On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1061-95.
Before Judges Petrella, Collester and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a declaratory judgment action brought by Matthew Roncone against Selective Insurance Company (Selective). The trial court granted summary judgment in favor of Roncone, holding that Selective was legally obligated to provide him coverage under his homeowners' policy, in connection with a survival and wrongful death action brought against him by the parents of decedent Chentele Stenger, in their individual capacities and as administrators ad prosequendum.*fn1
This appeal requires us to address two principal legal questions: (1) whether decedent was an"insured" within the meaning of the Selective policy, and thus excluded from the class of potential claimants; and (2) whether coverage for the independent wrongful death claim brought by decedent's parents is barred by the policy's intentional wrongs exclusion. The trial court answered"no" to both of these questions. We disagree as to question (1) and reverse. As to question (2), we remand for an evidentiary hearing for the trial court to determine whether Roncone's criminal act triggers the policy's intentional wrongs exclusion.
The core facts necessary to address the intra-family exclusion issue are not in dispute.
Roncone and Christine Priest began a two-year relationship that culminated in the birth of their daughter Lauren in April 1993. The couple had an apparent committed and monogamous relationship, at times representing themselves as"married." After Lauren's birth, Priest moved from her parents' home to Roncone's newly-built home in Sewell, with Chentele, her four- year-old daughter from an earlier relationship with Donald Stenger.
Chentele had her own bedroom in Roncone's house. Priest described the relationship between Roncone and Chentele as"affectionate," with Roncone acting like a"father figure." He cared for both Chentele and Lauren on the evenings and weekends while Priest worked.
Priest worked the morning of Saturday, December 11, 1993, leaving Chentele and Lauren in Roncone's care. At approximately 10:45 a.m., Priest received a call from Roncone requesting her to come home because Chentele had fallen down the stairs and was immobile. Roncone explained that he instructed Chentele to go downstairs while he fed the baby. He subsequently heard a noise and found Chentele lying at the bottom of the steps. Roncone adamantly denied causing Chentele's injuries, but admitted to shaking her in an attempt to wake her from her stupor.
Chentele was removed from life support on Monday, December 13, 1993. An autopsy indicated that she died from brain injuries. Roncone was indicted for murder, N.J.S.A. 2C:11-3. After a jury trial, he was convicted of second-degree manslaughter. N.J.S.A. 2C:11-4b(1).
Under Roncone's homeowners' policy, the term"insured" is defined as"you and residents of your household who are: (a) your relatives; or (b) other persons under the age of 21 and in the care of any person named above." The policy defines an"occurrence" as"an accident, including exposure to conditions, which results, during the policy period, in: (a) bodily injury; or (b) property damage." The Personal Liability provision extends coverage in connection with a claim or suit brought"against an insured for damages because of bodily injury or property damage caused by an occurrence." The policy excludes from coverage (1) bodily injury"which is expected or intended by the insured;" and (2) bodily injury to an"insured."
With respect to decedent's survival claim under N.J.S.A. 2A:15-3, Selective disclaimed liability because Chentele was (1) a resident in the Roncone household; (2) under the age of twenty-one; and (3) in his care at the time of her death. The first two definitional elements are not in contention.*fn2 ...