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Guideone Mutual Insurance Co. v. Comito

October 31, 2007

GUIDEONE MUTUAL INSURANCE CO., AS SUBROGEE OF THE ROCK CHURCH, PLAINTIFF-APPELLANT,
v.
ANTHONY COMITO AND SANDY COMITO, H/W AND DANIEL MUNYON AND MARY ANNE MUNYON,*FN1 H/W DEFENDANTS-RESPONDENTS, AND CUMBERLAND MUTUAL FIRE INSURANCE CO., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-691-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 11, 2007

Before Judges Lisa and Lihotz.

In this consolidated fire subrogation and declaratory judgment action, plaintiff, GuideOne Mutual Insurance Co., appeals from three summary judgment orders in favor of defendants, Anthony Comito, Sandy Comito, Daniel Munyon and Mary Anne Munyon.

GuideOne issued an insurance policy to The Rock Church. The policy provided property damage coverage for the Church building and contents in Pitman. As a result of a fire in the Church that occurred during the policy period, GuideOne paid the Church $809,185.25 for the property loss.

GuideOne then commenced a subrogation action against the Comitos and Munyons, alleging they were negligent in causing the fire. The Comitos and Munyons who were members of The Rock Church, which is a non-profit corporation, asserted they were covered under the Church's policy. GuideOne then began a separate declaratory judgment action against the Comitos and Munyons contending they were not insureds under the policy issued to the Church.

On cross-motions for summary judgment in the declaratory judgment action, Judge Morgan concluded that the Comitos and Munyons were insureds within the provisions of the policy and that GuideOne's subrogation action against them was therefore precluded. After entering summary judgment in favor of the Comitos and Munyons in the declaratory judgment action, the judge entered a further order consolidating the two actions and dismissing the subrogation action. The judge also awarded attorneys' fees to the respective counsel representing the Comitos and Munyons pursuant to Rule 4:42-9(a)(6).

GuideOne appeals from these orders. It contends the Comitos and Munyons were not insureds under the terms of the policy, and, even if they met the requirements to be insureds, coverage was barred under an exclusion provision in the policy. GuideOne also argues that there is no prohibition in New Jersey against an insurer subrogating against its own insureds. Finally, GuideOne argues that if we reverse on the substantive issues, the Comitos and Munyons will no longer be successful claimants and would not be entitled to counsel fees. We reject GuideOne's arguments and affirm.

On the afternoon of September 24, 2000, Daniel and Mary Anne Munyon renewed their wedding vows during a ceremony officiated by Pastor Donald Leslie at the Rock Church. Anthony and Sandy Comito were among the guests. Two candelabras were used during the ceremony. When not in use, these candelabras, which stand about five feet tall and hold about six candles each, are kept against a wall behind the altar. For a ceremony such as this one, they are moved from that position into a freestanding area where the ceremony is conducted, and they are lit for the ceremony.

At the conclusion of the ceremony, as guests were leaving the church to go to a reception at a different location, Pastor Leslie blew out the candles. Sandy Comito had been taking pictures of the event. The Munyons expressed their wish to stay behind briefly for some additional photographs. For that purpose, they wished to relight the candles in the candelabras. Pastor Leslie gave his permission and instructed the Comitos and Munyons to blow out the candles and lock the building when they left. According to Sandy Comito, Pastor Leslie also told them to put the candelabras in their "proper place." Daniel Munyon recalled Pastor Leslie telling Sandy Comito (apparently in his presence) that "she could light the candles as long as she made sure to take responsibility to make sure they were out and placed back next to the table where they should be put."

All of the guests left, as did Pastor Leslie. Only the Munyons and Comitos were left behind. They remained in the church for ten to fifteen minutes taking additional photographs. When they finished, Anthony Comito and Daniel Munyon took responsibility for extinguishing the candles and moving the candelabras back against the wall where they believed the candelabras belonged and where they understood Pastor Leslie to have directed that the candelabras be placed. They locked up and left.

That evening, a fire occurred in the church. Investigation revealed that the likely cause of the fire was that one or more of the candles accidentally remained lit and ignited a tapestry hanging on the wall against which the candelabras were placed. GuideOne made payment to the Church for damage to the building and contents pursuant to the property coverage part of the policy.

The commercial general liability coverage portion of the policy provided that GuideOne "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this ...


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