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Carmen L. Colon v. Liberty Mutual Insurance Company

January 20, 2012

CARMEN L. COLON, PLAINTIFF-RESPONDENT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, JEANINE GREEN, PATRICIA WHETSTONE, LEVARN WHETSTONE AND THE ESTATE OF LEVARN WHETSTONE THROUGH PATRICIA WHETSTONE, ADMINISTRATRIX OF THE ESTATE OF LEVARN WHETSTONE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4726-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, 2011

Before Judges Axelrad and R. B. Coleman.

Defendant Liberty Mutual Fire Insurance Company*fn1 (Liberty Mutual) appeals from a May 28, 2010 final order and judgment of the Law Division, Camden County, declaring that a homeowner's policy issued by Liberty Mutual to defendants Patricia and Levarn Whetstone, the parents of defendant Jeanine Green, provides coverage for claims for damages caused by Green when she bit plaintiff Carmen Colon, a police officer, after she stopped Green's automobile.*fn2 Judge Michael J. Kassel considered the parties' cross-motions and rejected Liberty Mutual's assertion that the automobile exclusion in the homeowner's policy bars coverage. Judge Kassel concluded the bodily injuries sustained by plaintiff did not "arise out of the ownership, maintenance, use, loading, or unloading of a motor vehicle" because there was not a substantial nexus between the use of the automobile and the biting to bring the incident within the exclusionary provision of the policy. We affirm substantially for the reasons expressed by Judge Kassel in his oral opinion of April 16, 2010.

The essential facts are not in dispute.*fn3 On May 13, 2007, plaintiff and Patrolman Daniel Battista of the Lawnside Police Department responded to a call from Patricia Whetstone regarding a domestic situation. Whetstone told the officers she and her daughter, Green, had an altercation, after which Green left home in her motor vehicle with Green's three-year old son. Whetstone expressed fear for the safety of both Green and her child because Green was schizophrenic, and she could become aggressive when she had not taken her medication.

In response to those expressed fears, the officers broadcast a "check on the well being" alert for the car Green was driving, and about two hours later, at approximately 3:30 a.m., plaintiff spotted and stopped Green's vehicle.

Plaintiff's objective was to get Green her medication, not allow her to drive away from the scene, and to have a family member drive the car from the scene.

Plaintiff called for assistance, and when a second officer, Patrolman Battista, arrived, they approached Green's car and looked first toward the rear passenger compartment to check on the child. Standing eight feet from Green's vehicle, plaintiff told Green, "[Y]our mom is worried about you. You need to take your medications." Green did not respond at first. She was fidgeting with her hands all over the dashboard. When plaintiff asked for identification, Green responded that her name was Beyonce Knowles.*fn4 Then, after plaintiff asked Green to turn off her car and provide her vehicle registration, Green began "screaming [and] hollering . . . profanity."

Plaintiff then directed Green to place her keys on top of the vehicle, and Green refused to do so. The keys were attached to a "drawstring" and Patrolman Battista went to get scissors or a knife to cut the drawstring in order to get the keys. As Patrolman Battista was returning, Green "kicked the door open" and moved towards plaintiff, swinging her hands and kicking at her. Green then turned and attacked Patrolman Battista, knocking him to the ground, straddling him, and punching him. Plaintiff attempted to stop Green's assault on Battista by grabbing her, at which point Green began punching plaintiff's face and chest. Green then grabbed the radio that was strapped around plaintiff's neck and bit plaintiff's arm. Green's teeth pierced the skin, causing plaintiff to bleed heavily. This altercation between the officers and Green took place about "a car length" away from Green's car.

At her deposition, Green testified she did not remember the incident clearly; she recalled it felt "like a dream." She stated she was "upset and scared" when she was pulled over and asked to hand over the keys, and she did not understand why she was being pulled over. Her recollection was she was pulled over for making an illegal right turn. She continued that she was scared for her child's safety when she was pulled over. She did not remember biting, kicking or punching the female officer (plaintiff), but she did recall punching and biting the male officer because she was "scared."

The injuries to plaintiff were severe. On December 9, 2008, plaintiff's counsel notified Liberty Mutual of his belief that Whetstone's homeowner's insurance policy applied to Green and that plaintiff's negligence claims against Green should be covered by the policy. The homeowner's insurance policy provided coverage up to $300,000 in personal liability, but under Section II, 1(f), it excludes coverage for bodily injury and property damages "[a]rising out of [t]he ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an 'insured.'" Liberty Mutual does not dispute that Green was an insured covered under the policy on the date of the incident. Liberty Mutual denied the claim, however, based on the automobile exclusion.*fn5

Plaintiff then filed her complaint against Liberty Mutual in this declaratory judgment action, seeking to establish coverage under the homeowner's policy. Thereafter, plaintiff moved for summary judgment, and Liberty Mutual cross-moved.

At the beginning of oral argument on the motions, plaintiff advanced the theory that the tort here was the "tort of not taking the medicine."*fn6 The court stated that theory "can't prevail" because the tort was not complete until the injury occurred, and "[t]here could have been a million things that occurred before the tort occurs." The focus of the arguments was then directed at whether there was ...


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