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Newsletter -
Winter 2006
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On January 20, 2001 three teenagers sat perched in a hunting station with their BB guns. They each took their best shots at vehicles driving by their position that night. The best camouflage was available, it was night and there was no moon and it was sleeting out. Better cover could not have been present for the hunt. Gina Santiago was driving her Jeep that fateful evening. When her vehicle passed the boys, one of them hit his mark. The BB went through the canvass top and struck Mrs. Santiago in the eye, blinding her. Cumberland Mutual Fire Insurance Company v. Murphy III, 183 N.J. 344, 346 (2005). A claim was filed against the homeowners insurance for one of the boys, whose parents were insured through Cumberland Mutual Insurance. The claim was denied on the basis of two exclusions. The first of which is the subject of this article and reads: We do not cover bodily injury or property damage, whether or not expected or intended by the insured, which is a consequence of an insured’s willful harm or knowing endangerment. The Law Division ruled in favor of the insured on a motion for summary judgment to find coverage. The Appellate Division affirmed and an equally divided New Jersey Supreme Court affirmed. The Supreme Court ultimately determined that the injury was an accident and not an intentional act as defined in a series of cases ruled upon in 1992. Id, at 349, citing Voorhees v. Preferred Mutual Insurance Company, 128 N.J. 165 (1992); SL Industries Inc., v. American Motorists Insurance Co., 128 N.J. 188(1992). The court rejected Cumberland’s argument that the policy language did away with the requirement that the injury be intended as shown by proof of the insured’s subjective intent. Murphy III, at 359, citing Harleysville Insurance Company v. Garitta, 170 N.J. 223, 234-35 (2001). Subjective intent is either proven by the insured’s acknowledgment that the injury was intended or by an act that is particularly reprehensible as to give rise to a presumption of an intent to injure. Murphy, at 350, citing Garitta, at 234-35. The three justices voting to affirm held that the conduct of the boys was not sufficiently reprehensible because the weather and distance made the injury to Mrs. Santiago improbable and therefore an accident. Murphy III at 351. The Court’s decision to ignore the “whether or not expected or intended by the insured” provision is not surprising considering the tendency of New Jersey courts to find coverage in third party cases if at all possible. On the other hand, if an insurer changes language in a policy that it will point to as restricting coverage from case law interpreting the changed provision, it would behoove the insurer to file the changes with the Department of Insurance along with an explanatory note explaining the intent.
– David D. Blake, Esq.
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