On appeal from Superior Court, Law Division, Monmouth County.
Gaulkin, Brody and Landau. The opinion of the court was delivered by Landau, J.A.D.
Defendants Mark Anthony Mascitelli (Mark), a minor, and his mother Brenda Mascitelli, individually and as guardian ad litem, appeal from the award of summary judgment favorable to plaintiff Prudential Property and Casualty Insurance Company (PRUPAC) in a declaratory judgment action. The Mascitellis' cross-motion for summary judgment was denied, but this has not been appealed. PRUPAC sought in the action a determination that its homeowners policy issued to defendants James and Eileen Karlinski did not require it to defend or indemnify them and their minor son, James, Jr. (a named insured), against injuries sustained by Mark during an assertedly pre-arranged voluntary physical confrontation between 14-year old Mark and 13-year old James, Jr.*fn1 PRUPAC's homeowners policy issued
to the Karlinskis excluded from its personal liability and third-party medical payments coverage "bodily injury . . . which is expected or intended by the insured."
The appeal requires that we again explore the frequently visited but still unclearly charted area of liability coverage for intentional torts which produce unintended results. In doing so, we conclude that the PRUPAC summary judgment motion should have been denied because the material factual issue of intent was not resolvable on the motion.
Pending at the time of the summary declaratory judgment award was a personal injury action brought by the Mascitellis against the Karlinskis. The Mascitellis' complaint included counts for negligent and reckless conduct, but did not specifically allege intentional infliction of the broken hip suffered by Mark. The complaint also alleged that the Karlinskis negligently supervised James, Jr. Judgment for compensatory and punitive damages was sought. Summary judgment was granted to PRUPAC excusing it from a duty to defend and indemnify as to "all claims" in the Mascitelli complaint.
The motion judge concluded from the depositions and interrogatory answers that "Karlinski instigated the fight and threw the first blow and started the fight. As far as I am concerned, it is intentional conduct and the coverage doesn't apply." He also concluded that a broken "leg" was not an extraordinary consequence of the fight. In fact, it was Mark's hip which was broken, necessitating extensive surgical and rehabilitative treatment. The motion judge did not refer to or consider the possible effect in a declaratory action of the absence of an assertion in the underlying complaint that James, Jr. intended to cause Mark's injury.
On appeal, the Mascitellis urge that factual issues precluded the determination on summary judgment that James, Jr. intended or expected to cause the bodily injury which Mark sustained. PRUPAC argues, in effect, that regardless of the absence of intentional tort allegations in the complaint, James, Jr.'s acts
were such that Mark's hip fracture was properly deemed to have been "expected or intended" under the policy exclusion as a matter of law, regardless of who caused the confrontation.
We note first that the above-quoted policy exclusion of coverage for bodily injury which is expected or intended by the insured is valid and enforceable, Allstate Ins. Co. v. Malec, 104 N.J. 1, 514 A.2d 832 (1986), and that coverage may be determined in a separate declaratory action in advance of the tort proceeding, Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 267 A.2d 7 (1970), where the result of the negligence case will not be determinative of the insurer's responsibility. See Ohio Casualty Ins. Co. v. Flanagin, 44 N.J. 504, 512, 210 A.2d 221 (1965). However, in cases involving an intentional act but not an intention to cause the harm which occurred, it is "difficult even to ascertain whether there is a clear weight of authority with respect to when liability coverage applies. . . ." R. Keeton & A. Widiss, Insurance Law, § 5.2, at 524 (1988).
One treatise suggests, "[I]f the resulting damages can be viewed as unintended by a fact finder the result constituted an 'accident' for purposes of the liability insurance policy; it is the quality of result rather than the quality of the cause that is controlling." 7A J. Appleman, Insurance Law and Practice, § 4492.02, at 31 (Berdal. ed. 1979). Citing Hanover Ins. Co. v. Cameron, 122 N.J. Super. 51, 298 A.2d 715 (Ch.Div.1973), Appleman states:
The word "intent" for purposes of tort law and for purposes of exclusionary clauses in insurance policies denotes that the actor desires to cause the consequences of his act or believes that consequences are substantially certain to result from it. In order for an act to be intentional, its consequences must be substantially certain to result as opposed to the feature of wanton acts that the consequences be only probably ...