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 has been neither reviewed nor approved by the Supreme Court. The
Court wrote no majority opinion in this case. The facts and procedural history
were derived from the concurring opinion.)
Argued February 15, 2005 -- Decided May 23, 2005
PER CURIAM
In this appeal, the Court addresses the meaning of two exclusionary clauses in a homeowner’s insurance policy written by Cumberland Mutual Fire Insurance Company (Cumberland).
On January 20, 2001, at approximately 11:00 p.m., fourteen-year-old Timothy Murphy, III and
two friends began shooting BB’s to “ding” passing cars. They climbed onto a
wooden platform on the property of one of the boys, Eric Elder, which
was twenty-five feet from the roadway. The night was dark and moonless, and
it was sleeting; visibility was poor. One of Murphy’s BB shots hit Gina
Santiago who was driving a soft top jeep along the road near the
Elder home. The BB went through the soft top and hit Santiago causing
permanent blindness in her right eye, as well as a susceptibility to further
complications.
Murphy admitted to shooting intentionally at the cars but denied that he intended
to hurt anyone. He claimed that he did not understand at the time
that someone could get hurt. He also conceded that he knew that what
he was doing was “wrong,” “illegal,” and might subject him to “juvenile court.”
Despite knowing those risks, Murphy thought that he was just having fun with
his friends.
After an investigation, the State filed a delinquency petition against Murphy alleging facts
that, if committed by an adult, would have constituted possession of a firearm
for an unlawful purpose and aggravated assault. Murphy admitted to aggravated assault with
a civil reservation that prevented use of that admission in any future proceeding.
Murphy was adjudicated delinquent and was sentenced to two years probation, the payment
of certain fines, attendance at a gun safety course, and community service.
In January 2002, Gina Santiago and her husband sued Murphy and his parents
in federal court for the injuries she sustained. Cumberland, the Murphy family’s homeowner’s
insurance carrier, filed a declaratory judgment action in Superior Court against Murphy, his
parents, and the Santiagos, seeking a declaration that it was not obligated to
provide coverage to the Murphy family for Gina Santiago’s injuries. Cumberland denied coverage
based on two exclusions contained in the Murphy’s homeowner’s policy. One exclusion provides
that the insurer will not cover bodily injury or property damage, whether expected
or not expected or intended, that is the consequence of an insured’s willful
harm or knowing endangerment. The other relevant exclusion bars coverage for any damages
or loss directly or indirectly caused or resulting from a knowing violation of
a penal law or ordinance committed by or with the consent of the
insured.
Cumberland and the Santiagos filed cross-motions for summary judgment, seeking a judicial determination
whether the policy provisions clearly excluded Murphy’s acts from coverage. After a hearing
on the motions, the trial court denied Cumberland’s motion. In granting the Santiagos’
motion, the judge noted that the material facts – that multiple shots were fired
and that Murphy fired the BB that hit Gina Santiago – were undisputed. The
court concluded that the circumstances surrounding the shooting would not support a presumption
that Murphy had any subjective intent to injure anyone. Specifically, the trial court
held, among other things, that Mrs. Santiago’s injury was not a foreseeable consequence
of Murphy’s actions, given the weather, the boys’ stated intention, their distance from
the roadway, the few shots that hit their mark, and the unlikely chance
that the Santiago vehicle would have a soft, permeable top. The judge noted
that although Murphy did something extremely stupid, the prank was not one in
which he envisioned the horrible injury he caused. Cumberland appealed to the Appellate
Division, which affirmed the decision of the trial court.
The Supreme Court granted certification.
HELD: The members of the Court being equally divided, the judgment of the
Appellate Division is AFFIRMED. The occurrence in this case was an “accident” within
the meaning of the Cumberland homeowner’s policy.
JUSTICE LONG, concurring, in which CHIEF JUSTICE PORITZ and JUSTICE ZAZZALI join, is
of the view that, in applying the principles enunciated in Voorhees, SL Industries,
and Garitta, the occurrence in this case was an “accident” within the meaning
of the homeowner’s policy. The uncontroverted evidence given by Murphy and his friends
provide no basis for a conclusion that they subjectively intended or expected to
injure anyone. Nor can it be said, in light of the weather, the
distance of the boys from the road, and the few shots that hit
their target, that Gina Santiago’s injury was an inherently probable consequence of Murphy’s
conduct. Justice Long disagrees with Cumberland’s contention that the heedless conduct of a
fourteen-year-old boy was in any way equivalent to the acts previously characterized by
the Court as “particularly reprehensible” that would give rise to a presumption of
an intent to injure Mrs. Santiago. Moreover, it is impossible to divine the
boundaries of the exclusion insofar as it simultaneously does not require an injury
to be “expected or intended,” but does require it to flow out of
“willful harm” or “knowing endangerment.” Those terms are imprecise and open to numerous
interpretations. Because the language is ambiguous, the policy must be interpreted in favor
of coverage. Justice Long also is unpersuaded by Cumberland’s reliance on the penal
law exclusion. Because of the recognition of two different systems to address adult
and juvenile crime, and because the exclusion here does not define a violation
of penal law, it can arguably be read as referencing only an adult’s
violation of a penal statute. Even if that is debatable, the penal law
exclusion is ambiguous and must be interpreted in favor of coverage.
JUSTICE WALLACE, dissenting, in which JUSTICES LaVECCHIA and RIVERA-SOTO join, is of the
view that, fairly read, the policy excludes coverage for bodily injury or property
damage from the insured’s “willful harm” or “knowing endangerment,” regardless of whether the
insured “expected or intended” the precise injury or property damage that occurred. The
plain reading of the phrase “whether or not expected or intended by the
insured” eliminates the need for an inquiry into the insured’s subjective intent. With
the elimination of the subjective prong test in the Cumberland homeowner’s policy, the
focus properly is on whether the insured’s conduct demonstrated “willful harm” or “knowing
endangerment.” Although the Cumberland policy should have defined those terms to avoid ambiguity,
the insured’s conduct plainly falls within any reasonable definition of “willful harm” or
“knowing endangerment.” Murphy admitted he intended to shoot the BB gun in the
hope of hitting the passing cars and he knew that discharging a firearm
towards a person could result in injury or property damage. Because the explicit
language of the exclusion eliminates the need to determine the insured’s intention, the
policy plainly was intended to exclude coverage. Regardless of the existence of any
ambiguity in the policy language, the insured had no reasonable expectation of coverage.
JUSTICE RIVERA-SOTO, dissenting, in which JUSTICE LaVECCHIA joins, agrees with the thoughtful dissent
of Justice Wallace in respect of the knowing endangerment, willful harm exclusion in
the Cumberland policy. Justice Rivera-Soto also finds that the penal law exclusion also
bars coverage. The senseless events of January 20, 2001 are a textbook example
of the very behavior excluded from coverage by this exemption. There was an
event producing bodily injury that resulted from the actions of an insured that
constituted a knowing violation of the penal laws of this State. In Justice
Rivera-Soto’s view, there is no meaningful or principled distinction between the insurance policy’s
exclusion for acts that knowingly violate our penal laws and the actor’s status
as a juvenile. The restrictions of the penal laws apply to everyone regardless
of age; how those violations are treated based on the actor’s age goes
only to the measure and manner of punishment imposed, not to the actor’s
substantive liability for violating those laws. Thus, on the question of whether insurance
coverage is applicable or excluded by this policy provision, the age of the
insured is irrelevant and a claim of ambiguity cannot be sustained. Murphy’s acts
clearly violate several penal laws of this State and Murphy admitted, among other
things, that he knew what he was doing was illegal. If the policy
exclusion does not apply in these circumstances, then it is needlessly being denied
its full meaning. Allowing coverage in this case is not just bad law,
it is bad public policy.
CHIEF JUSTICE PORITZ, JUSTICE LONG and JUSTICE ZAZZALI concur in the judgment of
the Court. JUSTICE WALLACE filed a separate dissenting opinion, in which JUSTICES LaVECCHIA
and RIVERA-SOTO join. JUSTICE RIVERA-SOTO also filed a separate dissenting opinion, in which
JUSTICE LaVECCHIA joins. JUSTICE ALBIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 2004
CUMBERLAND MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-Appellant,
v.
TIMOTHY MURPHY, III, TIMOTHY MURPHY, JR. SANDRA MURPHY, GINA M. SANTIAGO and FERDINAND
SANTIAGO,
Defendants-Respondents.
Argued February 15, 2005 – Decided May 23, 2005
On certification to the Superior Court, Appellate Division.
Frank G. Basile argued the cause for appellant (Basile & Testa, attorneys; Mr.
Basile and Renee E. Scrocca, on the brief).
J. Davy Yockey argued the cause for respondents Gina M. Santiago and Ferdinand
Santiago (Flager & Yockey, attorneys; Michael S. Levin, on the letter in lieu
of brief).
J. Michael Farrell argued the cause for respondents Timothy Murphy, III, Timothy Murphy,
Jr., and Sandra Murphy (Wilentz, Goldman & Spitzer, attorneys).
PER CURIAM
The members of the Court being equally divided, the judgment of the Appellate
Division is affirmed.
CHIEF JUSTICE PORITZ, and JUSTICES LONG and ZAZZALI concur in the judgment of
the Court. JUSTICE WALLACE filed a separate dissenting opinion, in which JUSTICES LaVECCHIA
and RIVERA-SOTO join. JUSTICE RIVERA-SOTO also filed a separate dissenting opinion, in which
JUSTICE LaVECCHIA joins. JUSTICE ALBIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 2004
CUMBERLAND MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-Appellant,
v.
TIMOTHY MURPHY, III, TIMOTHY MURPHY, JR. SANDRA MURPHY, GINA M. SANTIAGO and FERDINAND
SANTIAGO,
Defendants-Respondents.
JUSTICE LONG, concurring.
This case involves the actions of a fourteen-year-old boy who foolishly shot some
BBs to “ding” passing vehicles. As a result, the driver of one of
the vehicles sustained an injury. The boy’s parents sought coverage under their homeowner’s
policy. Although all parties agree that there is no direct evidence that the
boy subjectively intended or expected to cause an injury, the insurer declined coverage
on the basis of two exclusionary clauses in its policy. We are here
called upon to determine the meaning of those clauses.
I.
The facts established during discovery are as follows. On January 20, 2001, fourteen-year-old
Timothy Murphy, III, and his thirteen-year-old friend Eric Kovalchek, visited the home of
fifteen-year-old Eric Elder. At around 11:00 p.m., the boys decided to shoot BBs
at passing cars. They retrieved a BB gun from the Elders’ shed, and
climbed onto a ten-foot high wooden platform in a tree at the edge
of the Elders’ property, twenty-five yards from the road. The night was dark
and moonless, and it was sleeting. Visibility was poor.
According to Murphy, he and Elder took turns firing. By listening to the
sound of the BBs ricocheting off the vehicles, Murphy estimated that he hit
four or five of them. Kovalchek did not remember Elder hitting any cars,
though he did recall Murphy hitting two or three, including a Jeep. By
all accounts, Kovalchek did not shoot the BB gun.
Murphy admitted to shooting intentionally at the cars, but he denied that he
intended to hurt anyone and claimed that he did not understand at the
time that someone could get hurt. When asked why he thought that shooting
BBs at moving cars would not cause injury, Murphy responded, “Because I never
thought that it would hit a person, I was just seeing like to
get it to hit the car. I never thought it would go inside
of them.” Murphy also conceded that, at the time, he knew that what
he was doing was “wrong,” “illegal,” and might subject him to “juvenile court.”
Despite understanding those risks, Murphy thought at the time that he was just
“hav[ing] fun with [his] friends.” He acknowledged that the boys talked “a little
bit” during their time on the platform, but he could not remember what
they had discussed.
For the most part, Elder and Kovalchek confirmed Murphy’s version. Elder testified that
he never thought that they could hurt anyone and that “it seemed harmless
at the time.” Elder also stated that nothing was said on the platform
that indicated that any of the boys expected or feared that someone would
be hurt. Kovalchek said that he told the others, “I don’t feel like
this is the right thing, I don’t think we should be doing this,”
but, when asked whether Elder or Murphy said or did anything that gave
him the idea that they wanted to harm someone, Kovalchek answered, “No, not
at all.” Further, Kovalchek indicated that no one expressed concern that the BBs
could penetrate one of the cars.
At some point that night, Gina Santiago drove her soft-top Jeep along the
road in front of the Elders’ property. Her husband, Ferdinand, was a passenger
in the vehicle. A BB, shot from the platform, struck the Jeep, pierced
its plastic window, and entered Mrs. Santiago’s right eye. She was permanently blinded
in that eye, an injury that leaves her susceptible to further complications.
Elder stated that the boys decided to end the shooting when Santiago’s vehicle
stopped and the driver got out because they “thought it could have been
teenagers like coming back to like find us or something like that .
. . .” Kovalchek confirmed that a Jeep stopped on the road after
being hit by a BB, which Murphy had fired, and that a passenger
got out of the Jeep, walked around it and got back in, and
that the Jeep drove off. Murphy denied that the boys were aware that
a vehicle had stopped, and he could not recall the precise reason why
they had ceased shooting. The boys returned to the Elders’ house, where they
spent the night.
After an investigation, the State filed a delinquency petition against Murphy alleging facts
that, if committed by an adult, would have constituted possession of a firearm
for an unlawful purpose and aggravated assault. Murphy admitted to aggravated assault with
a civil reservation that prevented use of his admission in any future proceeding.
The judge adjudicated Murphy delinquent and imposed two years of probation. Murphy was
also required to pay fines, take a gun-safety course, and participate in community
service.
In January 2002, based on diversity jurisdiction, the Santiagos sued Murphy and his
parents (collectively the Murphy family) in the United States District Court for the
District of New Jersey. Cumberland Mutual Insurance Co., the Murphy family’s homeowner’s insurance
carrier, then began this declaratory action in Superior Court, naming Murphy, the Murphy
family, and the Santiagos as defendants. Cumberland sought a declaration that it was
not obliged to provide coverage to the Murphy family for the injuries suffered
by Mrs. Santiago.
Cumberland based its denial of coverage on exclusions contained in the homeowner’s policy.
The policy provides coverage for “bodily injury” that is caused by an “occurrence”
and, in turn, defines "occurrence" as “an accident . . .which results .
. . in bodily injury.” The policy excludes coverage as follows:
SECTION II D • LIABILITY NOT INSURED
We do not provide insurance under Section II for any sort of damages,
expenses, liability, or loss directly or indirectly, wholly or partially, aggravated by, consisting
of, or resulting from the following . . . .
. . . .
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 willful
harm or knowing endangerment.
. . . .
SECTIONS I & II • OTHER LOSS AND LIABILITY NOT INSURED
We provide no insurance for any sort of damages, expenses, liability, or loss
directly or indirectly, wholly or partially, aggravated by, consisting of, or resulting from
the following .
. . .
GOVERNMENTAL AND LEGAL ACTION
. . . .
D. Knowing violation of penal law or ordinance committed by, or with the
consent of, an insured, statutory fines, or exemplary or punitive damages, illegal transportation
or trade.
[(Formatting altered).]
Cumberland and the Santiagos filed cross-motions for summary judgment. The fundamental issue on
both motions was whether the policy provisions clearly excluded Murphy’s acts from coverage.
After a hearing, the trial judge denied Cumberland’s motion and granted that of
the Santiagos. The judge determined that the material facts –- that multiple shots
were fired and that Murphy fired the BB that hit Santiago –- were
not disputed. He concluded, however, that, contrary to Cumberland’s contention, the circumstances surrounding
the shooting would not support a presumption that Murphy harbored a subjective intent
to injure anyone. Specifically, the judge held, among other things, that Mrs. Santiago’s
injury was not “an inherently probable and foreseeable consequence” of Murphy’s actions, given
the weather, the boys’ stated intention, their distance from the roadway, the few
shots that hit their mark, and the unlikely happenstance of the Santiago’s vehicle
having a permeable top. He also found that although Murphy and Elder did
“something utterly stupid[,]” “this stupid prank was not one in which they envisioned
the horrible injury that they caused.”
Cumberland appealed. In an unpublished, per curiam opinion, the Appellate Division affirmed. We
granted Cumberland’s petition for certification, Cumberland v. Murphy,
182 N.J. 139 (2004) and
now affirm.
II.
Cumberland argues that the “willful harm” and “knowing endangerment” exclusion preludes coverage for
injuries caused by an insured’s intentional acts; that in ruling in favor of
coverage, the courts below misapplied our prior case law regarding intentional acts; that
Murphy’s intent can be presumed based on the “objective circumstances” surrounding his “particularly
reprehensible” conduct; and that, in any event, the penal law exclusion in the
policy precludes coverage. The Murphys counter that Mrs. Santiago’s injury was plainly contemplated
by their homeowner’s insurance policy, that the boys’ actions were not intentional acts
subjecting them to the policy’s exclusion, and that the fatally ambiguous “willful harm”
or “knowing endangerment” exclusions must be construed in favor of coverage.
III.
We have carefully reviewed this record in light of the claims advanced by
Cumberland and have concluded that our intervention is unwarranted. As Cumberland concedes, the
outcome in this case depends on the application of our prior decisions in
Voorhees v. Preferred Mutual Insurance Co.,
128 N.J. 165 (1992), SL Industries Inc.
v. American Motorists Insurance Co.,
128 N.J. 188 (1992), and Harleysville Insurance Co.
v. Garitta,
170 N.J. 223 (2001).
In Voorhees, we recognized that the accidental nature of an occurrence is determined
by analyzing whether the alleged wrongdoer intended or expected to cause an injury.
128 N.J. at 183. Thus, a “covered accident” includes the unintended consequences of
an intentional act, but not an injury that is, itself, intended. Id. at
182. Foolhardy or reckless acts are not automatically excluded from coverage. Id. at
184. However, if the acts are particularly reprehensible (for example, sexual abuse of
children in a day care center), subjective intent can be presumed from the
likelihood that injury will result from that reprehensible conduct. Ibid.
In SL Industries, we considered the additional questions “whether any intent to injure
will render the resulting injury intentional, whether the wrongdoer must intend the specific
injury that results, or whether there is some middle ground between the two
approaches.” 128 N.J. at 209. We held that coverage is generally excluded if
the insured “subjectively intends or expects to cause some sort of injury.” Id.
at 212 (emphasis added). However, if the insured’s conduct causes a degree of
injury that is “improbable,” then the court must determine “whether the insured subjectively
intended or expected to cause that injury.” Ibid. (emphasis added). Without the intent
to cause “that injury,” the injury will be deemed “accidental,” and the insurance
company will be obligated to provide coverage.
We reaffirmed the holdings in Voorhees and SL Industries in Garitta:
As a general rule, then, policy exclusions of the type at issue here
represent enforceable limitations to an insurance contract when free of ambiguity. Courts ordinarily
should refrain from summary judgment in respect of whether an insured intended or
expected to cause the actual injury to a third party unless the record
undisputedly demonstrates that such injury was an inherently probable consequence of the insured’s
conduct. In that latter circumstance, a trial may not be necessary to determine
the applicability of the exclusion, provided that there has been a sufficient demonstration
of the insured’s subjective intent to cause some degree of injury. When the
insured’s conduct is particularly reprehensible, courts may presume an intent to injure without
inquiring into the actor’s actual intent.
[Garitta, supra, 170 N.J. at 234-35.]
Applying those principles, we are satisfied, as were the trial judge and the
Appellate Division, that what occurred in this case was an “accident” within the
meaning of the Cumberland policy. The uncontroverted evidence given by Murphy, Elder and
Kovalchek provides no basis for the conclusion that they subjectively intended or expected
to injure anyone. Neither, in light of the weather, the distance of the
boys from the road and the few shots that hit their target, can
we say that Mrs. Santiago’s injury was an inherently probable consequence of Murphy’s
conduct. Nor do we agree with Cumberland that the heedless conduct of that
fourteen-year-old boy was in any way equivalent to the acts we have previously
characterized as “particularly reprehensible,” so as to give rise to a presumption of
an intent to injure Mrs. Santiago.
We likewise question our dissenting colleagues’ postulate that the “willful harm” and “knowing
endangerment” exclusion was meant to eliminate from consideration the notions of “expected or
intended” injury and the jurisprudence surrounding them. Indeed we think it would be
fair to say that “expected” is an analogue of “knowing endangerment”, and “intended”
of “willful harm.”
But even if our colleagues are correct in their determination that the willful
harm and knowing endangerment exclusion was fashioned to eliminate our prior “expected or
intended” jurisprudence, the result would be the same. The insurer, as the drafter
of an insurance policy, is responsible for its language. Where that language is
ambiguous, its object is determined not by what the insurer intended it to
mean, but by what a reasonable person in the position of the insured
would have understood it to mean at the time the contract was entered
into. 2 Couch on Insurance 3d §21.14. An insured’s reasonable expectation of coverage
depends, in turn, on the plain meaning of the policy language. Ibid. “[W]hen
the terms of an insurance contract are clear, it is the function of
a court to enforce it as written and not to make a better
contract for either of the parties.” Kampf v. Franklin Life Ins. Co.,
33 N.J. 36, 43 (1960).
However, when a policy is unclear ambiguities ordinarily are resolved in favor of
the insured. We have observed that where the policy language of an insurance
policy supports two meanings, one favorable to the insurer and the other to
the insured, the interpretation favoring coverage should be applied.
[Progressive Cas. Ins. Co. v. Hurley,
166 N.J. 260, 273-274 (2001) (internal citations
and quotations omitted).]
With that teaching in mind, we have reviewed the language of the exclusion
in Section II(D)(4) and have concluded that it is impossible to divine its
boundaries insofar as it simultaneously does not require an injury to be “expected
or intended,” but does require it to flow out of “willful harm” or
“knowing endangerment.” Those terms, which are undefined in the policy, elsewhere have been
recognized as imprecise. Cumberland Mutual Insurance v. Beeby,
327 N.J. Super. 394, 402-03
(App. Div. 2000). Indeed, our dissenting colleagues concede that the words are subject
to numerous interpretations. To us, that leaves open the issue of whether the
improbable consequences of Murphy’s childish conduct fall within the exclusion. At the very
least, a reasonable insured, who read the policy, might have expected that they
would not. Thus, under our well-established principles of insurance policy interpretation, the policy
must be interpreted in favor of coverage. Lundy v. Aetna Cas. and Sur.
Co.,
92 N.J. 550, 559 (1983).
IV.
We are likewise unpersuaded by Cumberland’s’ reliance on the penal law exclusion in
the policy. Our Legislature, aided by our case law, has created vastly different
systems to address adult and juvenile crime, in recognition of the fundamental differences
in culpability as between a child and an adult. Because of that recognition
and because the exclusion at issue here does not define a violation of
the penal law, it can arguably be read as referencing only an adult’s
violation of a criminal statute, and not conduct by a juvenile that, if
committed by an adult, would constitute a crime. Even if debatable, the penal
law exclusion is ambiguous and must be interpreted in favor of coverage. Progressive,
supra, 166 N.J. at 273-74.
V.
We would affirm the judgment of the Appellate Division.
Chief Justice Poritz and Justice Zazzali join in the opinion.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 2004
CUMBERLAND MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-Appellant,
v.
TIMOTHY MURPHY, III, TIMOTHY MURPHY, JR. SANDRA MURPHY, GINA M. SANTIAGO and FERDINAND
SANTIAGO,
Defendants-Respondents.
JUSTICE WALLACE, dissenting.
I respectfully dissent.
Just as the concurring opinion does, I agree that the outcome of this
case depends on the application of our prior decisions in Voorhees, supra, S.L.
Industries, supra, and Garitta, supra.
Before addressing the central issue, I note several well established principles underlying my
decision. An insurance policy is a contract. President v. Jenkins,
180 N.J. 550,
562 (2004). “When interpreting an insurance policy, courts should give the policy’s words
‘their plain, ordinary meaning.’” Ibid. (quotation omitted). “If the policy terms are clear,”
the policy should be interpreted as written. Ibid. But, “[w]hen an insurance policy’s
language fairly supports two meanings, one that favors the insurer, and the other
that favors the insured, the policy should be construed to sustain coverage.” Id.
at 563 (citation omitted). Although exclusions in an insurance policy should be narrowly
construed, if the exclusion is “specific, plain, clear, prominent, and not contrary to
public policy[,]” it should be given effect. Doto v. Russo,
140 N.J. 544,
559 (1995). To be sure, “the burden is [up]on the insurer to bring
the case within the exclusion.” Princeton Ins. Co. v. Chunmuang,
151 N.J. 80,
95 (1997).
With those tenets in mind, I now apply them to the principles articulated
in the Voorhees, S.L. Industries, and Garitta decisions. In Voorhees and S.L. Industries,
which were decided the same day, we addressed the insurance company’s duty to
defend. In Voorhees, the insured was sued by her child’s teacher for her
comments concerning the teacher’s competency and fitness. Supra, 128 N.J. at 169. The
insured had a homeowner’s insurance policy from Preferred Mutual Insurance Company that provided
coverage for bodily injury caused by an “occurrence,” defined as an accident, and
excluded coverage for “liability . . . caused intentionally.” Id. at 171. The
insurer refused to defend in part based on the intentional acts exclusion. Ibid.
Because the policy provided coverage for “occurrences” that were accidental, we assessed whether
the court must find a “subjective intent to injure” or whether the court
could “presume an intent to injure from the objective circumstances.” Id. at 184.
We held that “[a]bsent exceptional circumstances that objectively establish the insured’s intent to
injure, we will look to the insured’s subjective intent to determine intent to
injure.” Id. at 185. We expressly noted that “[w]hen the actions are particularly
reprehensible, the intent to injure can be presumed from the act without an
inquiry into the actor’s subjective intent to injure.” Id. at 184. We explained
that the “objective approach focuses on the likelihood that an injury will result
from an actor’s behavior rather than on the [actor’s] subjective state of mind.”
Ibid.
In S.L. Industries, we considered “whether any intent to injure will render the
resulting injury intentional, whether the wrongdoer must intend the specific injury that results,
or whether there is some middle ground between the two approaches.” Supra, 128
N.J. at 209. We adopted a middle ground approach and concluded that coverage
is generally excluded if the insured “subjectively intends or expects to cause some
sort of injury.” Id. at 212 (emphasis added). However, if the insured’s conduct
causes an injury that is “improbable,” then the court must determine “whether the
insured subjectively intended or expected to cause that injury.” Ibid. We concluded that
without the intent to cause that injury, the injury will be deemed “accidental,”
and the insurance company will be obligated to provide coverage. Ibid.
In Garitta, we applied the principles of Voorhees and S.L. Industries to deny
coverage. Supra, 170 N.J. at 241-42. The insured in that case was a
teenager who was challenged to a fight. Id. at 226. Although the insured
contended that he tried to avoid the fight, he ultimately concluded that he
had no choice but to confront the challenger. Id. at 227. A friend
gave the insured a kitchen knife that he placed in his back pocket.
Ibid. When the challenger approached, the insured stabbed the victim twice with the
knife, critically wounding him. Id. at 228. The insured’s policy excluded coverage for
“bodily injury [w]hich is expected or intended by the insured [.]” Id. at
230 (internal quotations omitted). We held that the undisputed facts demonstrated that the
insured “intended to cause some injury, and that the actual injury [ ]
led to [the challenger’s] death was an inherently probable consequence of the insured’s
action.” Id. at 235.
In the present case, the policy contains the following exclusionary provision:
[Cumberland does] not cover bodily injury or property damage, whether or not expected
or intended by the insured, which is a consequence of an insured’s willful
harm or knowing endangerment.
Fairly read, the exclusion prohibits coverage for bodily injury or property damage from
the insured’s “willful harm” or “knowing endangerment” regardless of whether the insured “expected
or intended” the precise injury or property damage that occurred. The plain reading
of the phrase “whether or not expected or intended by the insured” eliminates
the need for an inquiry into the insured’s subjective intent that we found
necessary in Voorhees and S.L. Industries. The policies in Voorhees and S.L. Industries
lacked a phrase similar to the one in Cumberland’s policy. In my opinion,
the Cumberland policy eliminates the subjective prong of the test and requires us
to focus on whether the insured’s conduct demonstrated “willful harm” or “knowing endangerment.”
Unfortunately, those terms are not defined in the policy. In that event, we
look to their ordinary meaning. President, supra, 180 N.J. at 566. “Willful” is
defined as “[p]roceeding from a conscious motion of the will; voluntary; knowingly; deliberate.”
Black’s Law Dictionary 1599 (6th ed. 1970). Another entry of Black’s Law Dictionary
defines “willful” as “[i]ntending the result which actually comes to pass; designed; intentional;
purposeful; not accidental or involuntary.” Ibid. Still another entry defines the term as
“[p]remiditated; malicious; done with evil intent, or with a bad motive or purpose,
or with indifference to the natural consequences.” Ibid. The dictionary notes that “[i]t
is a word of many meanings, with its construction often influenced by its
context.” Ibid. That same dictionary defines “harm” as “[t]he existence of loss or
detriment in fact of any kind to a person resulting from any cause.”
Id. at 718. Based on those definitions, “willful harm” could mean “detriment of
any kind resulting from any voluntary cause,” or “a loss not accidentally or
involuntarily caused.” But see Cumberland Mut. Fire Ins. Co. v. Beeby,
327 N.J.
Super. 394, 402 (2000) (noting that “precise definition of ‘willful harm’ has proven
to be elusive”).
“Knowing endangerment” is similarly susceptible to multiple definitions. Black’s Law Dictionary defines “knowingly”
as “[w]ith knowledge; consciously; intelligently; willfully; intentionally.” Id. at 872. Hence, “knowing” can
mean both “conscious” and “intentional.” Moreover, the definition includes the term “willfully,” an
obvious overlap with “willful harm.” The term “endangerment” is defined as “the act
of placing in danger or the state of being placed in danger.” Webster’s
Third New International Dictionary 748 (1971). Thus, the ordinary meaning of “knowing endangerment”
could be “consciously placing someone or something in a state of danger.”
Without question, the Cumberland policy should have defined those terms to avoid any
ambiguity. Despite that shortcoming, the insured’s conduct plainly falls within any reasonable definition
of “willful harm” or “knowing endangerment.” The insured admitted that he intended to
shoot his BB gun in the hope of hitting the passing cars and
he knew that discharging a firearm towards a person could result in injury
or property damage. It cannot be disputed that it is substantially certain that
firing a BB gun at a car from approximately twenty-five yards away would
result in some injury to the occupant or damage to the vehicle. The
insured consciously and intentionally put the vehicle and any occupant in danger. Because
the policy language of “whether or not expected or intended by the insured,”
eliminated the subjective element that the insured must intend the injury, so long
as the bodily injury or property damage results from the insured’s willful harm
or knowing endangerment, the policy exclusion should apply. I conclude that the insurer
has demonstrated that the insured’s conduct constituted both “willful harm” and “knowing endangerment.”
I am satisfied that the various definitions for “willful harm” and “knowing endangerment,”
coupled with the qualifier – “whether or not expected or intended by the insurer”
– demonstrate that the exclusionary provision was intended to be broad. At this time,
I see no need to define the outer limits of those terms to
conclude that the policy exclusion in this case was intended to apply to
the insured’s conduct of firing of a BB gun at passing cars. Whatever
the precise meaning of the terms “willful harm” and “knowing endangerment,” the insured’s
conduct met those definitions for the exclusionary provision of the policy to apply.
The concurring opinion cites Progressive Casualty Insurance Co., supra, 166 N.J. at 273,
for the principle that when policy language “supports two meanings, one favorable to
the insurer and the other to the insured, the interpretation favoring coverage should
be applied.” I agree with that proposition. Here, however, the insured’s conduct would
fall within whatever definition he would give to “willful harm” or “knowing endangerment.”
Simply put, because the explicit language of the exclusion eliminates the need to
determine whether the insured intended or expected the particular injury or property damage,
the policy plainly was intended to exclude coverage. Stated differently, I am satisfied
that regardless of the existence of any ambiguity in the policy, the insured
had no reasonable expectations of coverage.
Viewing the evidence in the light most favorable to the insured, I conclude
that the insured’s conduct was excluded from coverage under the Cumberland insurance policy.
I would reverse.
Justices LaVecchia and Rivera-Soto join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 2004
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY
Plaintiff-Appellant,
v.
TIMOTHY MURPHY, III; TIMOTHY
MURPHY, JR.; SANDRA MURPHY;
GINA M. SANTIAGO and FERDINAND
SANTIAGO,
Defendants-Respondents.
JUSTICE RIVERA-SOTO, dissenting.
I cannot agree with the Appellate Division’s holding that is upheld today by
an evenly divided Court. To the extent this Court concludes that insurance coverage
is not excluded under the endangerment or harm exclusion of the insurance policy
-- providing that “[w]e 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 willful harm or knowing endangerment” -- I join in the thoughtful
dissent of my colleague Justice Wallace.
There is yet another exclusion in the insurance policy that bars, in my
view, the relief afforded. The insurance policy clearly and unambiguously provides that
[w]e provide no insurance for any sort of damages, expenses, liability, or loss
directly or indirectly, wholly or partially, aggravated by, consisting of, or resulting from
the following – even if loss or an occurrence otherwise covered contributes to such
concurrently or in any sequence.
GOVERNMENTAL AND LEGAL ACTION
D. Knowing violation of penal law or ordinance committed by, or with the consent
of, an insured, statutory fines, or exemplary or punitive damages, illegal transportation or
trade.
The policy defines “occurrence” as “an accident (including exposure to conditions) which results,
during the policy term, in bodily injury or property damage.” The policy also
defines “insured” to include, among others, the named insured, the named insured’s spouse,
and any relatives resident in the named insured’s household.
The senseless events of the late evening of January 20, 2001 -- during
which the 14-year-old son of the named insured, intentionally and with the knowledge
that he was engaging in an illegal act, took random potshots with a
BB gun at a number of passing cars during a snow storm, the
last shot piercing the soft top of the Jeep driven by the victim,
rendering her blind in her right eye –- are a textbook example of
the very behavior excluded from coverage by this exemption. There was an event
producing bodily injury (an “occurrence”) that resulted from the actions of a resident
relative of the named insured (an “insured”) that constituted a knowing violation of
the penal laws of this State. Therefore, on its face, the behavior for
which insurance coverage is sought is clearly excluded.
The Court discards the insurance policy’s exclusion for acts that violate “penal law”
because “that exclusion, which does not define penal law, arguably references only an
adult’s violation of a criminal statute, and not conduct by a juvenile that
if committed by an adult would constitute a crime” and “even if debatable,
the penal law exclusion is ambiguous and must be interpreted in favor of
coverage.” Ante, ___ N.J. ___. There is, however, no meaningful or principled distinction
between the insurance policy’s exclusion for acts that knowingly violate the penal laws
of this State and the actor’s status as a juvenile. Stated differently, in
this setting, whether the actor is an adult or a juvenile is a
distinction without a difference. Our Juvenile Code expressly defines “delinquency” as “the commission
of an act by a juvenile which if committed by an adult would
constitute [either] [a] crime; [a] disorderly persons offense or petty disorderly persons offense;
or [a] violation of any other penal statute, ordinance or regulation.” N.J.S.A. 2A:4A-23.
The restrictions of the penal laws of this State apply to everyone regardless
of age; how we as a society treat those violations based on the
actor’s age goes not to the actor’s substantive liability for a violation of
our penal laws, but to the quantum and manner of punishment to be
imposed. On the more immediate question of whether insurance coverage is applicable or
is excluded by this policy provision, the age of the insured is irrelevant.
Given this analysis, any claim of ambiguity cannot be sustained.
The acts performed by the minor resulting in the injuries to the victim
clearly violate the penal laws of this State: a BB gun is defined
as a “firearm”, N.J.S.A. 2C:39-1(f), State v. Mieles,
199 N.J. Super. 29 (App.
Div.), certif. denied
101 N.J. 265 (1985); State v. McCandless,
190 N.J. Super. 75 (App. Div. 1983); and a factual setting where a minor knowingly discharges
a firearm at a single moving vehicle, not to mention the several motor
vehicles this minor shot at and hit before firing the shot that blinded
the victim here, violates a number of our criminal laws. See, e.g., N.J.S.A.
2C:12-1 (assault); N.J.S.A. 2C:58-6.1 (possession of firearms by minors); N.J.S.A. 2C:12-5 (unlawful possession
of weapons). This conclusion is buttressed by the minor’s admissions that he took
a number of potshots at moving vehicles with the intent of not only
shooting at them, but also of actually hitting them; that, when he shot
at them, he knew that these vehicles were occupied, at least by a
driver and possibly some passengers; that he knew that what he was doing
was wrong; that he knew that what he was doing was illegal; that
he knew that if he were caught shooting his BB gun at passing
vehicles he would be prosecuted; and that he anticipated that he would be
questioned by the police after the incident.
If the policy exclusion that excludes coverage for acts which violate penal law
does not apply in these circumstances, then it is needlessly denied its full
meaning, a conclusion the Court, by its evenly divided status, reaches and to
which I cannot subscribe. Furthermore, allowing insurance coverage under these circumstances is not
just bad law, it is bad public policy. In general, the Court holds
that an insurance company would still be civilly liable for wrongful death when
its under-aged insured criminally murders another. In specific, the Court’s ruling, without any
support in the record or in the plain meaning of the insurance policy,
concludes that the policy’s penal law exclusion, “which does not define penal law,
arguably references only an adult’s violation of a criminal statute, and not conduct
by a juvenile that if committed by an adult would constitute a crime.”
Ante, ___ N.J. ___. The plain statement of that conclusion belies its illogic,
a result underscored by the facts underlying our recent denial of certification to
a criminal defendant convicted of firing a BB gun into his backyard bushes
for the purpose of scaring away teenage pranksters on Mischief Night
See footnote 1
and striking
one of the teenagers in the leg, causing no injury greater than a
small bruise. State v. Mott, ___ N.J. ___ (2005).
See footnote 2
That criminal defendant was
sentenced to five years imprisonment for the second degree offense of possession of
a firearm with a purpose to use it unlawfully against the person or
property of another, in violation of N.J.S.A. 2C:39-4(a), with a three year parole
disqualifier under the Graves Act, N.J.S.A. 2C:43-6(c). An orderly system of justice cannot,
on the basis of the accidental characteristic of age alone, penalize an adult
with five years imprisonment for firing a BB gun intending to scare away
harassers that results in a slight bruise to a trespasser and, at the
same time, provides insurance coverage to a juvenile who fired a BB gun
intending to hit his target (passing cars driving in a snow storm occupied
by drivers and, perhaps, passengers, who had done nothing to provoke an assault)
and rendered an innocent driver blind in one eye.
Because, in addition to the endangerment or harm exclusion, I would also deny
coverage based on the exclusion for acts violative of the penal laws of
this State, I respectfully dissent.
Justice LaVecchia joins in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-46 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,
Plaintiff-Appellant,
v.
TIMOTHY MURPHY, III, TIMOTHY
MURPHY, JR., SANDRA MURPHY,
GINA M. SANTIAGO and
FERDINAND SANTIAGO,
Defendants-Respondents.
DECIDED May 23, 2005
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY Justice Long
DISSENTING OPINIONS BY Justices Wallace and Rivera-Soto
CHECKLIST
Footnote: 1
October 30th, the night before Halloween.
Footnote: 2
State v. Mott is cited solely to highlight its factual underpinnings and
not for its jurisprudential effect; a denial of certification has neither substantive significance,
Olds v. Donnelly,
150 N.J. 424, 470 (Stein, J. concurring in part and
dissenting in part), nor precedential effect. R. 1:36-3; State v. Burgess,
298 N.J.
Super. 254, 285 n.1 (App. Div. 1997) (Humphreys, J.A.D., dissenting).