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Silvestri v. Dowdy

July 16, 2003

FRANCES SILVESTRI, PLAINTIFF-RESPONDENT,
v.
LAWRENCE DOWDY, KELLY DOWDY, ELIZABETH DOWDY, LAWRENCE DOWDY, JR., AND MRS. JANE DOWDY, DEFENDANTS/THIRD-PARTY PLAINTIFFS/RESPONDENTS,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY, THIRD-PARTY DEFENDANT/ APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-925-02.

Before Judges King, Lisa and Fuentes.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2003

In this appeal, we are asked to decide two separate questions: (1) whether an insurer is required, under a homeowner's insurance policy, to indemnify and defend an insured named as a defendant in a civil action brought by his former fiancé, alleging negligent infliction of emotional distress based on his failure to inform her that he was infected with the Human Immunodeficiency Virus (HIV) during the time they were involved in a sexual relationship; and (2) whether such coverage, if any, also extends to the insured's adult children, residing with him during the time of his relationship with the plaintiff, who are also named as defendants based on their failure to disclose to her their father's HIV-positive status. The Law Division granted the insured's summary judgment motion, and directed third-party defendant Allstate New Jersey Insurance Company (Allstate), to indemnify and defend Lawrence Dowdy and his adult children in this litigation. The motion judge also awarded the insured counsel fees and cost of suit in the amount of $17,684.20.

By leave granted, Allstate now appeals arguing that the Law Division erred when it failed to view the allegations against the insured as intentional acts under the holding in Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165 (1992), and, thus, outside the policy's scope of coverage. We agree that under Voorhees, Allstate has no legal duty to defend Dowdy based on the allegations contained in plaintiff's pleadings. As to the adult children, regardless of the potential legal merits of plaintiff's cause of action, we conclude that Allstate has a duty to defend these defendants.

I.

The salient facts are not in dispute. Plaintiff Frances Silvestri (Silvestri) began a sexual relationship with Dowdy in February 2001. In 1997, Dowdy became aware that he contracted HIV. He did not tell Silvestri of his HIV-positive status until several months after they had been sexually active. Dowdy claims that he always used a condom before engaging in sexual intercourse with Silvestri. In answers provided to plaintiff's interrogatories Dowdy indicated that he told his adult children that he had informed Silvestri of his HIV-positive status prior to commencing a sexual relationship with her. As of this date, Silvestri has not tested positive for HIV.

Silvestri ended her relationship with Dowdy immediately after learning he was HIV positive. Although she has tested negative for HIV, Silvestri claims that as a result of her unknowing exposure to the disease, she suffers from"severe emotional, mental, and physical distress." Her symptoms include"depression and anxiety, insomnia, intermediate panic attacks and overwhelming despair." She has been treated for her depression and anxiety by psychologist Dr. Benjamin Goldberg. According to Dr. Goldberg, Silvestri's unknowing exposure to AIDS has caused a"severe impairment of trust and the concomitant conviction that she would be alone, and possibly sick, for the rest of her life." These fears have caused psychological trauma which will permanently impair her quality of life.

Count one of Silvestri's complaint against Dowdy states a theory of liability based on negligence or reckless conduct. That is, Dowdy negligently caused her emotional distress by failing to inform her of his HIV-positive status. Count two is based on intentional or wanton conduct. Counts three and four assert the same theories of liability against Dowdy's adult children, alleging a breach of an unspecified legal duty owed to the plaintiff by their failure to inform her of their father's medical condition. Count five asserts a cause of action against all of the defendants based on the negligent or intentional misrepresentation of Dowdy's physical condition. Silvestri seeks compensatory and punitive damages.

Dowdy is the named insured under a homeowner's policy issued by Allstate for his house in South Plainfield. Section II of the policy entitled"Family Liability and Guest Medical Protection" provides:

Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.....

We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional acts or omissions of, the insured person.

The policy defines an"occurrence" as an"accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage." Those insured under the policy ...


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