On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-272-05 and L-8269-04.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Reargued telephonically March 14, 2007
Before Judges Skillman,*fn1 Lisa and Grall.
The issue presented in this appeal is whether the inferred intent rule, which precludes, as a matter of law, insurance coverage for a sexual assault committed by an adult against a young child, applies when the sexual assault is committed by a minor under fourteen years of age. We hold that the per se rule does not apply and a factual determination must be made on a case by case basis to determine the perpetrator's subjective intent.
We granted Shelby Casualty Insurance Company (Shelby) leave to appeal from denial of its summary judgment motion which sought a declaration that it is not obligated to provide liability coverage under the homeowner's insurance policy it issued to the parents of J.T., a minor, with respect to J.T.'s potential liability for sexually assaulting a six-year-old girl, P.G. When the sexual assault occurred on April 10, 2004, J.T., whose date of birth was May 10, 1990, was one month shy of his fourteenth birthday. In denying Shelby's summary judgment motion, the judge determined that, because of his age, J.T. was "incapable of satisfying the standards for preclusion of the insurance coverage arising from this activity" and did "not have the criminal culpability necessary for preclusion of coverage." To the extent that the judge's rationale suggests that coverage can never be precluded for a sexual assault by a minor under fourteen, we disagree. We nevertheless affirm the order denying summary judgment and remand for further consideration of the coverage issue in accordance with this opinion.
J.T. and his family and P.G. and her family lived in the insured premises. On the morning of April 10, 2004, J.T. and P.G. were alone in a living room in the building. J.T. digitally penetrated P.G.'s vagina, and he penetrated her anus with his penis. At about 2:00 a.m. on April 11, 2004, with his father present, J.T. gave a sworn statement to law enforcement authorities admitting what he did. His statement concluded with this colloquy:
Q: You told her not to tell anybody?
A: I guess I don't want to get ...