SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6899-97T5
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,
Plaintiff-Respondent,
v.
THOMAS M. BEEBY and
NANCY STYER,
Defendants-Appellants.
Argued October 14, 1999 - Decided January 18, 2000
Before Judges King, Carchman and Lefelt.
On appeal from Superior Court of New Jersey, Law
Division, Cape May County.
Joseph C. Grassi argued the cause for appellants
(Rossi, Barry, Corrado, Grassi & Radell, attorneys; Mr.
Grassi, on the brief).
Frank G. Basile argued the cause for respondent (Basile
& Testa, attorneys; Diane Giordano, on the brief).
The opinion of the court was delivered by
CARCHMAN, J.A
This insurance coverage appeal requires us to address the
scope of our decision in Merrimack Mutual Fire Insurance Co. v.
Coppola,
299 N.J. Super. 219 (App. Div. 1997), and its
applicability where a defendant suggests that his objectively
assaultive conduct was not intended to cause injury but was
intended to protect a plaintiff from potential harm. We conclude
that a genuine issue of material fact exists which precludes a
determination, as a matter of law, that defendant Thomas Beeby is
not entitled to coverage under his homeowner's policy with
plaintiff Cumberland Mutual Fire Insurance Co. (Cumberland). We
hold that where a factual inquiry is necessary to determine
coverage, that issue should be resolved in a plenary proceeding
prior to resolution of the underlying tort action. We remand
this matter to the Law Division for a plenary hearing to resolve
the factual dispute and determine whether such coverage is
excluded under the terms of the policy.
The issue we have identified arises in the following factual
and procedural context. Nancy Styer (Styer) and defendant were
involved in a long-standing relationship. They lived together
since 1993 and parented a child. Defendant is a detective with
the Lower Township Police Department.
On January 28, 1994, Styer, defendant and a friend, Danette
Hickman (Hickman), went out socially for "happy hour" at a bar in
Wildwood. After a few hours they proceeded to a bar in North
Cape May, the Red Bull, arriving there at about 10 p.m. At about
11 p.m. Styer and defendant had a verbal disagreement over
Styer's smoking. Styer then left the Red Bull without indicating
where she was going. When Styer did not return, defendant became
concerned and, with Hickman, went to look for her. Defendant
later estimated that Styer had consumed between ten and eleven
beers and one or two shots of "Red Devil." Defendant
acknowledged that he drank eight or nine beers during the course
of the evening but denied feeling the effects of the alcohol.
Defendant and Hickman first looked for Styer in the Red Bull
parking lot. They proceeded to canvass the area and finally
drove to the home of their mutual friends, Joe and Margaret
Vitelli, thinking she may have gone there. When they arrived at
the Vitelli's, Margaret Vitelli (Margaret) informed defendant
that Styer was at the Dunkin' Donuts on Town Bank Road and
Bayshore Road. Margaret wanted to pick up Styer. Defendant
insisted that he pick her up.
Defendant and Hickman then drove to the Dunkin' Donuts where
they saw Styer standing near a phone booth. As defendant walked
to Styer, he told her to get into the car; she refused and
started walking toward the street. Defendant claims that when
Styer attempted to cross Town Bank Road and Bayshore Road, he
reached out to grab her: "I wound up grabbing her hair, and I
thought I grabbed part of the back of her coat. . . I thought I
only initially grabbed [her hair] till I was able to pick her
up."
As defendant grabbed Styer and tried to pick her up and put
her in the car, she struggled to get free. As she did, she
struck her knee causing her injury. Defendant asserts that he
did not intend to harm her, but because of her "condition," he
was concerned about her crossing a roadway. He simply wanted
them to go home.
After defendant put Styer in the passenger seat of the car,
Styer left the car and started to run through the Dunkin' Donuts
parking lot with Hickman. The two ran to the back of a parking
lot where they jumped over a four-foot fence. Defendant saw
Margaret pull into the parking lot, and he proceeded to go home.
Defendant claims that when he left the area, he did not know that
Styer had suffered any injury. Defendant and Styer appeared in
Middle Township Municipal Court on the Wednesday following the
incident. Although the record is unclear as to the nature of the
charge and whether a domestic violence complaint was filed, the
matter was ultimately dismissed without an adjudication on the
merits.
On January 16, 1996, Styer filed a two-count complaint in
the Law Division against defendant for personal injuries she
sustained as a result of the incident that occurred on January
28, 1994 (the tort action). In the first count, she alleged
assault, battery, false arrest and false imprisonment; in the
second count, she alleged that defendant's negligence caused her
injuries.
When the claim was filed against defendant, he maintained a
homeowner's insurance policy with Cumberland. The policy
provided in pertinent part:
4. ENDANGERMENT OR HARM
We do not cover bodily injury or property
damage, whether or not expected or intended
by the insured, which is a consequence of an
insured's wilful harm or knowing
endangerment.
On April 17, 1996, Cumberland filed a separate declaratory
judgment action against defendant and Styer seeking a declaration
that Cumberland had no duty to defend and indemnify defendant
under his homeowner's policy for the acts complained of in
Styer's complaint.
Defendant moved for summary judgment against Cumberland
seeking to require Cumberland to defend him in the underlying
tort action. Cumberland filed a cross-motion for summary
judgment seeking an adjudication that it had no duty to defend
under the policy. The motion judge ordered Cumberland to defend
"subject to reservation and full right to reserve a judgment in
the amount of its defense costs if the jury determines no
coverage."
Cumberland moved before us for leave to appeal. We granted
leave to appeal and summarily reversed, stating:
The motion for leave to appeal is granted and
the order of April 4, 1997 is summarily
reversed. R. 2:8-3(b); R. 2:11-2. We direct
that the Law Division judge conduct a trial
of the issue of insurance coverage prior to
the trial on the issue of liability and
damages. After a determination is made
whether or not the Cumberland Mutual policy
provides coverage for the claim by Nancy
Styer against Thomas Beeby, the trial of the
tort claim may then proceed. Burd v. Sussex
Mutual Ins. Co.,
56 N.J. 383, 391 (1970).
Cumberland renewed its motion for summary judgment in the
Law Division, and the motion judge, relying on our decision in
Merrimack, granted Cumberland's motion. The judge stated:
[M]y feeling is and my reading of the
Merrimack case is such as to warrant I
believe the granting of summary judgment in
favor of the plaintiff in this case and say
that there is no coverage and therefore no
duty to defend by virtue of the nature of the
relationship, the parties involved, and the
acts which are precluded by the legislature
and the Domestic Violence Acts as well as the
cases that I have cited and in particular the
Merrimack case.
. . . while there is a distinction attempted
to be made between the Merrimack case and the
present case by virtue of the allegations of
the complaint, that's not so. The fourth
count of the complaint in the Merrimack case
alleged in the alternative that defendant
negligently physically and emotionally abused
Joanne Coppola throughout the course of the
parties' marriage, so there was a negligence
claim in that Coppola case as well and that's
what the Court was directing itself to in its
analysis which . . . I think it's fully
applicable here although it's not a spousal
abuse kind of thing because there's no
marriage, but all the other indications or
indicia of a marriage were there and I just
don't see any way around it. I further say
that I believe that ultimately . . . the
charge to the jury would include much of what
I've just said. The jury would decide not
only whether . . . this is the kind of case
that is so reprehensible. I think . . . I
would have asked them whether or not the act
itself, the fact that it is a violation of
domestic violence might be . . . by them to
be reprehensible such that they would not
have to go through the analysis of
objective/subjective kind of thing, but I
don't know if I would have done that.
This appeal followed.
On appeal, defendant asserts that the trial judge: a)
violated our mandate ordering a "trial on the issue of insurance
coverage" by granting Cumberland's renewed motion for summary
judgment; b) violated the doctrine of "the law of the case"; and
c) erred in relying on our decision in Merrimack as dispositive
of the issues here. Because we determine that the facts preclude
application of Merrimack and that a plenary hearing is required
to determine the disputed questions of fact, we need not address
the first two issues. We limit our analysis to the application
of Merrimack, and the procedure on remand.
We first identify certain basic principles which apply to
the common circumstance of a plaintiff pleading both an
intentional act of assault and thereafter pleading a negligent
act both causing the same injury.
An insurer has a duty to defend its insured "'when the
complaint states a claim constituting a risk insured against.'"
Voorhees v. Preferred Mut. Ins. Co.,
128 N.J. 165, 173 (1992)
(quoting Danek v. Hommer,
28 N.J. Super. 68, 77 (App. Div. 1953),
aff'd o.b.,
15 N.J. 573 (1954)). Whether an insurer has a duty
to defend is determined by comparing the allegations in the
complaint with the language of the policy. When the two
correspond, the duty to defend arises, irrespective of the
claim's actual merit. Ibid. Here, the policy afforded coverage
for bodily injury . . . which occurs during the policy term and
is caused by an occurrence covered here. An occurrence is
defined in the policy as "an accident which results . . . in
bodily injury. However, the policy excludes from coverage
bodily injury . . . whether or not expected or intended by the
insured, which is a consequence of an insured's wilful harm or
knowing endangerment. As we have noted, plaintiff has pled two
distinct causes of action, one is covered by the policy and the
other is excluded. In its argument, Cumberland asserts that the
policy excludes coverage regardless of the insured's intent
claiming that it is not necessary to delve into subjective intent
because the exclusionary language, on its face, clearly and
specifically takes the expectation and intention of the insured
out of the calculus. Cumberland argues that, objectively,
defendant's intentional conduct of pulling hair and pulling,
dragging or carrying Styer constitutes "wilful harm" or "knowing
endangerment."
The trial judge concluded that our opinion in Merrimack
controlled and excluded coverage, rendering any factual inquiry
into the nature and quality of defendant's acts unnecessary. In
Merrimack, we specifically addressed the issue as to "whether a
defendant husband's subjective intent with respect to the
consequences of his alleged abusive behavior toward his wife
[was] relevant in determining if coverage exist[ed] under his
homeowner's policy that exclude[d] indemnity for injuries
expected or intended." Merrimack, supra, 299 N.J. Super. at 221.
The wife alleged at the divorce trial "a litany of physical and
emotionally abusive behavior" continuing for a period of twenty
five years and necessitating at least two restraining orders, the
last order being entered in 1990, which granted in-house
restraints and forbid harassing and violent activities between
defendant husband and his wife. Defendant admitted that the
conduct described by his wife amounted to domestic abuse. We
noted:
It is clear from the recitation of the proofs
offered by Jo Ann in the divorce trial that
she was asserting acts of intentional
misconduct, as opposed to negligence, as
grounds for her Tevis [
79 N.J. 422 (1979)]
claim.
We found that "spousal abuse is so reprehensible that both
public policy and logic require a presumption that the actor
intended injury." Merrimack, 299 N.J. Super. at 229; cf. Miller
v. McClure, N.J. Super. (App. Div. 1998) (slip op. at 14)
(concluding that allegations of workplace sexual harassment were
so egregious and reprehensible as to preclude coverage under the
policy), aff'd o.b. N.J. (1999). In finding that
insurance coverage for intentional acts of domestic violence was
not available to defendant, "we conclude[d] that spousal abuse in
any form is 'so inherently injurious, that it can never be an
accident,' and therefore, '[a]s a matter of public policy and
logic . . . the better rule warrants application of the objective
approach,' to the end that the intent to injure is presumed from
the performance of the act." Id. at 230 (quoting Voorhees,
supra, 128 N.J. at 165).
Merrimack is distinguishable from the case before us. The
record is devoid of any prior history of domestic violence or
abuse _ a critical finding in Merrimack. There is no record of
any prior restraining orders, and Styer's claims arose as a
result of an isolated incident premised, according to defendant,
on his asserted concern for her safety that occurred during the
course of one evening. This is markedly different from the
sustained evidence of spousal abuse that was before the court in
Merrimack.
Notwithstanding the significant policy considerations
underlying Merrimack, consideration from which we suggest no
retreat, the basic principles of summary judgment still apply.
Included among these principles is the requirement that the
defender of the motion is entitled to all favorable inferences.
Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995).
Among the favorable inferences in this case is that defendant's
action was protective rather than assaultive. Thus, before a
motion judge applies Merrimack and precludes consideration of
intent, the judge must make the threshold determination of
whether defendant's conduct falls within the realm of conduct
warranting application of such a policy. Considering all
inferences in favor of defendant, defendant's actions, however
misguided, were focused on preventing Styer from walking into the
middle of the street. A trier of fact could conclude that
defendant was acting to protect Styer and did not intentionally
assault her, but in his protective zeal, negligently caused the
injury giving rise to the cause of action. In other words, a
trier of fact could find that defendant's "intentional" touching
of Styer did not rise to the level of an assault and act of
domestic violence. We need not express our views as to whether
defendant will convince a trier of fact of the bona fides of his
theory, only that, on the facts presented here, he have the
opportunity to do so. Resolution of this issue will decide the
issue of coverage.
We add an additional observation regarding the language used
in the policy. A precise definition of "wilful harm" has proven
to be elusive. McLaughlin v. Richland Shoe Co.,
486 U.S. 128,
133,
108 S. Ct. 1677, 1681,
100 L. Ed.2d 115, 123 (1988) (noting
that "[t]he word "wilful" is widely used in the law," but "has
not by any means been given a perfectly consistent
interpretation"). New Jersey courts have ascribed various
meanings to the elements of this presumably simple phrase. See,
e.g., G.S. v. Department of Human Servs.,
157 N.J. 161, 178-79
(1999) (stating in the context of child neglect that "wilful and
wanton misconduct implies that a person has acted with reckless
disregard for the safety of others"); Fielder v. Stonack,
141 N.J. 101, 124-26 (1995) (defining "wilful misconduct" in the
context of a police pursuit as "the knowing failure to follow
specific orders, 'knowing' that there is an order and wilfully
failing to follow it, i.e., intentionally failing to obey an
order"); Foldi v. Jeffries,
93 N.J. 533, 549-50 (1983) (stating
in the context of parental liability for wilful or wanton
negligent supervision of children that "[t]he standard is . . .
an accepted intermediary position between simple negligence and
the intentional infliction of harm"); Executive Comm'n on Ethical
Standards v. Salmon,
295 N.J. Super. 86, 105-07 (App. Div. 1996)
(defining wilful in the context of ethics violations as
"intentional and deliberate, with knowledge of its wrongfulness,
and not merely negligent, heedless, or unintentional"). However,
we need not explore the limits of defining "wilful harm or
knowing endangerment" because the narrow issue presented here is
whether defendant's conduct, once judicially reviewed, rises to
the level of being an act of domestic violence. We hold that
whatever definition of wilful harm or knowing endangerment is
applied, if there is a finding of domestic violence, the holding
of Merrimack and the exclusionary provision of the policy will be
satisfied. To find otherwise would reinstate the concept of
intent in a domestic violence context, a position that we have
previously rejected in both Merrimack and Tevis v. Tevis,
155 N.J. Super. 273 (App. Div. 1978), rev'd on other grounds,
79 N.J. 422 (1979).
We finally address the issue of the procedure to be followed
on remand. We previously ordered that a trial be conducted on
the issue of insurance coverage prior to the trial on the issue
of liability and damages. The motion judge again granted summary
judgment. Since we have found that there is an issue of fact,
the matter shall be resolved through a plenary hearing with a
trier of fact adjudicating the true nature of defendant's actions
and whether he is entitled to coverage. After that determination
is made, the tort action may then proceed to final resolution.
This procedure will eliminate the anomaly of a potential abuser
being covered for acts which amount to spousal abuse. As we
observed in Merrimack:
Clearly, coverage for spousal abuse, in any
form, would encourage those who are disposed
to commit such reprehensible acts to inflict
injury upon their spouses with impunity,
knowing that their insurance companies will
indemnify them for the money damages
recovered by their spouses if only they can
convince some jury that they did not intend
or expect bodily harm to flow from their
conduct. Therefore, we conclude that spousal
abuse in any form is "so inherently
injurious, that it can never be an accident,"
and therefore, "[a]s a matter of public
policy and logic . . . the better rule
warrants application of the objective
approach," to the end that the intent to
injure is presumed from the performance of
the act. Voorhees, supra, 128 N.J. at 185
(quoting Atlantic Employers, supra, 239 N.J.
Super. at 283).
[Merrimack, supra, 299 N.J. Super. at 230.]
Our decision does not retreat from this view but simply requires
that the trier of fact, for coverage purposes, determine whether
the acts complained of fall within the exclusion under the
policy. That finding, in essence, requires a determination of
whether defendant committed an act of domestic violence, a
determination which will test the quality of his acts as well as
the intended result. Id. at 231.
We reverse the judgment in favor of Cumberland and remand
for a plenary hearing consistent with this opinion. We do not
retain jurisdiction.