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Bay State Insurance Company v. Kirsten Jennings

June 2, 2011

BAY STATE INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
KIRSTEN JENNINGS, AN INFANT BY HER G/A/L KEVIN JENNINGS;
KEVIN JENNINGS, INDIVIDUALLY, CAROL COLLINS, DEFENDANTS-RESPONDENTS.
KIRSTEN JENNINGS, AN INFANT BY HER G/A/L KEVIN JENNINGS; AND KEVIN JENNINGS, INDIVIDUALLY, PLAINTIFFS,
v.
CAROL COLLINS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2765-07 and Docket No. L-5337-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2010

Before Judges R. B. Coleman and J. N. Harris.

In this declaratory judgment action, plaintiff Bay State Insurance Company (Bay State) appeals from two June 20, 2008 orders (1) denying plaintiff's motion for summary judgment and (2) granting summary judgment in favor of defendants Kirsten Jennings, Kevin Jennings and Carol Collins. The effect of the orders is that plaintiff Bay State is required to provide a defense and indemnify Collins in an underlying negligence action brought by Kirsten and Kevin Jennings against her. Because we believe there is a dispute as to whether Collins was engaged in a business, we reverse the grant of summary judgment in her favor and remand for a plenary hearing consistent with this opinion.

This appeal arises in the following context. Kevin Jennings filed a personal injury complaint, individually and as guardian ad litem for his daughter Kirsten Jennings, against Carol Collins, to whom plaintiff Bay State had issued a homeowner's insurance policy and under which Collins had presented a claim for defense and indemnification. In response to Collins's claim, plaintiff filed a declaratory judgment action pursuant to the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, in which it sought to void or rescind the subject homeowner's insurance coverage pursuant to the policy's "business exclusion." Kirsten and Kevin Jennings were also joined as defendants in this declaratory judgment action. Following a default judgment against Collins, Bay State moved for summary judgment against the Jenningses. Thereafter, Collins moved to vacate the default judgment, and she cross-moved for summary judgment. The motion court denied Bay State's motion for summary judgment, vacated Collins's default judgment and granted her motion for summary judgment. In other words, the court found that the business exclusion in the policy did not apply in this case.*fn1

I.

Our review of an order granting summary judgment is de novo, applying the same legal standard as the trial court.

Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the motion judge did, "whether the evidence presents a sufficient disagreement to require submission to a jury [or trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." R. 4:46-2(c).

If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). However, a court should deny summary judgment if "the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523).

The following facts are based on our consideration of the evidence in the light most favorable to the party opposing summary judgment, in this case, plaintiff. On October 3, 2006, Kirsten injured her leg when the shopping cart in which she was seated tipped over. Collins, who was pushing the cart in a Sam's Club parking lot in Freehold, lost her balance and fell. As Collins fell, she pulled the cart down with her. On that date, Collins was caring for two minor children, Kirsten and Ariana.

The parties do not dispute that Collins would normally watch Kirsten two days a week, when Kirsten was not in daycare and her mother, Tina Jennings (Mrs. Jennings), was at work. Mrs. Jennings initially approached Collins about helping care for Kirsten when she was pregnant with Kirsten since she knew Collins was at home with her own child.

Collins was paid to provide care for other children at various times as well. For instance, she received twenty-five dollars a day for watching Ariana, the granddaughter of Kirsten's mother, Mrs. Jennings. However, this was a temporary arrangement, lasting only two weeks, and was done as a favor to Mrs. Jennings. Collins had previously taken care of two other children during the 2004-05 school year for a total of forty dollars a day, but was no longer caring for those children at the time of Kirsten's injury. Collins also testified at her deposition that she occasionally helped out a friend named Cathy with her children. Although she was not compensated for her time, Cathy would "slip [her] money" for lending a hand. Additionally, Collins was compensated for watching her own grandfather at one point "way before the incident." The greatest number of children or adults Collins cared for at one time was four.

Mrs. Jennings gave Collins thirty-five dollars per day for watching Kirsten. The parties dispute the extent to which this sum constituted consideration and to what extent it was offered to cover the everyday expenses associated with Kirsten's care. According to both Mrs. Jennings and Collins, the thirty-five dollars was to be used for items such as "food, diapers, and wipes," for Kirsten, as well as spending money ...


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