On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1061-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Lyons.
Plaintiffs Christine Priest (Priest) and Donald Stenger (Stenger) appeal from a September 29, 2006, order which entered final judgment in favor of third-party defendant The Selective Insurance Company of America (Selective) and dismissed with prejudice Priest's and Stenger's complaint against Selective. The issue is whether Selective is obligated to provide insurance coverage to Matthew Roncone (Roncone) for the death of Chentele Stenger (Chentele). After having considered the contentions raised by plaintiffs on appeal, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. This is the third appeal in this wrongful death action. In our opinion in the first appeal, we outlined the facts and issues as follows:
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.
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. Chentele was a four-year-old child residing in Roncone's house with her mother.
In its decision directing Selective to provide coverage, the trial court focused on the phrase "in the care of." The court found this phrase to be reasonably susceptible to different meanings. To resolve this alleged ambiguity, the court inserted the word "primary" into the phrase "in the care of," thus creating the phrase "in the primary care of." Armed with this judicially-crafted language, the court concluded that decedent was not in Roncone's "primary" care at the time he recklessly caused her death.
We are unable to find any factual or legal support for this material alteration of the policy. [Priest v. Roncone, 370 N.J. Super. 537, 542-43 (App. Div. 2004) (footnote omitted).]
In our earlier decision, we held that with respect to decedent's survival claim under N.J.S.A. 2A:15-3, Chentele was an insured within the meaning of the Selective policy, and, therefore, excluded from the class of individuals legally capable of bringing a claim thereunder. Id. at 546. We also found that Priest and Stenger had a legally independent right to bring a wrongful death action. Ibid. The question which remained at that time, however, was whether their claim for coverage under Roncone's policy with Selective was barred by the section excluding coverage for bodily injury "which is expected or intended by the insured." Ibid. We found then that the record was insufficient to ...