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Harleysville Insurance Companies v. Garitta

December 17, 2001

HARLEYSVILLE INSURANCE COMPANIES, PLAINTIFF-APPELLANT,
v.
DAVID GARITTA, STEPHEN GARITTA AND JOSEPH LICATA, DEFENDANTS



The opinion of the court was delivered by: Verniero, J.

Argued September 17, 2001

On certification to the Superior Court, Appellate Division.

This is a declaratory judgment action. Plaintiff insurer seeks a declaration that the homeowner's policy purchased by the insured does not provide liability coverage for certain conduct of the insured's son, also an insured person under the policy. Specifically, the son stabbed a third party during an altercation on the insured premises, and the victim died. The trial court granted summary judgment in favor of the insurer, concluding that the son's actions fell within the policy's provision excluding coverage for "?bodily injury' . . . [w]hich is expected or intended by the ?insured'[.]" The Appellate Division disagreed. The panel concluded that the circumstances of the stabbing, together with the son's intent or expectation in wielding the knife that killed the victim, are sufficiently unclear that a trial is warranted. We agree with the trial court and reverse.

I.

We consider the facts in a light most favorable to the non- moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On September 15, 1996, David Garitta and five of his friends were socializing at David's father's house in Greentown, Pennsylvania. Joseph Licata was among those gathered with David. At approximately 1:15 a.m., Albert Sabatelli arrived at the house unexpectedly. David and Albert had been friends, and Albert's mother, Mildred Rafferty, was the girlfriend of David's father. David, however, did not approve of his father's relationship with Rafferty. To express that disapproval in the preceding week, David had taken Rafferty's clothing and some personal effects from his father's house and had placed them in a bag on the porch. When Rafferty arrived the day after David had removed her belongings, he refused to let her enter the house.

Unbeknownst to David, his actions in respect of Albert's mother had infuriated Albert, who came to the Garitta house to confront him. According to David, Albert immediately began assaulting him. Albert pushed David, then grabbed his arm and took him into one of the bedrooms. David stated that Albert "was throwing me pretty hard against the wall." During the assault Albert cried out to David, "You're not respecting my mother, you owe her an apology." According to David's version of events, he did not want a physical confrontation and informed Albert that he did not want to fight.

The fight eventually spilled over into another room and Albert placed David in a choke hold. Albert then cocked his fist to punch David. When asked if he had been frightened by those actions, David testified that he was "terrified." At that juncture two of David's friends interceded, telling David and Albert that they should take their fight "outside." Albert responded, "Come on I'll take you outside, I'll fight you outside . . . let's finish this outside." David also quoted Albert as saying, "Remember, no cops no matter how bad I hurt you." Albert stated, "Okay, I'm going outside," and then he proceeded outside to the deck.

David testified that he believed that he had no choice but to go outside and confront Albert. He then went to his bedroom to put on his sneakers. When asked what he was planning to do next, David responded, "Going outside to get beat up. Maybe try to talk him out of it. Just, I didn't want to fight. I was thinking I didn't know why I was fighting in the first place."

David also explained that his intention was to "[j]ust go[] outside . . . [because] [i]f I didn't go outside he would've [come] back inside." David testified that he did not try to lock the door after Albert went outside because the door to the deck was glass. He feared that Albert would try to break the glass door if he attempted to lock him out. David also expressed his view that Albert was the bigger and stronger of the two men.

Albert stood outside the house, allegedly shouting vulgarities at David. As David walked toward the end of the hallway, Joseph Licata handed him a knife that Licata had removed from the kitchen. We note, however, that in one of his early statements to the authorities, as reflected in the police reports prepared after the incident, David indicated that "he put on his sneakers and was walking out when he saw the fillet knife on the breakfast table." He told the police that he "picked up the knife[,] took it out of its sheath[,] and then walked out the door." He later clarified those comments by indicating that he "was given the knife by [Licata]" and that Licata "told him [what] to do with [the] knife." For purposes of this appeal, we accept David's assertion that Licata handed him the knife.

After giving him the knife, Licata purportedly stated to David, "[D]o what you gotta do. . . . Cut him like we do in New Jersey." David then put the knife in the back of his pants and went onto the deck. According to David, Albert was waiting for him and came towards him. David also testified, "I just got really scared and I took the knife behind my back and I stabbed him."

David stabbed Albert twice, puncturing his heart and stomach. He acknowledged that Albert was unarmed. The record indicates that Albert had removed his shirt prior to moving onto the deck. Albert's bare chest and stomach presumably enhanced the ability of the knife to puncture the victim's flesh, thus intensifying his injuries. David also acknowledged that he did not ask Albert to leave the property, nor did he tell Albert that he had a knife or warn him that he would cut him if Albert approached.

David stated that Albert "didn't give me a chance, he just came right at me," and that the victim's hands were "clenched." David indicated that he was more terrified at that juncture than he had been earlier. When asked whether he went onto the deck with the intention of killing the victim, David responded, "No." He testified that rather than wanting to hurt or stab Albert, he had hoped to persuade him to leave the premises. David repeated several times that he was "really scared" and "terrified."

David further indicated that he was not aiming to stab Albert in "a vital part of his body," and that the two thrusts were close in time, "[o]ne right after the other, like really fast[.]" He indicated that he knew he had cut Albert but did not know that he had inflicted a knife wound to the victim's heart. David purportedly told Albert to go to the hospital. David then walked back into the house, washed the knife, and put it back in the kitchen. David claimed that only then, when one of his friends screamed, did he notice that Albert had collapsed and was injured seriously. David testified that he attempted to administer CPR to Albert and said to him, "I didn't mean for this to happen." A short time later, Albert was pronounced dead at the scene.

As a result of the altercation, Pennsylvania law enforcement authorities charged David with criminal homicide. Under the statutes in that jurisdiction, "[a] person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa. Cons. Stat. Ann. § 2501(a) (1998). Criminal homicide, in turn, is classified as "murder, voluntary manslaughter, or involuntary manslaughter." Id. at § 2501(b). In March 1997, David pled guilty to third degree murder (a degree of murder not recognized in New Jersey) and was sentenced to five years in prison.

The authorities also filed criminal charges against Joseph Licata, who had given David the knife used in killing the victim. Those charges were tried. Although the record does not indicate the results of that trial, at the time of the filing of this action Licata was serving a prison sentence presumably arising out of the incident. (Much of the factual recitation contained in this opinion is derived from testimony at the Licata trial.)

In September 1998, Albert's father, as administrator of his son's estate, filed a wrongful death action in the Law Division against David, David's father, and Joseph Licata. Mildred Rafferty, Albert's mother, and Kristy Marie Ferrizzi, the mother of Albert's child and his fiancee at the time of the incident, are also plaintiffs. The complaint alleges that David and Licata "instigated" the altercation in which Albert "was attacked and assaulted." The complaint also alleges that

[t]he recklessness, negligence and carelessness of the defendant, David Garitta, consisted of his use of a weapon without due regard to the dangerousness of said weapon or concern for the potential consequences of the use of said weapon, and his failure to recognize the danger presented by the introduction of said weapon into the altercation.

Plaintiffs seek compensatory and punitive damages.

Shortly after the filing of that complaint, Harleysville Insurance Companies (Harleysville) filed this action, seeking a declaration that the homeowner's policy it issued to David's father, which also covers David as a member of his father's household, provided no coverage to David for the injuries or death of Albert. The insurer named two groups of defendants in that action: (1) Albert's father and the other family members who are plaintiffs in the wrongful death action (defendants), and (2) David, David's father (the two insureds), and Joseph Licata. The policy at issue provides liability coverage for "bodily injury" caused by an "occurrence" for which the insured is responsible. The policy defines an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in . . . ?[b]odily injury'[.]" The policy defines "bodily injury" to mean "bodily harm, sickness or disease, including required care, loss of services and death that results."

At the heart of this appeal is the policy's provision that states that the insurer will not provide coverage for bodily injury "[w]hich is expected or intended by the ?insured'[.]" Based on that exclusion, the insurer asserts that it is not obligated to provide coverage to David for the wrongful death of Albert or to undertake the defense of that action on David's behalf. (Although the altercation took place in Pennsylvania, plaintiffs filed their wrongful death complaint in New Jersey because two of the named defendants in that suit reside in this jurisdiction. Hence, the insurer commenced its declaratory judgment action here as well.)

The parties in Harleysville's action filed respective motions for summary judgment. In December 1999, the trial court granted the insurer's motion, concluding that the act of stabbing Albert itself demonstrated that David intended to cause him bodily injury within the meaning of the policy. The trial court stated:

I find that when you intend -- when you stab someone, you intend to harm them. And when you stab them twice[,] not once[,] you intend to kill them. . . . I think the intent is there and it can be gleaned from the actions taken. Not one stab[,] but two stabs[,] and, therefore, I find there's no coverage under the Harleysville policy.

Based on that same rationale, the trial court also determined that the insurer had no obligation to undertake the defense of the wrongful death action on David's behalf.

In an unreported opinion, the Appellate Division reversed. While expressing its view that "this is a close case[,]" the panel held that summary judgment was an improper disposition on the record presented. More specifically, the panel concluded that "a trial is required to determine what took place on the evening in question, how [Albert's] wounds were inflicted, and what David's intentions and expectations were in using the knife given [to] him by Licata." We granted the insurer's petition for certification, 167 N.J. 629 (2001), and now reverse.

II.

We note at the outset two well-established tenets that serve as a backdrop to our decision. First, "the words of an insurance policy are to be given their plain, ordinary meaning. ?In the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased.'" Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001) (quoting Gibson v. Callaghan, 158 N.J. 662, 670 (1999)). Second, "[p]olicy provisions that exclude coverage resulting from intentional wrongful acts are ?common,' are ?accepted as valid limitations,' ...


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