Lyons v. Hartford Ins. Group

• Decision Date: 10 October 1973
• Parties: Jeremiah LYONS, Plaintiff-Appellant, v. HARTFORD INSURANCE GROUP, Defendant-Respondent, and Kathleen Berger, Administratrix ad Prosequendum of the Estate of Richard Berger, deceased, individually, and as Guardian ad Litem for Barbara Ann Berger, an infant, John Berger, an infant, Kathleen Berger, an infant, and Margaret Berger, an infant, Defendant-Appellant, and The City of Jersey City, the Friendly Sons of the Shillelagh and the Township of Madison, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 239

125 N.J.Super. 239

310 A.2d 485

Jeremiah LYONS, Plaintiff-Appellant, v. HARTFORD INSURANCE GROUP, Defendant-Respondent and Kathleen Berger, Administratrix ad Prosequendum of the Estate of Richard Berger, deceased, individually, and as Guardian ad Litem for Barbara Ann Berger, an infant, John Berger, an infant, Kathleen Berger, an infant, and Margaret Berger, an infant, Defendant-Appellant and The City of Jersey City, the Friendly Sons of the Shillelagh and the Township of Madison, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Sept. 17, 1973.

Decided Oct. 10, 1973.

[310 A.2d 486] Theodore A. Gardner, Jersey City, for plaintiff-appellant (Timothy K. Madden, Union City, Director, Hudson County Legal Services, atty.).

Eugene M. Purcell, Maplewood, for defendant-respondent.

Richard E. Brennan, Newark, for defendant-appellant (Shanley & Fisher, Orange, attys.).

Before Judges CONFORD, HANDLER and MEANOR.

The opinion of the court was delivered by

MEANOR, J.A.D.

Plaintiff here is defendant in a pending wrongful death action and is an insured under a homeowner's policy issued by defendant Hartford which declined to defend the death action on his behalf under its personal liability coverage. Plaintiff seeks by this declaratory judgment action judicial compulsion upon Hartford to defend and pay if necessary, and appeals from an adverse determination.

Plaintiff Lyons for over 20 years had been a Jersey City police officer. On May 15, 1971 he decided to attend an Irish feis ¹ being held at the Freehold Race Track. He went alone. There he consumed beer and struck up an acquaintance with one Ed Perry. At about 7 p.m. he accompanied the Perry family, first to a diner and then to the Shillelagh Club. Lyons consumed more beer. The Perrys left, but plaintiff remained, still drinking.

At approximately 3 a.m. Lyons was in front of the club's entrance when he heard a female voice refer to coffee. This was Kathleen Berger. Lyons invited himself on the coffee trip, anticipating a visit to a diner. He entered the Berger car and sat in the right rear next to the eventual decedent, Richard Berger, husband of Kathleen, the driver. 'Tiger' McFadden occupied the right front.

Instead of proceeding to a restaurant or diner, Mrs. Berger drove to Old Bridge and stopped at a private home. She rang the doorbell but did not obtain a response. Lyons then banged loudly on the door, which angered Mr. Berger.

In the car, with the occupants in the same positions, Richard Berger slapped plaintiff and McFadden punched him in the mouth, drawing blood. The car stopped and Berger and McFadden attempted to force plaintiff's exit, which he resisted. Mrs. Berger suggested that Lyons be returned to the Shillelagh Club parking lot where his car was parked, and drove there.

As plaintiff left the Berger vehicle he hurled an insulting remark at Berger and McFadden. He was walking toward his vehicle when he was struck from behind and knocked down. When down, he was again assaulted. He scrambled away, turned and drew his service revolver. He was facing the glare of the headlights of the Berger car. He saw two figures approaching him. Lyons fired, killing Berger. He insisted his intention was to fire a warning shot over the heads of his assailants but inadvertently the gun went off prematurely.

Plaintiff was the only witness at the trial in the Chancery Division. After his testimony, plaintiff rested and Hartford's motion to dismiss was granted.

Under our present practice, R. 4:37--2(b), the judicial function in assessing the sufficiency of proofs at the end of the plaintiff's case on a motion to dismiss is the same in nonjury as in jury cases. The test to be applied is well known. Dolson v. Anastasia, 55 N.J. 2, 5--6, 258 A.2d 706 (1969), and cases there cited. Prior to the 1969 rules revision, a trial judge sitting nonjury was permitted to make findings adverse to the plaintiff at the close of his proofs and dismiss even though a Prima facie case had been established. This is now no longer possible.

The trial judge did not apply the correct standard on the motion to dismiss. Instead of viewing the proofs from the point of accepting the plaintiff's testimony as true, giving him the benefit of all legitimate inferences therefrom and rejecting all unfavorable evidence and permissible conclusions, the trial judge proceeded to make findings of fact on the motion. He concluded that Lyons was drunk, a fact not admitted beyond plaintiff's statement that he was 'feeling the beer.' The judge also said: 'I do not attach credibility to his testimony that the discharge of the gun itself was an accident or premature.' Credibility should have played no part in the determination the court was then called upon to make.

It is obvious, however, that we should affirm if the judgment was correct though the reasoning in error. On the other hand, if there is any legitimate view of the proofs that would sustain a judgment for plaintiff, we must reverse. Assessing the evidence most favorably to Lyons, a factfinder could but would not be compelled to reach the following conclusions (see Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 126 A.2d 323 (1956)):

1. At the time of the shooting, Lyons was dazed from a combination of alcohol and beating;

2. He was in legitimate fear of grave bodily harm from his two assailants;

3. He drew his gun with an intent to fire a warning shot over their heads and without an intent to kill or inflict bodily harm;

4. Inadvertently the gun fired before he had raised it to the point where he intended to fire, causing Berger's death.

The coverage clauses pertinent are:

COVERAGE E--PERSONAL LIABILITY

This Company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * to which this insurance applies, caused by an occurrence * * *

EXCLUSIONS

This policy does not apply:

1. Under Coverage E--Personal Liability * * *

f. to bodily injury * * * which is either expected or intended from the standpoint of the insured * * *

ADDITIONAL DEFINITIONS

5. 'occurrence' means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury * * *

Unfortunately, the case was tried without reference to the exclusion clause. Hartford's position is that Lyons, under the circumstances, is not within its coverage since the shooting of Berger was not an 'occurrence' as that term is defined.

New Jersey public policy denies insurance indemnity for the civil consequences of one's own intentional wrongdoing. Malanga v. Manufacturers Cas. Ins. Co., 28 N.J 220, 225, 146 A.2d 105 (1958); Ruvolo v. American Cas. Co., 39 N.J. 490, 496, 189 A.2d 204 (1963). The exclusion here probably has no more effect than that which the law would imply in its absence. In any event, it is impossible for us to ignore the exclusion for it may be raised on remand and virtually all of the relevant reported decisions deal with such a clause or one of similar wording.

The general rule is that coverage exists under insuring and exclusion clauses identical or similar to the ones involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted. Thus, in Smith v. Moran, 61 Ill.App.2d 157, 209 N.E.2d 18 (App.Ct.1965), the insured, angry with one Dolores Nelson, fired multiple shots in her direction. The first shot struck Nelson; the second hit plaintiff, a co-employee of Nelson with whom the insured had no quarrel and who received a shot intended for Nelson. The policy excluded coverage for injury 'caused intentionally by or at the direction of the Insured.' Pointing out that injury to plaintiff was unintended and distinguishing between intentional acts and intended results, coverage was held to exist.

There are many decisions making this distinction, uniformly holding that there is coverage for unintended results. For example: Jackson v. Lajaunie, 253 So.2d 540 (La.Ct.App.1971) (plaintiff shot in chest during horseplay with gun aimed at him thought to contain blanks); Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687 (Sup.Ct.1963) (insured threw lighted firecracker into room with plaintiff inside intending to frighten but instead causing personal injury); Lumbermens Mut. I. Co., Mansfield, Ohio v. Blackburn, 477 P.2d 62 (Okl.Sup.Ct.1970) (rock thrown without intent to injure; court held that to preclude coverage there must be an intent to inflict the injury actually inflicted upon the person intended to be injured and not another; Smith v. Moran, Supra, cited with approval); Putman v. Zeluff, 372 Mich. 553, 127 N.W.2d 374 (Sup.Ct.1964) (boy in woods fearful of wild dogs fired warning shot at three dogs...