ANGELA DeVOE v. JOSEPH KOURY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANGELA DeVOE AND FRANCESCA DeVOE

INDIVIDUALLY AND AS ADMINISTRATORS AD PROSEQUENDUM OF THE ESTATE OF ROY DeVOE, DENISE DeVOE, GUARDIAN AD LITEM OF NOLAN DeVOE, AND FRANANGELA JEWELRY, INC.,

Plaintiffs-Appellants,

v.

JOSEPH KOURY AND HOLLI KOURY,

ESTATE OF MICHAEL KOURY,

NEW JERSEY MANUFACTURERS

INSURANCE CO.,

Defendants-Respondents,

and

724 R202 ASSOCIATES, LLC,

Defendant.

_____________________________________

March 23, 2015

Argued October 22, 2014 Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-198-12.

Jon Rory Skolnick argued the cause for appellants.

John V. Mallon argued the cause for respondent New Jersey Manufacturers Insurance Co. (Chasan Leyner & Lamparello, PC, attorneys; Mr. Mallon, of counsel and on the brief; Jason M. Hyndman, on the brief).

Brian G. Steller argued the cause for respondents Joseph and Holli Koury (Connell Foley LLP, attorneys; Mr. Steller, of counsel and on the brief; Douglas J. Short, on the brief).

PER CURIAM

By leave granted, plaintiffs Angela DeVoe, Francesca DeVoe, Denise DeVoe,1 and Franangela Jewelry, Inc., appeal the Law Division's September 27, 2013 order barring the testimony of their expert witness and granting summary judgment to defendant New Jersey Manufacturers Insurance Co. (NJM). They also appeal a second order of the same date, which granted summary judgment dismissing the claim against defendants Joseph Koury and Holli Koury contained in the third count of their complaint. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

The incident that gave rise to this appeal took place on the afternoon of February 7, 2011, at the jewelry store in Bridgewater owned and operated by Roy DeVoe.2 Roy's daughter Angela was in front of the store when she observed Michael Koury, who was dressed like a Hasidic male, walking in her direction. As Michael entered the store, Angela asked him if he needed assistance. He responded: "Start packing up like it's five o'clock and it's time to go, I want gold, silver, platinum, no watches and I'm taking it with me, if you don't, there's enough bullets in this gun to kill all three of you and myself."

According to Angela, Michael made his demands in a slow and deliberate manner and did not yell. Angela did not take Michael seriously at first. She attempted to persuade him not to steal from the store. Once inside the store, however, Michael replied: "You don't believe me, you want to bet your life on it?" Angela called to Roy, and started to dial 9-1-1 on her cellphone. Michael ordered her to put the phone down.

Roy approached Michael from the back of the store, holding a knife and an aluminum pipe. He told Michael to leave. Michael responded: "Are you willing to bet your life on that?" Michael then raised the gun, aimed at Roy, and shot him in the head. He also shot at Angela, but missed. Finally, Michael shot himself in the jaw, slit his throat with a knife, and then shot himself a second time.

When the police arrived, they found Roy with a gunshot wound to his head and Michael with gunshot and knife wounds. They also found a .357 caliber revolver and a large fixed blade knife on the floor near Michael's body. Both Roy and Michael subsequently died from their wounds.

At 7:17 p.m. on the same day, defendant Joseph Koury went to the Bridgewater Police Headquarters to report that his son, Michael, was missing. He showed the police a note his wife had found in Michael's room earlier that day. The note said: "I am dissatisfied with the current state of my life. To rectify this, I have devised a plan that will either improve or end my life. I don't expect you to understand, just know it's not your fault." According to the police report, Joseph told them that Michael "was depressed because he was recently disqualified from entering the military due to a medical condition." Police officers then went to the Kourys' home. By that time, they thought Michael might have been involved in the jewelry store shooting earlier that day, as did Michael's father. However, because of the wounds to Michael's face, his involvement had not yet been confirmed.

Michael was conclusively identified as the shooter the following day. Further investigation revealed that the gun he used at the jewelry store belonged to his parents and was generally kept in a locked case in their bedroom closet.

The DeVoes filed their complaint in February 2012. They sought damages on a variety of legal theories. They sued Michael's estate for damages resulting from his actions. They alleged that the Kourys (1) were responsible for Michael's actions because he was their son and dependent, (2) knew he was mentally unstable and failed to take protective action, and (3) failed adequately to secure the gun Michael used in the shooting. NJM was sued as the Kourys' homeowner's insurance carrier.3 In their answers, the Kourys and NJM denied liability.

In a cross-claim for declaratory judgment against Michael's estate and the Kourys, NJM asserted that they were not entitled to a defense or indemnification under the Kourys' homeowner's policy (NJM policy) because Michael's actions were intentional acts subject to an exclusion in the policy.

The Kourys' NJM policy provides that in the event a

claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this policy applies, [NJM] will

1. Pay up to [the] limit of liability for damages for which the insured is legally liable; and

2. Provide a defense at [NJM's] expense by counsel of [NJM's] choice, even if the suit is groundless, false or fraudulent. [NJM] may investigate and settle any claim or suit that [NJM] decide[s] is appropriate. [NJM's] duty to settle or defend ends when the amount [NJM] pay[s] for damages resulting from the occurrence equals [the] limit of liability.

However, the policy excludes coverage for bodily injury or property damage

a. With respect to all insureds, which is expected or intended by one or more insureds even if the bodily injury or property damage

(1) Is of a different kind, quality or degree than expected or intended; or

(2) Is sustained by a different person or entity than expected or intended.

However, this exclusion "1.a." does not apply to bodily injury resulting from the use of reasonable force by an insured to protect persons or property.

[(Emphasis added).]

In November, NJM moved for summary judgment. The first motion judge dismissed the DeVoes' direct claim against NJM, finding that they had no basis for a direct claim under the policy. However, the judge denied NJM's request for a declaration that Michael's conduct was intentional and consequently subject to the intentional-conduct exclusion in the NJM policy. Subsequent motion practice resulted in the dismissal of the second and fourth counts of the complaint, which alleged that the Kourys were vicariously liable for Michael's actions and that they were liable for their own failure to take appropriate action to protect third parties against Michael, based on their knowledge that he was depressed. A default for failure to plead or defend was subsequently entered against Michael's estate. That claim remains open pending our disposition of the coverage issue.

In August 2013, NJM filed a second motion for summary judgment, again seeking a declaration that Michael's conduct was subject to the intentional-conduct exclusion. In addition, arguing that the psychiatric report issued by Ruth Kantor, M.D., the DeVoes' expert witness, was an inadmissible net opinion, NJM sought to bar Kantor's report and proposed testimony at trial. The Kourys filed a cross-motion seeking dismissal of the third count of the complaint, which alleged that they were negligent with respect to the storage of the handgun Michael used in the shooting.

On September 26, the second motion judge entered separate orders granting the motions brought by NJM and the Kourys. With respect to NJM, the judge suppressed Kantor's report and barred her testimony on the basis that she offered a net opinion. The judge also determined that, in light of the suppression of Kantor's report and proposed expert testimony, NJM was entitled to a declaration that the claims arising from Michael's conduct were subject to the intentional-conduct exclusion and, consequently, NJM had no obligation to defend or indemnify Michael's estate. Finally, the judge granted the Kourys' motion for summary judgment, finding that their conduct with respect to the handgun was not negligent. We then granted leave to appeal.

II.

On appeal, the DeVoes contend that the second motion judge erred in granting NJM's motion for summary judgment, arguing that Kantor's report was not a net opinion and that, in any event, a jury could determine the issue of Michael's mental condition without expert testimony. They also contend that the judge erred in granting summary judgment to the Kourys on the issue of the storage of the gun.

A.

We start our analysis with the Kourys' argument that the second motion judge erred in precluding the use of Kantor's report and expected testimony at trial.

Our standard of review for evidential rulings is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted).

N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." An expert's opinion must be based on "facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citing N.J.R.E. 703).

"The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unqualified possibilities." Vuocolo, supra, 240 N.J. Super. at 300.

An expert's conclusion is inadmissible as a net opinion when it consists of "bare conclusions, unsupported by factual evidence." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). See also State v. Townsend, 186 N.J. 473, 494 (2006) ("Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" (quoting Rosenberg, supra, 352 N.J. Super. at 401)). Moreover, an expert's failure to refer to any authoritative materials will be fatal to the admissibility of the opinion where the record fails to indicate that the expert possessed any specialized knowledge in the field on which he or she opined. See Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div. 2009).

Kantor issued her report in December 2012. She concluded, "beyond a reasonable doubt," that Michael

was in a depressed state with psychotic features. He acted without rational thought and was incapable of distinguishing between right and wrong, [and] his reasoning faculties were so impaired that he was not able to understand the moral character, or the general nature [of the] consequences of the acts he committed.

Kantor is a practicing psychiatrist. At her deposition in April 2013, she testified that she "dabble[d]" in forensics, having performed forensic evaluations on five to six prior occasions. She conceded that she did not have particular expertise with respect to issues related to "insanity," and that none of the forensic evaluations she had performed previously involved the issue of the subject's "level of sanity or ability to know right from wrong." She relied on her training and experience, an internet search on Google with respect to "insanity," and unspecified broadcasts on National Public Radio related to insanity. She did not, however, review textbooks or authoritative articles or journals in preparing her report.

Kantor formulated her diagnosis of Michael on the basis of the Bridgewater Police reports, as well as the note Michael left in his room, the disguise he used during the robbery, and the inconsistency of his actions on February 7, when compared to his otherwise unremarkable nineteen-year history. She did so because of "the dearth of information" concerning Michael's "psychiatric history, regarding what went on in the home and regarding anything definitive with regard to his mood except for a comment that he was depressed or he was normal or he took it hard."

Kantor admitted that she did not review the transcripts of the Kourys' depositions, nor did she attempt to acquire knowledge about Michael's family or social relationships prior to the shootings at the jewelry store. Kantor conceded that she would have preferred to have a family history, explaining that, because she had "never [seen Michael] and made an evaluation on probably an hour's worth of behavior, and he was dead, of course [she] would have liked to have had more information." She also would have preferred to have had Michael's school records.

We know of no reason why Kantor should not have been able to obtain access to most if not all of that information through the deposition transcripts and documents available through discovery. In addition, we note that the Kourys denied that Michael was depressed in their depositions. That, of course, was information that would have undercut the basis of Kantor's opinion.

Kantor's report characterizes Michael's "rapid, explosive, assaultive behavior" as "delusional." However, Kantor's "Axis I" diagnosis of "depression, severe with psychotic features" states only that "delusional disorder" should be ruled out. Consequently, delusional disorder was not a definitive diagnosis. At her deposition, Kantor described someone who is "psychotic" as having an inability to "understand or comprehend the outcome because that implies irrationality of his behavior." When asked whether she could point to any evidence that Michael did not understand the consequences of his behavior on February 7, Kantor responded that she could not.

With regard to Michael's disguise, which Angela had described as resembling a Hasidic male's clothing, Kantor's report opines that "[the] bizarre disguise would confer religious omnipotent powers." She testified that "often a delusion can have a nuance of religiosity. So I ran with that." Kantor admitted at her deposition, however, that there was no evidence that Michael's actions were based on instructions from God or any other voice in his head. She also conceded that whether Michael's disguise was "grandiose or religious" would be "speculation."

Kantor considered the Diagnostic and Statistical Manual for Mental Disorders IV (DSM-IV) an authority on the issue of depression. She acknowledged that a diagnosis of depression generally includes a "pervasive mood which lasts about two weeks, and [has] definite signs." When opposing counsel questioned Kantor about the diagnostic criteria for major depressive disorder in the DSM-IV, she was unable to testify whether Michael suffered from any of the nine criteria, five of which are required for a two-week period in order to qualify for a depressive disorder.

We are satisfied from our review of the record, as highlighted above, that the motion judge did not abuse his discretion in determining that Kantor's rather cursory report was a net opinion. Consequently, he appropriately precluded the use of Kantor's proposed testimony, based on that report, at trial.

B.

We now turn to the issue of whether NJM owed a defense and indemnification to Michael's estate for claims arising out of Michael's conduct at the jewelry store.

We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

Because Michael was living with his parents at the time of the shootings, he was considered an additional insured under their NJM policy and his estate would ordinarily be entitled to a defense and indemnification for his negligent conduct. NJM argues, however, that Michael's conduct fell within the policy's intentional-conduct exclusion. If it did, his estate would not be entitled to a defense or indemnification.

NJM's policy clearly excludes coverage for intentional acts. Such clauses are "common in various types of insurance contracts and are accepted as valid limitations." Ruvolo v. American Cas. Co., 39 N.J. 490, 496 (1963). They reflect the public policy against an insurer's agreeing "to indemnify an insured against the civil consequences of his own willful criminal act." Ibid.

Michael's actions on February 7 were of the type that are ordinarily considered intentional and therefore excluded from coverage. In Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165 (1992), the Supreme Court recognized two methods of analyses for determining a wrongdoer's intent. First, a court may analyze whether the alleged wrongdoer subjectively intended or expected to cause an injury. Id. at 184. Second, if the very nature of the occurrence is such that injury is the reasonably foreseeable result, a court presumes the intent to injure objectively, without assessment of the wrongdoer's subjective intent. Ibid. This "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. "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. The language of NJM's policy reflects both approaches.

NJM has the burden to prove that Michael's actions at the jewelry store come within the intentional-conduct exclusion in its policy. Miller v. McClure, 326 N.J. Super. 558, 564-65 (App. Div. 1998), aff'd o.b., 162 N.J. 575 (1999); Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 399 (1970) ("The burden is the carrier's to bring the case within the policy exclusion"). We are satisfied that NJM presented a prima facie case for the applicability of the exclusion in its motion for summary judgment. Under the second method of analysis explained in Voorhees, Michael's conduct was objectively intentional. When Michael fired the gun at Roy and Angela, the likelihood of serious bodily injury, if not death, was extremely high.

In defending against NJM's motion, the DeVoes sought to counter NJM's prima facie case by relying on an exception to the intentional-conduct exclusion based on the mental condition of the insured, pointing to Michael's alleged depression, the note to his parents suggestive of an intent to commit suicide, his disguise, and his actual suicide after fatally shooting Roy. The Supreme Court held in Ruvolo that the intentional-conduct exclusion is not applicable when the insured's action results from

a derangement of [the insured's] intellect which deprived him of the capacity to govern his conduct in accordance with reason, and while in that condition acting on an irrational impulse he shot and killed [the victim], his act cannot be treated as 'intentional' within the connotation of defendant's insurance contract.

[Ruvolo, supra, 39 N.J. at 498.]

In Burd, supra, 56 N.J. at 398-99 (citations omitted), the Court explained the competing public policies that gave rise to the Ruvolo standard as follows

[O]ther values are involved in the insurance controversy. The exclusion of intentional injury from coverage stems from a fear that an individual might be encouraged to inflict injury intentionally if he was assured against the dollar consequences. Pulling the other way is the public interest that the victim be compensated, and the victim's rights being derivative from the insured's, the victim is aided by the narrowest view of the policy exclusion consistent with the purpose of not encouraging an intentional attack. And the insured, in his own right, is also entitled to the maximum protection consistent with the public purpose the exclusion is intended to serve. Accordingly, we [held in Ruvolo] that the concept of insanity relevant to the exclusion clause of a liability policy was more expansive than the concept of insanity accepted in the defense of a criminal charge.

The question before us is whether there is a genuine issue of material fact with respect to the DeVoes' assertion that Michael's mental condition was sufficient to preclude summary judgment on the coverage issue. Put another way, is there sufficient evidence in the record, without Kantor's report which we have determined was properly excluded, from which a reasonable jury could conclude that Michael "was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason, and while in that condition acting on an irrational impulse he shot and killed [the victim]?" Ruvolo, supra, 39 N.J. at 498.

Although NJM has the burden of proving that the intentional-conduct exclusion is applicable, it has clearly presented a prima facie case satisfying its burden, as discussed above. That being the case, we conclude that the DeVoes were obligated to demonstrate a triable issue of fact that the mental status exception is applicable. They have not done so.

The equivocal evidence4 that Michael may have been depressed, the note that could be understood to suggest he was contemplating suicide if the robbery was unsuccessful, the disguise, and Michael's actual suicide after shooting Roy and at Angela are insufficient to create a triable issue of fact concerning Michael's mental status. Instead, competent expert evidence relating those facts, and others developed by an expert, to a psychiatric or psychologically based finding, within a reasonable degree of certainty in the applicable field, is needed to raise an issue of fact regarding whether Michael suffered from the derangement of intellect required by Ruvolo. The DeVoes have cited no cases to support their contention that attempting to commit a robbery while wearing a disguise and committing a murder during the course of the robbery, followed by suicide, inherently demonstrates such a genuine issue of material fact that there was such a derangement as a matter of law.

We therefore affirm the order granting NJM summary judgment and declaring that Michael's estate was not entitled to a defense and possible indemnification from NJM.

D.

Finally, we address the issue of the DeVoes' claim against the Kourys, count three of their complaint, in which they allege that the Kourys were willfully and wantonly negligent with respect to the storage of the gun Michael used at the jewelry store.

A party engages in "willful and wanton misconduct" when that party has "acted with reckless disregard for the safety of others." G.S. v. Dep't of Human Servs., 157 N.J. 161, 179 (1999). "Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes." Ibid. Therefore, "under a wanton and willful negligence standard," parties become "liable for the foreseeable consequences of [their] actions," regardless of their intent. Ibid.

The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, defines "wanton and willful disregard" as a "deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." N.J.S.A. 2A:15-5.10. To establish a willful or wanton injury, a plaintiff must provide evidence of a "deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences." Smith v. Whitaker, 160 N.J. 221, 242 (1999) (internal quotation marks omitted). The defendant need not recognize the conduct as "extremely dangerous"; however, a reasonable person should know that the acts are sufficiently dangerous. Ibid.

Joseph testified that he stored his wife's .357 revolver,5 which Michael used during the shooting, in a locked Pelican gun case stored on the top shelf of the closet of his master bedroom. The gun was equipped with a trigger lock. The Kourys stored the keys to the gun case behind a mirror in their bedroom. The Kourys had never informed their children where they kept the gun case, nor did they give Michael permission to use the gun. They had no knowledge of how Michael learned about the gun's location or whether he had ever used the gun. There is no evidence contrary to those assertions in the record.

After the shootings, Joseph found the keys intact behind the mirror. The police discovered a lock picking set in Michael's room when they searched his bedroom. There is nothing in the record to support an inference that the gun had been left out or that the Kourys had reason to believe that they should have used a more secure method of storage. A reasonable person could not consider their conduct "extremely dangerous."

The DeVoes' reliance on Gallara v. Koskovich, 364 N.J. Super. 418 (Law Div. 2003) is misplaced. In Gallara, the defendant, a gun retailer, failed to test its security alarm system for audibility and its guns remained in a display case that was easily broken into during non-business hours. The Law Division determined that a commercial gun seller has a duty to exercise reasonable care in the storage of firearms and that the defendant had violated that duty. Id. at 438. The facts of this case bear no resemblance to Gallara.

In Palmisano v. Ehrig, 171 N.J. Super. 310 (App. Div. 1979), certif. denied, 83 N.J. 287 (1980), the defendants' guns and ammunition were stored in an unlocked closet the location of which was known to their adult son. Id. at 312 (emphasis added). He and some friends came to the defendants' apartment, accessed the guns, and a neighbor was injured when one of the friends dropped the gun and it fired through a ceiling. We reversed the grant of summary judgment, holding that "[f]irearms have been held to be inherently dangerous instrumentalities" imposing an extraordinary duty of care on one who possesses them, including a "duty to take such steps as will protect an innocent person from the expectable action of other persons." Id. at 313. Again, the facts of this case are different. The Kourys took appropriate measures to protect their guns by locking the gun case and hiding the key. Michael's use of one of the guns to commit an armed robbery was not an expectable event.

Consequently, we affirm the order granting summary judgment to the Kourys and dismissing the third count of the complaint.

Affirmed.

1 Angela DeVoe sues individually. In addition, she and her sister Francesca Devoe sue as administrators ad prosequendum of the Estate of Roy DeVoe. Denise DeVoe sues as guardian ad litem for Nolan DeVoe, Roy's son.

2 Because many of the parties share the same last names, we will generally refer to them by their first names for the sake of clarity.

3 The remaining named defendant, 724 R202 Associates, LLC, was the jewelry store's landlord and was alleged to have provided inadequate security. Plaintiffs eventually settled with the landlord, which is not a party to this appeal.

4 We note that the police report states that Michael's father said he was depressed, but his father testified otherwise at his deposition. Kantor, of course, was not provided with the Kourys' depositions.

5 We find no merit to the DeVoes assertion that liability can be premised solely on the fact that the Kourys had not registered the weapon at issue. See Blunt v. Klapproth, 309 N.J. Super. 493, 516 (App. Div.), certif. denied, 156 N.J. 387 (1998).