On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1538-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Graves and Lihotz.
This declaratory judgment action by plaintiff Quincy Mutual Fire Insurance Company (Quincy Mutual), was filed after defendant William Wright alleged in a personal injury lawsuit (the underlying complaint) that he suffered serious head trauma and other injuries on May 16, 2001, when he was "maliciously assaulted and beat" by defendant Makkari Sampson. Quincy Mutual acknowledged in its complaint that it insured defendant Sampson, but it claimed there was no coverage under its policy for the actions attributed to Sampson in the underlying complaint because of a policy provision excluding coverage for "bodily injury which is expected or intended by the insured."
Quincy Mutual's declaratory judgment case was tried prior to the underlying complaint, and the trial court's instructions to the jury included the following:
The policy contains an exclusion for coverage for bodily injury which is expected or intended by the insured.
Now, you as the jurors must decide whether this exclusion applies to the facts of this particular case. There are two ways that you can determine that the plaintiff has proven that that exclusion applies.
One way is a subjective finding by a preponderance of the evidence that the defendant Makkari Sampson intended to cause the actual injury that resulted to the defendant William Wright.
The second way is an objective finding by a preponderance of the evidence that the actual injury was an inherent probable consequence of defendant Makkari Sampson's conduct.
The jury returned a verdict in favor of Quincy Mutual denying coverage to Sampson.
On appeal, defendant Wright makes the following arguments:
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THERE ARE TWO WAYS TO DETERMINE THE WITHIN INSURANCE EXCLUSION APPLIES, ONE WAY IS A SUBJECTIVE FINDING THAT DEFENDANT SAMPSON INTENDED TO CAUSE THE ACTUAL INJURY, THE OTHER WAY IS THAT THE ACTUAL INJURY WAS ...