Opinion
DOCKET NO. A-5098-11T3
06-06-2013
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Respondent, v. ROBERT CARBO, Defendant, and DEVEREAUX NANASSY, Defendant-Appellant.
Eric J. Riso argued the cause for appellant (Marrazzo & Platt, P.C., attorneys; Mr. Riso, on the brief). Robert T. Pindulic argued the cause for respondent (White and Williams, L.L.P., attorneys; Mr. Pindulic, of counsel; Geoffrey F. Sasso, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2166-11.
Eric J. Riso argued the cause for appellant (Marrazzo & Platt, P.C., attorneys; Mr. Riso, on the brief).
Robert T. Pindulic argued the cause for respondent (White and Williams, L.L.P., attorneys; Mr. Pindulic, of counsel; Geoffrey F. Sasso, on the brief). PER CURIAM
Defendant Devereaux Nanassy (Nanassy) appeals from orders entered by the Law Division on May 25, 2012, which granted summary judgment to plaintiff State Farm Fire and Casualty Company (State Farm), denied her cross-motion for summary judgment, and entered a default judgment against defendant Robert Carbo (Carbo). We affirm.
On July 19, 2010, Nanassy filed a complaint against Carbo, alleging that he physically assaulted her, without cause or provocation, on July 24, 2008, in the Cherry Hill office of Rent-a-Wreck, where Nanassy was employed. On April 27, 2011, State Farm filed a declaratory judgment action seeking a determination that it was not required to defend or indemnify Carbo in Nanassy's lawsuit.
Carbo did not file an answer to State Farm's complaint. Thereafter, State Farm filed motions for summary judgment and entry of a final judgment by default against Carbo. Nanassy opposed State Farm's motions, and filed a cross-motion for summary judgment.
The judge considered the motions on May 25, 2012, and after hearing the arguments of counsel, rendered a decision from the bench, granting summary judgment to State Farm, denying Nanassy's motion, and entering a default judgment against Carbo. The judge memorialized his decisions in orders dated May 25, 2012. This appeal follows.
Nanassy argues that the trial court erred by granting State Farm's motion for summary judgment, and denying her motion for summary judgment. She contends that State Farm was not entitled to summary judgment because there was a genuine issue of fact as to whether Carbo subjectively intended to cause the specific injuries she sustained. We do not agree.
Here, Carbo was covered by a homeowner's insurance policy issued by State Farm, which provided coverage for claims brought against an insured for bodily injury or property damage "caused by an occurrence[.]" The policy excludes, however, coverage for bodily injury or property damage that "is either expected or intended by the insured" or "the result of" the insured's "willful and malicious acts[.]"
In her complaint, Nanassay claimed that Carbo physically assaulted her "without cause or provocation." She also alleged that Carbo negligently assaulted her. The motion judge correctly found, however, that Nanassy had alleged that Carbo engaged in intentional conduct, and there was no factual basis for her claim that he struck her negligently. The evidence before the court on the motions supported the judge's conclusion.
Nanassy was employed by Rent-A-Wreck and Budget Truck Rental. At her deposition, Nanassy testified that Carbo had rented a truck from Budget and had kept the truck about four or five months prior to the July 24, 2008 incident. According to Nanassy, the rental period for the truck had expired, and Carbo had not returned the truck or made a deposit required for a new rental period.
Nanassy testified that on July 24, 2008, she arrived at work around 7:30 a.m., as she usually did. Nanassy said she thought she may have called Carbo to tell him to return the truck, if he could not afford a new rental agreement. Carbo arrived in a black vehicle and came into the office. She described him as "very excited and hostile." It appears that Budget had sent Carbo a letter indicating it was going to report the truck as stolen if he did not return it. Nanassy said that Carbo was "furious."
Carbo threw the letter at Nanassy and another worker who was with her at the counter. Carbo then left. Nanassy thought he might have been in a rage. Carbo drove his vehicle over a parking bumper, across the lawn and the sidewalk in front of the building, and out onto the highway in rush-hour traffic. Around 3:00 p.m., Carbo returned with the truck. The shop manager went out to meet him, and Nanassy heard Carbo and the shop manager arguing.
Nanassy went outside because she thought "somebody was going to hit somebody." She intended to tell everyone to calm down because she did not "want a fistfight." Someone handed Nanassy the keys to the truck. She got into the vehicle to record the mileage and the amount of gasoline in the tank. Inside the truck, Nanassy observed open and empty containers of alcohol.
She exited the truck and took a sign from the dashboard, thinking it belonged to Rent-A-Wreck or Budget. She put the sign under her arm. She had the truck's keys in her hand. Carbo said he was going to come into the office and pay for the truck. After looking at the condition of the truck, and seeing the open containers of alcohol, Nanassy thought it was not safe to let Carbo take the truck. She testified that she would not give him the keys to the truck, even if he paid $25,000.
According to Nanassy, Carbo was calm. She went back into the office with him. Carbo came towards her. She had the sign under her left hand. She felt the sign move and she "just really reacted." She testified:
The next thing I know, he's got me around the neck, and I don't even know if I realized that that's how he had me, because it happened so fast. But he dragged me out
the door and I stumbled on a stairway that comes from the office to the shop. It's just a little short stair, but I don't know if he dragged me. I don't know if I walked. I mean, I just don't know how I ended up on that step and stumbling. And I stumbled and almost fell, and when I went to get up, I just saw —- it happened so fast. I mean, I don't think I screamed. I don't think I did anything. It was just that fast.
Then I saw his fist coming towards may face and so, yeah, he hit me in the left eye. And at this point, I was standing up. He hit me in the left eye and my head hit the back of the doorjamb. And I don't know, I don't remember hitting the ground. I don't remember it hurting my head, but I definitely hit the ground, and was on the ground, and must have passed out, because the next thing I remember is, . . . I couldn't, I couldn't see anything, but I could hear.
Thus, there was no genuine issue of material fact that Carbo intentionally struck Nanassy, and as the motion judge determined, there was no factual basis for any claim that Carbo had acted negligently.
Nanassy contends, however, that summary judgment should not have been granted to State Farm because, even if Carbo acted intentionally, there was a genuine issue of material fact as to whether Carbo subjectively intended to inflict the injuries Nanassy allegedly sustained, specifically retinal tears. This contention is without merit.
In Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165, 184 (1992), the Court stated that, when an insurer refuses to provide coverage based on a policy exclusion for injuries expected or intended by the insured, the courts generally consider whether the insured subjectively intended to cause injury. The Voorhees Court said that "[a]bsent exceptional circumstances that objectively establish the insured's intent to injure, [the courts] will look to the insured's subjective intent to determine intent to injure." Id. at 185. See also SL Indus., Inc. v. Am. Motorists Ins. Co., 128 N.J. 188, 212 (1992) (noting that an exclusion for injuries that are expected or intended by the insured would not bar coverage for injuries that are the improbable result of the insured's intentional acts, unless the insured subjectively intended or expected to cause those injuries).
In this case, there was no genuine issue of fact as to whether Carbo subjectively intended to injure Nanassy. "There are occasions where the objective conduct of the actor also determines the actor's subjective intent to injure. Such is the case where the actor engages in assault and battery." Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super. 219, 227 (App. Div. 1997) (citing Malanga v. Mfrs. Cas. Ins. Co., 28 N.J. 220, 225 (1958)). Furthermore, there is no need to inquire into the defendant's subjective intent to injure, where the plaintiff "claims no more than the type of injuries that are inherently probable from such conduct[.]" Ibid.
Here, Nanassy claims that Carbo struck her in the face with his fist and she sustained injuries to her eyes. Such injuries are the inherently probable result of the conduct she described. Thus, a further factual inquiry into whether Carbo subjectively intended to cause the particular injuries at issue here was not required.
We accordingly conclude that the motion judge correctly determined that Carbo was not entitled to coverage for the claims against him in the underlying action, and State Farm was entitled to judgment in the declaratory judgment action as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Nanassy also argues that the motion judge erred by entering a default judgment against Carbo in the coverage action. She contends that if the order granting summary judgment to State Farm is reversed, the default judgment against Caarbo also should be reversed. In addition, Nanassy contends that if she is successful in this appeal, she is entitled to an award of counsel fees pursuant to Rule 4:42-9(a)(6). In view of our decision affirming the grant of summary judgment to State Farm, these issues are moot.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION