On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-2812-97 and L-133-99.
Before Judges Wefing, Ciancia and Lesemann.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These two appeals were argued together before us; they arise out of the same factual complex and present related issues. We therefore consolidate them for purposes of this opinion. In A- 6750-99, Travelers Group (Travelers) appeals from an order holding it responsible for certain counsel fees incurred by its insured, Michael Aquino. In A-6961-99, State Farm Insurance Companies (State Farm) appeals from a similar order. After carefully reviewing the record before us in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.
On March 7, 1995, Michael Aquino was on the premises of C & J Towing Company (C & J) in Newark, apparently in connection with a business he operates known as Aquino Auto Sales. C & J is owned by defendant Robert Magliancano, who employed Anthony Faison as a security guard for C & J. Magliancano kept several guns on the premises. His purpose in doing so is not entirely clear from the record before us. There is some evidence in the record he kept a gun on the premises to deal with stray dogs. Other portions of the record refer to frequent displays of weapons in an apparently boastful manner. On the day in question, Magliancano, Aquino and Faison were talking together and Magliancano had a handgun, loaded with blanks, openly displayed. Somehow, that gun came into Aquino's possession and, under circumstances that are not entirely clear, the gun discharged, injuring Faison.
Aquino maintained that the gun discharged accidentally; he told the police who responded to the scene that he and Faison were "playing around" with the gun, and that the hands of both men had been on the gun when it discharged. In conjunction with this appeal, we have been supplied with a copy of an expert's report submitted on behalf of Faison which expressed the opinion that the shooting could not have occurred in the manner in which Aquino had told the police.
The record before us does not contain a direct statement by Faison of how the shooting occurred. We are relegated to a summary of his testimony before a judge of compensation at a hearing to determine whether his injuries were compensable.*fn1
The opinion of the judge of compensation states in part:
[T]here were many occasions when guns were involved during the business days and weeks. Several acts were elicited in testimony whereby the petitioner had a gun pointed at him by Mangliancano or by co-employees. . . . Also, at other times, in incidents not involving petitioner, there were frequent firing of the guns by Mangliancano, Acquino [sic], co-employees or tow-truck drivers. The guns were owned by Mangliancano. On March 7, 1995, the day petitioner was injured, there were four gun incidents before the gun incident that injured petitioner. . . .
Petitioner was talking to a co-employee, Edwin, in the respondent's yard. Acquino [sic] and Mangliancano approached him. Acquino [sic] held him by the right arm and placed a gun against his head. Petitioner told Acquino [sic], "Mike, I don't like you playing with guns." In attempting to free himself from Acquino's [sic] grasp, petitioner's right arm coat sleeve was torn off. Acquino [sic] and Mangliancano were laughing. Petitioner got mad. Petitioner then went to get a bat that was in his booth. He returned to the yard with the bat, but he claimed he did not go to any specific person. He testified he said, "somebody is going to fix his jacket." He claimed he did not get near any of the three people, Acquino [sic], Mangliancano or Edwin. He got only about twenty feet away . . . . [when] he was notified there was a telephone call for him. He turned around and returned to the booth . . . . He was in the booth, speaking on the telephone when Mike Acquino [sic] appeared at a booth window and pushed a gun against his abdomen. He again said to Acquino [sic], "I don't like you playing with guns." The gun went off, striking him in the stomach and propelling him, with the telephone still in his hand, out the booth door onto his back on the ground, screaming in pain.
Although the gun was loaded with blanks rather than live ammunition, the force of the discharge severely injured Faison; among his injuries was a laceration of his liver. He was hospitalized for five days and required surgery.
As a result of the incident, Aquino was indicted for second- degree aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was later accepted into pre-trial intervention. After Aquino successfully completed that program, the indictment against him was dismissed in March 1997.
Also in March 1997, Faison commenced suit for his injuries, naming Aquino, C & J, and Magliancano as defendants. Within his twenty-count complaint, Faison named Aquino as a defendant only in the first four counts. The first three of these counts asserted intentional torts, the fourth negligence. The complaint sought punitive as well as compensatory damages.
Aquino had two policies of insurance under which he sought a defense and indemnification in connection with the Faison lawsuit: one issued by Travelers, the other by State Farm. The Travelers policy is a homeowners policy for Aquino's residence; it excludes coverage for bodily injury "which is expected or intended by the insured" or ...