QUINCY MUTUAL FIRE INSURANCE COMPANY v. MAKKARI SAMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5862-04T25862-04T2

 

QUINCY MUTUAL FIRE

INSURANCE COMPANY,

Plaintiff-Respondent,

v.

MAKKARI SAMPSON,

Defendant,

and

WILLIAM WRIGHT,

Defendant-Appellant.

 
______________________________________________________________

Argued November 28, 2006 - Decided June 4, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-1538-03.

Benjamin M. Del Vento, Jr., argued the cause

for appellant.

James G. Serritella argued the cause for

respondent (Buttafuoco, Arce & Price,

attorneys; Mr. Serritella, on the brief).

PER CURIAM

This declaratory judgment action by plaintiff Quincy Mutual Fire Insurance Company (Quincy Mutual), was filed after defendant William Wright alleged in a personal injury lawsuit (the underlying complaint) that he suffered serious head trauma and other injuries on May 16, 2001, when he was "maliciously assaulted and beat" by defendant Makkari Sampson. Quincy Mutual acknowledged in its complaint that it insured defendant Sampson, but it claimed there was no coverage under its policy for the actions attributed to Sampson in the underlying complaint because of a policy provision excluding coverage for "bodily injury which is expected or intended by the insured."

Quincy Mutual's declaratory judgment case was tried prior to the underlying complaint, and the trial court's instructions to the jury included the following:

The policy contains an exclusion for coverage for bodily injury which is expected or intended by the insured.

Now, you as the jurors must decide whether this exclusion applies to the facts of this particular case. There are two ways that you can determine that the plaintiff has proven that that exclusion applies.

One way is a subjective finding by a preponderance of the evidence that the defendant Makkari Sampson intended to cause the actual injury that resulted to the defendant William Wright.

The second way is an objective finding by a preponderance of the evidence that the actual injury was an inherent probable consequence of defendant Makkari Sampson's conduct.

The jury returned a verdict in favor of Quincy Mutual denying coverage to Sampson.

On appeal, defendant Wright makes the following arguments:

POINT I

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THERE ARE TWO WAYS TO DETERMINE THE WITHIN INSURANCE EXCLUSION APPLIES, ONE WAY IS A SUBJECTIVE FINDING THAT DEFENDANT SAMPSON INTENDED TO CAUSE THE ACTUAL INJURY, THE OTHER WAY IS THAT THE ACTUAL INJURY WAS AN INHERENTLY PROBABLE CONSEQUENCE OF DEFENDANT SAMPSON'S CONDUCT.

POINT II

JUDGMENT SHOULD BE ENTERED IN FAVOR OF DEFENDANT SAMPSON AFFORDING INSURANCE COVERAGE.

POINT III

THE TRIAL COURT ERRED [BY ADMITTING] INTO EVIDENCE THE STATEMENT OF CHARLES BERRY IN CLEAR VIOLATION OF EVIDENCE RULE 803.

Defendant Sampson did not file an appeal.

After considering defendant's contentions in light of the record, the written and oral arguments of the parties, and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm with only the following comments with respect to Wright's argument presented in Point I.

"Policy provisions that exclude coverage resulting from intentional wrongful acts are common, are accepted as valid limitations, and are consistent with public policy." Harleysville Ins. Co. v. Garitta, 170 N.J. 223, 231 (2001) (internal quotation marks omitted) (quoting Allstate Ins. Co. v. Malec, 104 N.J. 1, 6 (1986)). In cases involving conduct where some injury is an "inherently probable consequence" of the insured's actions, such as an assault and battery, the trier of fact may infer an intent to injure from the nature of an insured's objective conduct. See Harleysville, supra, 170 N.J. at 234 ("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."); Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 184 (1992) ("When the actions are particularly reprehensible, [as in the sexual abuse of a child,] the intent to injure can be presumed from the act without an inquiry into the actor's subjective intent to injure."); Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super. 219, 227 (App. Div. 1997) ("There are occasions where the objective conduct of the actor also determines the actor's subjective intent to injure. Such is the case where the actor engages in assault and battery."). Thus, we are convinced that Judge Bernstein properly applied prevailing legal standards in his instructions to the jury.

 
Affirmed.

(continued)

(continued)

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A-5862-04T2

June 4, 2007