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Flomerfelt v. Cardiello

May 18, 2009

WENDY M. FLOMERFELT, PLAINTIFF,
v.
MATTHEW P. CARDIELLO, GARY P. CARDIELLO AND JANET CARDIELLO, DEFENDANTS.
MATTHEW P. CARDIELLO, PLAINTIFF-RESPONDENT,
v.
PENNSYLVANIA GENERAL INSURANCE CO., DEFENDANT-APPELLANT, AND WENDY M. FLOMERFELT, DEFENDANT-RESPONDENT, AND NEW JERSEY SKYLANDS INSURANCE COMPANIES, GARY P. CARDIELLO AND JANET CARDIELLO, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-630-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2009

Before Judges Fuentes, Gilroy and Chambers.

Defendant Pennsylvania General Insurance Company (PGIC) appeals from the order of April 24, 2008, denying its motion for summary judgment and requiring it to defend and indemnify plaintiff Matthew Cardiello in an underlying personal injury action. We reverse.

Cardiello brought this declaratory judgment action against PGIC seeking a declaration that PGIC is obliged to indemnify and defend him in a suit brought against him by Wendy Flomerfelt. On cross-motions for summary judgment, the trial court granted summary judgment in favor of Cardiello. We granted PGIC leave to appeal.

Our review of a trial court's decision on motions for summary judgment is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We apply the same standard as the trial court, namely that a motion for summary judgment will be granted if "there is no genuine issue as to any material fact challenged and [] the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We give no deference to the trial court's interpretation of the law or its determination of the legal consequences that flow from undisputed facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Flomerfelt has sued Cardiello for injuries she sustained when she overdosed on drugs and alcohol. On Saturday evening, July 26, 2003, Cardiello, then age twenty, held a party at his parents' home while they were away. Flomerfelt, then age twenty-one, attended the party. Along with other guests, she ingested alcohol and illegal drugs. She overdosed on these substances and lost consciousness the next morning while still at the Cardiello home. Flomerfelt contends that Cardiello delayed in calling for medical help and that this delay exacerbated the consequences of the overdose.

Flomerfelt was placed in intensive care at the hospital where she was found to have suffered from a drug overdose. The hospital's diagnoses for her included acute respiratory failure secondary to drug overdose, acute renal failure, shock liver, some hearing loss, and other serious medical conditions. Her toxicology testing was positive for cocaine, marijuana, opiates, and alcohol.

Flomerfelt's expert witness, Dr. Michael Buccigrossi, a health effects scientist, stated in his report of December 8, 2006, that her medical condition upon admission to the hospital can be described as "a life threatening condition" involving a "cascade of primary organ system failures, followed by a vicious cycle of secondary vascular effects acting synergistically and ultimately resulting in a rapid and continuous downward spiral in the condition of her health." He concluded that "[h]er critical condition at the time of admission to [the] hospital and her current hearing loss were brought on by a multiple drug overdose and were exacerbated by a delay in receiving appropriate medical attention." He indicated that marijuana, opiates, cocaine, and alcohol were found in her urine and that the latter three have been associated with organ failure.

At his deposition, Buccigrossi testified that he did not know the quantities of alcohol or illegal drugs that Flomerfelt had consumed. He explained that "with multiple chemical exposures like this, [it is] very difficult, if not impossible, to separate out which drugs were responsible for which health effects." He could not say whether her hearing loss is due to the cocaine, opiates, or alcohol. He acknowledged that with small amounts of marijuana and cocaine, but a large quantity of alcohol, she could have sustained the same kind of injury.

The medical report of James Z. Cinberg, M.D., F.A.C.S., prepared for Cardiello's parents in the underlying litigation, also concludes that Flomerfelt's hearing loss is due to the consumption of opiates, marijuana, and alcohol.

PGIC homeowner's policy issued to Cardiello's parents excludes from coverage claims for bodily injury "[a]rising out of the use, sale, manufacture, delivery, transfer or possession by any person of a controlled substance(s) as defined by the Federal Food and Drug Law at 21 U.S.C.A. Sections 811 and 812. Controlled Substances include, but are not limited to, cocaine, LSD, marijuana and all narcotic drugs." This exclusion does not apply to properly prescribed drugs nor does it apply to insureds "who have no knowledge of the involvement with a controlled substance(s)."

Due to this language, PGIC contends that it has no duty to defend or indemnify Cardiello. In opposition, Cardiello argues that PGIC cannot show a substantial nexus between Flomerfelt's injuries and the drugs, because no medical expert can ...


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