*1 v. Greenbaum, A. 1917); Warne Gery, (Ch. supra; Buerk, Hummer v. order reach this result supra. claimants the outstanding court conclude .(1) must claim, and (2) fact to assert they could succeed were will ever that there is no real likelihood that claim any of mar leads determination asserted. Such a conclusion to a ketability. there in some of the cases
Although statements this, where to the we think a suit such as contrary, shown that title rescission has record purchaser seeking seller, in some other than the the bur outstanding should shift ad den then to the seller to establish title by verse possession. Division judgment Appellate entering judgment
in favor of re- purchasers reversed and the cause is Court, to the Division for a new Superior Chancery manded trial in accordance with said what been above. Hughes
For reversal and remandment —Ghiei Justice Mountain, Pashman, Clifford, Justices Schreiber Handler —6.
For affirmance —None. COMPANY, A AMBASSADOR INSURANCE CORPORATION THE STATE OF VERMONT AUTHORIZED TO DO OF JERSEY, PLAIN IN STATE OF NEW BUSINESS THE TIFF-APPELLANT, MONTES, ADMINISTRATOR v. RAFAEL PEREZ, F THE ESTATE OF MARILYN ORTEGA O DECEASED; MONTES, AD RAFAEL ADMINISTRATOR PEREZ, ORTEGA DE PROSEQUENDUM OF MARILYN CEASED; GOMEZ, AND JUNA ORTEGA DEFENDANTS- SMITH, RESPONDENTS, SATKIN, AND JOSEPH JOYCE DRACHIR, INC., A AND NEW JERSE HENRY PITTS Y CORPORATION, DEFENDANTS. Argued 197 7 Decided June 1978. December *3 Leonard Rosenstein Mr. the cause for argued appellant Feuerstein, Maitlin, and Sachs attorneys). (Messrs. Robert Galluccio Mr. the cause for argued respondents Rothenberg, Goodman and attorneys). (Messrs.
The court was delivered opinion Ambassador Com- J. The plaintiff Schreiber, instituted seek- pany declaratory judgment proceeding named insured Satkin ing adjudication Joseph was not entitled under coverage comprehensive general liability insurance trial determination policy. judge’s We of no was Division. Appellate reversed 74 N. J. 269 certification. granted owned, The assured Joseph Satkin other among properties, two Passaic, old wooden tenement one at 78 Wash- buildings Place, and ington the other 80-82 Place. The Washington at 80-82 a two-and-a-half building Place was Washington story in which 11 duplex four-family persons house resided. The in a had condition and building dangerous been scheduled for demolition. hours early morning 11, 1973, fire out in May broke the stairwell was alerted Washington Place. Passaic Eire Department However, at 3:27 a.m. fire promptly responded. due air four spread rapidly draft and took lives. open arson, Satkin was tried and convicted of con- Joseph arson, to commit murder spiracy felony having Montes, caused the fire. Rafael as adminis- prosequendum administrator, trator ad as general an action instituted Satkin for the death and against injuries Perez, an infant who Marilyn perished Ortega fire. Insurance Company Plaintiff Ambassador refused to defend action, which been placed the inactive trial final disposition calendar this action. In this pending declaratory plaintiff judgment proceeding, *4 adminis- Montes, Rafael Satkin and company joined trator, as defendants. that the trial the trial court found
At the conclusion of early Because the to burn the of building. Satkin intended the started, fire nature of hour at which the was morning facts, the court was structure, surrounding .held that in the building might to expect people reasonable a fire in concluded that such causing The court injured. the safety defendant Satkin had completely disregarded of the inhabitants and found that the death were injury the intended result of an intended act. Therefore coverage under the was denied. Division,
The Appellate noting the plaintiff’s contain an exclusion policy did not for conse- express quences of an intentional wrongdoing, held that such omission immaterial because public was policy prohibits for the civil indemnity of intentional consequences one’s It opined wrongdoing. guidelines for determining nonexistence were either coverage the insured had a intent to specific injuries inflict that occurred or that he the injuries knew were certain substantially follow the performance the intentional act. The Appellate Division reasoned that since Satkin did not intend or injure kill in anyone, though his act was wanton and reckless for the disregard safety of those living the building, criteria met were not and there was with coverage. We agree reached, but result not for the reasons stated. which
The plaintiff’s placed evidence as provided exhibit joint that: company pay will on behalf of the all Insured sums which legally obligated pay damages shall Insured become be- cause of Coverage bodily injury A, or Coverage damage B, property applies, which this Insurance caused occurrence and the company right duty against any shall have the suit defend seeking damages bodily injury of such the Insured account any allegations ground- property damage, if even the suit * * less, *. false or fraudulent did in evidence not contain definition insurance policy which excluded “occurrence,” nor provision have that the acts. Both factual parties agreed intentional we adhere to estab- Accordingly, record so limited.1 copy requested argument which 1At we had oral plaintiff had been introduced evidence. The sub- we understood *5 482
lished we are of fact. bound principle by stipulations Co., 129 City Realty v. N. J. Jersey City of Transfer Barkalow, 570 31 J. Super. Div. v. N. (App. 1974); Stalford 193 In limits of 1954). schedule the (App. $100,000 for each liability A, for are bodily injury, coverage $300,000 The of occurrence limits aggregate. $25,000 for 'occurrence B, per property damage, coverage $25,000 aggregate. On the defend obligation face of the policy, plaintiff’s insured any up action and behalf of its pay amount to the due of the suf injuries announced on account limits fered and death of Perez is The obvious. Marilyn Ortega much not plaintiff any concedes as for it does rely upon clause or in the exclusionary other limitation pertinent 2 is in policy. Its defense only public prohibits surance for the civil of an insured’s indemnity consequences intentional wrongdoing.
It has been said that indemnification of a or loss incurred as a damage result of his wilful wrong in violation a criminal doing statute is contrary public 7 Appleman, Law and policy. Practice 4252 at § 5 1A (1962); Appleman, supra Mor- 1977); (Supp. policy containing pages part mitted three which were not 'fact, exhibit When the evidence. defendant adverted to this company plaintiff replied insurance the matter should be de- “on cided basis of the contained in the record.” Our dis- presented. cussion herein concerns the factual situation dissenting our Brother refers to a 2We note that definition of plaintiff “occurrence” before us. carrier which any including as to word “occurrence” does not raise issue may specific this connection it observed that incident involved. policy language generally interpretation traditionally, construed Y., coverage. Bowler v. Fid. & Cas. Co. N. N. J. to effectuate Co., Metropolitan 294, ; 313, (1969) Ins. 44 N. J. Allen v. Life Winterthur, (1965) ; Acc. & Ins. 35 N. J. Cas. Co. Mazzilli Loyal ; Ins. (1961) Protect. Kievit Life hap meaning word “occurrence” includes taking place acci is not restricted to pening incident and dental events. *6 Ass’n, Ins. 305 Greater New York Mut. Taxpayers gan 10 1953); N. N. E. 275 (Ct. App. Y. 2d Couch, 2d, Am. Jur. Insurance 41.663 ed. 1962); (2d § Co., 39 N. J. 1411; Ruvolo v. American Cas. J.N. 490, 496 Lyons Group, Ins. (1963); Hartford 239, 244 Super. Div. Were able to (App. 1973). insure himself the economic in against his consequences tentional the deterrence attributable to financial wrongdoing, would he responsibility Purther, as a matter missing. moral no principle person should be his permitted allege as a turpitude own ground recovery. we Accordingly, have accepted the general that an principle insurer not may contract indemnify insured against the civil conse quences his own wilful criminal act. Ruvolo v. American Co., Cas. supra.
However, this is not to he all principle under cir applied cumstances. it should when Certainly not come into play is not and an wrongdoer benefited innocent third person receives protection by Recovery afforded the insurance. has been allowed to cover by losses occasioned an intentional act of In Queen the insured. Ins. Fidelity-Phenix Fire Co. v. Co., & City Bus 3 F. 2d Cir. 1925), the- (4th Transfer president corporation, who owned of the issued' 25% stock, and outstanding capital fire a. set bus owned by motor corporation on which he held The fire insurance mortgage. company to- compelled the fire to the pay corporation to be for credi used tors and stockholders other than the See Annota wrongdoer. tion, “Pire insurance corporate property affected by its intentional destruction aby officer, corporate employee- stockholder,” 37 A. L. R. 3d 1385 (1971). In another a husband and situation wife owned property as tenants entirety had fire insurance covering the property. husband intentionally set fire to the property and then suicide. committed It was held that his act arson not did bar the innocent wife’s recovery under the fire insurance- J.N. Casualty v. Ohio Ins. Howell
policy. 1974). (App. pay contracted to company When the insurance to any due monetary damages innocent person a criminal when ascribable to insured, such payment thereof does event should be so the benefit made long end, justifiable In enure to the assured. furtherance of under just circumstances is equitable most insurer be for the payment indemnified the insured per the insurer injured party. subrogating reimbursed for its may so that the insurer rights son’s to the injured person, pub of the insured’s debt payment adhere, lic to which we the assured may policy principle not be relieved of financial out of responsibility arising *7 act, of its con criminal is honored. The insurer’s discharge an third innocent obligations payment tractual to interest the will further the in person public compensating Co., N. 383, Burd v. Sussex Mutual Ins. 56 J. victim. See 398 (1970). its is consonant with tradi
This of subrogation application mechanism force the ultimate as an to usage equitable tional the who in con of an obligation by good satisfaction St., & B. Auto See A. Stores Jones science should pay. Newark, 5, George N. J. 23 M. Brewster (1971); 59 Inc. N. & J. 28 Catalytic Const. Son Cramer, N. J. Eq. Camden Trust Co. v. & A. (E. the the Justice Ueher described follow 1945), principle manner: ing ' Subrogation purely equitable origin nature, is a doctrine o£ and cognizance although right is now it is considered as within the equity, it is an it of law certain circumstances. Since courts equities; subject governing and axiomatic that it is is to the rules it inequitable so would be to do. It will not be enforced where it will injustice having equal superior or to others to work not be allowed upon subrogation equity right equities. must founded — general principles equity according just and reasonable parties justice accomplish complete to the contro- between the will ** * adopted compel by equity Subrogation versy. a device is discharge obligation by good
ultimate of an him who in conscience ought pay process analogous [citation it. omitted] is to the trust, compelled being creation of a constructive the creditor to hold rights against principal debtor, securities, bis trust subrogee. [Id. for the 264] at Cleaver, In Bater v. L. 114 N. J. & A. 1935), (E. Justice Heher also stated: remedy highly It is a which is are inclined favored. The courts formerly Although principle. rather to extend than to restrict sureties, right principals was limited to transactions between application. very expansive, broad and It is now has a liberal gen- longer suretyship; become more is no confined cases it has application, being principle cir- modified to meet eral in its [Id. 353] cumstances of individual case. most often subrogation held
In the casualty indemnified insured who has found when insurer to any rights subrogated loss is damage In the absence a third party. have may against insured twice and be would collect insured either the subrogation or, if the insured were not entitled enriched, unjustly free. would go third recovery, party wrongdoer double Pellecchia, N. Accident Ins. Co. v. Standard . (1954) from their been to recover Insurers also permitted have has declared that subro right insureds. Appleman “[t]he indemnification where sought or more called properly gation, where it would be in insured, its own enforced from *8 remedy.” such Appleman, supra to equitable deny in Malanga at 461 The same was thought expressed (1973). Co., Cas. The Ins. Manufacturers had issued a comprehensive defendant insurance company in to the named liability partnership, insurance policy terms individual sured. Under the the policy partners The excluded were also covered. coverage damages and in by from assault committed the resulting battery sured. a partner, Alfred committed an Malanga, assault The business. course of the partnership
and the battery the partner third recovered verdict injured against party sought the judgment, having paid The ship. partnership, con The court company. the insurance reimbursement from and the insurance covered cluded the was partnership that How the partnership. to reimburse was obligated company should Alfred not course, Malanga ever, it was held "[o]f this case. The our determination individually by benefit under its right the insurer defendant liability issue of Id. 230.3 affected.” in any way not subrogation is Here comprehensive liability insurance general the insurance clearly and policy expressly obligated plaintiff which on behalf those sums Satkin pay Satkin’s company personal indebted to because legally pay damages death of Perez. The injury Marilyn Ortega plain tiff from escape insurance and should not cannot company were due to duty on that ground damages criminal Satkin should receive However, assured’s act. n payment be entitled the benefit the insurer’s should that end. right subrogation accomplish insurer’s affirmed. judgment J., I concur in result concurring. reached Pashman, majority. conclusion is sound that where policy facially provides for an coverage insured intentional such should wrongdoer, extend to an with insurer party, third be- subsequently to the the third ing subrogated rights party the in- against out, As Schreiber sound aptly points sured. Justice public 3Miller & Dobrin Furniture Inc. v. Camden Fire Ins. Co. Ass’n, (Law 1959), N. J. held where an of ficer, director, corporation’s stockholder set fire furni 50% store, recovery ture on the would be denied. The court relied theory partner on innocent that an recover on an cannot insur wilfully partnership property copartner. ance burned principle recovery pre is unsound and should not We believe wrongdoer provided as a result does not cluded benefit. *9 policy is reimbursed, furthered where so are parties as no long benefit is received by the tortfeasor. concur- My rence is based on over the uneasiness whether majority opin- ion demonstrates under the defini- coverage policy, given tion of "occurrence.” My conclusion that there is coverage is in spite that definition. terms of exists if the insured
By coverage the policy, "occurrence,” de- liable arising out damages fined "an in . . . which bodily injury results accident neither nor intended from property damage expected I standpoint insured.” find because Satkin not did under a defini- intend decedent injure proper tion of that term. major
The Di with this ease is problem Appellate vision selected an er improper intent, standard of and then roneously applied that standard. The fol Appellate Division Cameron, Hanover lowed N. J. Group 51, 61 Super. Div. in (Ch. 1973), the definition adopting Restatement, in 2d, intent as used Torts 8A § N. (App. 1977). Intent. 8A. § throughout “intent” word is used the Restatement of this Sub- ject consequences to denote that the actor desires to of his cause act, substantially consequences or that he believes cer- are from tain to result it. Re- also following part Division cited Appellate
statement, 8A, 2d, Torts comment b: substantially consequences certain or If the actor knows that act, ahead, certain, goes treated to result from still he produce the result. as if had fact desired to law he definition proper were indeed a
If I believed that insurance, conclusion my intent context of from arson Satkin’s injuries resulting would be that under occurrence this policy. were intentional and wood a fire an old multi-storied who starts Surely, one *10 stairwell, frame a.m., 3 main building directly at under the to be inhabitants, of held warning any without should be substantially certain that would some these persons seriously injured or killed. Division’s con- Appellate The clusion that Satkin’s not meet standard objective act did of intent in the Restatement inherent strains credulity.
Moreover, as trial court found a fact that matter of the. act, Satkin could not in his mind, have said he did as this all out; a fire “[TJhey’ll get there’s ad- judge The escape.” ded that logical, I' It is nor can draw a inference this reasonable that thought. what said or is he this is what he opinion consequence logical I am and that the natural his act is what we resulted and what I think have was before us. (cid:127)— — case, strictly on its facts on facts different than merely room the man who firecracker in a throws a and intends scare. particular I think this case and to that ex turns on these facts [Lyons Lyons
tent, v. I find in that he meets the test set forth Super. 1973)], Group, (App. Insurance Div. 125 J. 239 N. Hartford judgment is, is to intended act the intended of an that result plaintiff. [sic] entered behalf certainty with knew substantial Satkin finding amply sup- his tenants is injure that his would act arson v. State evidence, is unassailable under ported by Johnson, 146, principled Under J. 161-162 Di- standard, Appellate Restatement application affirm the do but denial vision could nothing trial. a defini
However, I Restatement standard reject the really no insurance field. It liability tion of intent natural tortfeasor different from rule intends which acts, of his a standard and probable consequences cases. roundly liability insurance rejected has been Toal, N. W. Insurance Co. v. 244 Continental Western See Lumbermens Mutual 121, 1976); 125 (Minn. 2d Blackburn, Grange 62, 1970); 66 v. P. 2d (Okl. Co. Thomas, 158, Mutual Cas. Co. v. So. 159 (Fla. App. 2d Cloud Ins. 248 So. 2d 1974); Shelby Mutual (Fla. App. 1971). cases standard proper of intent Insurance Group, announced Lyons Hartford
N. J. N. certif. den. (App. 1973), 322 (1974), as whether result injury was the intended of an intentional act. officer Lyons, off-duty police whose conduct after a bout caused him to be drinking long assaulted, shot and he killed man. He merely claimed that wanted to fire a shot warning the revolver went off prematurely. *11 The had clause which exclusion cov- prevented (for an or
erage injury intended expected from stand- point of the insured. The injected Division this Appellate clause into time, the case for the first and reversed the trial court’s dismissal of declaratory the insured’s ac- judgment concerning tion coverage. Appellate Division The used to test determine following coverage: Thus, the distinction between intended and results unintended recognized. apply intentional is well acts not The trial did court principle. holding opinion The oral can below be construed Lyons specific any if intended fire to to without intent cause bodily harm, coverage principle death or is at did exist. Such a Lyons is, war with if discussed here. authorities The short of it Berger coverage. intended maim kill no If his intent or he unintentionally was, shot, says, warning fired as he to fire a but he prematurely, coverage exists. [Lyons v. Insurance Hartford Group, supra 247] at Under Satlcm with intent to Lyons, charged injure should if desire. This is the subjective that was his only tenants Since one standard for insurance cases. correct liability protect injured parties, of such insurance is to third purpose between insurer actor liability culpable it is the risk party place third innocent better insurer where injure loss with the intent is unclear. Moreover, I standard which advocate is the prevailing one. injury damage generally is “caused courts have held that injury
intentionally”
meaning
an “intentional
exclusion
within
specific
to cause
intent
clause” if the insured has acted with the
party,
insurer will not be
harm to a third
the result that
with
containing
obligations
liability policy
such
relieved of its
under
specific
has acted with such
intent.
an exclusion unless the insured
intentional,
view,
insured’s
is not sufficient that
Under this
per-
wrongful,
a third
harm to
act has resulted
unintended
albeit
;
exclusion
intended before the
the harm itself that must be
son it is
authority
proposition
apply.
is, however,
for the
some
will
There
operate
insurer of its
to relieve
such a clause will
duty
indemnify
harm
has caused
intentional act
an insured whose
act is such
the nature or character
a third
where
thereby
of law.
matter
inferred as a
harm is
an intent to cause
Specific
“Liability
[Annotation,
Insurance:
Injury
Liability
Inten
Exclusion
tionally
Insured,”
A. L.
3d
R.
Caused
(1965),
Am.
see also 44
at
§
n. 5
§
Jur. 2d
53-55 at 801-
772 n.
S. Insurance
C. J.
802;
omitted]
footnote
Lumber
view is
majority
for the
decision
leading
Blackburn,
where the
supra,
Co.
Mutual Insurance
mens
object
a hard
throwing
intentional
held that
Court
not within
was
son,
plaintiff,
which injured
insured’s
no injury
found that
trial court
where the
exclusion
Webber,
Minn.
In Caspersen
intended.
actually
*12
an in
also held that
the court
93,
Although permit as a Co. v. law, matter of see Western Insurance Continental Toal, 125-126, 244 N. W. such cases supra, all nearly 2d at have A. L. R. involved act. See analogous assault or some 3d 4b An example 1245 and supra, supplement. Farm, this view J. Super. is found Oakes v. State (App. 1975). liability jury guilty expressly In the trial found Oakes was that which, battery here, of assault under the court’s instruction injure Appleton. amounted to a determination intended that Oakes coverage permit It follows Indeed is excluded. Malanga battery against public policy. an assault and would See N. Ins. Cas. Manufacturers is thus assault, not of an Satkin’s act was in the nature controlled these cases. Eor a tortfeasor with injure to be intent for charged rule insurance purposes liability policy, majority requires that he have an subjective injure actual desire to It is rule harmonized party. apparent cannot be with the I fully Restatement test. with the agree prevailing view that negligence standards do not foreseeability govern the law of liability insurance exclusions. If subjective intent to injure is then Satkin necessary, lacked intent. Division result Appellate reached a with the keeping rule, but also majority endorsed definition of intent which If would rule. normal probably negate tort/negligence standards of in the context foreseeability inappropriate Restatement, then insurance Torts coverage, similarly 2d definition of intent unsuited for this area. act purpose The whole behind Satkin’s of arson was to defraud the obtain company payment never the value He desired that his tenants property. of his *13 he certainly displayed suffer or death. While injury to see he did want safety, callous for their disregard Thus, “expect did not by them harmed his act. Satkin sense in the subjective intend” the deaths of his tenants act excluded from the defini- is for his be required the caused injuries of He was covered for tion “occurrence.” but is also liable to insurer as act, despicable third injured party. subrogee here, opinion it my While issue need not be reached insured covering the so-called public policy against This his intentional torts should reexamined. here, theory exists where, subrogation so particularly way tortfeasor can in no from his inten- so that profit With the criminal sanction prospect tional act. wrongful liability civil spectre despite coverage facing there is little reason to which deny coverage any wrongdoer, the innocent party. protect would Justice Handler joins opinion. this dissenting. proceeds Clifford, By making available comprehensive insurance general victim a murder next-of-kin of compensate estate and fire, who the Court in an perished intentionally set achieving In way devised a reach the “deep pockets.” insured other majority remarkable obligates result inflicted bar property owners to the losses happened likewise merely criminal because that criminal doing on his so .carry liability property. specific disregarded provisions Court has consider- public policy well as long-established question law been turned on its thereby ations. The of insurance has I head. dissent. Perez others Marilyn
On and three May Ortega Place, died a fire Passaic. owner Washington Satkin, defendant convicted of Joseph the property, on an him with indictment felony-murder charging having *14 instituted against was caused the fire. Suit by occasioned damages Satkin for Ms. and injuries Perez’s next-of-kin. loss of her the fire the and resultant pecuniary Ambassador Insurance Satkin’s Company, carrier pieces on this and at least other forty-nine and Satkin refused to defend income-producing property, tests action denied This declaratory judgment coverage. in that regard. decision company’s face on the In Court reasons that coverage the finding and pay to defend of the policy company’s obligation contains on of its insured is “obviousthat policy behalf exclusion for the intentional wrongdoing, no insured’s an innocent an “to undertaking pay fact constitutes insured, due to of the monetary any liability damages wilful criminal from the insured’s whether or resulting 483-484; act,” ante at the public policy principle that for intentional wrongdoing insurance coverage against the injured carrier’s by payment vindicated enforcing be subrogated the insurer thereafter to permitting party On each the insured. rights to the person’s against supporting ground fails. reasoning not, Eirst, face, does coverage. provide forth the ante setting policy provisions, 481-482, much majority quoted only so of the insurance contract out an on the spells obligation part company on behalf of the Insured all sums “pay which the Insured shall become legally obligated pay because damages * * * [bodily injury property caused damage] * * *” occurrence (emphasis added). absent Conspicuously majority’s analysis, however, from the is any discussion of “occurrence,” the definition of which defines as * * * “an accident which results in bodily injury or property neither nor damage expected intended from the standpoint * * the insured *.”1 That not, the fire question complying request copy' 1In with the trial court’s of the Satkin, issued Ambassador counsel for the carrier failed accident, beyond word, under seems any meaning Nor is doubt question. bodily injury there any here The Restatement (Second) was “intended.” resulting Torts 8A (1965) provides throughout [t]he word “intend” of this sub- is used the Restatement ject consequences of his denote the actor desires to cause consequences substantially act, or that he cer- believes that (emphasis supplied). tain ta result from In- case, instant see Hanover definition Applying this Cameron, surance Group (Ch. *15 Satkin “intended” 1973), question there can be little that to cause the victim’s one of his bodily injuries. By burning rented at o’clock in the Sat- morning, houses three dwelling kin knew undoubtedly injuries substantially were certain to follow his intentional act. So while there is ex- specific no clusion for acts, the insured’s intentional neither is there for e. coverage See, Satkin’s satanic conduct in g., this case. Service, Chemlec Inc. v. Insurance Midwest Co. North of America, F. 763, 288 769 D. Supp. Wis. (W. 1968) (dicta) New (applying law) Jersey property “caused (injury by accident” means injury to not property wilfully or inten- page containing “definitionstherefore, to include the the trial policy. Likewise, court did not have the benefit of the entire coun presented argument sel have not based the definition of “occur argument inquired policy’s rence.” At oral we about definition “occurrence,” specifically requested and thereafter received policy. complete ignore While the Court chooses to the definition Ambassador, submitting section, policy, and counsel for after the full “disregard (inexplicably) policy that we asks forwarded” us — argument, properly I do not understand can after oral how we or (cid:127) —(cid:127) policy’s intelligently application decide this case without acc.ept part ,of I would so “occurrence.” as the record definition insuring agreement filed with us as contains the defini much of policy, 2.5-4(a), R. or terms elsewhere see tions of used attorneys opportunity present any very give least they might relating argument wish to the definition of as occurrence Carrara, 237, ; (1976) v. N. S. 69 J. 243 U. See Dresner to make. cf. State, 253, (1976), rev’d on other N. Y. v. 257 Trust Co. of 1505, 1, 2d grounds, L. Ed. 92 S. S. Ct. 52 431 U. tionally Anton inflicted but caused by negligence insured); York, & Fidelity 300, New Vt. Casualty Co. * ** A. 2d by caused accident” (1952) (“bodily injury the insured); does wilful acts include for coverage Co., v.Weis State Farm Auto 242 Minn. Mutual Insurance N. 64 W. 2d (1954) (where provided accident,” no coverage only injuries “caused where insured another car). drove into Even without resort to the definition “occur- — rence,” seems to me that same an accident meaning — resulting or unintended should unexpected damage ascribed that word in It should context. con- present vey such as would be within the meaning ordinarily expected — confines of the instrument here — in which it is used. dictionaries, find Consulting we “ n occurrence”defined “something place; takes esp.: something happens unexpectedly design” without New Third Int’l or “a (Webster’s Dictionary, 1971); or coming happening; any event, incident one especially that happens without being designed (Black’s or expected” Law ed., 1968). Indeed, rev. 4th Dictionary, common- sense of “occurrence” as interpretation being virtually syn- with onymous See, “accident” is case law. supported e. Deodato g., N. J. Super. Hartford 396, 402 (Law 1976) occurrence need not be (“an *16 event, sudden but be a as the may process, long as incident or event is not or designed expected”) (emphasis added); Rohde, see Truck Insurance Exchange also 49 Wash. 2d P. 465, 303 2d 659 (1956).
Second, even in if the can somehow read question be in to provide coverage insuring agreement, there is exclusion for the implied situation in which the insured “torches” residential This dwelling. exclusion implied is not on based public policy but on the expectancies of the par- Keeton, the to ties insurance contract. Professor Robert E. in Insurance Law 278-79, (1971) 5.3(a) explains the as theory follows: “implied phrase exception” in insurance ordi- as used law narily non-liability for not ex- refers a basis that is insurer’s implicit pressed anywhere in in contract but said the the is applies. agreement and which it nature of the the circumstances to denying implied exceptions examples re- the rules Common of are “friendly fires,” by covery losses caused under fire insurance for ordinary by deterioration for caused under marine insurance losses liability by goods vice, for losses insurance and under of or inherent intentionally by the caused insured. array implied exceptions recognized An examination of the whole implied law most losses which ex- insurance reveals that the explained ceptions apply can be as illustrations or the other of one First, ordinarily principles. do of two insurance contracts cover type regularly occurring in relation to an detriment of so economic enterprise regarded activity commonly it as cost or that is insured activity enterprise. Second, a risk of that rather than that is not fortuitous do not cover detriment
contracts economic person insured) (usually point from whose of view liability. For insurer’s is as the basis of the detriment asserted example, if caused a loss fortuitous in this sense is not person. Quite detriment” here the “economic plainly (liability from into not fortuitous money translated is damages) Satlrin; and it point tragedy, view the author of 'of insurer’s is his is detriment “asserted basis detri- whose To in fact liability.” suggest ment is Perez’s representative concerned with Ms. we for- entirely that as to the decedent this conflagration an essential skips That tuitous misses the point. approach first whether issue here is analysis. step in- for this wrongdoer be afforded instance coverage afforded, Satkin whether, if coverage tentional act and not insur- to his over can thereafter be made answer With- ance carrier application subrogation principles. whether, to, out even considering surely appears embraces majority’s analysis damages, punitive I hold that to this in- expectancies would parties were that intentional tort would be any surance contract from excluded coverage. *17 in sup Court asserted by But is the third ground — — dimension policy conclusion
port public law. The from established decision today’s plainly departs so violate it would public as a rule general Court concedes that or dam of a loss person to allow indemnification policy in violation of from his wilful resulting wrongding age is statute, criminal however that principle reasoning * * “* and is not benefited when inapplicable wrongdoer an third receives the protection by innocent afforded the insurance.” Ante 483. In of this proposition, at support Co. v. the Court relies on Fire Insurance Fidelity-Phenix Co., Queen Bus & F. City 2d 784 Cir. 1925) (4th Transfer Co., Howell v. Ohio Insurance Casualty Super. clearly distinguish Those cases are 1974). (App. whatsoever for the majority’s no support and afford able from the party recovering as in each the inasmuch position, of a fire insur beneficiary was an express carrier insurance Fire Fidelity-Phenix issued to the party. ance policy Co., Queen & City supra, Co. Bus Insurance Transfer express beneficiary corporation F. 2d at 785 (where when it can recover officer proceeds fire insurance policy, Howell burns covered intentionally property); corporation N. J. supra, Ohio Casualty of fire insurance beneficiary policy, wife is express (where when husband wife can recover proceeds covered These cases were burns property). a sound there judicial approach: decided and reflect rightly reason to prevent no unquestionably public per insurance protection fire obtaining against son from criminal third of the intentional acts of parties. consequences case, however, does not represent The instant attempt recover an intentional wrongdoer pro- a victim of issued to the victim ceeds of fire and accident the intentional criminal acts of coverage against providing a victim Rather, it involves effort to re- third parties. issued to an insured liability policy cover the proceeds for the providing coverage consequences (the wrongdoer) *18 New Jersey consistently recognized of actions. to of a public policy permit proceeds it would violate an insured the inno- issued to to paid intentional criminal conduct. cent victims of insured’s Co., N. J. Insurance Malanga v. Casualty Manufacturers indemnify 220, public policy of (1958) (violative an assault and bat- as a result of for loss incurred insured Casualty American Ruvolo v. tery insured); committed Co., of pub- violative would be 490, (1963) (it a loss incurred as lic an insured for indemnify result Lyons of killing); intentional Hartford (vio- 244-45 Div. 1973) N. J. Group, (App. for indemnification lative of to allow insurance public policy wrongdoing); of one’s intentional civil consequences N. J. Super. Casualty Farm & Oakes State Fire of public 1975) (violative (App. of an a result incurred as an insured for loss indemnify , and battery). assault from reason departing There is no offered persuasive That course cases. enunciated in the foregoing the doctrine in- of purposes loses of one guiding completely sight in- accidental rather wide distribution of than surance: prop- The result here is other insured tentional losses. incurred shoulder the are costs required erty owners named insured intentional misconduct result of the prin- Sound insurance property question. owner thereby offended. salutary policy and considerations ciples Division the Appellate judgment reverse I would no coverage. court’s trial determination reinstate JJ., result. concurring Handler, Pashman Hughes Justices Justice For affirmance —Chief Sul- and Handler —5. Pashman, livan, Schreiber trial court’s determina- and reinstatement reversal For tion: Justice Clieeord — 1.