The opinion of the court was delivered by
Dеfendants Mark Anthony Mascitelli (Mark), a minor, and his mother Brenda Mascitelli, individually and as guardian ad litem, appeal from the award of summary judgment favorable to plaintiff Prudential Property and Casualty Insurance Company (PRUPAC) in a declaratory judgment action. The Mascitellis’ cross-motion for summary judgment was denied, but this has not been appealed. PRUPAC sought in the action a determination that its homeowners policy issued to defendants James and Eileen Karlinski did not require it to defend or indemnify them and their minor son, James, Jr. (a named insured), against injuries sustained by Mark during an assertedly pre-arranged voluntary physical confrontation between 14-year old Mark and 13-year old James, Jr.
The appeal requires that we again explore the frequently visited but still unclearly charted area of liability coverage for intentional torts which produce unintended results. In doing so, we conclude that the PRUPAC summary judgment motion should have been denied bеcause the material factual issue of intent was not resolvable on the motion.
Pending at the time of the summary declaratory judgment award was a personal injury action brought by the Mascitellis against the Karlinskis. The Mascitellis’ complaint included counts for negligent and reckless conduct, but did not specifically allege intentional infliction of the broken hip suffered by Mark. The complaint also alleged that the Karlinskis negligently supervised James, Jr. Judgment for compensatory and punitive damages was sought. Summary judgment was granted tо PRUPAC excusing it from a duty to defend and indemnify as to “all claims” in the Mascitelli complaint.
The motion judge concluded from the depositions and interrogatory answers that “Karlinski instigated the fight and threw the first blow and started the fight. As far as I am concerned, it is intentional conduct and the coverage doesn’t apply.” He also concluded that a broken “leg” was not an extraordinary consequence of the fight. In fact, it was Mark’s hip which was broken, necessitating extensive surgical and rehabilitative treatment. The motion judge did not refer to or consider the possible effect in a declaratory action of the absence of an assertion in the underlying complaint that James, Jr. intended to cause Mark’s injury.
On appeal, the Mascitellis urge that factual issues precluded the determination on summary judgment that James, Jr. intended or expected to cause the bodily injury which Mark sustained. PRUPAC argues, in effect, that regardless of the absence of intentional tort allegations in the complaint, James, Jr.’s acts
We note first that the above-quoted policy exclusion of coverage for bodily injury which is expected or intended by the insured is valid and enforceable, Allstate Ins. Co. v. Malee, 104 N.J. 1,
One treatise suggests, “[I]f the resulting damages can be viewed as unintended by a fact finder the result constituted an ‘accident’ for purposes of the liability insurance policy; it is the quality of result rather than the quality of the cause that is controlling.” 7A J. Appleman, Insurance Law and Practice, § 4492.02, at 31 (Berdal. ed. 1979). Citing Hanover Ins. Co. v. Cameron, 122 N.J.Super. 51,
The word “intent" for purposes of tort law and for purposes of exclusionary clauses in insurance policies denotes that the actor desires to cause the consequences of his act or believes that consequences arе substantially certain to result from it. In order for an act to be intentional, its consequences must be substantially certain to result as opposed to the feature of wanton acts that the consequences be only probably certain to result; thus, a normal аctor’s conduct loses the character of intent and becomes mere recklessness.
Id. at 29.
Hanover has never been overruled, and has been frequently cited with favor in New Jersey and elsewhere, although its utilization of the Restatement (Second) of Torts § 8A (1965)
Notwithstanding frequent recognition of the Lyons and Hanover intent-of-the-insured approach in New Jersey opinions, however, there has also been recognition of the approach set forth in Oakes v. State Farm Fire & Casualty Co., 137 N.J.Super. 365, 368,
In Allstate Ins. Co. v. Schmitt, 238 N.J.Super. 619,
In Tal v. Franklin Mut. Ins. Co., 172 N.J.Super. 112,
Recently we again considered issues of coverage for unintended results of intentional acts, аnd concluded that in appropriate factual settings, such coverage is not necessarily exclud
Our review of New Jersey authorities satisfies us thаt, just as observed by Keeton and Widiss, it is difficult to ascertain a clear weight of authority on the subject of liability insurance coverage for unintended results of intentional acts. Differing combinations of variables, such as the language of the exclusion clause, the nature of the harm and its relationship to the intentional act, and the availability of relief to the injured party, appear to influence the extent to which our decisions have inquired, into the nature of the intent. Not surprisingly, an annotation on “Insurance-Intended оr Expected Injury,” Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured, 31 A.L.R.4th. 957, 975 (1981), seems to suggest a unanimity of view in New Jersey cases at one point, while citing one or more of the same casеs for varying views in other sections of the annotation. The wide range of decisions reviewed in that annotation tends to confirm the Keeton-Widiss evaluation.
Distilling the cited authorities, we hold that, when a coverage exclusion is expressed in terms of bodily injury expеcted or intended by the insured, and where the intentional act does not have an inherent probability of causing the degree of injury actually inflicted, a factual inquiry into actual intent of the actor to cause that injury is necessary.
We have reviewed the mоving and responding papers, and the depositions and interrogatory responses. Accepting as true the testimony and responses of James, Jr., as required in a
Acceptance of this version of the facts may offer some explanation for the omission of intentional tort language in the underlying complaint. It also presents a factual dispute on the issue whether Mаrk’s broken hip was expected or intended by James, Jr., based upon our interpretation of the New Jersey cases and the policy language.
In so ruling here, we endorse the Appleman suggestion that, “The ‘transaction as a whole’ test, rather than analyzing the constituent acts which make up the transaction, should be applied by a fact finder when determining whether the term
Finally, we observe that even if summary judgment for PRUPAC were warranted as to defense and indemnification for James, Jr., no version of facts asserted would provide a basis for any claim against defendants James Karlinski, Sr. and Eileen Karlinski other than for negligent supervision of James, Jr. It was plainly erroneous to deprive the tort plaintiffs of the benefits of coverage which should have been afforded to the Karlinskis as to this theory of liability.
Reversed and remanded for trial.
Notes
Surprisingly, the Karlinskis have not themselves participated and appealed in this matter, nor have they independently answered in the tort action, according to the briefs. The Mascitellis might ultimately have had their own litigable interest in the coverage issue, see In re Estate of Gardinier, 40 N.J. 261, 265,
125 N.J.Super. 239, 247,
Memories of earlier days prompt us to venture the probability that young teenagers today, no less than their forebears, are prone to engаge in mutually accepted tests of dominance and prowess, involving physical contact. These may take the form of one-on-one basketball or hockey match-ups, or king-of-the-hill assaults, or wrestling, or other forms of stressful encounter in which, physicality notwithstanding, there is no intent to cause more than passing discomfort. When such encounters produce injury, the trier of fact, rather than a summary judgment motion judge, is in the better position to make the evaluation. Insurance carriers may minimize litigation of such issues by amplification of the exclusionary clause beyond the "intended or expected” verbiage.
We are not unaware that the coverage exclusion issues here considered are being raised in an appeal by a party whose status as an "innocеnt injured third person” (see Ambassador, supra, 76 N.J. at 484,