Prudential Property & Cas. Ins. Co. v. Boylan

• Decision Date: 22 January 1998
• Citation: 307 N.J.Super. 162,704 A.2d 597
• Parties: PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, a New Jersey Corporation, Plaintiff-Appellant, v. James BOYLAN, Linda Boylan, Ryan Boylan, Minnie Hz, an infant by her parents and natural guardians Roger Hz and Edna Hz, and Roger Hz and Edna Hz, 1 individually, Defendants-Respondents. MINNIE Hz, an infant by her parent and natural guardian, Roger Hz, and Roger Hz individually and Edna Hz, Plaintiffs, v. James BOYLAN, Linda Boylan and Ryan Boylan Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 162

307 N.J.Super. 162

704 A.2d 597

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, a New

Jersey Corporation, Plaintiff-Appellant, v. James BOYLAN, Linda Boylan, Ryan Boylan, Minnie Hz, an

infant by her parents and natural guardians Roger

Hz and Edna Hz, and Roger Hz and Edna

Hz, ¹

individually,

Defendants-Respondents.

MINNIE Hz, an infant by her parent and natural guardian, Roger Hz, and Roger Hz individually and Edna Hz, Plaintiffs, v. James BOYLAN, Linda Boylan and Ryan Boylan Defendants.

Superior Court of New Jersey Appellate Division.

Argued Dec. 1, 1997.

Decided Jan. 22, 1998.

Richard L. Marcickiewicz, Denville, for plaintiff-appellant (Sears, Sweeney & Marcickiewicz, attorneys; Mr. Marcickiewicz, of counsel and on the brief).

Andrew A. Gioia, Lake Hopatcong, for defendants-respondents Minnie Hz, Roger Hz, and Edna Hz.

David J. Marx, Jr., Denville, for defendants-respondents James and Linda Boylan.

No brief was filed on behalf of respondent Ryan Boylan.

Before Judges PETRELLA, SKILLMAN and EICHEN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

Prudential Property and Casualty Insurance Company (Prudential) appeals ² from the denial of its motion for summary judgment which sought a declaration that it was not obligated to indemnify or defend the Boylan defendants under their homeowner's insurance policy against claims asserted by the Hz's that the Boylans' fifteen year old son Ryan had sexually assaulted their five year old daughter while he was babysitting for them. Prudential also appeals the grant of the Boylans' cross-motion for summary judgment declaring that Prudential's policy of insurance afforded coverage for the claims of the Hz's, as well as the denial of its motion for an order for release of the juvenile records of Ryan and the order granting counsel fees to the Boylans.

The motion judge ruled that Prudential's homeowners policy provided coverage to James and Linda Boylan and that the policy's business pursuits exception did not apply because this was a "one-time only, casual accommodation to babysit in an emergency." The judge also ruled that the insurance policy covered fifteen year old Ryan Boylan as a matter of law because he was deemed to lack the requisite intent or mental capacity to understand the nature of his acts. There was no evidentiary hearing on that issue. Although Ryan entered a guilty plea in the juvenile proceeding in the Family Part, the judge denied Prudential's application to have access to Ryan Boylan's juvenile court records. Finally, the judge denied Prudential's request to stay the trial pending this appeal ³.

On June 26, 1992, Mr. and Mrs. Hz were invited to a surprise party and arranged for their five year old daughter and her little brother to be watched by a babysitter. Mrs. Hz testified that when her babysitter had an emergency and had to leave she called the Boylan house and Ryan Boylan told her that his mother was not home, although apparently his father was. Then Mrs. Hz contacted Mrs. Boylan at work to arrange for babysitting for the balance of that evening. Mrs. Hz testified that Mrs. Boylan told her to bring her children to the Boylans' house and Ryan would watch them until she came home about an hour later. Mrs. Hz took Minnie and her little brother to the Boylans' house.

After Minnie, her brother and the Boylan children played some games they went upstairs to go to bed. Minnie was taken to a bedroom to go to sleep, but Ryan Boylan thereafter had the five year old girl perform an act of oral sex on him. Ryan Boylan admitted in subsequent juvenile court proceedings to sexually molesting the girl.

Mrs. Hz testified that prior to June 1992, Mrs. Boylan quite frequently had provided babysitting services for the Hz children at a fee. Mrs. Boylan was Minnie's primary child care source, spending up to eight hours a day with her since she was six or seven months old.

However, Mrs. Hz testified that on this particular occasion Mrs. Boylan was watching her children "as a favor" because of the emergency. Although Mrs. Boylan did not ask for any compensation either before or after watching the Hz children, Mrs. Hz gave Mrs. Boylan $28 to split between herself and Ryan.

I.

We employ the same standard that governs trial courts in reviewing summary judgment orders. Antheunisse v. Tiffany & Co., Inc., 229 N.J.Super. 399, 402, 551 A.2d 1006 (App.Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989). See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539-540, 666 A.2d 146 (1995). Thus, the movant must show that there does not exist a "genuine issue" as to a material fact and not simply one "of an insubstantial nature"; a non-movant will be unsuccessful "merely by pointing to any fact in dispute." Id. at 529-530, 666 A.2d 146.

Prudential's homeowner's policy contains the following exclusion:

Exclusions

1. Coverage E--Personal Liability and Coverage F--Medical Payments to Others do not apply to bodily injury or property damage:

a. which is expected or intended by the insured ...

Defendants argue that we should declare the law in New Jersey to be that in cases where a minor sexually abuses a much younger child it is the minor's subjective intent that should apply, rather than the objective intent standard that would apply to adults. Accordingly, the Hz's (as well as the Boylans) suggest that Ryan did not act intentionally, and therefore, the homeowner's insurance provides coverage for claims of negligence against the minor as well as against the parents arising out of the incident.

Although there may be some basis for considering a minor's subjective intent in other areas of the law involving negligence by minors with respect to sporting events and the like, or where the minors are friends and of the same relative age, we reject the subjective intent argument here. Whether or not N.J.S.A. 2C:4-11a(1) creates a presumption of maturity for an individual over the age of fourteen, it is manifest that this fifteen year old boy knew what he was doing to this five year old girl.

The record is adequate to demonstrate that Ryan, under any standard, did what he did intentionally, and hence, there is no insurance coverage as to him.

Under N.J.S.A. 2C:4-11, an individual of fourteen and above is presumed capable of understanding that he committed a wrong. That the victim's pleadings in a civil case contained counts that sounded in negligence, even if in an attempt to implicate insurance coverage, does nothing to change the result here. The acts were clearly intentional. Brill v. Guardian Life Ins. Co. of America, supra, 142 N.J. 520, 666 A.2d 146.

We reject any argument that a purported exception in Atlantic Employers Ins. Co. v. Tots & Toddlers Pre-School Day Care Center, Inc., 239 N.J.Super. 276, 283, 571 A.2d 300 (App.Div.) certif. denied, 122 N.J. 147, 584 A.2d 218 (1990), would somehow excuse Ryan as "mentally incapacitated" because he was fourteen or fifteen years of age. As noted in Atlantic Employers, it is not necessary to a determination of coverage that the assured be charged with or convicted of any offense before a penal law exclusion or an intentional act exclusion can be applied. Id. at 282, 571 A.2d 300. The focus of the inquiry in deciding if there is a covered occurrence is whether the insured "expected or intended" the injury, not the act which caused the injury. Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 183, 607 A.2d 1255 (1992). Indeed, where, as here, the actions are "particularly reprehensible," an intent to injure can be presumed from the act without an inquiry into the actor's subjective intent. Id. at 184, 607 A.2d 1255. In our view, under the Atlantic Employers case, as well as Voorhees, supra, 128 N.J. 165, 607 A.2d 1255, reversal as to coverage for Ryan Boylan is mandated.

We are not persuaded by cases which rely on subjective intent reasoning, such as Allstate Ins. Co. v. Patterson, 904 F.Supp. 1270, 1280-1283 (D.Utah 1995). In that case, which is clearly distinguishable, the oldest of the three older boys was accused of sexually abusing two younger boys not yet fourteen years of age. All of the boys were friends. The Utah statute provided a presumption that those fourteen and older had the same capacity as adults to understand the consequences of their actions. Id. at 1285. The Patterson court stated that it was not determining that there was coverage, only that there was a "possibility of coverage for the acts of the juvenile insureds (slim though it may be)." Id. at 1287.

It is clear that what occurred here was neither negligent nor accidental. Accordingly, there is no coverage for Ryan under the homeowner's policy. See S.L. Industries v. American Motorists Ins. Co., 128 N.J. 188, 212, 607 A.2d 1266 (1992); Voorhees, supra, 128 N.J. at 184, 607 A.2d 1255.

In summary, the trial court erred in granting summary judgement to Ryan Boylan. As a matter of law, Ryan Boylan, age 15, intended to injure Minnie Hz when he sexually molested her, and therefore, is excluded from coverage under the homeowner's insurance policy.

II.

We turn next to whether Prudential's policy provides coverage to the parents of the minor here. Clearly, no "expected or intended act" of the parents has been asserted. Hence, no bar to coverage would arise on that basis and the policy exclusion, quoted in Point I, does not apply. The allegations against the Boylans, which bring into focus the policy provisions, The Ohio Cas. Ins. Co. v. Flanagin, 44 N.J. 504, 512, 210 A.2d 221 (1965); Storms Realty Co., Inc. v. New Amsterdam Cas. Co., 110 N.J.L. 538, 540, 166 A. 162 (E. & A.1933), are essentially negligence based, including negligent supervision. See, e.g., Property Cas. Co. of MCA v. Conway, 147 N.J. 322, 330, 687 A.2d 729 (1997).

The exclusion in Boylan's homeowner policy as to this point reads in pertinent part:

1. Coverage E--Personal Liability and Coverage F--Medical Payments to Others do not...