Murnane v. Mortimer

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM.
• Decision Date: 23 February 2022
• Docket Number: A-0375-20
• Citation: Murnane v. Mortimer, A-0375-20 (N.J. Super. App. Div. Feb 23, 2022)
• Parties: NOAH MURNANE (a minor), and MELISSA MURNANE and BRIAN MURNANE, guardians ad litem for NOAH MURNANE, Plaintiffs-Appellants, v. GREGORY MORTIMER, SAMANTHA WEIRBACK, and AMERICAN MODERN HOME INSURANCE COMPANY, Defendants, and GREGORY MORTIMER, and SAMANTHA WEIRBACK, Defendants/Third-Party Plaintiffs-Appellants, v. AMERICAN MODERN HOME INSURANCE COMPANY, Third-Party Defendant-Respondent.

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NOAH MURNANE (a minor), and MELISSA MURNANE and BRIAN MURNANE, guardians ad litem for NOAH MURNANE, Plaintiffs-Appellants, v. GREGORY MORTIMER, SAMANTHA WEIRBACK, and AMERICAN MODERN HOME INSURANCE COMPANY, Defendants, and GREGORY MORTIMER, and SAMANTHA WEIRBACK, Defendants/Third-Party Plaintiffs-Appellants, v. AMERICAN MODERN HOME INSURANCE COMPANY, Third-Party Defendant-Respondent.

No. A-0375-20

Superior Court of New Jersey, Appellate Division

February 23, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 20, 2021

On appeal from the Superior Court of New Jersey, Law Division Gloucester County, Docket No. L-1434-18.

Hoffman DiMuzio, attorneys for appellants (Michael C. Donio on the briefs).

Lindabury, McCormick, Estabrook & Cooper, PC, attorneys for respondent American Modern Home Insurance Company (Jay Lavroff and Steven Backfisch, on the brief).

Before Judges Fuentes, Gooden Brown, and Gummer.

PER CURIAM.

In this dog-bite case, plaintiff, as assignee of defendants'/third-party plaintiff's insurance-coverage claim, appeals an order granting the insurer's summary-judgment motion, denying defendants'/third-party plaintiffs' cross-motion for summary judgment, and dismissing with prejudice the third-party complaint. We agree with Judge Timothy W Chell's holding that defendants were not entitled to coverage because of the policy's business-pursuit exclusion, and, accordingly, we affirm.

I.

We glean these facts from the summary-judgment record, viewing them in the light most favorable to the party opposing summary judgment. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Melissa Murnane and Brian Murnane hired defendant/third-party plaintiff Samantha Weirback to provide after-school childcare for their son Noah, ^[1] who was then four-years old and in preschool, and their daughter Isabel, who was eight- or nine-years old, until the end of the school year. They paid her $400 every two weeks. Weirback generally would pick Noah up from preschool and bring him home to his mother's house, where she watched over him. Later in the day, she would pick Isabel up from school.

Weirback lived in an apartment with defendant/third-party plaintiff Gregory Mortimer and their dog. About six weeks after her employment began, defendant picked Noah up from school, but instead of taking him home to his mother's house, she took Noah to her apartment because she wanted to change her clothes. She removed her mail from her mailbox and brought Noah upstairs to her apartment. While she was looking through her mail, she heard a noise, turned around, and saw the dog lunging at Noah. Noah sustained serious injuries as a result of being bitten by the dog.

At the time of the dog bite, Mortimer and Weirback were insured under a renter's insurance policy issued by third-party defendant American Modern Home Insurance Company (American Modern). The policy provided liability and property coverage. The liability section of the policy stated: "We will pay all sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this policy applies." The liability section contained an exclusion for "bodily injury . . . arising out of business pursuits of any insured except . . . activities which are ordinarily incidental to non-business pursuits . . . ." The policy defines "[b]usiness" as including: "trade, a profession or occupation engaged in for compensation, and the rental or holding for rental of any part of any premises by an insured. Part time, self-employed activities by any insured under the age of 18, such as newspaper delivery, baby sitting or lawn care, are not business[es]."

As Noah's guardians ad litem, Melissa and Bryan filed on Noah's behalf a complaint, alleging Mortimer and Weirback were strictly liable under N.J.S.A. 4:19-16 for the damages Noah suffered as a result of the dog bite. They also included a direct claim against American Modern, alleging it had wrongfully denied coverage. The trial court subsequently granted American Modern's motion to dismiss that claim and Weirback's and Mortimer's motion for leave to file a third-party complaint against American Modern. In the third-party complaint, Weirback and Mortimer asserted they were entitled to coverage under the policy.

American Modern moved for summary judgment, arguing defendants/third-party plaintiffs were not entitled to coverage because at the time of the dog bite, Weirback "was engaged in her regular, continuous, and ongoing business of babysitting for Noah, for which she was being paid . . ." and, thus, fell under the business-pursuit exclusion. Weirback and Mortimer cross moved for summary judgment, conceding the policy's business-pursuit exclusion applied but contending Weirback "was not engaged in her activity as a babysitter, but was instead at her house only to change clothing" and, thus, the incidental-activities exception to the policy's business-pursuit exclusion applied.

After hearing oral argument, Judge Chell issued a written decision and order granting American Modern's motion, denying the cross-motion, and dismissing the third-party complaint with prejudice. Finding the facts of this case were similar to those in Carroll v. Boyce, 272 N.J.Super. 384 (App. Div. 1994), and rejecting Weirback's and Mortimer's argument that the incidental-activity exception applied, the judge held although Weirback

did not usually watch over the minor [p]laintiff at her residence, her supervision of the child, which is what she was being paid for, began as soon as she picked him up from school. The [c]ourt finds that the business of a babysitter is to care for the child. The [c]ourt finds that from the moment she picked up the minor [p]laintiff from school, she was in charge of caring for the child and protecting him from harm. As such, the [c]ourt finds that neither the location nor the type of injury is sufficient in this case to remove it from falling under the business pursuit [exclusion] in the insurance contract.

After obtaining an assignment of the coverage claim against American Modern and filing an amended complaint naming plaintiff as Mortimer's and Weirback's assignee in their third-party action against American Modern, plaintiff appealed, arguing the motion judge had erred in failing to apply the incidental-activity exception to the policy's business-pursuit exclusion and in relying on Carroll, 272 N.J.Super. 384.

II.

We review a grant of summary judgment de novo, using "the same standard that governs the motion judge's" decision. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018). "That standard mandates that summary judgment be granted 'if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). In our review, we owe "no special deference" to the trial court's legal analysis. RSI Bank, 234 N.J. at 472.

An interpretation of an insurance policy "turns on a purely legal question" and is subject to de novo review. Pickett ex rel. Est. of Pickett v. Moore's Lounge, 464 N.J.Super. 549, 554-55 (App. Div. 2020). "If the plain language of the policy is unambiguous, we will not engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased." Id. at 555 (quoting Templo, 224 N.J. at 200); see also Chubb...