(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It neither has been reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge King's opinion below.)
Argued January 14, 2002 -- Decided February 6, 2002
PER CURIAM
This appeal concerns the interpretation of certain exclusionary language in a homeowner's insurance
policy.
Vincent Iorio, a nine-year-old, was injured on February 11, 1996, while riding on a go-cart owned by his
uncle, James Simone. Vincent was visiting his uncle at the Simones' home in Camden. James allowed his son,
James, Jr., age twelve, to ride in the go-cart. At some point, Vincent also got into the go-cart while it was either at
the bottom of the driveway or on the apron of the driveway, very near the street. The go-cart then traveled into the
street, went a block or two in the street, and struck a curbside tree. Vincent suffered injuries as a result of the crash.
A complaint against James Simone was filed by the Vincent and his father as guardian, alleging that
Vincent was injured while negligently supervised by his Uncle James while on James' property. James Simone's
homeowner's insurer, Aetna Casualty and Surety Company (Aetna) denied liability coverage and a defense. In
denying coverage for this accident, Aetna viewed the accident as arising out of an occurrence involving an owned
motorized vehicle, the go-cart, while off the insured's premises, a specific exclusion in the policy.
Under Coverage E of the Aetna homeowner policy, liability coverage is provided for a suit brought against
the insured for damages because of bodily injury caused by an occurrence to which the coverage applies. The
policy excludes personal liability coverage for claims arising out of motor vehicle hazards, with certain exceptions.
The motor vehicle exclusion does not apply to a motorized land conveyance designed for recreational use off public
roads, not subject to motor vehicle registration, such as a go-cart, when the motorized vehicle is not owned by the
insured or owned and on an insured location.
Aetna filed a declaratory action, seeking the court's determination of coverage. To support its denial of
coverage, Aetna asserted that the clear and plain language of the policy does not “give back” coverage because the
insured, James Simone, owned a go-cart and the bodily injury claim arose out of an occurrence not on the insured's
premises, but on the public street. Vincent and his father claimed that James' negligent supervision occurred on the
insured premises, when Vincent jumped onto the go-cart, and not on the public street; therefore, coverage should be
available because of James' reasonable expectations regarding coverage. In the alternative, they argued that the
policy is ambiguous and should be construed to afford coverage.
The trial court found that Aetna was not required to provide a defense to its insured, James Simone, for this
incident. Vincent and his father appealed. The Appellate Division affirmed the decision of the trial court, finding
the language of the policy clear and unambiguous. The Appellate Division found that there is no coverage for an
occurrence or accident causing an injury in an owned go-cart that takes place off the insured location. The court
reasoned that the occurrence that triggers the liability coverage is an accident that results in a bodily injury claim,
not a particular type of careless conduct by the insured. The court noted that the duty to defend depends on the facts
of the case and not the allegations in the complaint. Since there is no coverage in fact, the Appellate Division held
that Aetna had no duty to defend James Simone in the tort action.
The Supreme Court granted certification.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the opinion
below. Based on the clear and unambiguous language of the homeowners policy, there is no coverage for
an accident causing bodily injury in the insured's go-cart while off the insured's premises.
CHIEF JUSTICE PORITZ, and JUSTICES COLEMAN, LONG, VERNIERO, LAVECCHIA, and
ZAZZALI join in this opinion. JUSTICE STEIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
2 September Term 2001
AETNA CASUALTY & SURETY
COMPANY and TRAVELERS
PROPERTY & CASUALTY COMPANY,
Plaintiffs-Respondents,
v.
JAMES SIMONE, DEBRA SIMONE,
JIMMY SIMONE, an infant by
his parents JAMES and DEBRA
SIMONE,
Defendants,
and
VINCENT IORIO, an infant by
his guardian ad litem RALPH
IORIO, and RALPH IORIO,
individually,
Defendants-Appellants.
Argued January 14, 2002 -- Decided February 6, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
340 N.J. Super. 19 (2001).
Kenneth G. Andres, Jr., argued the cause for
appellants (Andres & Berger, attorneys;
Kevin Haverty, on the brief).
Michael B. Oropollo argued the cause for
respondents (Harwood Lloyd, attorneys).
Lawrence C. Wohl submitted a brief on behalf
of amicus curiae, Association of Trial
Lawyers - New Jersey (Pellettieri, Rabstein
& Altman, attorneys).
PER CURIAM
The judgment is affirmed, substantially for the reasons
expressed in Judge King's opinion of the Appellate Division,
reported at
340 N.J. Super. 19 (2001).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO,
LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE STEIN did
not participate.
NO. A-2 SEPTEMBER TERM 2001
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
AETNA CASUALTY & SURETY
COMPANY and TRAVELERS
PROPERTY & CASUALTY COMPANY,
Plaintiffs-Respondents,
v.
JAMES SIMONE, DEBRA SIMONE,
JIMMY SIMONE, an infant by
his parents JAMES and DEBRA
SIMONE,
Defendants,
and
VINCENT IORIO, an infant by
his guardian ad litem RALPH
IORIO, and RALPH IORIO,
individually,
Defendants-Appellants.
DECIDED February 6, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY