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Mazzilli v. Accident and Casualty Insurance Co.

Decided: March 17, 1958.

LOUIS MAZZILLI, PLAINTIFF-APPELLANT,
v.
ACCIDENT AND CASUALTY INSURANCE COMPANY OF WINTERTHUR, SWITZERLAND, DEFENDANT-RESPONDENT



On certified appeal from the Appellate Division of the Superior Court.

For reversal and remandment -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

This is an appeal from a judgment of the Appellate Division which reversed the trial court and directed the entry of summary judgment in defendant's favor upon the ground that the plaintiff was collaterally estopped by a prior judgment from showing that Frances Selger was an "Insured" under a personal liability policy issued by the defendant insurance company to her husband, Adam Selger. Mazzilli v. Accident & Casualty Ins. Co., etc., 45 N.J. Super. 137 (App. Div. 1957). We granted plaintiff's petition for certification. 24 N.J. 54 (1957).

On April 21, 1949 the plaintiff was injured when Kenneth Selger, the nine-year-old son of Adam and Frances Selger, fired a shotgun at him from a window of his mother's house. The plaintiff instituted a personal injury action

against Kenneth and both parents. It was established at the trial of that action that on the date the plaintiff was injured the elder Selgers were living in a state of separation which had commenced in 1945, each occupying separate residences located about 200 feet apart upon a three-acre tract owned by a corporation controlled by Adam Selger. It was also established that a separate maintenance action instituted by Frances for support of herself and Kenneth, who was in her custody, was then pending in the Chancery Division and that an interlocutory order had been entered in 1948 which required Adam to pay $35 a week for their support and also to pay the rent and cost of heating fuel for Frances' home. The trial court dismissed the complaint as to Adam and Frances, but the plaintiff recovered a judgment of $20,000 for compensatory damages and $5,000 for punitive damages against Kenneth. The plaintiff appealed from the judgment in favor of Adam and Frances. The infant defendant, Kenneth, cross-appealed from the denial of his motion to dismiss the punitive damage count against him. The judgments were affirmed by the Appellate Division. Mazzilli v. Selger, 23 N.J. Super. 496 (1952). In its opinion the Appellate Division held that there was insufficient evidence of any negligence on the part of Adam and Frances, and further held that the amount of punitive damages against Kenneth was justified since there was sufficient evidence to support the jury's finding that Kenneth's act was intentional. On appeal to this court the judgment of dismissal in favor of Adam was affirmed on the ground there was no evidence that he had access to his wife's home or that he had knowledge of the existence of the shotgun and shells before the occurrence. However, the judgment was reversed as to Frances and a new trial was ordered to determine whether she had failed to exercise due care in permitting the gun and shells to be available in Kenneth's room. Mazzilli v. Selger, 13 N.J. 296 (1953). Kenneth did not file an appeal.

Following the affirmance by the Appellate Division, but before the appeal to this court had been determined, the

plaintiff, on January 16, 1953, instituted an action against the present defendant on the personal liability policy which it had issued to Adam Selger. The plaintiff's complaint in that action alleged, inter alia, that Kenneth Selger "resided with Adam Selger and was a resident of the household of the said Adam Selger"; that the defendant had issued a personal liability policy to Adam; that the policy was in effect at the time the plaintiff was injured; that the policy contained the following provision:

"Definition of Insured: The unqualified word 'Insured' includes the Named Insured and, if residents of the household, his spouse and relatives and wards of either * * *.";

and that "Kenneth Selger as well as the defendant, Adam Selger, was covered in all respects under the said policy of insurance."

The defendant filed a notice of motion for summary judgment returnable on February 20, 1953. The affidavit executed by the defendant's attorney in support of the motion referred to the prior tort action and incorporated the opinion by the Appellate Division. It further recited that the provisions of the policy excluded from coverage any liability arising out of injury caused intentionally by or at the direction of the insured; that since Kenneth's act was found by the Appellate Division to have been intentional it was not covered by the policy; that Adam and his wife were separated at the time of the occurrence in question and lived in separate dwellings and that Kenneth resided with his mother; that "by reason of said separate residences" and by reason of the separation of Adam and Frances "Kenneth was not a member of the household of Adam Selger." The plaintiff filed no answering affidavit. The disposition of the motion was postponed to await the outcome of the appeal which was pending before this court. That appeal, as mentioned above, resulted in an affirmance of the judgment in favor of Adam and the granting of a new trial against Frances. Upon the retrial on the issue

of Frances' liability, the plaintiff recovered a judgment against her for $10,000, which was entered on February 16, 1955.

On March 25, 1955 the defendant's long pending motion for summary judgment was argued, and on March 31, 1955 judgment was entered granting the motion. The trial court in reaching this decision considered the provisions of the policy pertaining to the definition of "Insured" and the following clauses limiting coverage to accidental injuries:

"Occurrence. 'Occurrence' means an accident or a continuous or repeated exposure to conditions, which results in injury during the Policy Period, providing the injury is accidentally caused."

"Assault and Battery. Assault and Battery shall be deemed an accident unless committed by or at the direction of the assured."

The trial court made two specific findings: (1) that "Kenneth Selger was not a resident of the household of the assured, his father," and hence was not an "Insured"; and (2) if it be assumed that Kenneth was a resident of the Adam Selger household, and, thus, an insured, his act was willful and malicious and therefore it was not an ...


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