On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-1939-00.
Before Judges King, Wecker and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff in this declaratory judgment action, Cumberland Mutual Insurance Company (Cumberland), issued a homeowners' policy to Michael Myers (Myers) and Stacy Myers, his wife. The policy was in effect on November 22, 1998 when Myers shot and killed Gary Dahl (Dahl) and then killed himself. Dahl's heirs and estate instituted a wrongful death and survival action against Myers. Cumberland then brought this action seeking a declaration that it was not obligated to defend or indemnify for Myers' conduct. The trial judge granted summary judgment in favor of Dahl, determining that Cumberland's policy provides insurance coverage for Myers' killing of Dahl. The judge then denied Cumberland's reconsideration motion and awarded counsel fees to Dahl.
By leave granted, Cumberland appeals from those orders. Cumberland's central argument is that the evidential materials establish that Myers' shooting of Dahl was an intentional criminal act with the specific intent to kill and is therefore excluded from coverage under the policy provisions and applicable decisional law. We agree and reverse the orders under review.
The facts of the shooting and the events leading up to it are not in dispute. These facts have been established through reports of law enforcement agencies and documents obtained by those agencies, including diary entries by Myers, records of two counseling sessions attended by Myers on August 25, 1998 and September 1, 1998, and a psychiatric evaluation of Myers while he was incarcerated on October 30, 1998. The parties cross-moved for summary judgment, agreeing the coverage issue was ripe for summary disposition.
The parties dispute Myers' mental state at the time of the shooting on November 22, 1998. Dahl produced an expert report by Philip H. Witt, Ph.D., a clinical and forensic psychologist. Witt never interviewed Myers. He formed his opinion based on a review of the materials described in the preceding paragraph. The motion judge conducted a limited evidentiary hearing, with the approval of both counsel, at which Witt's live testimony was taken.
We first describe what happened. Myers and his wife married in 1994. They had one child, born in 1994. Myers had a history of mentally and physically abusing his wife throughout the marriage. They separated on August 5, 1998, at which time Stacy Myers obtained a domestic violence restraining order against Myers. The police confiscated Myers' weapons, two shotguns and a bow, as part of that proceeding. Stacy Myers and the child continued to live in the marital home in Clayton. Myers moved to an apartment in the neighboring town of Glassboro.
After the separation, Stacy Myers began a dating relationship with Dahl, who lived in her neighborhood and had recently separated from his wife. Between August and November 1998, Myers violated the restraining order at least nine times. On November 13, he asked his landlord if he knew where he could get a gun, which he said he needed for protection from Stacy's new boyfriend, who he said had a gun and was threatening him. On November 18, Myers called his wife, asking whose car was in her driveway and stating"over his dead body will she love someone else." On November 20, he called and told her to"tell Gary to kiss his kids goodbye." On the day of the shooting, he called Stacy seventeen times. In one conversation he told her,"You dig your own grave..., Til death do us part..., I guess one of us will have to die." Stacy called the police. Myers called and the officer took the phone. Believing it was Dahl, Myers said,"F[---] You, Gary." When he was convinced it was actually a police officer he was talking to, he said he did not want to hurt his wife, but"it was Gary he wanted."
On the afternoon of the shooting, Myers borrowed a gun from a friend, telling him it was for hunting and no other purpose. That night, Stacy went out with friends. Her car was at the house, which normally meant she was home. Dahl was in the house, baby-sitting the child. At about 10 p.m., Myers came to the house, parked his car about a block away, and broke in the back door, dressed in camouflage and armed with a shotgun. He planned to kill Stacy and Dahl, and then himself. He shot Dahl at close range in the head and then shot himself.
Taped to Myers' hand was a suicide note:
This had to be done. They were throwing it in my face. Gary was living in my house. I built that small empire for her. I will not sit back and watch this. God sentenced me to a life of hell all my life. Why can't I get one break in life. I now f[---]ed up so bad that I can't change it. If I don't kill her, Gary and myself, something went wrong. Upon my death, call my sister... Mom... Aunt... Cousin... and if you could get a hold of my dad. My sister might know ...