For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
In this action plaintiff, guardian of the insured, sought a declaration with respect to the coverage extended by a policy of liability insurance issued by defendant American Casualty Company. The trial court entered summary judgment for plaintiff requiring defendant to undertake the defense of a certain damage suit then pending against the insured, and declaring that the policy provided coverage for the liability on which that suit was based. The defendant appealed to the Appellate Division and we certified the matter before argument there.
Dr. Anthony Ruvolo purchased an insurance policy from defendant under which the company agreed to pay all sums which he "shall become legally obligated to pay as damages" because of the death of any person resulting from [his] "activities." The contract also obligated the insurer to defend any damage suit brought against Ruvolo alleging such a death "even if such suit is groundless, false or fraudulent." The coverage extended was limited as follows:
"* * * This policy does not apply:
(c) to * * * death * * * caused intentionally by or at the direction of the insured."
On June 6, 1960 Dr. Anthony Ruvolo shot and killed Dr. Annunziato La Face with whom he was associated in the practice of medicine. Ruvolo was arrested immediately and at the instance of the Prosecutor, was examined by two psychiatrists. Upon their certification that he was insane, he was committed on June 10, 1960 to the New Jersey State Hospital at Trenton. He is still confined there.
In July 1960 Evelyn La Face, as Administratrix ad Prosequendum and as general Administratrix of the estate of her husband, brought suit for damages against Ruvolo alleging that he "wrongfully shot and killed" La Face. The insurer refused to defend the action asserting that the claim was excluded from policy coverage because the death had been caused by the insured's intentional act. We were advised at the oral argument that after this appeal had been taken, the damage suit was settled between the parties, and that it was done pursuant to an agreement with the insurer that the adjustment would be without prejudice to a judicial determination of the question of policy coverage.
When the declaratory judgment proceeding was instituted, defendant filed an answer alleging that Ruvolo's homicidal act was intentional and therefore was not within the protection afforded by the insurance. Plaintiff moved for summary judgment, supporting the application by affidavits of the two psychiatrists on whose certification Ruvolo had been committed, and by affidavits of two other psychiatrists who have examined and cared for him since his admission to the State Hospital.
The first two physicians, who examined Ruvolo on June 6 and 7, 1960, declared him to be "insane," suffering from "Dementia Praecox (Schizophrenia), paranoid type," and that the condition was gradual in onset, ("his paranoid ideas [had been] very strong for several months past"). The affidavits of the two attending physicians were made after 19 months of examination, observation and treatment. They agree that upon admission to the hospital on June 10, 1960, Ruvolo was suffering from paranoid delusions; also, that at and prior to June 10 and continuously thereafter, he was afflicted with a mental disorder classified as "paranoid state." More particularly, one of them deposed that at the time of the killing on June 6, 1960, Ruvolo
"was suffering from a mental disorder which rendered him incapable of distinguishing right from wrong, that his insight and judgment were defective, that he was possessed with delusions of persecution, and
that he did not at that time know the nature or quality of his acts and lacked the mental ...