Cumberland Mutual Fire Insurance v. Murphy

Justice WALLACE,

dissenting.

I respectfully dissent.

Just as the concurring opinion does, I agree that the outcome of this case depends on the application of our prior decisions in Voorhees, supra; S.L. Industries, supra, and Garitta, supra.

Before addressing the central issue, I note several well established principles underlying my decision. An insurance policy is a contract. President v. Jenkins, 180 N.J. 550, 562, 853 A.2d 247 (2004). ‘When interpreting an insurance policy, courts should give the policy’s words ‘their plain, ordinary meaning.’” Ibid. (quotation omitted). “If the policy terms are clear,” the policy should be interpreted as written. Ibid. But, “[wjhen an insurance policy’s language fairly supports two meanings, one that favors the insurer, and the other that favors the insured, the policy should be construed to sustain coverage.” Id. at 563, 853 A.2d 247 (citation omitted). Although exclusions in an insurance policy should be narrowly construed, if the exclusion is “specific, plain, clear, prominent, and not contrary to public policy[,]” it should be given effect. Doto v. Russo, 140 N.J. 544, 559, 659 A.2d 1371 (1995). To be sure, “the burden is [upjon the insurer to bring the case within *353the exclusion.” Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95, 698 A.2d 9 (1997).

With those tenets in mind, I now apply them to the principles articulated in the Voorhees; S.L. Industries, and Garitta decisions. In Voorhees and S.L. Industries, which were decided the same day, we addressed the insurance company’s duty to defend. In Voorhees, the insured was sued by her child’s teacher for her comments concerning the teacher’s competency and fitness. Supra, 128 N.J. at 169, 607 A.2d 1255. The insured had a homeowner’s insurance policy from Preferred Mutual Insurance Company that provided coverage for bodily injury caused by an “occurrence,” defined as an accident, and excluded coverage for “liability ... caused intentionally.” Id. at 171, 607 A.2d 1255. The insurer refused to defend in part based on the intentional acts exclusion. Ibid. Because the policy provided coverage for “occurrences” that were accidental, we assessed whether the court must find a “subjective intent to injure” or whether the court could “presume an intent to injure from the objective circumstances.” Id. at 184, 607 A.2d 1255. We held that “[ajbsent exceptional circumstances that objectively establish the insured’s intent to injure, we will look to the insured’s subjective intent to determine intent to injure.” Id. at 185, 607 A.2d 1255. We expressly noted that “[wjhen the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure.” Id. at 184, 607 A.2d 1255. We explained that the “objective approach focuses on the likelihood that an injury will result from an actor’s behavior rather than on the [actor’s] subjective state of mind.” Ibid.

In S.L. Industries, we considered “whether any intent to injure will render the resulting injury intentional, whether the wrongdoer must intend the specific injury that results, or whether there is some middle ground between the two approaches.” Supra, 128 N.J. at 209, 607 A.2d 1266. We adopted a middle ground approach and concluded that coverage is generally excluded if the insured “subjectively intends or expects to cause some sort of *354injury.” Id. at 212, 607 A.2d 1266 (emphasis added). However, if the insured’s conduct causes an injury that is “improbable,” then the court must determine “whether the insured subjectively intended or expected to cause that injury.” Ibid. We concluded that without the intent to cause that injury, the injury will be deemed “accidental,” and the insurance company will be obligated to provide coverage. Ibid.

In Garitta, we applied the principles of Voorhees and S.L. Industries to deny coverage. Supra, 170 N.J. at 241-42, 785 A.2d 913. The insured in that case was a teenager who was challenged to a fight. Id. at 226, 785 A.2d 913. Although the insured contended that he tried to avoid the fight, he ultimately concluded that he had no choice but to confront the challenger. Id. at 227, 785 A.2d 913. A friend gave the insured a kitchen knife that he placed in his back pocket. Ibid. When the challenger approached, the insured stabbed the victim twice with the knife, critically wounding him. Id. at 228, 785 A.2d 913. The insured’s policy excluded coverage for “bodily injury [wjhich is expected or intended by the insured[.]” Id. at 230, 785 A.2d 913 (internal quotations omitted). We held that the undisputed facts demonstrated that the insured “intended to cause some injury, and that the actual injury [ ] led to [the challenger’s] death was an inherently probable consequence of the insured’s action.” Id. at 235, 785 A.2d 913.

In the present case, the policy contains the following exclusionary provision:

[Cumberland does] 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.

Fairly read, the exclusion prohibits coverage for bodily injury or property damage from the insured’s “willful harm” or “knowing endangerment” regardless of whether the insured “expected or intended” the precise injury or property damage that occurred. The plain reading of the phrase “whether or not expected or intended by the insured” eliminates the need for an inquiry into the insured’s subjective intent that we found necessary in Voorhees and S.L. Industries. The policies in Voorhees and S.L. *355Industries lacked a phrase similar to the one in Cumberland’s policy. In my opinion, the Cumberland policy eliminates the subjective prong of the test and requires us to focus on whether the insured’s conduct demonstrated “willful harm” or “knowing endangerment.”

Unfortunately, those terms are not defined in the policy. In that event, we look to their ordinary meaning. President, supra, 180 N.J. at 566, 853 A.2d 247. “Willful” is defined as “[proceeding from a conscious motion of the will; voluntary; knowingly; deliberate.” Black’s Law Dictionary 1599 (6th ed. 1970). Another entry of Black’s Law Dictionary defines “willful” as “[intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Ibid. Still another entry defines the term as “[pjremiditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences.” Ibid. The dictionary notes that “[i]t is a word of many meanings, with its construction often influenced by its context.” Ibid. That same dictionary defines “harm” as “[t]he existence of loss or detriment in fact of any kind to a person resulting from any cause.” Id. at 718. Based on those definitions, “willful harm” could mean “detriment of any kind resulting from any voluntary cause,” or “a loss not accidentally or involuntarily caused.” But see Cumberland Mut. Fire Ins. Co. v. Beeby, 327 N.J.Super. 394, 402, 743 A.2d 853 (2000) (noting that “precise definition of “willful harm’ has proven to be elusive”).

“Knowing endangerment” is similarly susceptible to multiple definitions. Black’s Law Dictionary defines “knowingly” as “[w]ith knowledge; consciously; intelligently; willfully; intentionally.” Id. at 872. Hence, “knowing” can mean both “conscious” and “intentional.” Moreover, the definition includes the term “willfully,” an obvious overlap with “willful harm.” The term “endangerment” is defined as “the act of placing in danger or the state of being placed in danger.” Webster’s Third New International Dictionary 748 (1971). Thus, the ordinary meaning of *356“knowing endangerment” could be “consciously placing someone or something in a state of danger.”

Without question, the Cumberland policy should have defined those terms to avoid any ambiguity. Despite that shortcoming, the insured’s conduct plainly falls within any reasonable definition of “willful harm” or “knowing endangerment.” The insured admitted that he intended to shoot his BB gun in the hope of hitting the passing cars and he knew that discharging a firearm towards a person could result in injury or property damage. It cannot be disputed that it is substantially certain that firing a BB gun at a ear from approximately twenty-five yards away would result in some injury to the occupant or damage to the vehicle. The insured consciously and intentionally put the vehicle and any occupant in danger. Because the policy language of “whether or not expected or intended by the insured,” eliminated the subjective element that the insured must intend the injury, so long as the bodily injury or property damage results from the insured’s willful harm or knowing endangerment, the policy exclusion should apply. I conclude that the insurer has demonstrated that the insured’s conduct constituted both “willful harm” and “knowing endangerment.”

I am satisfied that the various definitions for “willful harm” and “knowing endangerment,” coupled with the qualifier — “whether or not expected or intended by the insurer” — demonstrate that the exclusionary provision was intended to be broad. At this time, I see no need to define the outer limits of those terms to conclude that the policy exclusion in this case was intended to apply to the insured’s conduct of firing of a BB gun at passing cars. Whatever the precise meaning of the terms “willful harm” and “knowing endangerment,” the insured’s conduct met those definitions for the exclusionary provision of the policy to apply.

The concurring opinion cites Progressive Casualty Insurance Co., supra, 166 N.J. at 273, 765 A.2d 195, for the principle that when policy language “supports two meanings, one favorable to the insurer and the other to the insured, the interpretation *357favoring coverage should be applied.” I agree with that proposition. Here, however, the insured’s conduct would fall within whatever definition he would give to “willful harm” or “knowing endangerment.” Simply put, because the explicit language of the exclusion eliminates the need to determine whether the insured intended or expected the particular injury or property damage, the policy plainly was intended to exclude coverage. Stated differently, I am satisfied that regardless of the existence of any ambiguity in the policy, the insured had no reasonable expectations of coverage.

Viewing the evidence in the light most favorable to the insured, I conclude that the insured’s conduct was excluded from coverage under the Cumberland insurance policy.

I would reverse.

Justices LaVECCHIA and RIVERA-SOTO join in this opinion.