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High Point Insurance Co. v. J.M.

March 12, 2008

HIGH POINT INSURANCE COMPANY (FORMERLY KNOWN AS PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY OF NEW JERSEY), PLAINTIFF-RESPONDENT,
v.
J.M. (A MINOR), K.M. (A MINOR) BY THEIR G/A/L G.M. AND C.M., G.M. AND C.M. INDIVIDUALLY, AND GEORGE VAN DYKE, DEFENDANTS-APPELLANTS, AND SHERYL VAN DYKE, DEFENDANT.



On appeal from the Superior Court of New Jersey Law Division, Somerset County, Docket No. L-751-05.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 29, 2007

Before Judges Stern, C.S. Fisher and C.L. Miniman.

Plaintiff, High Point Insurance Company, commenced this action seeking a declaration that it was not obligated to provide a defense or indemnification under a homeowner's policy in a personal injury action filed against its insureds, Sheryl and George Van Dyke. Sheryl was charged with sexual abuse of a minor and her husband, George, was charged with not having prevented it.*fn1 In a memorandum decision, Judge Harriet Derman granted summary judgment to High Point as to both insureds. Defendants in the declaratory action, the victims, J.M. and K.M., their parents and George Van Dyke, appeal from the resulting judgment. They argue:

I. UNDER THE TERMS OF THE VAN DYKE POLICY, HIGH POINT WAS REQUIRED TO INDEMNIFY GEORGE VAN DYKE FOR HIS NON-INTENTIONAL MISCONDUCT.

A. THE TRIAL COURT FAILED TO FOLLOW CONTROLLING SUPREME COURT PRECEDENT THAT APPLIES A SUBJECTIVE INTENT TO INJURE TEST TO DETERMINE COVERAGE.

B. THERE WAS NO EVIDENCE THAT GEORGE VAN DYKE HAD A SUBJECTIVE INTENT TO INJURE EITHER JM OR KM; CONSEQUENTLY, THE TRIAL COURT WRONGFULLY GRANTED HIGH POINT'S MOTION FOR SUMMARY JUDGMENT.

II. HIGH POINT WRONGFULLY REFUSED TO DEFEND OR INDEMNIFY SHERYL VAN DYKE FOR ANY OF THE CLAIMS MADE BY JM OR KM.

A. SHERYL VAN DYKE'S GUILTY PLEA DID NOT CONCLUSIVELY ESTABLISH AN INTENT TO INJURE EITHER JM OR KM.

B. HIGH POINT WAS REQUIRED TO DEFEND SHERYL VAN DYKE UNTIL THE TRIAL COURT BARRED HER FROM ...


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