use of the automobile, there is no causal connection between the vehicle and the injury, and the injury was not accidental. Because no causal connection between the auto and an accident was established, this was not an "auto accident" as required to fall within the policy. Therefore, we need not reach the issue of Hyslop's intent and whether the intentional injury exclusion applies.
Even if we were to consider that issue, Hyslop's intent to injure can be presumed from the fact that he returned to the scene, with reinforcements, to engage in a pre-arranged fight. He had knowledge that the other group was armed with bats and that there was a high likelihood of injury. By returning to the fight, Hyslop clearly expected and intended to cause some sort of injury.
We find Cannon's remaining arguments lack sufficient merit to warrant discussion in our opinion beyond the following brief comments. R. 2:11-3(e)(1)(E). We reject Cannon's argument that Hyslop's statement contained in the police reports is inadmissible because it does not satisfy Rule 1:6-6 and Rule 4:16-1. Hyslop's statement to police is admissible pursuant to N.J.R.E. 803(c)(25) as a statement against interest. Moreover, Cannon brought this suit as the assignee of Hyslop's rights under the policy, making Hyslop's statement admissible as a statement by a party-opponent under N.J.R.E. 803(b). In addition, Cannon had ample opportunity to challenge Hyslop's recorded statement or even depose him if he did not agree with his version of the events.
Hyslop's criminal conviction is relevant as it has a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Hyslop pled guilty to N.J.S.A. 2C:33-1(a)(3), which provides that "[a] person is guilty of riot if he participates with four or more others in a course of disorderly conduct as defined in [N.J.S.A.] 2C:33-2a . . . [w]hen he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon." Hyslop's conviction is relevant in establishing his willing involvement in the fight during which Cannon was injured.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION