On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1341-99.
Before Judges King, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 28, 2001
In this appeal we decide whether the homeowner's policy issued to the parents of a young man provides coverage for his involvement in the attempted robbery and death of another. The homeowner's policy contained an exclusion for injuries "arising out of the use, manufacture, sale, delivery, transfer, or possession by any person of a controlled dangerous substance." Judge Oles held that the exclusion applied to this matter and granted the insurer's summary judgment motion. We affirm.
On December 17, 1996, George Varkala (decedent or Varkala) was shot and killed in his home in Barnegat, Ocean County, during an attempt to rob him of a large stash of marijuana. His mother Caroline Varkala, commenced a wrongful death action; the decedent's sister is also a plaintiff in the wrongful death action. The Varkalas named as defendants all of the participants in the robbery. The parents of one of the defendants, Bryan Brenner, held a homeowner's policy issued by Prudential Property & Casualty Insurance Company (Prudential) and sought coverage under the policy.
On April 30, 1999, Prudential filed a declaratory judgment action seeking a declaration that Prudential owed no duty to defend or indemnify Brenner. On September 21, 2000, Judge Oles granted Prudential's summary judgment motion. In his oral opinion, he found that the Brenners' homeowner's policy clearly and unambiguously excluded coverage for injuries arising out of the transfer, use or possession of a controlled dangerous substance. Judge Oles stated:
It is undisputed that Mr. Brenner consumed marijuana within a period of several hours before proceeding to [decedent]'s home. Furthermore, the whole purpose for which the parties proceeded to [decedent]'s home was to acquire marijuana. The death of [decedent] had a substantial nexus with the acquisition of a controlled dangerous substance. See Records v. Aetna Life and Casualty Company, 294 N.J. Super. 463 (App. Div. 1996)[, certif. denied, 151 N.J. 463 (1997)].
It is from the September 21, 2000 order that the Varkalas appeal.
These are the undisputed facts of the underlying incident derived from Brenner's statement to the police and the plea proceedings. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (the facts are considered in the light most favorable to the non-moving party). On December 17, 1996, Brenner, then sixteen, visited his friend John Melchiondo where they "smoked some pot, and [Brenner] had about three shots of vodka." While at the Melchiondo residence, Melchiondo spoke to John Egnatowicz on the telephone. During the conversation they discussed obtaining more marijuana from decedent. Melchiondo called decedent, a known supplier of large quantities of marijuana. Varkala refused to talk on the phone, but invited Melchiondo to his home to discuss the matter.
At approximately 8 p.m., Egnatowicz, William Johnson, and Bryant Woods arrived at Melchiondo's home. All five young men entered Johnson's vehicle. Brenner remembered feeling "a little buzzed at the time from the weed and alcohol." Brenner originally believed that the group was proceeding to Varkala's to purchase marijuana. He overheard, however, the others discuss "jack[ing] George's pot," which Brenner understood to mean stealing the marijuana. Also during the ride, Brenner overheard them refer to a gun, which made him feel "uncomfortable and scared," but he was still willing to accompany them.
When the group arrived at Varkala's home, Melchiondo entered with Brenner and commenced his negotiations with Varkala who refused to "lend" them marijuana, which was apparently Varkala's common practice. Melchiondo left the house and returned two minutes later, when, as related by Brenner,
Bryant [Woods] comes into the house, holding a gun against John Melchiondo's head, and says where's the shit. He then throws John to the floor. John looked scared to [Brenner]. Bryant then starts waiving the gun at everyone, and says give me the shit, or I'll bust you ... [Varkala] then comes down the stairs, as he heard the noise. He did not exchange words with Bryant, but as he was about five feet away, he tried to swat the gun from Bryant's hand. Bryant shot him in the stomach, as he came down the stairs. [Varkala] fell to the ground, and as he fell, he came in contact with Bryant. Bryant then shot him in the head, and ran out ... [Varkala]'s ...