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Original WP 5.1 Version This case can also be found at 170 N.J. 438, 790 A.2d 157.

SYLLABUS (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). Aetna Casualty & Surety Company v. James Simone (A-2-01) (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 gocart, 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

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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.

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SUPREME COURT OF NEW JERSEY 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 CHECKLIST AFFIRM

CHIEF JUSTICE PORITZ X JUSTICE STEIN ------------------- --------- -------JUSTICE COLEMAN X JUSTICE LONG X JUSTICE VERNIERO X
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JUSTICE LaVECCHIA JUSTICE ZAZZALI TOTALS

X X 6

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