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Hammer v. Thomas

August 9, 2010

WILLIAM J. HAMMER, PLAINTIFF,
v.
DOUGLAS W. THOMAS AND JOSHUA THOMAS, DEFENDANT.
PROFORMANCE INSURANCE CO., PLAINTIFF-APPELLANT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY AND DOUGLAS THOMAS, DEFENDANTS-RESPONDENTS, AND JOSHUA THOMAS, DEFENDANT, AND WILLIAM HAMMER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket Nos. L-559-05 and L-998-05.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: December 16, 2009

Before Judges Axelrad, Fisher*fn1 and Espinosa.

In this declaratory judgment action, an injured motorist and his uninsured motorist (UM) carrier appeal from summary judgment in favor of the tortfeasor's automobile insurance provider who declined coverage based on the policy exclusion for any insured "[w]ho intentionally causes bodily injury or property damage." We affirm.

On June 10, 2004, William Hammer was severely injured when a vehicle operated by Joshua Thomas ("Thomas") and owned by Douglas Thomas crossed the double-yellow line and struck his car head on, causing both cars to roll and become total losses. The Hammer vehicle was insured by Proformance Insurance Co. ("Proformance") while the Thomas vehicle was insured by New Jersey Manufacturers Insurance Co. ("NJM").

Douglas Thomas' policy with NJM policy obligated the insurer, in pertinent part, to "pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident [but] . . . [w]e have no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy." The policy excluded liability coverage for any insured "[w]ho intentionally causes bodily injury or property damage."

On June 3, 2005, Hammer filed a complaint against the Thomases seeking compensation for his injuries and against Proformance for UM benefits. Hammer's request to enter default against Thomas was filed on August 8, 2005, and, according to his brief, default was entered. NJM answered the Hammer complaint on behalf of Douglas Thomas only.

Meanwhile, on June 8, 2005, Proformance filed a declaratory judgment action against NJM, Thomas, Douglas Thomas, and William Hammer. Proformance sought a ruling that NJM had wrongfully disclaimed coverage to the Thomases and was obligated to defend or indemnify its insureds. Hammer and NJM filed answers. On September 9, 2005, the Hammer and Proformance complaints were consolidated.

On February 13, 2007, a consent judgment was entered in favor of Hammer against Thomas for $425,000. This was the amount of the Rule 4:21A-1 arbitration award based on a finding that Thomas was l00% responsible for the accident. With taxed costs and pre-judgment interest, the total judgment was $450,165.74.

In accordance with instructions by the court during a conference on the trial date, NJM and Proformance filed cross-motions for summary judgment with a joint stipulation of facts.*fn2

Following oral argument on August l5, 2008, summary judgment was entered in favor of NJM.*fn3 Proformance and Hammer appealed.

I.

Following the accident, Thomas and Hammer were taken to Christiana Hospital. Hammer suffered multiple serious injuries; Thomas suffered a head laceration as a result of hitting the windshield during impact.*fn4 According to the police report, Thomas told Trooper Doelling he was "angry" after having an argument with his parents about whether or not he was taking his medication; he claimed he was, but his parents believed he was not. He admitted to "driving recklessly" and traveling about sixty-five miles per hour on the county road with a speed limit of fifty miles per hour. Thomas explained that after he viewed a vehicle traveling toward him in the opposite lane, he let go of the steering wheel and his vehicle traveled into the oncoming lane, striking the Hammer vehicle head on. When asked by the trooper why he had let go of the wheel, Thomas responded that he "wanted to hit the other vehicle," and when asked the reason, Thomas said he "wanted to end it all." Accordingly, the trooper classified the accident as an attempted suicide.*fn5

Thomas' parents, who were present at the hospital, related that Thomas is a paranoid schizophrenic who was prescribed medications but was displaying symptoms that he was not taking them. They told the trooper that when they confronted him, Thomas went to his vehicle and quickly departed the driveway.

On September 20, 2004, Thomas gave a recorded statement to NJM in which he stated there was poor visibility because it was night and raining, and he crossed the center lane into oncoming traffic and struck another vehicle. When questioned about his responses to the investigating trooper, Thomas first stated he didn't know if he wanted "to hit the other vehicle," and then said he "didn't want to hit it."

With respect to the motions for summary judgment, counsel agreed to the following stipulated facts:

Joshua Thomas:

l. Had an argument with his parents;

2. Was driving recklessly;

3. At about 65 miles ...


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