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Mohammad A. Labu v. Ivy Hill Park Apartments


February 23, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-48-04.

Per curiam.


Argued: January 26, 2011 - Decided: Before Judges Sapp-Peterson and Fasciale.

In this declaratory judgment case, Essex Insurance Company (Essex) appeals from an order requiring that it defend and indemnify its insured, Superior Door Service (Superior), against negligence claims filed by two residents who were assaulted at Ivy Hill Park Apartments (Ivy Hill). Relying on an assault and battery exclusion contained in the general liability insurance policy, Essex contended during the coverage trial that it was not obligated to indemnify or defend Superior. Essex argues that the trial judge erred by finding that there was no nexus between the assaults and Superior's alleged negligence. We disagree and affirm.

Ivy Hill hired Superior to provide doorman services at its apartment complex consisting of several buildings. It required Superior's employees to identify visitors as they attempted to enter the complex through a front gate area. The doorman then obtained permission from a tenant to allow the visitor to enter the premises. All the apartment buildings had rear and side doors that were accessible from parking lots. From time to time, those entrances would be open and unlocked and available for anyone to use. Superior did not control the other entrances to the premises, was not permitted to leave the front gate area, and was not required or permitted to provide security for the apartment complex.

The coverage dispute arose after two residents were assaulted. Igor Bychkopf invited his former employee Robert McGraw into his apartment and sustained personal injuries when McGraw stabbed him in the chest. McGraw admitted in deposition testimony that they drank alcohol together and he stabbed Bychkopf because Bychkopf asked him for a sexual favor. Bychkopf knew McGraw for several years and McGraw was familiar with Ivy Hill because his mother lived there and he visited her routinely. Several months later, Mohammad Labu was injured when unidentified assailants assaulted him in a common area of the complex.

In separate lawsuits that were later consolidated, Bychkopf and Labu alleged that Superior provided doorman services negligently. Superior tendered the defense of both lawsuits to Essex, but Essex disclaimed coverage and refused to defend relying on the assault and battery exclusion which provided that there was no coverage or duty to defend any claim arising out of: [a]ssault and or [b]attery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any [i]nsured, [i]nsured's employees, patrons or any other person.

Superior defended the Bychkopf and Labu lawsuits and filed a third-party complaint against Essex seeking a declaratory judgment. Superior obtained summary judgment dismissing the Bychkopf complaint before the coverage trial began.

The judge conducted a bench trial to determine whether there was a nexus between the alleged negligence of Superior and the assaults. The trial occurred over three days at which Labu and Joseph Cantalupo, the President of Superior, testified. Bychkopf was deceased by the time of trial. Essex called Francis R. Murphy as an expert liability witness retained by Labu and Bychkopf. The judge precluded Murphy from testifying because Murphy opined only about Ivy Hill's negligence. The trial judge found that there was no nexus whatsoever between any negligent conduct of Superior and the assaults. He ordered Essex to defend, indemnify and reimburse fees and costs associated with the defense of both negligence claims as well as the prosecution of the third-party complaint.

On appeal, Essex argues that the judge erred by finding there was no nexus between any negligence of Superior and the assaults, and by barring Murphy's expert report. Essex also contends that Superior had no reasonable expectation of coverage under the insurance policy for the claims filed by Bychkopf and Labu.

We begin by addressing Essex's argument that the trial judge erred by finding that there was no nexus between the assaults and Superior's alleged negligence. When reviewing a non-jury case, the findings of the trial judge are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); accord Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Questions of law are not afforded any special type of deference, however, and are reviewed de novo. In re Snellbaker, 414 N.J. Super. 26, 37-38 (App. Div. 2010).

"An insurer's duty to defend an action against the insured is determined by whether the allegations set forth in the complainant's pleadings fall within the purview of the policy language." L.C.S., Inc. v. Lexington Ins. Co., 371 N.J. Super. 482, 490 (App. Div. 2004) (citations omitted). The nature of the claim asserted against the insured, and not the specific details of the incident or the merits of the litigation, determines the insurer's obligation to defend. Flomerfelt v. Cardiello, 202 N.J. 432, 444 (2010). We have previously stated that: [T]he duty to defend comes into being when the complaint states a claim constituting a risk insured against. And the duty is not abrogated by the fact that the cause of action stated cannot be maintained against the insured either in law or in fact -- in other words, because the cause is groundless, false or fraudulent. Liability of the insured to the plaintiff is not the criterion; it is the allegation in the complaint of a cause of action which, if sustained, will impose a liability covered by the policy.

So in the resolution of the problem, the complaint should be laid alongside the policy and a determination made as to whether, if the allegations are sustained, the insurer will be required to pay the resulting judgment, and in reaching a conclusion, doubts should be resolved in favor of the insured.

[L.C.S., supra, 371 N.J. Super. at 490 (quoting Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953), aff'd o.b., 15 N.J. 573 (1954)).]

An exception to this general rule of comparing the policy to the allegations in the complaint exists where coverage depends on a factual issue which cannot be resolved by the trial against the insured. In that situation, "the duty to defend may depend upon the actual facts rather than the factual allegations in the complaint." Id. at 495 (citing Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 388 (1970)).

Here, coverage depended on the actual facts of the case. Both Labu's and Bychkopf's complaints alleged negligence but failed to articulate any factual basis for that legal conclusion. Furthermore, Essex's counsel admitted in his brief on appeal that the assault and battery policy exclusion only applied if Superior's negligence contributed to an assault and battery. He stated, "coverage does not exist for negligent acts if those acts result in the commission of an assault and battery" (emphasis added). Therefore, the judge was required to analyze the facts of the case to determine whether the policy exclusion applied.

The judge's finding that there was no nexus whatsoever between any negligent conduct or act of Superior and the assaults is supported by adequate, substantial and credible evidence. We see no reason to disturb his findings.

Bychkopf was assaulted by his former employee, McGraw. McGraw was permitted on the premises because he visited his mother there twice per week, and Bychkopf invited him into his apartment. McGraw admitted stabbing Bychkopf because he was provoked by something Bychkopf said.

Labu was assaulted by unidentified assailants in a common area in Ivy Hill. It is undisputed that Superior was not responsible for security inside the complex. Superior's employees were required to stay at the front gate and did not control the numerous entrances to buildings and areas within the complex. Cantalupo testified that there were 200 apartments in each building and that there were several buildings. No evidence was elicited to show that Superior's employees allowed into the complex the individuals who assaulted Labu. To conclude otherwise would be speculation.

Next, we reject Essex's argument that the judge erred by barring Murphy's testimony. We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Bd. of Educ., supra, 409 N.J. Super. at 430; Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Murphy opined in his report that Ivy Hill was negligent "in the manner in which they failed to provide adequate security at the Ivy Hill Apartments." The judge found that Murphy's opinion addressed Ivy Hill's negligence, not the alleged negligence of Superior. The judge found that Murphy's testimony was therefore irrelevant to the issue concerning whether there was a nexus between the assaults and Superior's alleged negligence. We see no abuse of discretion.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Essex's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).



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