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Prudential Property & Casualty Insurance Co. v. Boylan

January 22, 1998

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
JAMES BOYLAN, LINDA BOYLAN, RYAN BOYLAN, MINNIE HZ, AN INFANT BY HER PARENTS AND NATURAL GUARDIANS ROGER HZ AND EDNA HZ, AND ROGER HZ AND EDNA HZ, *FN1 INDIVIDUALLY, DEFENDANTS-RESPONDENTS. MINNIE HZ, AN INFANT BY HER PARENT AND NATURAL GUARDIAN, ROGER HZ, AND ROGER HZ INDIVIDUALLY AND EDNA HZ, PLAINTIFFS,
v.
JAMES BOYLAN, LINDA BOYLAN AND RYAN BOYLAN DEFENDANTS.



Before Judges Petrella, Skillman, and Eichen.

The opinion of the court was delivered by: Petrella, P.j.a.d.

[9]    Argued December 1, 1997

On appeal from Superior Court of New Jersey, Law Division, Morris County.

Prudential Property and Casualty Insurance Company (Prudential) appeals *fn2 from the denial of its motion for summary judgment which sought a declaration that it was not obligated to indemnify or defend the Boylan defendants under their homeowner's insurance policy against claims asserted by the Hz's that the Boylans' fifteen year old son Ryan had sexually assaulted their five year old daughter while he was babysitting for them. Prudential also appeals the grant of the Boylans' cross-motion for summary judgment declaring that Prudential's policy of insurance afforded coverage for the claims of the Hz's, as well as the denial of its motion for an order for release of the juvenile records of Ryan and the order granting counsel fees to the Boylans.

The motion Judge ruled that Prudential's homeowners policy provided coverage to James and Linda Boylan and that the policy's business pursuits exception did not apply because this was a "one-time only, casual accommodation to baby-sit in an emergency." The Judge also ruled that the insurance policy covered fifteen year old Ryan Boylan as a matter of law because he was deemed to lack the requisite intent or mental capacity to understand the nature of his acts. There was no evidentiary hearing on that issue. Although Ryan entered a guilty plea in the juvenile proceeding in the Family Part, the Judge denied Prudential's application to have access to Ryan Boylan's juvenile court records. Finally, the Judge denied Prudential's request to stay the trial pending this appeal *fn3.

On June 26, 1992, Mr. and Mrs. Hz were invited to a surprise party and arranged for their five year old daughter and her little brother to be watched by a babysitter. Mrs. Hz testified that when her babysitter had an emergency and had to leave she called the Boylan house and Ryan Boylan told her that his mother was not home, although apparently his father was. Then Mrs. Hz contacted Mrs. Boylan at work to arrange for babysitting for the balance of that evening. Mrs. Hz testified that Mrs. Boylan told her to bring her children to the Boylans' house and Ryan would watch them until she came home about an hour later. Mrs. Hz took Minnie and her little brother to the Boylans' house.

After Minnie, her brother and the Boylan children played some games they went upstairs to go to bed. Minnie was taken to a bedroom to go to sleep, but Ryan Boylan thereafter had the five year old girl perform an act of oral sex on him. Ryan Boylan admitted in subsequent juvenile court proceedings to sexually molesting the girl.

Mrs. Hz testified that prior to June 1992, Mrs. Boylan quite frequently had provided baby-sitting services for the Hz children at a fee. Mrs. Boylan was Minnie's primary child care source, spending up to eight hours a day with her since she was six or seven months old.

However, Mrs. Hz testified that on this particular occasion Mrs. Boylan was watching her children "as a favor" because of the emergency. Although Mrs. Boylan did not ask for any compensation either before or after watching the Hz children, Mrs. Hz gave Mrs. Boylan $28 to split between herself and Ryan.

I.

We employ the same standard that governs trial courts in reviewing summary judgment orders. Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539-540 (1995). Thus, the movant must show that there does not exist a "genuine issue" as to a material fact and not simply one "of an insubstantial nature"; a non-movant will be unsuccessful "merely by pointing to any fact in dispute." Id. at 529-530.

Prudential's homeowner's policy contains the following exclusion:

Exclusions

1. Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to bodily ...


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