CHRISTINE PRIEST v. THE SELECTIVE INSURANCE COMPANY OF AMERICA

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1511-06T11511-06T1

CHRISTINE PRIEST, Administratrix

Ad Prosequendum and General

Administratrix of the Estate of

Chentele Stenger, Christine Priest,

Individually, Donald Stenger,

Administrator Ad Prosequendum

and Donald Stenger, Individually,

Plaintiffs-Appellants,

v.

MATTHEW RONCONE,

Defendant/Third-Party

Plaintiff-Respondent,

v.

THE SELECTIVE INSURANCE COMPANY

OF AMERICA,

Third-Party Defendant-

Respondent.

__________________________________________________

 

Argued February 27, 2008 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1061-95.

Carl D. Poplar argued the cause for appellants (Carl D. Poplar, P.A., attorneys; Mr. Poplar and David E. Poplar, on the brief).

Gary S. Kull argued the cause for respondent, The Selective Insurance Company of America, (Carroll, McNulty & Kull, L.L.C., attorneys; Mr. Kull, of counsel and on the brief).

Respondent Matthew Roncone did not file a brief.

PER CURIAM

Plaintiffs Christine Priest (Priest) and Donald Stenger (Stenger) appeal from a September 29, 2006, order which entered final judgment in favor of third-party defendant The Selective Insurance Company of America (Selective) and dismissed with prejudice Priest's and Stenger's complaint against Selective. The issue is whether Selective is obligated to provide insurance coverage to Matthew Roncone (Roncone) for the death of Chentele Stenger (Chentele). After having considered the contentions raised by plaintiffs on appeal, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. This is the third appeal in this wrongful death action. In our opinion in the first appeal, we outlined the facts and issues as follows:

Roncone and Christine Priest began a two-year relationship that culminated in the birth of their daughter Lauren in April 1993. The couple had an apparent committed and monogamous relationship, at times representing themselves as "married." After Lauren's birth, Priest moved from her parents' home to Roncone's newly-built home in Sewell, with Chentele, her four-year-old daughter from an earlier relationship with Donald Stenger.

Chentele had her own bedroom in Roncone's house. Priest described the relationship between Roncone and Chentele as "affectionate," with Roncone acting like a "father figure." He cared for both Chentele and Lauren on the evenings and weekends while Priest worked.

Priest worked the morning of Saturday, December 11, 1993, leaving Chentele and Lauren in Roncone's care. At approximately 10:45 a.m., Priest received a call from Roncone requesting her to come home because Chentele had fallen down the stairs and was immobile. Roncone explained that he instructed Chentele to go downstairs while he fed the baby. He subsequently heard a noise and found Chentele lying at the bottom of the steps. Roncone adamantly denied causing Chentele's injuries, but admitted to shaking her in an attempt to wake her from her stupor.

Chentele was removed from life support on Monday, December 13, 1993. An autopsy indicated that she died from brain injuries. Roncone was indicted for murder, N.J.S.A. 2C:11-3. After a jury trial, he was convicted of second-degree manslaughter. N.J.S.A. 2C:11-4b(1).

Under Roncone's homeowners' policy, the term "insured" is defined as "you and residents of your household who are: (a) your relatives; or (b) other persons under the age of 21 and in the care of any person named above." The policy defines an "occurrence" as "an accident, including exposure to conditions, which results, during the policy period, in: (a) bodily injury; or (b) property damage." The Personal Liability provision extends coverage in connection with a claim or suit brought "against an insured for damages because of bodily injury or property damage caused by an occurrence." The policy excludes from coverage (1) bodily injury "which is expected or intended by the insured;" and (2) bodily injury to an "insured."

With respect to decedent's survival claim under N.J.S.A. 2A:15-3, Selective disclaimed liability because Chentele was (1) a resident in the Roncone household; (2) under the age of twenty-one; and (3) in his care at the time of her death. The first two definitional elements are not in contention. Chentele was a four-year-old child residing in Roncone's house with her mother.

In its decision directing Selective to provide coverage, the trial court focused on the phrase "in the care of." The court found this phrase to be reasonably susceptible to different meanings. To resolve this alleged ambiguity, the court inserted the word "primary" into the phrase "in the care of," thus creating the phrase "in the primary care of." Armed with this judicially-crafted language, the court concluded that decedent was not in Roncone's "primary" care at the time he recklessly caused her death.

We are unable to find any factual or legal support for this material alteration of the policy.

[Priest v. Roncone, 370 N.J. Super. 537, 542-43 (App. Div. 2004) (footnote omitted).]

In our earlier decision, we held that with respect to decedent's survival claim under N.J.S.A. 2A:15-3, Chentele was an insured within the meaning of the Selective policy, and, therefore, excluded from the class of individuals legally capable of bringing a claim thereunder. Id. at 546. We also found that Priest and Stenger had a legally independent right to bring a wrongful death action. Ibid. The question which remained at that time, however, was whether their claim for coverage under Roncone's policy with Selective was barred by the section excluding coverage for bodily injury "which is expected or intended by the insured." Ibid. We found then that the record was insufficient to determine that issue and, therefore, remanded the matter for an evidentiary hearing to determine whether Roncone's actions fell within the intentional wrongs exclusion. Id. at 549.

Pursuant to our remand, the trial court conducted an evidentiary hearing on September 18, 2006. The hearing consisted of the arguments of counsel following the trial court's review of the record from Roncone's criminal trial. The review of that record indicated that on June 28, 1994, Roncone was indicted for murder in connection with the death of Chentele. Initially, the State proceeded on a theory that the cause of death was "shaken child," but that theory was later abandoned at trial. After a jury trial, Roncone was convicted of reckless manslaughter pursuant to N.J.S.A. 2C:11-4(b)(1) and sentenced to nine years imprisonment, four years without parole. The jury did not convict him of murder, N.J.S.A. 2C:11-3, or aggravated manslaughter, N.J.S.A. 2C:11-4(a), although both offenses were charged.

The criminal trial record indicates that Roncone testified on his own behalf. He explained that he began dating Priest in the fall of 1991. Priest became pregnant in August 1992, and their child Lauren was born in April 1993. In March 1993, Roncone, Priest, and Chentele moved into Roncone's three bedroom house. Roncone stated that he stayed at home with Chentele and Lauren when Priest went to her part-time job on Saturdays and some weeknights. Roncone testified during cross-examination that he and Priest fought often and loudly and that Chentele had started to act nervous and anxious after hearing them fight. For a period of time, Chentele lived with Priest's parents, but when school began she eventually moved back.

At some point in time, Priest made a tape recording of Roncone's interaction with Chentele while Priest was out of the house. When Priest returned, she asked Roncone what was said or done to Chentele while she was gone. Roncone stated that nothing happened. Priest, on the other hand, said the tape revealed Roncone had given Chentele "a couple of smacks" and that she heard her daughter cry. She also stated that the tape revealed Roncone told Chentele, "do not tell mommy."

On the evening of December 10, 1993, Roncone and Priest had an argument. On the following morning, Priest got ready for work and Roncone was taking care of Lauren. According to Roncone, he took Lauren upstairs to give her a bottle and Chentele followed. Chentele started to make too much noise and Roncone told her to go downstairs. Roncone said he then heard a "thud" and ran downstairs to find Chentele lying at the bottom of the stairs. He testified he shook her and slapped her on the cheeks. He then said he went and called 9-1-1 and laid Chentele on the living room rug. After he called 9-1-1, Roncone took off Chentele's nightgown "to see if her breathing was being restricted," and so that he could do CPR. He then said that even though the 9-1-1 operator told him not to do anything, he picked Chentele up and put her on the sofa and covered her with a blanket after removing her soiled underpants and wiping her with the nightgown. The emergency responders arrived and transported Chentele to the hospital. Chentele was placed on life-support and soon thereafter was removed from life-support and expired.

Priest testified at the trial about the parties' stormy relationship noting there were constant arguments over Chentele and Priest's parents. She also testified about Roncone's "paranoid" comments following the incident.

The State had a number of doctors testify on its behalf. Dr. Jason Lewis testified before the grand jury that Chentele suffered from brain and spinal cord injuries and that her optic nerves had hemorrhaged. The doctor said there was no evidence of her falling. At trial, Dr. John Smialek testified that Chentele died of specific head and neck injuries that were the result of an acceleration/deceleration process. He said that Chentele was propelled with considerable force in such a way that when her head struck the surface it caused sudden tearing of the blood vessels beneath the covering of her brain and the sudden wrenching of her neck tore the fibers in her cervical spine. The doctor testified that he did not find any points of impact which one would normally find with respect to a fall down the stairs. The doctor opined that the injuries were consistent with another human being propelling the child.

Doctor L.J. Dragovic also testified on behalf of the State. He agreed that the injuries were sustained through sudden deceleration of Chentele's body which was in motion. He opined that the child was picked up and thrown, hitting a cushiony or padded surface, that would prevent the manifestation of any major bruises in the head or other areas, but that this caused injuries to the brain and spinal cord. He did not believe that there was evidence that this was the result of any fall.

Dr. Robert L. Catherman also testified in rebuttal on behalf of the State. He noted that Chentele had injury to the frenulum, the narrow band of tissue that anchors the upper lip to the jaw and the lower lip to the jaw that was about one-quarter inch long. He opined that such an injury was caused by blunt forced trauma, not by someone trying to resuscitate someone, and was inconsistent with a short fall because the great amount of force that would have been required to cause her head and neck injuries.

A number of doctors also testified on behalf of defendant. Dr. Warner Spitz testified that the injuries were consistent with a fall. Dr. Lucy Rorke also testified. She stated Chentele did not die as a result of being shaken. She stated that, in light of a history of a fall down the stairs, the injuries were consistent with a fall. She stated she did not have an opinion as to whether or not the death was a homicide. Dr. Cyril Wecht also testified on behalf of defendant. He found no evidence to suggest some additional external force and that Chentele's injuries could have resulted from a free fall on a carpeted stairway. He explained that the basis of his opinion resided in all the records, beginning with finding Chentele on the floor. The doctor pointed to Roncone's recitation of the events, that is, hearing a thud and finding Chentele's body at the bottom of the stairs. Dr. Derek A. Bruce also testified for the defense. He opined that the death was accidental and that the child fell from some height striking the right side of her head. He did acknowledge on cross-examination that a child of approximately four years old would have reflexes to hold her hands up to protect her head and attached no significance to the fact that there were no injuries consistent with the hands having taken the fall. The doctor did admit that he did not know how the child ended up at the bottom of the stairs, but that her being there would be consistent with Roncone's description of the incident.

Lastly, Dr. James Pugh testified. Dr. Pugh is a biomechanical engineer. He found Roncone's theory of the injury to be probable. He admitted, however, that other scenarios were possible, but biomechanically improbable.

At the conclusion of the hearing, the trial judge made his findings of fact and conclusions of law. The trial judge, first of all, stated emphatically that he found Roncone's testimony not to be credible. The trial judge stated that he "did not believe a word of the gentleman's testimony. Not one word of it." The trial judge then examined the various experts' testimony. He concluded that in large part that the defense experts accepted Roncone's theory of the incident. Therefore, while he found the experts well-versed in their particular fields, he did not give their opinions much weight. The trial judge concluded, "based on the negative inferences here and that this child was intentionally hurt and that Matthew Roncone is the only person around who had the ability to do that," that this was an intentional injury. The judge said he clearly believed the State's experts and its theory that the child was thrown into some form of padded object. The trial judge also made it clear that any assault on a child by an adult is presumed to be reprehensible. Consequently, the trial judge concluded that the actions of Roncone fell within the intentional acts exception to Selective's policy and entered judgment accordingly. This appeal ensued.

On appeal, Priest and Stenger argue that exceptions to insurance coverage in an insurance policy such as the one at issue in this case should be strictly construed against the insurer. They argue, relying on Cumberland Mut. Fire Ins. Co. v. Murphy, 183 N.J. 344, 350 (2005), that the insurer must prove by a preponderance of the evidence that the actual injuries sustained were inherently probable consequences of the insured's conduct and that the insurer sufficiently demonstrated that the insured had the subjective intent to cause some degree of injury. Plaintiffs further assert that Roncone acted recklessly in this case, not intentionally, and that his actions were not "particularly reprehensible." They claim that the evidence supports this argument because the jury in the criminal trial rejected the first-degree murder charge, as well as the aggravated manslaughter charge. They note that the first-degree murder charge requires purposeful or knowing action, while the aggravated manslaughter charge requires recklessness under circumstances manifesting extreme indifference to human life. Plaintiffs argue that "Roncone's conduct - throwing a child onto a couch - is certainly not an act taken by someone who intends to kill." Lastly, they maintain that the trial judge improperly rejected the testimony of the defense experts by finding they relied upon Roncone's version of the events which the trial judge found to be incredible, and that the judge failed to determine Roncone's state of mind. Therefore, they conclude that the trial judge's ruling was inconsistent with the law, as well as the evidence.

Selective argues that Roncone's actions were "particularly reprehensible" and that the exception to coverage has been met by the proofs. It asserts that the trial judge did not err in rejecting the defense experts' testimony and determining that Roncone acted intentionally.

We begin by stating applicable legal principles.

Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. It has otherwise been stated that our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence as to offend the interest of justice, and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions.

[Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (internal quotations and citations omitted).]

Turning toward the issue of whether Selective's intentional wrongs exclusion bars recovery, we note that the policy specifically excludes from coverage bodily injury "which is expected or intended by the insured." The words of an insurance policy are to be given their plain, ordinary meaning. Harleysville Ins. Cos. v. Garitta, 170 N.J. 223, 231 (2001). "[E]xclusions are presumptively valid and will be given effect if 'specific, plain, clear, prominent, and not contrary to public policy.'" Miller v. McClure, 326 N.J. Super. 558, 565 (App. Div. 1998), aff'd o.b., 162 N.J. 575 (1999) (quoting Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997) (quoting Doto v. Russo, 140 N.J. 544, 559 (1995))). Policy provisions that exclude coverage for intentional wrongful acts are common, accepted as valid, and consistent with public policy. Garitta, supra, 170 N.J. at 231. Nevertheless, exclusions must be narrowly construed, and Selective bears the burden of proof that the exclusion applies. Miller, supra, 326 N.J. Super. at 565.

In SL Indus., Inc. v. Am. Motorists Ins. Co., 128 N.J. 188, 212 (1992), the Supreme Court held that coverage is generally excluded if the insured "subjectively intends or expects to cause some sort of injury . . . ." The Supreme Court noted though that 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. Therefore, generally, a court must examine the actor's subjective intent. Garitta, supra, 170 N.J. at 234. However, "[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." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 184 (1992).

Plaintiffs argue that Roncone acted recklessly, not intentionally. They contend that the evidence supports their argument, particularly pointing to the fact that the jury in the criminal trial did not find Roncone guilty of murder or aggravated manslaughter, which requires knowing or purposeful behavior or reckless behavior and conscious disregard under circumstances manifesting extreme indifference to human life.

In this case, Roncone was found guilty of second-degree manslaughter in violation of N.J.S.A. 2C:11-4(b)(1), which provides "[c]riminal homicide constitutes manslaughter when [i]t is committed recklessly."

N.J.S.A. 2C:2-2(b)(3) states,

Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

A criminal conviction is evidentiary, but not conclusive, of proof of intent. Chunmuang, supra, 151 N.J. at 95.

The definition of recklessly indicates that some measure of awareness or knowledge is inherent in the element of recklessness. State v. Niemeyer, 195 N.J. Super. 559, 562 (Law Div. 1984). The jury verdict constitutes a finding, therefore, that Roncone acted with some awareness or knowledge that he was consciously disregarding a substantial and unjustifiable risk of harm to Chentele.

The need to explore Roncone's subjective intent is obviated, however, if the factfinder concludes his acts were "particularly reprehensible."

As stated in Cumberland Mut. Fire Ins. v. Murphy, the Court

recognize[s] that the accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury. Thus, a "covered accident" includes the unintended consequences of an intentional act, but not an injury that is, itself, intended. Foolhardy or reckless acts are not automatically excluded from coverage. 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.

[ 183 N.J. 344, 349 (2005) (internal citations omitted).]

In this case, the trial judge, after reviewing the facts and medical testimony, concluded that the child, who was forty pounds and four years old, was propelled with great force into a couch, which resulted in the child suffering a brain hemorrhage, as well as a tearing of the spinal cord in the neck, ultimately causing death. The trial judge concluded that the injuries, based on the medical proofs, indicate an intentional act -- throwing a child at great force. The trial judge found that this intentional act could only have been committed by Roncone who was the only adult present. The judge clearly rejected Roncone's version of the incident. Most importantly, the trial judge found that an assault on a child was "particularly reprehensible" and, hence, there was no need to explore Roncone's subjective intent. Given the record before us, we agree.

Whether an action is particularly reprehensible is certainly fact specific. Many of the cases which held the insured's actions to be particularly reprehensible dealt with sexual abuse of children. In this case, the thought of a grown man throwing a forty pound four-year-old little girl with such force as to cause the injuries present here, produces an image which can only be termed horrible, reprehensible, heinous, and despicable. The various medical experts provide more than sufficient credible evidence in the record for the trial judge's conclusion that this act was particularly reprehensible.

Plaintiff's argument that "Roncone's conduct - throwing a child onto a couch - is certainly not an act taken by someone who intends to kill" misses the point. It is the intent to injure, rather than the specific intent to commit murder that is critical here. It is only when the degree of injury is "improbable" when compared to the act that a court must determine if the specific injury was subjectively intended or expected. Here, the death of a small child is not improbable when hurled with such force as to cause the brain to hemorrhage and the spinal cord to tear. Most importantly, though, where the act is one that is "particularly reprehensible" as this was, intention is presumed.

Plaintiffs argue that the trial court improperly rejected all of the testimony of Roncone's expert witnesses by finding that their testimony was based on Roncone's version of the incident and that this constituted reversible error. We note first that the trial judge carefully reviewed each of the experts' testimony and found that, to some degree, each relied on Roncone's version of the incident in proffering their opinion. In large measure, we agree with the trial judge's analysis. The experts, throughout their testimony, referred to a fall down the steps or Roncone finding the child at the foot of the steps. The fall down the steps theory was rejected by the criminal court and the trial judge. So, to the extent that the experts' opinions made reference to a fall down the steps, the trial judge correctly found their opinions not to be particularly helpful. Moreover, "a judge is not obligated to accept an expert's opinion, even if the expert is impressive." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004) (citing State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994)), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005). It was not an abuse of discretion or error for the trial judge to reject the testimony of the defense experts or to accept the opinions of the State's experts. A judge is empowered to accept or reject among the various opinions and is permitted to evaluate those opinions in light of all the evidence in the record. Ibid.

Lastly, plaintiffs argue that the trial judge never determined Roncone's state of mind. We disagree. First of all, the trial judge found, based on the medical evidence, that the child was intentionally hurt. Secondly, the trial judge found that the act of assaulting a young child to be particularly reprehensible. Therefore, under the Cumberland holding, intent can be presumed and there was, therefore, no need for the trial judge to determine Roncone's subjective intent.

Accordingly, for the reasons set forth above, we affirm.

Affirmed.

(continued)

(continued)

13

A-1511-06T1

April 4, 2008