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Lopez v. State Farm Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 4, 2008

ANGEL M. LOPEZ, JR. AND ZENAIDA LOPEZ, ADMINISTRATORS AD PROSEQUENDUM AND GENERAL ADMINISTRATORS OF THE ESTATE OF ANGEL M. LOPEZ, III, DECEASED, PLAINTIFFS-APPELLANTS,
v.
STATE FARM INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
ALEX S. LEVINE, TOWNSHIP OF PISCATAWAY POLICE DEPARTMENT, TOWNSHIP OF PISCATAWAY, RIVER ROAD RESCUE SQUAD, INC., ULMER DASH, ANDREW MARUCCI, ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, ROBERT WOOD JOHNSON EMERGENCY MEDICAL SERVICE, JEFFREY W. (LAST NAME UNKNOWN), LEE TAYLOR VAUGHN, THIRD-PARTY DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7648-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 21, 2008

Before Judges Graves and Yannotti.

Plaintiffs Angel M. Lopez, Jr. and Zenaida Lopez, Administrators Ad Prosequendum and General Administrators of the Estate of Angel M. Lopez, III, appeal from an order entered on August 31, 2007, which granted summary judgment in favor of defendant State Farm Fire and Casualty Company*fn1 and dismissed plaintiffs' complaint with prejudice. We affirm.

On October 6, 2002, Alex S. Levine (Levine) and Angel Lopez, III (Lopez) were engaged in a physical altercation. Levine claimed that he was being assaulted by Lopez, Clayton VanNess and Philip Geiger, although VanNess and Geiger disputed that assertion and stated that there was only one altercation between Lopez and Levine. It is, however, undisputed that Levine reached for a knife and stabbed Lopez three times, in the neck, chest and upper back, causing his death.

Plaintiffs filed an action on behalf of Lopez's estate against Levine and other defendants. Plaintiffs alleged that Levine willfully, maliciously and/or intentionally assaulted Lopez without justification and provocation, and as a result, killed Lopez. Thereafter, Levine requested that State Farm provide coverage to him under his parents' homeowner's policy for the claims arising from the October 6, 2002 incident.

State Farm denied coverage on the ground that the claims asserted against Levine did not arise from an "occurrence," which is defined in the policy as "an accident" that results in bodily injury or property damage. State Farm also denied coverage because the policy excludes coverage for claims of bodily injury that are either "expected or intended by the insured," or are the result of the insured's "willful and malicious acts."

Levine assigned his claims under the policy to plaintiffs, who commenced this action against State Farm, seeking a declaratory judgment requiring State Farm to provide coverage to Levine for the damages arising from the incident of October 6, 2002.

On July 13, 2007, State Farm filed a motion for summary judgment. State Farm asserted that it was entitled to judgment as a matter of law on plaintiff's coverage claim. State Farm argued, among other things, that Lopez's injuries arose from intentional, willful and malicious acts by Levine and, therefore, the policy did not provide Levine coverage for the claims asserted by plaintiffs.

Plaintiffs opposed the motion, and argued that there were genuine issues of material fact relevant to the coverage issues. Plaintiffs asserted that the facts were "not sufficiently clear" to justify denying coverage to Levine. Plaintiffs additionally argued that Levine's acts did "not rise to a level where they [could] be considered so egregious as to overcome the obligation of an insurer to provide coverage to its insured for the unintended consequences of an intentional act[.]"

The trial court considered State Farm's motion on August 31, 2007. The judge placed his decision on the record on that date. The judge concluded that there were no genuine issues of material fact and, pursuant to Haryleysville Ins. Cos. v. Garitta, 170 N.J. 223 (2001), State Farm was entitled to judgment as a matter of law. The judge entered an order dated August 31, 2007, memorializing his decision. This appeal followed.

Plaintiffs argue that the trial court erred by finding that State Farm did not have an obligation under the policy to provide coverage to Levine. Plaintiffs maintain that Levine's actions do not rise to the level of "willful and wanton" or "reprehensible" acts and therefore coverage is not excluded under the policy. Plaintiffs assert that State Farm should be required to provide coverage to Levine. We reject these contentions and affirm.

When reviewing an order granting summary judgment, we apply the same standard that is applied by the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Therefore, we must determine whether the evidential materials before the court "show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying this standard, we are satisfied that the trial court correctly determined that State Farm was entitled to summary judgment.

In SL Indus., Inc. v. Am. Motorists Ins. Co., 128 N.J. 188 (1992), the Court held that, when an insurance policy excludes coverage for bodily injury that is expected or intended by the insured, a factual inquiry into whether the actor intended to cause the injury is required unless the intentional act has the "'inherent probability of causing the degree of injury actually inflicted[.]'" Id. at 210 (quoting Prudential Prop. & Cas. Ins. Co. v. Karlinski, 251 N.J. Super. 457, 464 (App. Div. 1991)). The Court explained that

[a]ssuming the wrongdoer subjectively intends or expects to cause some sort of injury, that intent will generally preclude coverage. If there is evidence that the extent of the injuries was improbable, however, then the court must inquire as to whether the insured subjectively intended or expected to cause that injury. Lacking that intent, the injury [is] "accidental" and coverage with be provided.

[Id. at 212.]

Similarly, in Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165 (1992), the Court held that when a policy excludes coverage for liability that has been caused "intentionally," the "key issue is whether the court must find subjective intent to injure, or whether it can presume an intent to injure from the objective circumstances." Id. at 184. The Court stated that:

When the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor's subjective intent to injure. That objective approach focuses on the likelihood that an injury will result from an actor's behavior rather than on the wrongdoer's subjective state of mind.

[Ibid.]

The Court applied these principles in Garitta. There, the Court stated that:

[c]courts ordinarily should refrain from summary judgment in respect of whether an insured intended or expected to cause the actual injury to a third party unless the record indisputably demonstrates that such injury was an inherently probable consequence of the insured's conduct. In that latter circumstance, a trial may not be necessary to determine the applicability of the exclusion, provided that there has been a sufficient demonstration of the insured's subjective intent to cause some degree of injury. When the insured's conduct is particularly reprehensible, courts may presume an intent to injure without inquiring into the actors' actual intent.

[Garitta, supra, 170 N.J. at 234-35.]

In Garitta, the claims arose from a physical altercation in which an individual was stabbed and killed. Id. at 226-28. David Garitta and his friends were having a party at his father's home. Id. at 226. Albert Sabatelli apparently was furious at Garitta because of certain actions Garitta had taken with regard to Sabatelli's mother, who was having a relationship with Garitta's father. Ibid. Sabatelli arrived unexpectedly at the Garitta house and immediately began assaulting Garitta. Garitta's friends told them to take the fight outside. Ibid.

Sabatelli went outside. As Garitta was leaving the house to join him, another person handed him a knife. Id. at 227. Garitta hid the knife in the back of his pants. Sabatelli was unarmed. Garitta stabbed Sabatelli twice, "puncturing his heart and stomach." Sabatelli collapsed and was pronounced dead at the scene. Id. at 228. Garitta testified that he did not "mean for this to happen." Ibid. Sabatelli's estate brought a wrongful death action against Garitta and others. Garitta in turn sought coverage under his father's homeowner's policy. Id. at 229.

The Supreme Court held that summary judgment had correctly been granted in favor of the insurer. Id. at 235. The Court stated that the trier of fact was not required to determine Garitta's "actual intent." Ibid. The Court observed, "[t]he insurer has demonstrated that the insured intended to cause some injury, and that the actual injury that led to [Sabatelli's] death was an inherently probable consequence of the insured's actions." Ibid. The Court stated that the trial judge had "properly determined the insured's intention or expectation, within the meaning of the exclusionary clause, as a matter of law." Ibid.

In this case, the trial court correctly found that the Garitta decision was controlling. Here, as in Garitta, the insured was involved in a fight. His victim was not armed. Levine took a knife and stabbed Lopez, not twice as in Garitta, but three times. Lopez died as a result of the stab wounds inflicted by Levine.

Therefore, the record establishes that the insured intended to cause injury, and his victim's death was the "inherently probable consequence" of his actions. Id. at 235. Accordingly, a factual inquiry into Levine's actual intent to cause the injury sustained by Lopez was not required. Id. at 233.

Plaintiffs argue, however, that Levine was on "the receiving end of a significant beating from the decedent, Lopez." Plaintiffs contend that Levine panicked. Levine testified at his deposition that he had no intention of inflicting serious injury upon Lopez. Plaintiffs assert that Levine "hoped that the presence of a knife would cause Lopez to cease his actions and to halt the injury being inflicted upon Levine." Plaintiffs also assert that the injuries that Levine inflicted upon Lopez "bespeak a defensive posture on the part of Levine, with short direct stabs, as the knife was being held in a raised position near his face, while Levine was on the ground being struck."

In our view, these arguments are unavailing. During the altercation, Levine stabbed Lopez three times with a knife. Lopez was not armed. Regardless of whether Levine inflicted the wounds in self-defense, it is indisputable that he intended to stab Lopez. Moreover, the fatal injuries sustained by Lopez were the inherently probable consequences of Levine's actions. The trial court correctly found that the bodily injuries that Levine inflicted upon Lopez were "expected or intended by the insured." Therefore, plaintiffs' claims did not arise from an "occurrence," as that term is defined in the policy, and the policy did not provide coverage to Levine for plaintiffs' claims.

Affirmed.


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