Opinion
CIVIL NO. 98-5538 (JBS).
April 12, 2000.
Robert A. Fineberg, Esq., Cape May Courthouse, N.J., Attorney for Plaintiffs.
Glenn A. Zeitz, Esq., Philadelphia, PA, Attorney for Defendant Stephen DeSantis.
Allan Maitlin, Esq., Laura L. Milcsik, Esq., Sachs, Maitlin, Fleming, Greene, Wilson Marotte, West Orange, N.J., Attorney for Defendant Scottsdale Insurance Co.
O P I N I O N
In this diversity-based personal injury case, plaintiffs Edward and Estelle Giosa (the Giosas) have brought suit against defendants Stephen DeSantis (DeSantis), and DeSantis's insurer, Scottsdale Insurance Co. (Scottsdale), seeking to recover damages allegedly suffered after they discovered that DeSantis, the caretaker for their condominium, had installed a remote camera above their unit's bathroom and had observed and recorded all activity therein for over two months. Presently before the Court is Scottsdale's motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The main issue for decision is whether, under New Jersey law, Scottsdale is obligated to provide coverage for the acts of its insured, DeSantis, where the harm caused was intended or expected, not accidental. For reasons discussed herein, the Court finds as a matter of law that acts such as DeSantis's are specifically excluded from coverage, and will enter summary judgment against all claims against Scottsdale.
This Court's subject matter jurisdiction arises from the parties' diversity of citizenship, 28 U.S.C. § 1332. New Jersey law provides the rules of decision for interpreting the policy of insurance issued to defendant DeSantis, a New Jersey citizen, with respect to his New Jersey dwelling.
BACKGROUND
The Giosas own or owned Unit 307 in the Promenade Condominiums in North Wildwood, New Jersey, which they used as a vacation home. Defendant Stephen DeSantis lived in Unit 106 year-round, and performed various maintenance duties for residents including the Giosas who were unable to maintain their units while they were away. Pursuant to these duties, he had access to keys which gave him access to certain units in the complex, including the Giosas'. (Scottsdale's Stip. Facts at ¶¶ 1-3.)
It is unclear from the record before the Court whether DeSantis or the Giosas still live at the Promenade Condominiums. For the sake of simplicity, the Court will use only the past tense.
Prior to the incidents giving rise to this case, DeSantis had contracted with Scottsdale for a dwelling insurance policy. This policy provided for coverage of the insured (DeSantis) if a "claim is made or a suit is brought against an `insured' for damages because of `bodily injury' or `property damage' caused by an `occurrence' to which this coverage applies". (Scottsdale-DeSantis Policy at 2, Scottsdale Ex. I.) As explained in further detail below, the crucial question for the purposes of the present dispute is whether DeSantis's actions constituted an "occurrence" triggering coverage?
Sometime in March 1998, DeSantis without permission installed a video camera in the attic directly above the bathroom in the Giosas' unit. This camera peered down through a vent into the Giosas' bathroom, and transmitted images of the scenes therein to DeSantis. By means of this unauthorized observation, DeSantis watched and recorded activities within the Giosas' bathroom, which included people showering and using the toilet. (Id. at ¶¶ 4-5.)
On several occasions, DeSantis without permission entered the Giosas' unit to adjust the camera settings. He turned the camera off when no one was at home, and turned it back on when he knew that someone was going to return. (Id. at ¶ 7.) DeSantis made two videotapes of activity in the Giosas' bathroom, and stored them in his bedroom closet. (Id. at ¶ 8.) These tapes contained scenes from the Giosa bathroom in which various family members and family friends were naked or partially dressed, showering, or using the toilet. Among the individuals taped were Mrs. Giosa and four girls between 14 and 16 years of age. In addition, DeSantis spliced into these tapes scenes from several pornographic videos. (Police Report at 4, Scottsdale Ex. C.) Mr. Giosa discovered the camera on Memorial Day weekend, 1998, while doing electrical work in the ceiling above his unit. Later that same day, he learned that DeSantis was responsible for the camera and that he had been taping the Giosas' bathroom activities. When Mr. Giosa confronted DeSantis, DeSantis admitted that he had taped the Giosas' bathroom activities, and that he had done so because he was a "sexaholic". (Id. at ¶¶ 10-11; DeSantis Dep. at 22:12-14, Scottsdale Ex. A.) Mr. Giosa called the police, and DeSantis was charged with more than ten criminal offenses and eventually was sentenced to probation. (DeSantis Dep. at 35:22-23.) During interviews with police, DeSantis stated that his primary reason for installing the camera was to capture intimate interactions between the Giosas' son and his girlfriend. (Police Report at 2, Scottsdale Ex. C.)
Based on their discovery of DeSantis's acts, plaintiffs have filed suit in this Court alleging that DeSantis's acts negligently, (Compl. Count I), and/or willfully (Compl. Count II), invaded their privacy and caused them mental anguish, emotional distress, post-traumatic stress disorder, and other damages. (Compl. ¶ 6.) Based on DeSantis's dwelling insurance policy with Scottsdale, plaintiffs also assert a third-party beneficiary claim against Scottsdale in which they demand an Order declaring that this policy should cover any injuries that plaintiffs suffered on account of DeSantis's conduct. (Id. at ¶ 11-12.)
DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996);Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. den., 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. The Scottsdale Policy
The policy between DeSantis and Scottsdale provides that, in return for payment of premiums and compliance with all policy provisions, Scottsdale would cover DeSantis if a "claim is made or a suit is brought against an `insured' for damages because of `bodily injury' or `property damage' caused by an `occurrence' to which this coverage applies". (Scottsdale-DeSantis Policy "Coverage L — Personal Liability", Scottsdale Ex. I.) "Occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in (a.) "bodily injury", or (b.) "property damage". (Id. "Definitions" ¶ 5.) "Bodily injury" is defined as "bodily harm, sickness, or disease, including required care, loss of services, and death that results." (Id. "Definitions" ¶ 1.)
The Scottsdale policy also includes several exclusions, i.e. circumstances under which coverage will not apply. Specifically, the policy provides that personal liability coverage does not apply to bodily injury or property damage which is "expected or intended by the insured", (id. "Exclusions" ¶ 1(a)), or which arises "out of sexual molestation, corporal punishment or physical or mental abuse", (id. "Exclusions" ¶ 1(j)).
C. Whether the Giosas' Injuries Were Caused by an "Occurrence" Covered Under the Scottsdale Policy
It is undisputed that DeSantis intended to operate the remote camera which taped the Giosas' bathroom activities. As discussed above, the policy clearly excludes coverage for injuries caused by an insured's intentional acts. Nevertheless, the parties dispute whether DeSantis's conduct is excluded from coverage. Scottsdale asserts that DeSantis expected that his actions would harm the Giosas, and that the Giosas' injuries therefore were not "accidental" and are not "occurrences" to which coverage applies. In response, the plaintiffs and DeSantis argue that, although DeSantis's acts were intentional, he did not have a subjective intent to cause harm. Because there was no subjective intent to harm, plaintiffs argue, the Giosas' injuries were "accidental" and thus qualify as an "occurrence" to which coverage applies under the Scottsdale policy. Plaintiffs' argument is unavailing for several reasons.
As a preliminary matter, the Court finds that there is no genuine dispute as to whether DeSantis intended to invade the plaintiffs' privacy. Under New Jersey law, there are several definitions for the tort of invasion of privacy, which is among the Giosas' causes of action in this case. The definition most applicable to DeSantis's repugnant acts seems to be "intrusion"-type invasion of privacy, which is defined as "intrusion on plaintiff's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs", which interferes with "the right of the plaintiff to be let alone." Rumbasuskas v. Cantor, 138 N.J. 173, 179-80 (1994) (quotingProsser and Keeton on the Law of Torts § 117 (5th ed. 1984)).
In this case, it is clear that, by monitoring the Giosas' bathroom activities, DeSantis intentionally intruded into the most private aspects of the Giosas' lives. In doing so, he violated the plaintiffs' expectation of privacy when performing intimate bodily functions. It is also undisputed that DeSantis knew that what he was doing was wrong, and that he has pleaded guilty to criminal charges arising from the taping. On the record before the Court, then, there is no genuine dispute as to whether DeSantis knew or should have known that he was invading the Giosas' privacy, or as to whether he should have expected that the Giosas would be harmed by his actions. Indeed, DeSantis admitted at his deposition that he knew that he might get caught, and that he had considered the possibility that the Giosas' children would be mentally harmed by his conduct. (DeSantis Dep. at 18:22-24, 19:12.)
Alternatively, DeSantis's intent to harm is presumed from the nature of his outrageous conduct. New Jersey's courts have held that in instances of particularly egregious and reprehensible conduct, intent to harm is presumed without inquiry into the actor's subjective intent to injure.Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 184 (1992). See also Miller v. McClure, 326 N.J. Super. 558, 571 (App.Div. 1998) ("expected or intended" exclusion applicable because intent to harm presumed in invasion of privacy and harassment claims); Schmidt v. Smith, 294 N.J. Super. 569, 580 (App.Div. 1996) ("expected or intended" exclusion applicable because intent to harm presumed from egregious pre-employment sexual advances); Mroz v. Smith, 261 N.J. Super. 133, 138 (App.Div. 1992) ("expected or intended" exclusion applicable because intent to harm presumed in case involving sexual advances and harassing phone calls).
Intent to harm must be presumed here, where DeSantis engaged in what can only be described as a premeditated and shocking violation of the Giosas' expectation of privacy in their own residence. Under the facts of this case, no reasonable factfinder could fail to conclude that DeSantis's harm to plaintiffs was the expected and intended consequence of his acts. Because DeSantis's intent to harm is presumed, the Giosas' injuries fall within "intended or expected" exclusion a. of the Scottsdale policy. Accordingly, these claims fall within exclusion a. of the policy and are not covered.
Having determined that the Giosas' cause of action for invasion of privacy is not covered by the policy, the question then becomes whether the policy provides for coverage the injuries indirectly caused by DeSantis's actions, i.e., the emotional distress, mental anguish and post-traumatic stress claimed as injuries.
In Miller, supra, the New Jersey Appellate Division held that claims of outrage, shame, humiliation and mental suffering fall within an insurance policy's "mental abuse" exclusion for personal liability coverage. Miller v. McClure, 326 N.J. Super. at 571. Here, as in Miller, the record before the Court does not show that the plaintiffs suffered any physical harm as a result of the defendant's actions. While Mrs. Giosa has testified that she is anxious, and fearful of being watched or followed, she has not alleged any medical problems stemming from their discovery that DeSantis had taped their bathroom activities. Likewise, Mr. Giosa has alleged only psychological manifestations of injury. While it is true that emotional distress sometimes may trigger physiological manifestations of injury that allow such claims to fit within the definition of "bodily injury" for insurance purposes, where a plaintiff alleges injuries such as lost sleep, loss of self-esteem, humiliation, and irritability, unaccompanied by physical manifestations, such claims have been held to be emotional in nature, and not within the meaning of "bodily injury".S.L. Industries v. American Motorists, 128 N.J. 188, 201 (1992). In S.L. Industries, the New Jersey Supreme Court interpreted identical policy language to that of the present case, namely, the meaning of "bodily injury". The court was clear that "bodily injury" requires the presence of some physical injury before any emotional harm can be considered as a "bodily injury". The Supreme Court stated:
Plaintiffs' have requested that the Court deny summary judgment on the issue of whether the Giosas have suffered physical harm until the record can be further developed. The record shows that plaintiffs' complaint in this case was filed in December 1998. Scottsdale's present motion was filed in October 1999. Plaintiffs have had ample opportunity to respond to Scottsdale's motion, and have elected not to further develop the record with respect to their injuries. All facts related to plaintiff's injuries are within plaintiff's own possession or control and not dependent upon obtaining discovery from the defendants. Plaintiffs have not attached any certifications or affidavits in which the plaintiffs themselves could have described the physical manifestations of their injuries. Because the lack of record evidence as to plaintiffs' injuries is attributable to the plaintiffs' own choice, the Court will not grant the plaintiffs' request to further delay adjudication of this issue.
We hold that in the context of purely emotional distress, without physical manifestations, the phrase "bodily injury" is not ambiguous. Its ordinary meaning connotes some sort of physical problem.Id. at 202.
Here, because the record does not show that the plaintiffs have suffered any physical symptoms of injury, the conduct of the insured did not give rise to any covered "bodily injury" under the Scottsdale policy. Accordingly, plaintiffs' claims for emotional harm, post-trauma stress, anxiety and mental anguish are excluded from coverage, and summary judgment will be entered against their claims against Scottsdale.
CONCLUSION
For the reasons discussed above, the Court will grant Scottsdale's motion for summary judgment, and all claims against Scottsdale will be dismissed. The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court on defendant Scottsdale's motion for summary judgment against all claims against it pursuant to Rule 56, Fed.R.Civ.P., and the Court having considered the parties' submissions, and for the reasons discussed in today's Opinion,
IT IS this day of April, 2000
ORDERED that defendant Scottsdale's motion for summary judgment be, and hereby is, GRANTED, and all claims against Scottsdale are DISMISSED with prejudice.