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New Jersey Manufacturers Insurance Co. v. Brower

Decided: August 4, 1978.

NEW JERSEY MANUFACTURERS INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
WILLIAM A. BROWER, ELIZABETH H. BROWER, FLORENCE ROSENSTEIN, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF CHARLES ROSENSTEIN, AND RAYMOND WHITE, DEFENDANTS, AND WILLIAM GESCHKE, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Mercer County.

Conford, Michels and Pressler. The opinion of the court was delivered by Michels, J.A.D.

Michels

[161 NJSuper Page 294] Defendant William Geschke appeals from a summary judgment of the Law Division declaring that plaintiff New Jersey Manufacturers Insurance Company's insured, William A. Brower, was not entitled to coverage under a homeowners insurance policy for the shotgun wounds he intentionally inflicted upon Geschke, on the ground that the policy expressly excluded coverage for bodily injury "caused intentionally by or at the direction of the insured."*fn1

It appears without conflict that on August 22, 1974 Brower shot and killed Charles Rosenstein and wounded Geschke and Raymond White. Brower was convicted of the second degree murder of Rosenstein and of assault with intent to kill Geschke and White. The jury's verdict necessarily was predicated upon a finding that Geschke's injuries were intentionally inflicted by Brower. N.J.S.A. 2A:90-2.

Thus at issue in this case is whether the doctrine of collateral estoppel barred Geschke from relitigating with Manufacturers the question of whether his injuries were intentionally caused by Brower. We are satisfied that it does and therefore affirm the grant of summary judgment.

Brower was dissatisfied with a motorcycle for his son that he previously purchased from Rosenstein, the owner of a motorcycle shop. Apparently, the motorcycle did not operate to Brower's satisfaction and he made several calls to the shop to solve the problem. When he was unable to obtain satisfaction from Rosenstein, he returned the motorcycle to the shop in his pickup truck. Brower and Rosenstein became embroiled in an argument. A scuffle ensued. Rosenstein ordered Brower from the property and, finally, forcibly ejected him. While it is not altogether clear whether Brower entered the cab of his pickup truck voluntarily or whether Rosenstein forced him into the cab, as Brower claimed, it is undisputed that Brower picked up a

shotgun from the floor of the cab and loaded it with two shells. He stuck the gun out the cab's window and shot Rosenstein as well as Geschke and White, who were standing next to Rosenstein in the parking lot. While at the criminal trial Brower claimed that upon shooting he only saw Rosenstein, he admitted that he knew all three men were there. Moreover, it was Geschke who testified that Brower pointed the shotgun directly at him as the following pertinent excerpt from his trial testimony shows:

Q. On your left? You turned around. What did you see?

A. A shotgun pointing right at me.

Q. Bill, let me ask you this: That shotgun had been pointed at Shep in your opinion?

A. On the first ...


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