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Shebest v. Slater

December 8, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1345-05.

Per curiam.


Argued October 20, 2008

Before Judges Sabatino and Simonelli.

In this insurance coverage dispute arising out of an injury sustained on a golf course, the Law Division granted summary judgment to the third-party defendant insurer, Allstate New Jersey Insurance Company ("Allstate"). The Law Division specifically determined that the "intentional act" exclusion in Allstate's policy barred the coverage claim. We conclude that there are genuine issues of material fact regarding the mechanics of the underlying incident and the insured tortfeasor's state of mind. Consequently, we vacate summary judgment and remand for trial.


On May 16, 2003, plaintiff Stephen W. Shebest and defendant/third-party plaintiff John Slater were playing in an informal outing at a golf course in Myrtle Beach, South Carolina. Shebest is a resident of Virginia, and Slater is a resident of New Jersey. Shebest and Slater were previously socially acquainted, as were the other members of the golfing party. Slater alleges that the men were drinking alcoholic beverages during their round of play and that the trio had accepted a challenge to consume a full bottle of whiskey, plus an unspecified number of beers, by the end of the round. As their game progressed, Shebest and Slater were making wagers with one another. It rained much of the day.

At some point in the golf round, Shebest and Slater exchanged words, apparently precipitated by Shebest boasting that his wife could outdrive Slater's wife from the tee box. The sequence of events thereafter is not entirely clear from the motion record.*fn1 It is undisputed, however, that at the eighteenth hole Shebest fell to the ground and injured his right wrist as he reached to break his fall. Shebest was taken to a local emergency room, where his injured wrist was placed in a splint. Three days later Shebest returned to New Jersey where he was diagnosed with a comminuted intra-articular fracture of the distal radius of the wrist.*fn2

In May 2005 Shebest filed a two-count complaint in the Law Division against Slater seeking compensation for his personal injuries. Count One essentially sounded in negligence alleging that Slater breached his "duty of reasonable care" to Shebest and that Slater "carelessly, recklessly and negligently made potentially harmful contact" with him. Count Two alleged a higher level of culpability on Slater's part asserting that he "unlawfully and without any just cause or provocation struck with force and assaulted" Shebest, and that Slater "wantonly, forcibly, willfully and maliciously seized and violently pushed [Shebest] down to the ground." Count Two, unlike Count One, specifically included a claim for punitive damages.*fn3

Slater's answer denied most of the contentions in the complaint, including its central allegation that Slater had pushed Shebest down to the ground. Slater simultaneously filed a third-party complaint against Allstate, alleging that the insurer had breached its obligations to defend and indemnify him under Slater's homeowners policy.

In its answer to the third-party complaint, Allstate acknowledged that it had issued a homeowners policy to Slater covering the policy period when Shebest was injured. However, Allstate denied coverage on several grounds,*fn4 including a contention that the policy's intentional-act exclusion applied.

Allstate accordingly counterclaimed against Slater for a declaratory judgment that it has no duty to defend or indemnify him in this particular claim.

After a period of discovery, including depositions of Shebest and Slater and the exchange of interrogatories and various other documents, Slater and Allstate cross-moved for summary judgment on the coverage issues. The focus of the motions was the following exclusion set forth in the homeowners policy:

Guest Medical Protection: "Losses We Do Not Cover Under Coverage Y: 1. We do not cover any bodily injury intended by, or which may reasonable [sic] be expected to result from the intentional acts or omissions of, the insured person." [(Boldface in original).]

This exclusion mirrors a separate provision under the "Family Liability" portion of the policy, which likewise excludes bodily injury or property damage "intended by, or which may reasonably be expected to result from the intentional acts or omissions of, the insured person."

Slater maintained that the intentional-act exclusion did not apply in this case, because he allegedly lacked the subjective intent to trigger the exclusion and also because there are multiple factual versions of the occurrence presented in the discovery materials. In particular, Slater pointed to various statements in which, contrary to some of Shebest's other accounts of the incident contending that he had been pushed to the ground, he asserted that he had fallen down after slipping on a wet hill.

The Law Division granted Allstate's motion and denied Slater's cross-motion. The motion judge conclusively determined that "what we have here is unquestionably . . . an intentional act on the part of the defendant [Slater], and that intentional acts created a situation where it was reasonably to be expected than an injury would result, the type of injury, indeed, that we're talking about in this case."

Subsequently, Shebest and Slater settled their underlying dispute for a sum of money, which apparently is within the Allstate policy limits. Slater, who continues to seek indemnification and defense costs, now appeals the summary judgment entered in Allstate's favor.


In reviewing the Law Division's order we adhere to the well-settled principles governing summary judgment expressed in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c). A motion for summary judgment is to be granted only if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Brill supra, 142 N.J. at 528-29 (1995); R. 4:45-2(c). In determining whether there is a genuine issue of material fact for summary judgment purposes, the court must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Brill, supra, 142 N.J. at 535. To make the determination, the court must accept as true all evidence that supports the position of the party defending against the motion and accord the non-moving party the benefit of all legitimate inferences which can be deduced therefrom. Ibid.

The "essence of the inquiry" on summary judgment is therefore "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). The court is required to consider whether the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540.

On appeal, we apply these same well-established principles in reviewing, de novo, an order granting or denying summary judgment. See N.J. Div. of Taxation v. Selective Ins. Co., 399 N.J. Super. 315, 322 (App. Div. 2008) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 ...

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