C.S v. D.V.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1633-09T1

C.S.,

Plaintiff,

v.

D.V.,

Defendant/Third-Party

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Third-Party Defendant-

Respondent.

___________________________________

December 30, 2010

Argued December 6, 2010 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Burlington

County, Docket No. L-1947-07.

Arnold E. Jabin argued the cause for

appellant (Jabin & Fleming, attorneys;

Mr. Jabin, of counsel and on the brief).

Glenn T. Dyer argued the cause for

respondent (Connell Foley, LLP, attorneys;

Mr. Dyer, on the brief).

PER CURIAM

This is an appeal from a grant of summary judgment in favor of an insurer, New Jersey Manufacturers Insurance Company (NJM), on a third-party complaint filed by its insured, D.V. D.V. sought a declaration of NJM's duty to defend and indemnify her in a personal injury action filed by C.S. In that action, plaintiff C.S. alleged that he contracted the herpes simplex virus from D.V. and that would not have occurred if D.V. had informed him that she was a carrier of the virus. Relying on F.S. v. L.D., 362 N.J. Super. 161, 166-69 (App. Div. 2003), the trial judge concluded the alleged conduct was reprehensible and the resulting injury presumed to be intended or expected and not the result of an accident covered by the policy.

On appeal D.V. contends that C.S.'s complaint alleges negligent transmission of a disease, a covered occurrence under NJM's policy. Because F.S. controls, we affirm. NJM's policy provides coverage for bodily injury "caused by an occurrence to which [the policy's] coverage applies." Bodily injury is defined to include "bodily harm, sickness or disease." The term "occurrence" means "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period" in bodily injury. Bodily injury "expected or intended by one or more [of the] insureds" is excluded, "even if" it is "of a different kind, quality or degree than expected.

The facts, viewed in the light most favorable to D.V., do not permit a finding of coverage. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). D.V. admitted in her deposition that she knew about her condition, that she was a carrier and that the virus was transmitted through intercourse. A doctor diagnosed her with the virus in January 2005 and advised her that the disease is sexually transmitted. She took medication prescribed to address the symptoms but understood that the medication would not change her status as a carrier. D.V. met C.S. several months later, in July 2005, and they dated until Thanksgiving of that year. D.V. recalls telling C.S. about her condition and him deciding to have sexual relations despite the risk. By virtue of D.V.'s admission of knowledge, the only factual issue to be resolved in the underlying action was C.S.'s claim that D.V. knowingly failed to disclose her condition to him.

To prevail on her claim for coverage by NJM, D.V. must prove that the claim against her is "'within the basic terms of the policy.'" F.S., supra, 362 N.J. Super. at 165-66 (quoting Sears Roebuck and Co. v. Nat'l Union Fire Ins. Co., 340 N.J. Super. 223, 234 (App. Div.), certif. denied, 169 N.J. 608 (2001)). Although the duty to defend is broader than the duty to indemnify, the obligation to defend is not triggered unless the allegations in the complaint "may potentially come within the coverage of the policy." Hartford Ins. Group v. Marson Constr. Corp., 186 N.J. Super. 253, 257 (App. Div. 1982), certif. denied, 93 N.J. 247 (1983).

Although C.S.'s allegations include a claim that D.V. may not, but should, have known she was infected, reasonable jurors could not reject her admission of knowledge and conclude that she did not know she was a carrier. D.V.'s knowledge of her status is undisputed; her defense is that she knew that she had the virus but did not intend to transmit it to C.S. In this circumstance, the allegation sounding in negligence as to D.V.'s awareness of her status is immaterial. See F.S., supra, 362 N.J. Super. at 163-64, 169 (concluding an insurer was entitled to summary judgment declaring it had no duty to defend or indemnify an insured against a claim of negligent infliction of emotional distress based on failure to disclose his HIV status to a sexual partner but was obligated to defend the insured's adult children who negligently assumed that their father would tell his partner about his status).

The issue here is whether D.V.'s knowing failure to disclose her condition to C.S. before engaging in intercourse and transmitting the virus to him is an "accident" covered as an occurrence or an injury excluded as "expected or intended" under NJM's policy. Generally, "the accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury. If not, then the resulting injury is 'accidental,' even if the act that caused the injury was intentional." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 183 (1992).

There are, however, exceptions to the general rule requiring "inquiry into the actor's subjective intent to cause injury." Id. at 184. "When 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." Ibid. Under this objective approach applicable to reprehensible actions, the focus is on likelihood that "injury will result from an actor's behavior rather than . . . the wrongdoer's subjective state of mind." Ibid.

This court has considered the question presented here. In addressing coverage under a homeowner's policy in a case involving the insured's non-consensual exposure of his sexual partner to HIV, we looked to the foregoing principles drawn from Voorhees and reasoned:

[I]t is difficult to imagine a more "particularly reprehensible" act. D.'s actions constituted a profound violation of S.'s fundamental right to self-determination. By unilaterally deciding not to inform her of his HIV-positive status, D. deprived S. of her right to choose whether or not to assume the risk, no matter how slight, of being infected . . . . Indeed, the degree of public disapproval of D.'s actions is such that the Legislature has criminalized the conduct . . . .

[F.S., supra, 362 N.J. Super. at 168 (discussing N.J.S.A. 2C:34-5b).]

We see no basis for reaching a different conclusion in this case. Given D.V.'s admission of knowledge of her condition and the risk of transmission, the case presents nothing other than a claim that D.V. transmitted the disease by knowingly violating C.S.'s right of self-determination through her decision to conceal her status. The Legislature has deemed this conduct, like the conduct alleged in F.S., sufficiently reprehensible to warrant criminal conviction regardless of the actor's knowledge of the risk of transmission. N.J.S.A. 2C:34-5a. Because the gravamen of the allegation is the same as the one at issue in F.S., the intention and expectation of transmission of the disease must be presumed from the particularly reprehensible nature of the conduct. That expectation and intention of injury precludes coverage of the claim as bodily injury caused by an occurrence; the policy defines occurrence to include an accident involving continuous exposure to harmful conditions. There is nothing accidental about engaging in sexual relations knowing that one is exposing an unsuspecting partner to a virus transmitted through intercourse.